Kapadia v London Borough of Lambeth

An appellate tribunal may substitute its own decision for that of an employment tribunal where, on the facts found, only one answer is legally possible and no further fact-finding is required. Otherwise, the case should be remitted to the tribunal responsible for findings of fact.

Under the Disability Discrimination Act 1995, disability may be established either by the actual substantial adverse effect of an impairment or by the effect which would have existed but for treatment. Unchallenged expert medical evidence cannot ordinarily be rejected merely because lay members formed a different impression of the claimant at a later date.

The claimant brought proceedings alleging disability discrimination. The Employment Tribunal considered as a preliminary issue whether he was disabled within the meaning of the Disability Discrimination Act 1995 in July 1997. By a majority, it concluded that his reactive depression had no more than a trivial effect on normal day-to-day activities.

The Employment Appeal Tribunal held that the Employment Tribunal had erred by disregarding relevant and uncontradicted medical evidence, including evidence concerning the effect of treatment. It substituted a finding that the claimant was disabled rather than remitting the case. The employer appealed, contending that remission was required because more than one conclusion remained possible.

1. The appeal was dismissed on the reasoning of Schiemann LJ, with whom Robert Walker LJ and Pill LJ agreed. The Employment Appeal Tribunal had power under section 35(1) of the Employment Tribunals Act 1996 either to exercise the powers of the Employment Tribunal or to remit the case.

2. The ordinary rule is that an appellate tribunal should remit where the conclusion may have been wrong or where further findings or investigation are required. The exception applies where, on the facts found, there could only be one answer to the relevant legal question. In that event the appellate tribunal may substitute the answer which the lower tribunal ought to have reached.

3. The claimant could establish disability under either of two limbs: that the impairment actually had a substantial adverse effect on normal day-to-day activities, or that it would have had that effect but for measures taken to treat or correct it. The relevant date was July 1997, not the claimant’s appearance before the Employment Tribunal in June 1998.

4. The expert evidence established a strong likelihood of serious mental breakdown and psychiatric treatment without the counselling being received. It was uncontradicted, its factual basis was not challenged, and no peculiar circumstance justified rejecting it. The Employment Tribunal therefore could not reasonably substitute its later lay impression of the claimant for the expert evidence. On the facts found, only the conclusion that the claimant was disabled was open, and remission would have served only to permit new evidence which had not been called.

5. Pill LJ additionally observed that, where a person consents to medical examination obtained by the opposing party, good practice ordinarily requires disclosure of the resulting report to that party. Those observations did not affect the outcome.

The judgment’s reasons state that the appeal should be dismissed. The concluding parenthetical states “Appeal allowed with costs”, which is inconsistent with the stated reasoning and the agreement of all three judges.

1. Court of Appeal (Civil Division) — dismissed the employer’s appeal, holding that the Employment Appeal Tribunal was entitled to substitute the legally necessary conclusion rather than remit the case.
2. Employment Appeal Tribunal — allowed the employee’s appeal from the Employment Tribunal, finding that the tribunal had erred in disregarding uncontradicted medical evidence and determining that the employee was disabled.
3. Employment Tribunal — by a majority, held that the employee was not disabled within the meaning of the Disability Discrimination Act 1995.