Brennan v Bedford Borough Council

An appeal from an Employment Tribunal lies only on a point of law. An appellate court will not re-evaluate medical or other evidence merely because it is challenged as unreliable. The tribunal of fact may accept expert evidence where its conclusion is reasonably open to it. A conclusion is susceptible to appellate intervention only if it is properly characterised as perverse or otherwise legally erroneous. The classification of a depressive illness and its effect on normal day-to-day activities involve evaluative clinical and factual judgments under the Disability Discrimination Act 1995.

Mr Brennan brought disability discrimination proceedings against his former employer, Bedford Borough Council. The Employment Tribunal held that he was not disabled within section 1 of the Disability Discrimination Act 1995, and dismissed that part of his claim. The Employment Appeal Tribunal dismissed his appeal. Mr Brennan sought permission to appeal, alleging that the tribunal had erred in law by relying on unreliable psychiatric evidence, and raising issues concerning the effect of his depression, medication, and alleged undisclosed medical material.

The central issue was whether any arguable error of law, including perversity, had been shown.

1. Application refused. Permission to appeal was refused because no arguable error of law had been identified in the Employment Tribunal’s decision.
2. An appeal from an Employment Tribunal to the Employment Appeal Tribunal, and from the Employment Appeal Tribunal to the Court of Appeal, is confined to a point of law. The appellate court must respect the Employment Tribunal’s role as the fact-finding body.
3. The Employment Tribunal was entitled to accept the evidence of Professor Seager, an experienced psychiatrist, despite the applicant’s detailed criticisms of his report, his use of the WHO classification, and the medication prescribed to the applicant. The tribunal was required to make its own clinical and factual assessment of the symptoms and signs of abnormal functioning.
4. The tribunal’s conclusion that the depression was mild and did not have a substantial adverse effect on the applicant’s ability to carry out normal day-to-day activities was open to it. It could be challenged as a point of law only if it was properly described as perverse. The Employment Appeal Tribunal had carefully considered both the issue of disability and the issue of deduced effect, and its reasoning was persuasive.
5. The applicant’s proposed wider challenge concerning deduced effect did not make this case arguable. The Court of Appeal declined to undertake interlocutory discovery concerning an alleged medical report. Any relevant disclosure issue could be pursued before the Employment Tribunal in the ordinary way, and the material before the court did not establish fresh evidence warranting intervention.

• Court of Appeal (Civil Division): Permission to appeal from the Employment Appeal Tribunal was refused, [2002] EWCA Civ 639.
• Employment Appeal Tribunal: Appeal dismissed on 21 November 2001.
• Employment Tribunal: Held that the applicant was not disabled within section 1 of the Disability Discrimination Act 1995; that part of the claim was dismissed.