F v Cleveland Police Authority UKEAT/0586/11/JOJ

Subjects: Definition of Disability – Medical Evidence – Practice and procedure – Fresh evidence on appeal

C's disability discrimination claims were dismissed by the ET at a PHR. The ET had taken a view on C's credibility and in the absence of medical records did not accept that she had been prescribed anti-depressants over a seven year period. C appealed on numerous grounds and also sought to adduce fresh evidence in the form of the missing medical records. C succeeded and the case was remitted to the ET.

Facts

C was employed by the police as a civilian worker carrying out administrative duties. She was dismissed on grounds of alleged misconduct. At a PHR the ET took a view of C's credibility and, in the absence of medical records, did not accept her account that she was prescribed anti-depressants over a seven-year period from 1993. Consequently the ET concluded that although C had a mental impairment at times, which was recurrent, it was not long-term because no single episode lasted over 12 months. The ET held that her impairment had never had a substantial adverse effect on her. Although there were times when her abilities to carry out day-to-day activities were substantially affected, there was no adverse effect on any of the capacities listed in Schedule 1 to the DDA 1995. The ET therefore concluded that C was not disabled, and her disability discrimination claims (save for victimisation) failed. C appealed and applied to adduce fresh evidence on appeal (additional oral evidence and medical records for the period 1993-2001).

Held

C appealed on a number of grounds. She argued that the judge had wrongly concluded that her work activities were not normal day-to-day activities. C was claimed that taking an exam was a normal day-to-day activity. The EAT noted that although buying a car or a house was not a normal activity it was not a day-to-day one. However, this ground of appeal failed because the ET had rejected C's account of her impairment and had found that she was not affected. C also appealed the ET's decision, that she was not substantially affected by her mental impairment. She argued that this decision was perverse. This ground of appeal failed because it did not reach the very high threshold required to successfully challenge a decision on perversity grounds.

Finally, C asked for permission to submit new medical evidence. The EAT stressed that an application to adduce fresh evidence will only succeed in exceptional cases. The principles upon which fresh evidence will be admitted on appeal are well-established and are set out in para 8.2 of the EAT Practice Direction. They are as follows: firstly, the evidence could not have been obtained with reasonable diligence for use at the ET. Secondly, the evidence must be relevant and would probably have had an important influence on the hearing. Thirdly, it must be apparently credible. Parties are encouraged to apply initially to the ET for a review so that an application may be considered first by the ET which heard the case.

The EAT rejected C's application to adduce oral evidence from witnesses as she could, with reasonable diligence, have called them at the ET below. However, they accepted her application to adduce her medical records. C had pursued her full medical records with reasonable diligence; the failure to produce the full records lay with administration at her GP surgery. The documents were likely to have an important influence on the outcome of the hearing as their absence had served to undermine her credibility at the PHR and because the provisions of para 2(2) of Schedule 1 of the DDA 1995 may be engaged if the records revealed that she had been on medication as alleged. There was no dispute that the records were apparently credible in that they were produced by the appropriate medical practice. The case was remitted to the ET.

Comment

The case highlights the practical importance of ensuring that adequate medical evidence is available at PHR. As a point of interest, although the EAT dismissed C's perversity appeal, the EAT agreed with C's counsel that as a matter of law, the question of whether an impairment has a “substantial...adverse effect” is only applied to the ability to carry out normal day to day activities; it is not applied to the effect on one or more of the 8 capacities listed at para. 4(1) of Schedule 1 of the DDA 1995. Although there is no reference to these capacities in the EA 2010, it is still useful to note that the substantial adverse affect has to be on the day-to-day activities and not the claimant's abilities in isolation.

The full transcript is here: http://www.bailii.org/uk/cases/UKEAT/2012/0586_11_1403.html