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Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Tenner v PricewaterhouseCoopers LLP [2011] NIIT 05877_09IT (23 June 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/05877_09IT.html
Cite as: [2011] NIIT 5877_9IT, [2011] NIIT 05877_09IT

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 5877/09

134/10

CLAIMANT: Colin Tenner

RESPONDENT: PricewaterhouseCoopers LLP

Certificate of Correction

In this decision issued on 23 June 2011.

On Page 1 under appearances ‘PWC Legal Department’ should read ‘PricewaterhouseCoopers Legal LLP’.

Chairman:

Date: June 2011

THE INDUSTRIAL TRIBUNALS

CASE REFS: 5877/09

134/10

CLAIMANT: Colin Tenner

RESPONDENT: PricewaterhouseCoopers LLP

DECISION

The unanimous decision of the tribunal is that the claimant’s claims of direct discrimination, associative disability discrimination, failure to make reasonable adjustments, and victimisation be dismissed.

Constitution of Tribunal:

Chairman: Mr D Buchanan

Members: Mr J Kinnear

Mr P McKenna

Appearances:

The claimant was represented by Mr D Stilitz, Queen’s Counsel, instructed by Fox Williams LLP, Solicitors.

The respondent was represented by Ms S McKie, Barrister-at-Law, instructed by PWC Legal Department.

1.	(i)	The claimant, Mr Colin Tenner, was formerly an equity partner with the respondent, PricewaterhouseCoopers LLP (‘PWC’), one of the leading national and international accountancy firms. His partnership with the firm was terminated on 27 February 2010. It is the events leading to that termination, and his alleged treatment by the firm, dating back to when he went off work because of work-related stress and depression on 10 September 2007, which give rise to the claims which he has made under the Disability Discrimination Act 1995, as amended by the Disability Discrimination Act 1995 (Amendment) Regulations (Northern Ireland) 2004.

	(ii)	In brief, the claimant alleges:-

(a) direct disability discrimination (relying on a hypothetical comparator);

(b) a failure to make reasonable adjustments;

(c) ‘associative’ discrimination on the basis of Coleman v Attridge Law, Case C-303/06 [2008] ICR 1128 (a decision of the European Court of Justice) and EBR Attridge Law LLP v Coleman (No 2) [2010] ICR 242. He claims that he was directly discriminated against and that there was a failure to make reasonable adjustments on the basis of his mother’s disability;

(d) victimisation, in that the respondent firm failed to award him performance pay for the financial year 2009 because he had instituted proceedings against it.

		Generally, sections 6A and 6B of the 1995 Act (as inserted by Regulation 6 of the 2004 Amendment Regulations) prohibit discrimination and harassment, and impose duties to make reasonable adjustments, in relation to partners in firms. We also record here that there is no claim of disability-related discrimination.

	(iii)	At a Case Management Discussion held on 19 November 2009 a Chairman of the Tribunals directed that a statement of the main factual and legal issues should be lodged with the Office of the Tribunals by 3 December 2009. This list of issues, which is extensive (albeit containing some overlap) is set out at Annex ‘A’ to this decision. At the start of the hearing, the respondent had conceded (on 31 March 2010) that the claimant had had a disability for the purposes of the 1995 Act from September 2007 onwards. This was diagnosed by his treating psychiatrist, Dr Miller, as severe depression, acute anxiety and chronic fatigue. On 10 March 2010 the respondent had conceded that the claimant’s mother, who had suffered a severe stroke, was also disabled for the purposes of the associative disability claim. The respondent also accepted that both the claimant and his mother continued to suffer from a disability until after the claimant was given notice of retirement.

2.	(i)	In order to determine this matter, the tribunal heard evidence from the witnesses set out at sub-paragraphs (ii) and (iii) below. It was also referred to literally voluminous documentary evidence. We take the opportunity to express our thanks to the respective counsel and solicitors for the thorough, meticulous and helpful way in which the proceedings were both presented and prepared for trial.

(ii)

The claimant gave evidence, along with the following witnesses on his behalf:-

Mr Brian Tenner (his brother);

Mr Sydney Reid (a close friend);

Mrs Lucia Tenner (his former wife); and

Dr Paul Miller (Consultant Psychiatrist)

(iii)

The following witnesses gave evidence for the respondent:-

Mr Paul Terrington, a partner in PWC based in Belfast. Mr Terrington is leader of the Advisory Line of Service in Northern Ireland and also leads the Northern Ireland consulting Practice (formerly Performance Improvement Consulting - ‘PIC’);

Mr Hugh Crossey (Managing Partner of PWC’s Northern Ireland Region);

Mr John Lowdon (Partner PWC Belfast);

Mr Jeff Thompson (Leader of the firm’s international consulting practice, but at the relevant time Leader of PWC’s consulting practice in the United Kingdom);

Ms Ann Cottis (Head of Partner Affairs PWC);

Ms Claire Bolton (a partner in PWC, and at the relevant time a member of its UK Supervisory Board); and

Dr John Sharkey (Consultant Psychiatrist)

	(iv)	We find the facts set out in the following paragraphs.

3.	(i)	The claimant, Mr Tenner, is a chartered accountant by profession. He has worked for the respondent for over 20 years, having joined it on 14 September 1987. During that time he has worked in the USA, mainland Britain , and latterly – from around September 1996 – in Belfast. He has had a long and successful career with the firm, as is shown by the fact that on 1 July 2006, he was admitted as an equity partner. He was supported and encouraged in the partner admission process by Mr Hugh Crossey, although by the time of these proceedings the latter had largely come to be seen as a bête noir or villain of the piece by the claimant. Although relations between the claimant and the respondent and its senior partners now seem to be characterised by a degree of bitterness and ill-feeling, the respondent has never sought to cast doubt on the claimant’s abilities or the rightness of the decision to admit him as a partner. Prior to, and subsequent to, his admission as a partner, he was consistently graded as an outstanding performer.

	(ii)	In Belfast, the claimant was based within Public Private Partnerships (‘PPP’) unit – a unit within Consulting in Northern Ireland. It is events within the respondent’s consultancy business with which we are here principally concerned. In brief, the activities of that unit involved the delivery and provision of advisory services in connexion with large-scale procurement projects, primarily for the public sector in Northern Ireland (and also in the Republic of Ireland).

	(iii)	The catalyst for the claimant’s difficulties with the respondent was ‘the BELB Project’ (the Belfast Education & Library Board Strategic Partnership Project). It is necessary to look at this in some detail. It forms the backdrop to subsequent events with which we are concerned, and the evidence which we have heard about it also has a bearing on the credibility of witnesses.

	(iv)	The claimant described the BELB Project in his witness statement. Its ‘objective … was to create a partnership between the public and private sectors that could modernise the whole of the educational estate in Belfast. The partnership was expected to last for around ten years and address a wide range of facilities such as libraries, nursery schools, primary schools, and post-primary schools as well as youth clubs and other community assets. The first phase of the project involved the construction of five post-primary schools with a capital value of over £100 million. The Project was being sponsored jointly by the Strategic Investment Board and the Belfast Education & Library Board. It was ground-breaking and innovative and had few, if any, precedents anywhere else.’ The Strategic Investment Board (‘SIB’) was the joint client, along with BELB, of PWC. The respondent had been appointed to provide a range of integrated advisory services to the project, including legal advice, design advice and facilities management advice. The claimant was the engagement leader, or lead advisor, on the project, providing advice on its development and procurement aspects. Mr Crossey, in his then role as senior advisory partner, was the engagement or assignment partner and served as such throughout the life of the project. He was the only equity partner involved in the project until the claimant was admitted as a partner on 1 July 2006 (the claimant’s admission as a partner therefore took place during the currency of the project).

4.	(i)	It is clear that the BELB Project was an extremely difficult and stressful one. This seems to have been generally accepted, albeit to varying degrees. Mr Crossey, for example, while acknowledging that the project was complex and difficult, thought that it was no more so than other difficult and challenging projects carried out by PWC. The claimant devoted an extremely large part of his time to the project. Indeed, it is his evidence that despite his requests to be taken off it, he was required by Mr Crossey to devote even greater amounts of time to it, and that this led to a breakdown in his mental health, ultimately causing him to go off on long-term sick leave in 2007. It is also his case that during the time he worked on the BELB Project, Mr Crossey, who had oversight of it, not only failed to support him, but in fact undermined him.

	(ii)	Apart from its inherent complexity, a variety of other factors led to difficulty on the BELB Project. It was running behind schedule, and very much over-budget. The lead role for the SIB was taken by one AB, and his personality and manner of working caused friction. AB had been a senior partner of PWC, who appears to have left under a cloud, and to have harboured something of a grudge against it. His conduct, at least insofar as the claimant was concerned, appears to have been confrontational, both in person and in correspondence. By way of examples, he sought to undo what had been previously agreed, and disputed the respondent’s fees after work had been carried out. While Mr Crossey did not generally experience difficulty with AB, and attributed the claimant’s problems with him to a clash of personalities (leading to accusations from the latter that he downplayed the difficulties) it is significant that in later e-mails of 21 August and 5 September 2007 he nonetheless described the project as ‘a very hostile environment’, ‘a volatile situation’, and ‘a very stressful environment’. It should, however, also be noted that an associate partner from Great Britain who took over the project after the onset of the claimant’s illness subsequently delivered it (on time, to a revised timetable) to the client’s satisfaction.

	(iii)	Turning to the specifics, relations on the BELB Project began to deteriorate seriously in March – August 2005. As early as 2 May 2005 the claimant e-mailed Mr Crossey offering to come off the project. He stated:-

“[AB] is in cloud cuckoo land and clearly has deficiencies on the listening and team-working fronts – any suggestions?

At a personal level I would be happy to come off this project if that is what is required to move it forward.”

		Later, on 16 January 2006, the claimant met with Mr Crossey and put forward his view that the respondent would be best disengaging from the BELB Project and in late July he informed the latter that he would leave PWC if he was not taken off the project or if his involvement were not dramatically scaled down. On 15 August 2007, Mr Terrington canvassed the issue of a replacement for the claimant with Mr Crossey, noting that ‘Colin clearly does not want to be there’. Earlier that year, in late Spring or early Summer, a PWC employee, Bronagh Keating had expressed concerns about the claimant’s health. Similar concerns were expressed by Mr Lowdon, a partner. In mid-August 2007 the claimant met Mr Crossey to discuss possible replacements on the project.

	(iv)	We find it significant that the respondent, at that time, was prepared to consider a replacement for the claimant on the project. However, the claimant declined the offer of one possible replacement, Kevin Magee, disputing the latter’s ability for the project. He also rejected Dave Bratty as a replacement, though it was Mr Bratty who ultimately took over and completed the project. The claimant accepted in cross-examination that there was no basis for his rejection of Mr Bratty. This offer of a replacement remained open to the claimant until he went off on sick leave, and it is difficult to understand why he declined the offer when given this opportunity if his health were being affected to the extent he suggested. When the claimant rejected suggested replacements for him, Mr Crossey did not overrule him and impose one. Mr Crossey did not see himself as having a power of veto. It seems to us that the claimant has underplayed his own role and autonomy as a equity partner.

	(v)	We also do not accept that Mr Crossey was unsupportive of the claimant in the period up to when he went off on sick leave, nor do we find that he undermined the claimant. The claimant had been admitted as an equity partner on 1 July 2006 during the currency of these difficulties. Mr Crossey was pleased with the claimant’s admission, for he had encouraged, supported, and sponsored his partnership application, notwithstanding the reservations of others in the firm. He had also previously supported him through the associate partner process. The claimant, it has to be said, was somewhat grudging in acknowledging any support from Mr Crossey. We find that, in general, Mr Crossey did not direct or instruct the claimant as to what he should do on the BELB Project and we reject the claimant’s evidence to the contrary. The claimant was the leader for the project, and had primary responsibility for it. We accept Mr Crossey’s evidence that the claimant referred to it as ‘his project’. However, Mr Crossey, as the oversight partner, clearly had concerns about the project going wrong, and the resulting impact of this on PWC’s business reputation. Generally, he made himself available as a sounding board for the claimant and was always ready to give advice. He also used his extensive contacts, especially in the education sphere, in an attempt to resolve issues. We accept his evidence that the claimant did not always want to hear the advice he was given and continued to run the project as he felt best. On one occasion, in late 2005, he instructed his team to ‘down tools’ without reference to Mr Crossey. This was hardly consistent with control by the latter.

	(vi)	When Mr Crossey did intervene, there was good reason for him doing so. On or around 12 January 2006, he agreed with AB that the claimant would work on site for three days a week for a period of five weeks (in fact this arrangement lasted several months). The claimant strongly objected to this, not having been consulted, or his agreement obtained, in advance. However, at that time the project was at crisis point, and the claimant was suggesting that the respondent should disengage from it. Mr Crossey acknowledged that the claimant had other commitments (he accepted that cover would be required for them) and that he probably would not consider this a satisfactory outcome, but stated (in an e-mail to the claimant of 12 January 2006) that ‘[a]s a firm we cannot simply allow this project to go wrong’. As far as Mr Crossey’s requirement of the claimant to work three days a week on the BELB Project is concerned, we do not consider it unreasonable. There was a business imperative for his actions and we do not consider that he deliberately or otherwise undermined the claimant. In any event, a member of PWC working on site was not an unusual state of affairs. Mr Terrington, for example, had spent two – three days per week on a project relating to Civil Service HR systems on a regular basis over a period of 18 months.

	(vii)	At a further meeting, on 3 September 2007, the claimant and Mr Crossey met with the SIB. At that meeting, which was a difficult one, AB became angry and insisted that the BELB Project be completed by November 2007. The claimant suggested that March 2008 was a more realistic deadline. Mr Crossey did not regard matters as black or white, but he did have concerns about progress on the work and the clients’ frustration. He stated that PWC would do everything it could to complete the project by November 2007. We do not accept that Mr Crossey undermined the claimant on this occasion. Although he agreed to the clients’ deadline of November 2007, he did this subject to certain assumptions, which he more than suspected the clients could not meet. The claimant had asked for Mr Crossey’s help and advice here. When Mr Crossey came up with a solution, the claimant rejected it. It was not the one he wanted.

	(viii)	Around that time, the claimant was due to compere a conference hosted PWC Consultancy Practice. This was to take place in Great Britain and the claimant had been looking forward to it as he saw it as a chance to raise his profile within the firm. However, Mr Crossey spoke to Jeff Thompson, at that time the overall head of PWC Consultancy Practice, and secured the claimant’s withdrawal as compere of the conference. Mr Thompson thanked the claimant for the work he had already put in and expressed the hope that he might be able to join the conference in its later stages. This incident was a source of great annoyance to the claimant and he felt he had been badly treated by Mr Crossey. However, we have to express some surprise at the claimant’s attitude here. He was by then an equity partner in the respondent’s business, there were serious issues to be urgently addressed on the BELB Project (for which he was responsible) yet he seemed to attach more importance to his attendance at a conference.

5.	(i)	On 4 September 2007 the claimant met with Mr Terrington and expressed unhappiness at the way he was being treated and his anger at Mr Crossey’s behaviour. The following day he met with both Mr Terrington and Mr Crossey and discussed the BELB Project and his unhappiness about it.

		On 7 September 2007 the claimant received an e-mail from one of the directors of the BELB Project, making it clear that it had to be completed by November 2007.

	(ii)	On 10 September 2007 the claimant went off work sick. The following day he e-mailed Mr Terrington to state that he had taken a week off to consider his position with the respondent. At this stage there was no reference to feeling unwell or to suffering from work-related stress. Attempts to engage with him by Mr Terrington and others in the firm came to nothing. Mr Terrington e-mailed him on 18 September 2007 asking what the up-to-date position was. The claimant replied on that date stating that he was still considering his position with the firm and whether or not to leave it. In this e-mail he also stated, for the first time, that he had not been feeling well. In a further e-mail to Mr Terrington, of 21 September 2007, he indicated that he had consulted his doctor who believed he was suffering from work-related stress, and who had signed him off work for a further period of two weeks. The respondent is criticised for not taking this indication that the claimant had work-related stress at face value, and is portrayed as having a generally unsympathetic attitude to staff illness. By way of example, when the claimant had been off work earlier in the year for a minor ailment unconnected to stress at work, Mr Crossey had sent an e-mail stating that someone should tell him that:-

“[r]eal partners don’t get sick”.

		Mr Crossey explained this in evidence as ‘light-hearted banter’, though in evidence accepted it was tactless, which is surely the more accurate description of his comment. However, at the end of the day we are not satisfied that anything turns on this, and in any event it is clear that when the claimant mentioned to Mr Terrington that he was suffering from stress, the latter suggested he should contact Partner Affairs who could provide advice and support with a view to getting him back to work.

	(iii)	On the medical front the claimant saw Dr Albert Ferrante, the respondent’s Chief Medical Officer, on 1 October 2007, and on 4 October 2007 the latter informed Partner Affairs that the claimant was clearly unfit to work and would remain so until December 2007. Subsequently, on 8 October 2007, the claimant began treatment with Dr Mitchell, a London-based clinical psychologist. In the period from late September 2007 to mid-December 2007 the claimant variously had separate meetings with Jean Harvey and Andrew Smith of Partner Affairs in which he complained of the lack of support he had received on the BELB Project, made similar complaints to Jeff Thompson, and asked for a meeting with Jean Harvey and Ann Cottis of Partner Affairs to discuss the way forward. In mid-November 2007 he updated Mr Terrington on his health in response to a query from the latter. At that stage there had been no discussion with his doctors about a return to work, though he suggested that it was unlikely he would be back to work before February/March 2008 ‘if at all’. We find it significant that the claimant, from this comparatively early stage, was indicating that he might not return to work.

	(iv)	Mr Terrington kept Mr Crossey informed of these developments by e-mail. In one of these e-mails, Jon Sibson (a London partner) is recorded as stating that the claimant ‘has lost the plot and is bonkers’. Mr Terrington (who accepted this was an insensitive comment) went onto say ‘I did not get drawn in other than to say he [the claimant] was clearly ill’. Mr Terrington and Mr Crossey also discussed the need for a ‘Plan B’. While the claimant’s interpretation of this is that even at this early stage of his illness, PWC had resolved to get rid of him, we have already referred to the indications from the claimant that he might not return to work at all. Mr Crossey also suggested that the Northern Ireland Leadership Team be informed of the position, and a formal cover plan until the end of March (when the claimant might be back) should be agreed. We are not therefore satisfied that this e-mail traffic provides evidence that the respondent had resolved to get rid of the claimant at an early stage. It indicates no more than that Mr Terrington and Mr Crossey were making contingency plans should the claimant not return. As Mr Terrington stated:-

“The reality of the situation was that we were trying to manage the business in the absence of any real contact from Colin or Partner Affairs.”

		This concern, and a professed concern on Mr Terrington’s part for the claimant’s health, which we accept was genuine, were not matters which were mutually exclusive.

6.	(i)	On 17 January 2008 the claimant had the first of what was a series of meetings with other senior personnel from the respondent firm. On that occasion he met, at his request, with Ann Cottis, Head of Partner Affairs. She was accompanied by Jean Harvey, who was also in Partner Affairs. The claimant complained of bullying by AB on the BELB Project, and of a lack of support from Hugh Crossey. Ms Cottis asked the claimant how he felt the matter would be resolved. He set out four elements which he saw as a potential way forward. These were that the respondent should recognise that there had been problems, that boundaries should be re-established, there should be an acknowledgement that the firm would do things differently in future, and that a different partner’s role should be found for the claimant. Ms Cottis indicated, however, that it was unlikely that the claimant would receive any apology from Mr Crossey.

	(ii)	Further meetings were arranged. One of these was to be in London and to involve Mr Terrington, and the claimant e-mailed the latter to tell him what had happened on 17 January. Mr Terrington and Mr Crossey (who he had in turn contacted) both responded in a positive way, stating that they were pleased to hear that the claimant was making good progress. The latter did, however, express the caveat that the proposed meeting ‘might be tricky, but my view is that while it will be good to hear everyone’s views the final decision rests in NI and not [L]ondon’. It is suggested, on the claimant’s behalf, that this remark is indicative of a desire on the part of Mr Crossey to remain in control of his future. However, it seems to us that Mr Crossey’s comments flowed from the fact that the claimant was a partner in the Belfast Office, that his absence had impacted on that office, and that any solution, to be workable, required the involvement of that office. It is also the case that Mr Crossey and Mr Terrington at that time felt that they were not being kept as fully aware of developments by Partner Affairs as they might have wished. At around that time there were also further discussions with Dave Batty, an associate partner/director from Great Britain who had taken over the BELB Project (which was by then partially completed) to see if he could remain in Northern Ireland to provide cover during the claimant’s absence. This cover was to be arranged on a short-term basis and was to be reviewed. Mr Batty was not brought to Belfast to replace the claimant. He ultimately left Northern Ireland at the end of February 2010, and no-one replaced him. His secondment was therefore never anything more than temporary.

	(iii)	By the Spring of 2008 the claimant had sufficiently recovered his health to be able to discuss a return to work, though as we shall see, it was of critical importance to him that there should be an investigation into the BELB Project, so that lessons could be learned and evaluated, in order to avoid any repetition of the difficulties he had faced. On 3 April 2008, the claimant again met with Ann Cottis. At that meeting he set out what he saw as the four key elements to bring about his successful return to the Belfast Office. These were:-

(i) a change in role whereby he could remain as a partner, but potentially work in a new role;

(ii) action to be taken in relation to the alleged bullying by the client;

(iii) new support structures to be put in place to help him to move forward; and

(iv) ‘some form of acknowledgement from Hugh [Crossey] that things had not been handled properly and that lessons had been learned or taken on board in order to prevent a recurrence’.

		These elements were to form the basis of a discussion which would take place a few days later, on 7 April 2008, when Ms Cottis would be accompanied by Jeff Thompson and Paul Terrington. Ms Cottis was keen not to dwell on the past, but rather wanted to focus on getting the claimant back to work. She felt the meeting to be held should concentrate on the first three elements as, in her view, the fourth might be difficult to achieve.

	(iv)	At the start of the meeting on 7 April 2008, the claimant went through a script which he had prepared in advance. Among other things, he indicated that he was feeling better and was well on the road to recovery, that he wanted to return to work – despite all that had happened to him he had enjoyed his years with PWC – and he was ready to re-engage and see if, working with the others, conditions would be created for his successful return to work within a period of a few months. He again reiterated the four issues or objectives he had previously canvassed with Ms Cottis at the meeting with her on 3 April 2008. Mr Thompson saw no difficulty in a change in the claimant’s role, and indicated that there were plenty of areas where he could get involved. In relation to the creation of a more supportive working environment, the claimant suggested that he should have a mentor in Great Britain and that Mr Terrington should become his appraisal partner. As far as bullying by the client was concerned, the claimant suggested that one approach would be to stop working for BELB. Mr Thompson, as the most senior person in the firm present, gave what the claimant saw as a limited apology for the difficulties he had experienced, but also emphasised that he saw the claimant getting back to work as being the key thing. It is clear to us, however, that the claimant wanted a full apology and he did not resile from that demand at any time before October 2008, when the redundancy process was initiated. Notwithstanding this, the claimant felt that the outcome of the meeting had been ‘reasonably positive’. Mr Terrington, for his part, also thought the meeting had been positive, but was concerned that the claimant appeared to be laying down conditions for a return to work. In particular, he saw the claimant as being ‘fixated’ on an apology from Mr Crossey, and his understanding was that the claimant wanted some form of public apology.

7.	(i)	On 17 April 2008, as a follow-up to the meeting of 7 April 2008 in London, the claimant met Mr Terrington at the latter’s Belfast home. There was discussion of new and different roles for the claimant outside the advisory and consulting part of the respondent’s business. This involved a number of short-term, project-based opportunities, though nothing firm or definite was agreed. This was because Mr Terrington saw this as being potentially the first of a series of discussions in the context of a phased return to work by the claimant. Unfortunately by October 2008 these opportunities had ceased to exist. However, the fact that they had been discussed in the context of a return to work plan does not mean that, of their own, they made up a distinct business case.

	(ii)	We are satisfied that this was a positive meeting, that Mr Terrington was acting in good faith and that he was keen to get the claimant back to work. He reassured the claimant that he had a future with PWC, that his absence would not be an issue for his career, and that he would be treated fairly. Mr Terrington did, however, indicated that it would be difficult, if not impossible, for the claimant to get an apology. Mr Terrington also asked the claimant to come back to him about interim roles, but the latter did not do so.

	(iii)	The claimant clearly felt that he had been badly treated by Mr Crossey, but the latter had a different perspective on the issue and appeared to be unwilling to concede that he had done anything wrong. From the claimant’s perspective the difficulty in obtaining an apology from Mr Crossey was reinforced when he met a fellow Belfast partner, who was then also his next door neighbour, John Lowdon, socially a few days later on 21 April 2008. According to the claimant, Mr Lowdon told him that Mr Crossey would never admit or acknowledge that he had done anything wrong. This was Mr Lowdon’s view – he was not passing a message from the respondent. The claimant told Mr Lowdon that he was still not sure about coming back. According to the claimant he had an emotional breakdown at the end of the evening, though this is not supported by the medical evidence, which contains no such reference.

	(iv)	The claimant’s conversation with Mr Lowdon came to Mr Terrington’s attention, and he e-mailed Hugh Crossey on 23 April 2008 (the day before a further meeting between the claimant and Jeff Thompson). Mr Terrington stated:-

“I cannot imagine that they would be foolish enough to offer him a role but maybe we would get a lucky break! He has been adamant to date that he wants to return to NI. Sadly I suspect Colin will just be an ongoing difficulty for us for the foreseeable future.”

		We do not interpret this as meaning that Mr Terrington had then formed a clear view that it would be better for everyone if the claimant left Northern Ireland, but he was obviously exasperated and irritated because the claimant was saying things to different people. He also began to believe that the claimant’s objective might be to get a London role.

	(v)	At meetings with Jeff Thompson and Ann Cottis, on 24 April 2008, in London and on 28 April 2008 in Belfast respectively, the claimant indicated to them that he was becoming increasingly concerned that he would be unable to return to work in Belfast because no-one seemed willing to accept that mistakes had been made. On 9 May, the claimant met with Mr Terrington at Starbucks to update him on recent developments and to explain what his current thinking was. In the course of this meeting he indicated that his health had deteriorated, and Mr Terrington had the impression that he had regressed. There were, however, discussions about working in Great Britain as part of a short-term strategy (the claimant had had discussions about this with Jeff Thompson and Jon Sibson, which he described as broadly positive) or working out of Dublin. There was also some discussion about the claimant’s intention of meeting with Mr Crossey. The claimant said that he was not sure what strategy to adopt and that he would also need to speak with his doctors given his recent setbacks. Overall we are left with the impression that at this stage the claimant was backing away from coming back to work.

8.	(i)	The claimant attributed the relapse in his health to the failure of the respondent to address those issues which had caused him concern. In this regard it is certainly clear that there was no enthusiasm on the part of PWC to address what was termed the ‘historic’ issues. Ms Cottis, who was responsible for Partner Affairs, consistently told the claimant that he should look forward and not dwell on the past.

	(ii)	There was no investigation of the BELB Project. However, it seems to us that the claimant had unrealistic expectations in this regard. There had only been one other complaint and Mr Batty, who took over from the claimant, had not raised any complaints. It is difficult to see how the respondent could have carried out any meaningful investigation into the conduct of staff of another autonomous organisation. Even if they had gone down this route there must have been a real possibility that any investigation would have been inconclusive and would not have assisted the claimant at all. There is no evidence that they would have carried out such an investigation had the claimant not been a disabled person.

	(iii)	No steps were taken by the respondent to ascertain if the claimant was disabled. It was only after he had started proceedings that the respondent sought the advice of Dr Sharkey. Furthermore, no approach was made to Mr Crossey by Partner Affairs to see if he was prepared to engage in any process with the claimant. As against this, it was clear to those involved on the respondent’s side that Mr Crossey did not see himself as being in any way to blame.

9	(i)	On 13 May 2008 the claimant e-mailed Mr Crossey with a view to arranging a meeting (‘a short chat’) later that week. On 14 May 2008 Mr Crossey e-mailed Jeff Thompson stating that he was not prepared to meet with the claimant until he had received confirmation from the firm’s medical advisors that the latter had ‘recovered and [was] fit for work’. He continued:-

“If he has relapsed and is still unwell, as implied by the latest notes from Ann (Cottis) and Paul Terrington, then I would be concerned that further meetings, at this time, would not be in his best interests. Clearly there is no problem in meeting with Colin if he is fully recovered and fit to return to work.

Additionally, it would be useful for us to agree with Ann what options we should discuss with Colin that are fair to him and would also minimise any possibility of a recurrence of his illness. I have a call out to Ann as well. I am not proposing to respond to Colin until Ann, you and I have had the opportunity to discuss.”

(ii)

Criticism is made of Mr Crossey for refusing to meet with the claimant. However, given the allegations the claimant was making against him, it was reasonable for Mr Crossey not to meet with him at that stage. This is particularly so, given that the claimant’s health appeared to be deteriorating.

Additionally, Mr Crossey did not realise, nor did anyone explain to him that engagement with the claimant might have been of assistance to the latter in helping with his recovery.

In any event, the claimant ultimately decided not to pursue the idea of a meeting, at least until he had received medical advice from his new treating psychiatrist, Dr Miller.

10.

(i)

Around this time (May 2008) e-mail traffic and other internal communications within PWC began to allude to the possibility of the claimant not coming back at all. On 15 May 2008 Jean Harvey, of Partner Affairs, e-mailed Dr Ferrante, PWC’s in-house medical adviser. In it she stated that:-

“[t]here now seems to be some doubt as to whether a role can be found for [the claimant] in London and Ann [Cottis] reckons he has an elderly mother in Northern Ireland which would make it difficult for him to move to London anyway.”

She continued:-

“A difficult one for me to handle so any steer from you would be welcome. Strictly between you and me I know it would solve all their problems if Colin were to decided not to return!”

The following day, in a further e-mail to the doctor, she stated:-

“There is no way that Hugh Crossey (and Ann et al) feel sympathetic to the situation which caused his illness and depression. He just isn’t going to get the apology he is seeking.”

(ii)

This e-mail appears to be indicative of a lack of sympathy towards the claimant within PWC. Its witnesses claimed Ms Harvey had misunderstood their position, though she was not called by the respondent to provide correction or clarification notwithstanding she still works for its organisation.

Reasons for the lack of sympathy appear to be a culture within the firm that people had to cope by knuckling down and getting on with it, a suspicion (evidenced to some extent by internal e-mails) that the claimant, if not malingering, at least was not as ill as he claimed, and a feeling that he had created an unfavourable impression of the Belfast Office and its hierarchy. As against this, Mr Terrington, in later e-mails to Mr Crossey, shows an awareness of, and concern for, the problems of colleagues. He stated that:-

“The stresses on many Advisory Partners remain acute and an ongoing concern’ and ‘that there remains a residual disaffection around uneven levels of responsibility. This comes into sharpest relief when people are under pressure. The firm’s failure to deal effectively with the Colin’s situation contributes, but we should not underestimate the negativity surrounding our failure to deal with the [XY] situation.”

	(iii)	On 19 May 2008 the claimant’s mother suffered a stroke. She had been found, collapsed, at home and taken to hospital. Mr Lowdon, who lived next door to the claimant, became aware of what had happened and e-mailed Mr Crossey and Mr Terrington.

	(iv)	In early June 2008, a collective view seems to have begun to emerge that it would be best if the claimant left PWC. Ann Cottis had told Jean Harvey that her attitude towards him was becoming ‘quite hard’.

11.	(i)	On 12 June 2008, the claimant spoke to Ann Cottis on the phone. They discussed his mental health and well-being, which had deteriorated. The claimant told Ms Cottis that he was suffering from depression. He felt that the primary cause of this was his disappointment at the level and nature of the engagement he had had with the firm in the recent past and the lack of sympathy and action in relation to the two main causes of his illness, namely the bullying and harassment he had received on the BELB Project and the lack of support he had received within PWC itself. He told her that his mother had recently had a stroke which had left her paralysed down her right side, and this meant. She relied on him as her only close relative in Northern Ireland. He asked Ms Cottis to implement the firm’s bullying and harassment procedures and for help and input from the firm to come up with creative solutions to the problems and issues he was facing.

	(ii)	Ms Cottis felt that things had moved backwards, and that there was little the firm could do. She told the claimant he needed to re-engage with the medical team. When the BELB Project was discussed she expressed misgivings that nothing would satisfy the claimant short of a public announcement that PWC would withdraw from the BELB Project and other public sector work. The claimant denied that this was so in relation to the public sector generally, but he did question why the respondent should continue to act for BELB, and went on to suggest that a way out of the difficulty was for an independent review to be carried out into the project by another partner, and for that partner to make recommendations on how to move forward and deal with the business issues.

12.	(i)	On 18 June 2008 Jeff Thompson sent an e-mail to Keith Tilson, in which he referred to the claimant as one of three ‘potential leavers’. This reference was in the overall context of the firm’s business needs and plans, following on a board meeting the previous week.

	(ii)	The claimant met Jean Harvey for lunch on 24 June 2008. He explained to her that given his difficulties in Belfast and his disappointment at what he perceived as the lack of engagement with him there, he had been considering a transfer to London. However, following his mother’s illness, he was no longer sure that this was a viable or practicable option. (Subsequently, on 1 July 2008, the claimant was told by Dr Ferrante that he could not fulfil a full-time role in London.) On the issue of a return to work, Mrs Harvey reiterated to him a number of times that he needed to get back to work at the start of August. This was because, with the uncertainties in the economy, there was a risk that if he left it any longer he would not get back at all. She indicated that there could be a significant number of redundancies in September, and advised him that he would be safer in Belfast where the respondent’s business was doing well, compared to other parts of the business in Great Britain.

	(iii)	On 1 July 2008 the claimant met his colleague and neighbour, John Lowdon, on the Heathrow Express – this was the day he had been to see Dr Ferrante. He told Mr Lowdon he would not be back soon, if ever. When asked if he had any plans about the firm, he said that he had not, and was not able to think about it. The gist of this conversation was passed on by Mr Lowdon to the Belfast Office.

	(iv)	Mr Terrington e-mailed Mr Crossey concerning the claimant on 9 July 2008. He stated:-

“Raised the issue with Jeff (Thompson) – his view we are moving to exit and that Ann Cottis is in the same place. I outlined our recent experience/discussions. He will raise with Ann this week. I suggested it was a priority for us and should be for the firm.”

		When asked to explain what was meant by ‘moving to exit’ during cross-examination, Mr Thompson and Ms Cottis both stated, somewhat disingenuously that ‘exit’ did not mean leaving the firm but was a reference to possible redeployment opportunities.

	(v)	On 28 July 2008 Jean Harvey e-mailed Dr Ferrante stating:-

“There is a strongly held view in Northern Ireland that Colin is actually not as ill as he claims. Rather than simply listening to Hugh (Crossey) I asked him to do an e-mail to Ann confirming some of the detail eg learning Irish and holidaying in Donegal and Liverpool.”

		This perception that the claimant was not really as ill as he made out was accompanied by a feeling that his stress was due to personal factors in his life, principally his separation from his wife. Such a view, however, is not supported by the medical evidence.

13.	(i)	Ms Cottis attended a meeting of the Supervisory Board, Partner Affairs Committee on 5 August 2008. The minutes record:-

“Colin Tenner

Ann indicated that she was increasingly worried about the situation of Colin Tenner. He had been off sick since October 2007 and, although he had been making progress earlier in the year, he was getting more stressed as it got closer to the possibility of his returning to work. Because he had been off sick for such a long time during his first two years as a partner, his probationary period was going to be extended. Colin was aware that he needed to re-engage with his partners in Northern Ireland, but his absence from the office and lack of contact with his colleagues had resulted in his losing their trust.”

		It has to be said that nothing in this extract from the minutes places the claimant’s conduct and difficulties in the context of the illness from which he was suffering.

	(ii)	On 11 August 2008 Dr Ferrante wrote to Ms Cottis. He pointed out that he had been seeing the claimant for a number of months, that the latter felt he had been misunderstood, and that nobody had allowed him to tell his full story or investigate the circumstances surrounding his going off on sick leave. Dr Ferrante stated that the claimant needed to get back to work. He went on:-

“It is unproductive for him and the firm to remain in this stalemate. In my opinion it is possible to construct a return to work program [sic], although Colin remains resistant to this on the basis that there is unresolved business from his departure.

Perhaps one avenue open to the firm would be to instigate a brief, but thorough, investigation of his circumstances, allow him sympathetic hearing and a constructive way forward.”

		However, this advice was not followed. Mr Thompson, in evidence, said he saw no need for such an investigation, and from September 2008 onwards, Ann Cottis began to indicate to the claimant that it might not be possible for him to return to the firm.

	(iii)	By 15 August 2008 Mr Crossey had become aware of at least the gist of Dr Ferrante’s letter of 11 August 2008. It was unwelcome to him. He e-mailed Jeff Thompson and Kevin Nicholson. He pointed out that the claimant had been off work since 2007, that although there was medical evidence that he had been fit to return to work on a phased basis since February 2008, nothing had happened. He referred to Dr Ferrante’s suggestion of instigating a brief investigation into the claimant’s circumstances and stated:-

“While I would need to understand better what is seen as the purpose of this investigation I am quite frankly amazed to be getting such a recommendation almost a year into this situation.

Personally I cannot see that it is in Colin’s interests or the firm’s interests to let this situation continue to drag on.”

Kevin Nicholson replied that he thought:-

“Ann Cottis was agreed that we needed to instigate a process for retirement for [the claimant].”

Jeff Thompson in an initial e-mail, said that that was his expectation as well, and in another e-mail later that day stated:-

“Colin’s definately [sic] on the list of those to be exited and I left it with Ann that we were just awaiting the mechanism. Eventually this will end.”

This was in response to an e-mail from Mr Crossey, into which he had been copied, where the latter had stated:-

“We need to watch we just do not continue to go around in circles with this.”

(iv)

Mr Crossey accepted that these e-mails meant that the claimant would be leaving the firm. The claimant’s contention is that a decision to eject him from the firm had been taken, and that a ‘mechanism’ to give effect to that decision was being awaited.

However unsympathetic his senior colleagues may have appeared to him it is not surprising that they were considering the possibility that the claimant might leave, because he himself had raised that possibility. Mr Thompson’s reference to the claimant being on a ‘list’ of those to be exited is consistent with his evidence that he considered a group of partners’ roles as being potentially redundant, and who might therefore leave under what came to be known as Project Sand.

14.

(i)

On 3 September 2008 the claimant met Ann Cottis in London. He told her about his counselling sessions with his treating psychiatrist, Dr Miller, who he had been seeing from late July 2008, that he was starting to get better, and that he now felt well enough to engage with the firm. He wanted to be given the opportunity to explain his side of the story in detail and indicated that Dr Ferrante had expressed surprise that no-one in PWC had heard his story or indeed had asked to hear it. Ms Cottis said she thought she was already aware of the detail of the claimant’s experiences on the BELB Project but said that she was willing to listen and asked him to share it with her at the meeting.

The claimant replied that he needed time to prepare and that he was not ready to do this. In notes he made of the meeting he stated:-

“I wanted to be able to distil the key lessons and issues from my experiences on the project and to share these with her in a logical and concise manner – hence the need for some time to prepare.”

		Ms Cottis also asked him to start to consider his options for the future both in terms of staying with the firm and leaving. She also asked about the option of working on the mainland. The claimant pointed out that this would now be difficult given his mother’s condition but that he nonetheless remained open to suggestions and that he could envisage some short-term secondment or part-time working arrangement that might involve working in Great Britain.

	(ii)	Ann Cottis gave the claimant two opportunities to set out the detail of his complaint. A further follow-up meeting was held on 15 September 2008. The claimant again met Ann Cottis in London. The meeting lasted two hours. The claimant had prepared an agenda and detailed notes/prompts, and by reference to these, ran through what had happened to him during the BELB Project. Ms Cottis took her own notes, the claimant felt she was listening to him (in contrast to the meeting on 3 September where he felt she was ‘probably only going through the motions’) and towards the end of the meeting they began to discuss some of the lessons that might be learned from the situation. They agreed to meet again on 1 October 2008. Ms Cottis said she would review and consider the information he had given her and told him that, in the meantime, he should consider the options available to him as a return to the Belfast Office might not be possible.

	(iii)	At that meeting she told the claimant that Mr Crossey, while accepting that the BELB Project had been a difficult one, did not consider it any more difficult than other projects. She said it was difficult to see him returning to work in Belfast – the parties had moved apart and she could not see them coming together again. The claimant pointedly told her that he felt they would not be having this conversation had he been off work for a year with a physical condition as opposed to work-related stress.

15.	(i)	On 7 October 2008 the claimant e-mailed Jeff Thompson, asking if it would be possible to meet with him. He stated that he was well on the road to recovery, and that he was ready to begin the process of exploring how and when he could return to work. He suggested an agenda, which included discussion of the issues and difficulties experienced on the BELB Project, and the nature and content of any return to work plan. However, any plans or ideas the claimant had about returning to work were overtaken by other events.

	(ii)	Mr Thompson e-mailed Ann Cottis on 8 October 2008, saying he was happy to meet the claimant, but also stating that he would have a ‘fairly firm exit discussion with him’. In evidence he said ‘exit’ did not mean final but meant discussion around options available to the claimant. He also indicated that he would meet the claimant, and that meeting subsequently took place on 17 October 2008. In the meantime, on 14 October 2008, at the request of Mr Crossey, the claimant was removed from all automated mailing lists in the Belfast Office. The claimant alleges that this was done in anticipation of his imminent departure, and is indicative of the fact that the reason for his departure – redundancy – was a sham. However, it also has to be remembered that this was done at a time when the claimant had been off sick for over a year, and the e-mails would have been of limited use to him at that stage.

	(iii)	The claimant met with Mr Thompson in London on 1 7 October 2008. As indicated, in advance of the meeting he had sent an e-mail to Mr Thompson setting out the proposed areas for discussion and an agenda, and it was clearly his expectation that the meeting would focus on these matters. To the claimant’s surprise, however, Mr Thompson proceeded to tell him that there was no longer a role for him in PWC and that he was being made redundant. Although this view was shared by Mr Crossey and Mr Terrington, there is no evidence to show that they played any part in the decision to make the claimant’s role redundant, and there was no contact between them and Mr Thompson in the run up to the latter’s meeting with the claimant on 17 October 2008. Mr Thompson indicated that he was willing to increase the claimant’s notice pay and pay him for a year rather than the usual six months. Nothing turns on this.

	(iv)	Redundancy came out of the blue as far as the claimant was concerned. Although in previous discussions with members of the firm, leaving had been mentioned in the context of his resigning or not coming back because of illness, there had never been any specific mention of redundancy in relation to him, though at the meeting of 24 June 2008 with Jean Harvey, the latter had spoken more generally of possible redundancies in September of that year because of the economic climate. It is also the case that in the extensive documentary evidence which was adduced before us, there was no mention of the claimant’s role being potentially redundant. This was accepted by Mr Crossey. He was informed by Jeff Thompson on 16 October 2008 that the latter was going to proceed with the claimant’s retirement on redundancy grounds. Before that Mr Crossey had believed that if the claimant were to go, it would be a negotiated retirement with the claimant’s consent. However, we are satisfied that from the evidence that in the Summer of 2008, Jeff Thompson had begun to look at partner roles and the numbers within consulting nationally. PPP was performing badly and he thought there might be no role for it in Northern Ireland. Mr Terrington was also of the view that it could not sustain an equity partner. Three people were being considered as having potentially redundant roles in a restructuring exercise which ultimately became Project Sand. The PPP role in Scotland did not survive Project Sand. The Equity partner who performed that role was not disabled, and other Northern Ireland partner roles were looked at as part of Project Sand.

	(v)	On a more general level, the claimant takes issue with the conduct of Mr Thompson on 17 October 2008 and complains had he failed to comply with PWC’s own protocol on individual partner redundancy, in that Mr Thompson told him on that date of the decision to make him redundant, prior to the preparation of any business case and prior approval being given by PWC’s Executive and Supervisory Boards. This, according to the claimant, prejudiced him and predetermined the outcome of the whole redundancy process. However, Mr Thompson clearly found himself in a difficult position with regard to the meeting on 17 October 2008. The meeting had been arranged at the request of the claimant, who saw it as part of a process which might ultimately bring about his return to work. Although PWC’s redundancy procedures do not make provision for a partner to be told that his or her redundancy is being actively considered, we accept that Mr Thompson thought it would be unfair and misleading to talk about a return to work when the redundancy process was being initiated. It may have been that in discussing redundancy his language, in terms of the procedure, was less specific than it should have been. However, Mr Thompson knew the procedure which had to be followed. ‘Retirement Processes – Individual Redundancy’ within PWC is dealt with at Paragraph 11.5 of the Members’ Agreement. These procedures are designed to ensure that there is a business case for the redundancy and that steps have been taken to check that the partner cannot be redeployed within the firm. Where a senior or managing partner (among others) considers that a partner is redundant, that person (‘the Initiator’) will prepare a business case. Among the information the business case will include is information on efforts to redeploy the partner to other duties and that these have failed. The initiator has to approve the redundancy and notify it to Partner Affairs. Only after a succession of internal reviews and approvals – ultimately by the Supervisory Board - will the partner being made redundant be seen by the initiator and told of the decision of the Management Board and the Supervisory Board. Mr Thompson knew the procedure that had to be followed, ie that a partner could not be retired without observing the requirements of Paragraph 11.5, and indeed following her meeting with the claimant on 22 October 2008 (see – Paragraph 16 below). Ms Cottis e-mailed him to confirm that the firm’s redundancy process had not actually begun. On one view of the matter, the claimant, having been told in advance of the proposal, was treated more favourably than the protocol required, though we attach no weight to this one way or the other.

16.	(i)	The business case for the claimant’s redundancy was prepared subsequently by Mr Terrington, who e-mailed a draft of it to Mr Thompson on 20 October

“[b]est to discuss it orally than via e-mail exchange.”

		A further copy was sent to Ms Cottis on 21 October 2008. This draft business case was inconsistent with the firm’s protocol in that it did not explore opportunities for redeployment prior to redundancy. This was accepted by Mr Terrington and Mr Thompson. It was also not prepared by Mr Thompson, as initiator, in accordance with the Members’ Agreement. Mr Thompson had asked Mr Terrington to draft it, because he was unfamiliar with the Northern Ireland marketplace and the latter had more knowledge of the claimant’s skills and experience. While, therefore, there were breaches of procedure, we do not draw any adverse inferences from them in view of the explanations given.

	(ii)	On 21 October 2008 Mr Terrington also sent an e-mail about a possible external candidate to ‘replace’ the claimant. However, it is clear from this e-mail that secondment was to be at Director, as opposed to partner, level so in this respect it was not inconsistent with the redundancy case to be made by the respondent.

	(iii)	The claimant met with Ms Cottis on 22 October 2008 to discuss his redundancy. He asked her various questions about the business case and the appeal procedure and they agreed to meet again in early November by which time she would have tried to obtain further information and answers to his questions. While he did not accept that his role in PPP/PFI in Northern Ireland was redundant, he made the point that while discussing a possible return to work with Paul Terrington in April of that year, the latter had mentioned to him that there were other opportunities outside his existing role which he could take forward if he came back to work, and it was not obvious why these were no longer available to him.

	(iv)	Correspondence ensued between the claimant’s solicitors and the respondent’s in-house counsel. The former complained that the claimant’s redundancy was a sham, an allegation denied by the latter.

	(v)	On 10 November 2008 the claimant again met with Ann Cottis. He complained that the redundancy was a sham. She again emphasised the technicalities of the situation, which was that while Mr Jeff Thompson, as initiator of the process, considered him to be redundant, it had to be approved by the Management Board at a meeting which was to take place on 14 November 2008 and if such approval were given it would then be considered at a subsequent meeting of the Supervisory Board.

17.	(i)	We find that the decision to make the claimant redundant was based on the following considerations. The claimant’s business case, as set out in his application for admission to partnership, had not developed as forecast and could not be maintained. There is evidence that in October 2007 – a year before the initiation of the redundancy process in respect of the claimant – there were difficulties with the claimant’s business case. Client revenues were lower than target, and there had been no wins on the bidder side, partly because of a conflict of interest issue which had arisen as a result of a Northern Ireland Audit Office (‘NIAO’) report to which reference is made below. Market conditions had slowed in 2007 – PWC’s business declined by 33% that year, and public sector projects had dramatically reduced because of the economic downturn – and the anticipated flow of deals had not materialised. The Northern Ireland Audit Office report on Conflict of Interest of January of that year had led to a different approach which made it impossible for PWC to work in the bidder side in relation to business with a public body where the firm was auditor to that public body, or had provided advice to that public body in relation to a procurement exercise. It is the claimant’s case that the respondent exaggerated the impact on the new guidance from the NIAO on its business, but clearly that guidance did have some impact, and overall the claimant has produced no evidence which challenges the reduction in the respondent’s business occasioned by the economic downturn.

	(ii)	Figures for PPP had been declining from 2007 onwards and the respondent believed that the future level of fees from PPP in Northern Ireland was limited to £³/₄ - £1M per year. As indicated, Mr Thompson had previously considered that there might not be a role for PPP in Northern Ireland in the light of these deteriorating figures. In the medium term at least, the future of the work was uncertain and was assessed as needing someone at director, as opposed to partner level, to take it forward. The respondent’s belief in this level of fees was genuine, and the figures for the financial years ending 2007, 2008, 2009 were not in fact good. We accept that the claimant disagrees with these figures. However, a genuine disagreement does not turn the matter into discrimination.

	(iii)	There were legitimate reasons for the redundancy business case made out for the claimant. The core aspects of his business case anticipated a total revenue of £3.2M in the financial year (‘FY’) 2009. The total revenues for these aspects of the business case were less than £0.5M in FY08. Other non-core aspects of the business case had generated limited revenues by that time. Ultimately there was no growth in any of the areas covered by the claimant’s business case in the Northern Ireland region by the time he had retired. A proposed rise in number of advisory partners was based on assumptions which did not materialise. Retiring partners were not replaced (this was something which was not confined to Northern Ireland) and by the time of the hearing the number of partners in Northern Ireland had gone from 30 to 21, and to some extent the emphasis of their work had shifted to work in Great Britain and the Republic of Ireland. As far as the claimant’s unit, PPP, was concerned, Mr Batty had returned to Great Britain and another partner in Corporate Affairs oversaw PPP as an add-on to his existing responsibilities. The senior manager in PPP was moved to an economic team.

	(iv)	The claimant makes various criticisms of the respondent’s approach in support of his contention that the whole redundancy exercise was a ‘sham’, designed to provide a cover for his dismissal on the ground of disability. For example, he contended that the business case for his redundancy was based solely on his net revenues for the financial year 2008 (FY08) and took no account of the fact that he had worked for only one of the three years contemplated as needed to build up his partner business. Mr Terrington accepted that it would have given a more rounded impression to include figures from FY06 and FY07. However, the evidence is that the claimant’s absence through illness made no difference to the fees generated because PWC won all but one of the available PPP assignments which came up when the claimant was off work.

	(v)	The claimant also complains that no comparative analysis was carried out with other Northern Ireland partners, some of whom were not meeting the net revenue target of £2.5M and were consistently reporting lower net revenues than him. However, among other considerations, some of these partners had non-fee generating roles which were taken into account in deciding whether or not their equity partner status could be justified. The claimant also complains that he was not pooled with anyone else. The respondent explains this by a need for specialism in partner roles consistent with the expectation of clients. However, if the respondent is wrong, their actions in this respect were based on a genuine belief on their part, and again is therefore not evidence of disability discrimination on their part. As far as the allegation that the respondent did not take account of the claimant’s involvement in the BELB Project on his ability to develop his business case is concerned, one of the reasons for this was his failure, or at least reluctance, to delegate.

18.	(i)	On 12 November 2008 the Supervisory Board, Partner Affairs Committee (‘PAC’) held a meeting. It was attended by Ann Cottis, Hugh Crossey and Paul Terrington. The latter briefed the Committee on the reasons the claimant’s role was now considered redundant, and all three answered questions posed by the members of the Committee. Mr Terrington replied that the partner’s role to which the claimant had been admitted had now gone, though he did state that if the claimant had not been away from the office for the period of illness it might have been possible to reshape the role to make it sustainable for a partner. Reference was made to discussions which had taken place with the claimant in the preceding nine months or so about an alternative role in Great Britain, and Ann Cottis pointed out that he had indicated that he did not want to move. At the conclusion of the meeting the PAC confirmed that they were in agreement with the proposed redundancy and would recommend that the Supervisory Board approve it. It was considered it was important that they should be able to show that they had taken into account the claimant’s skills in relation to opportunities in Great Britain, and it was agreed to document in far more detail those opportunities and why it was considered the claimant was not suitable for them. It was also agreed that it would be helpful to record the details given by Mr Terrington as to why the claimant would not be suitable for Northern Ireland roles.

	(ii)	On 14 November 2008, the matter came before the Executive Board. It agreed that the claimant should be required to retire on 30 November 2008 in the best interests of the firm on the grounds of redundancy under Clause 11.5 of the Members’ Agreement. The Executive Board accepted that the business case which had supported the claimant’s admission as a partner had not developed as expected and that there were no alternative opportunities which fitted the claimant’s skill-set. It noted that attempts at redeployment had been hampered by the claimant’s requirement that he be allowed to work in Northern Ireland. Following this, Mr Terrington wrote to Ann Cottis and Jeff Thompson on 17 November 2008 stating:-

“It seems to me that our position is strengthened by putting the piece to Colin directly about his interest in working outside Great Britain as an alternative to redundancy.”

		It was suggested that the object of this was to bolster up a sham case. However, this e-mail has got to be seen in the context of the challenge presented to management at the meeting on 12 November, when they were enjoined to follow-up the possibility of a post in Great Britain.

	(iii)	On 19 November 2008 Mr Terrington rang the claimant seeking clarification in relation to his ability and willingness to be considered for roles outside Northern Ireland. He followed this up by e-mail on 21 November 2008, and on 24 November 2008 the claimant set out his views on the matter. He stated that his strong preference had always been to return to work in Belfast, but that earlier that year he had reluctantly begun to consider the option of a short-term transfer to London or Dublin. However, because of his mother’s stroke, and the fact that he was her only immediate relative in the province, he now considered that the option of a transfer to London had been impracticable. He also stated that he had discussed the implications of a transfer for him and his mother with Dr Ferrante and Dr Miller, and both of them felt that a full-time transfer to an office outside Northern Ireland would be detrimental to his health and well-being.

19.	(i)	The claimant met with Ann Cottis and Jeff Thompson in London on 19 December 2008. This followed on from the ‘challenge’ presented to management at the Supervisory Board Partner Affairs Committee meeting of 12 November 2008 about roles in Great Britain. The claimant was told that the firm had re-visited the proposed redundancy with a view to looking again at options for redeployment in Great Britain and confirming again that there was no role in Northern Ireland. As a result of this exercise an opportunity had emerged working as a partner within the consulting practice in London advising and helping central government departments to improve their procurement capability. This opportunity was based in London, full-time on a permanent basis (because of the location of the client base) and there was no plan that the claimant should work from Belfast; either initially , or on a part-time basis.

	(ii)	The claimant restated his position that he did not accept that his role in Northern Ireland was genuinely redundant, again explained why he could not work full-time in London (which in his view would effectively require him to abandon his mother and ignore the medical advice) and accused Mr Thompson and Ms Cottis of making the offer in a belated attempt to bolster PWC’s legal position. Ms Cottis e-mailed him later that day, setting out the offer in writing and asking for a reply by 5 January 2009, thus giving the claimant a comparatively short time to make up his mind. He subsequently e-mailed Ms Cottis on 4 January 2009 asking for an extra week or so to respond, because (unsurprisingly) he had experienced difficulty seeing his doctors over the Christmas holiday period.

	(iii)	It is the claimant’s case that this job was offered to him knowing he could not take it (or at least take it in the form in which it was offered). However, we are satisfied that notwithstanding no element of flexibility was specifically mentioned, the claimant could have performed the role on a ‘3/4/5’ basis (ie he would work five days, four in London and one in Belfast, and spend three nights in London). This was a common working arrangement for provincial and regional partners in PWC. The claimant was fully aware of the practice, and other partners from the Belfast Office worked in accordance with such an arrangement.

	(iv)	On 15 January 2009 the claimant had a consultation with Dr Ferrante to update him on recent developments with regard to his mental health and well-being, and to discuss the offer of a permanent post in London. Dr Ferrante did not really express any view to the claimant about the merits or demerits of the London post, though he did say that it would be beneficial for the claimant to get back to work subject to an agreed, phased return to work plan and some agreement on a degree of flexible working. Dr Ferrante ended the meeting by saying that he would speak to Dr Miller the following afternoon. However, he did not do so and on 16 January 2009, wrote a fairly laconic letter to Ann Cottis relating that in his opinion the claimant would be fit to take up a post in London, and that the claimant was confident that the post on offer would suit his skill set. (The claimant had stated during the consultation that the post was ‘slightly different’ to the one he had been doing prior to his illness.)

	(v)	Dr Miller, the claimant’s consulting psychiatrist, provided a report on 19 January 2009. This was based on his professional contact with the claimant since the latter had become his patient on 25 July 2008 up to his most recent appointment on 6 January 2009. Dr Miller’s opinion, as expressed at Paragraph 10.1 of the report, was that the claimant suffered from a recognisable psychiatric illness in the form of depression of a severe severity without psychosis stemming from work-related stress. At Paragraph 10.10 he stated:-

“As Colin perceives the environment in London as potentially being more supportive pastorally, it is possible that a part-time short-term deployment outside of Northern Ireland might play a role in his return to work. However, given his mother’s recent deterioration in terms of health and further stroke, this would need to be discussed with Mr Tenner in detail to see if indeed this is realistic.”

He then continued at 10.11:-

“With regards to the option of a long-term deployment outside of Northern Ireland. It is highly likely that it would cause a catastrophic response in Mr Tenner, he is continuing to engage in building up social networks and support networks which he has done so locally and a long-term deployment would divorce him from this support and he would very quickly in my opinion deteriorate in terms of his mental health.”

20.

(i)

On 23 January 2009, the claimant wrote to Ann Cottis refusing the London post on the basis of his psychiatrist’s opinion that it would lead to a deterioration in his medical condition. (He subsequently provided the full report to her on 16 February 2009.) Medical evidence from Dr Sharkey, who was engaged by PWC subsequent to the termination of the partnership and whose evidence was sought for the purpose of these proceedings accords with that of Dr Miller. Dr Sharkey stated that:-

“[the claimant] suffered from a significant degrees of psychological disability between September 2007 and May 2009 … in my opinion, the Disability Discrimination Act is likely to apply to his presentation, specifically in relation to ‘memory or ability to concentrate, learn or understand’. I consider that appropriate adjustments should have been implemented. Specifically he should have been taken off the BELB Project. In my opinion, he should have been allowed to return to work in a phased capacity, dealing with issues which he felt suited his ability, gradually being up to a full partner’s workload.

In my opinion, he would not have been ready to work in London in 2007 and 2008.”

	(ii)	On 30 January 2009 the Executive Board confirmed its previous decision to require the claimant to retire. It noted that there had been further efforts to redeploy him despite the earlier agreement that he should retire in the best interests of the firm. It recorded that he had been offered a role in London which he had refused on personal and health grounds, and that Dr Ferrante had advised that there were no health grounds stopping the claimant from taking the post. It was proposed that he be given a package of 12 months’ notice from 27 January 2009.

	(iii)	On 10 February 2009, Ann Cottis wrote to the claimant. She stated that PWC had no obligation to create a role for him, and denied that they were attempting to force him to re-locate or be sacked. As far as reasonable adjustments were concerned, she stated that she was not aware that he had suggested any such adjustments for PWC’s consideration. She pointed out that Dr Ferrante’s opinion was that the claimant was fit to take up a post in London, and that PWC was entitled to rely on that view. She rejected the claimant’s suggestion that the whole redundancy and suggested redeployment exercise had been a sham.

	(iv)	On 19 February 2009 the Supervisory Board met and confirmed the decision to require the claimant to retire. Concern was expressed that Dr Ferrante had not apparently seen Dr Miller’s medical report or indeed spoke to Dr Miller. It was also recorded at 114.1.31 of the minutes that:-

“[t]here was some feeling that he might have been eased back into the business if he had been more accommodating. Even so, he might still have been in Project Sand.”

	(v)	On 25 February 2009 the claimant was given written notice of the Executive Board’s decision to require him to resign and of his right to appeal to the Supervisory Board. He raised a number of queries about the appeal process and the papers that had been put before the Executive Board.

21.	(i)	The claimant wrote to the Supervisory Board Appeals Panel on 24 April 2009 outlining his grounds of appeal. In that letter he stated that he wished to bring a fellow partner, friend or family member to speak on his behalf. Subsequently he indicated that his preferred choices to come along to the appeal with him were his brothers Gareth or Brian or his friend Mr Sidney Reid. Around 10 – 11 May 2009 the claimant was informed that none of these people were acceptable. His brother Gareth was a finance and commercial lawyer in Scotland and PWC vetoed him because they did not want the appeal to become ‘legalistic’. His other brother, Brian, was the finance director of a company which was a audit client of PWC and was known to many of its senior managers. Mr Reid was excluded because he was a trading executive with Marks & Spencer, a major client of PWC, and they did not want him carrying back tales about the firm.

	(ii)	In mid-May the claimant and PWC management exchanged submissions for the Supervisory Board Appeals Panel hearing. The claimant also attended a preliminary meeting of the panel. Mr Terrington was also invited as part of the panel’s investigations. He was asked about a number of specific areas, including the claimant’s career, his contact with the claimant, business considerations relating to the PPP Unit and the redeployment efforts which had been made.

	(iii)	On 19 May 2009 the claimant was told that his ex-wife could attend the hearing with him (though, as it turned out, she was unable to attend; so ultimately he attended the appeal on his own) and on 20 May 2009 he was further advised that the Appeals Panel would work on the hypothesis that he was disabled as defined in the Disability Discrimination Act 1995 for the purposes of determining whether management’s decision to make him redundant was appropriate.

	(iv)	On 21 May 2009 the Supervisory Board Appeals Panel hearing took place. Later that day Clare Bolton e-mailed the claimant and told him that his appeal had been rejected. The panel was satisfied that his role was redundant, that appropriate efforts had been made to redeploy him and that no reasonable adjustments could be made to the London post which he had been offered to enable him to perform it in Northern Ireland.

	(v)	On 26 May 2009 the Supervisory Board accepted the Appeals Panel’s recommendation that the claimant’s appeal should not be allowed and he was notified of this on 27 May 2010.

	(vi)	Ultimately on 27 February 2010 his partnership in the respondent’s business ended.

22.	(i)	Following his enforced retirement from the firm, PWC refused to pay the claimant any performance income for the financial year ending 2009. On 20 October 2009 he was informed that his performance income for the financial year 09 had been assessed as zero. It is the claimant’s contention that refusal constituted victimisation contrary to Section 55 of the 1995 Act.

	(ii)	He had been paid ‘target’ performance pay for the financial year ending 30 June 2008 notwithstanding that he had been off work ill for most of the year. This was in line with PWC policy, which was set out in an e-mail to Mr Crossey on 29 July 2008 in which it was stated:-

“We tend to pay those off with target”.

		This policy could be dispensed with where a partner left to join a competitor or was required to resign ‘for cause’. Neither of these possible exceptions applied to the claimant in this case.

	(iii)	The claimant started proceedings against PWC on 26 May 2009. The minutes of the Supervisory Board Partners Affairs Committee dated 17 June 2009 record as follows:-

“ … the Executive Board wants to put Colin Tenner on garden leave … he will not agree financial terms. Before the formal letter setting out his garden leave is sent to Colin, Ann Cottis will ring to make sure that he knows the deal offered was at target but if it is not accepted he is unlikely to get any performance income. It is proving difficult to communicate with Colin, who has lodged a claim at the [industrial] tribunal … .”


	(iv)	The Supervisory Board minutes of 29 June 2009 (referring to the claimant and another partner) state:-

“It was inappropriate to have partners who were in dispute with the firm coming into the office. The proposal to put both partners on leave was advised and supported by [the firm’s in house lawyers]. When we put partners on leave we could decide not to award performance income for the period of leave. That was forward looking rather than in respect of the current year, which would be moderated in the normal way. The ground for leave was detriment to the business, which appeared clear. Neither party had anything to do and both had either started or threatened [Tenner] legal proceedings.”

	(v)	The claimant relied on these minutes as showing that the reason PWC decided to place him on garden leave and override its usual policy on performance pay was because he had brought or threatened legal proceedings. We are satisfied from the documentary evidence that the period of garden leave was from 30 June 2009 (the end of the financial year 2009) for the remainder of the notice period up to the date of the claimant’s retirement from the partnership which took place on 27 January 2010 and that the reference in their minutes relates to performance pay at the end of the financial year 2010, not 2009.

	(vi)	As far as non-payment for the financial year ending 30 June 2009 is concerned, Ms Cottis stated that the view was taken that performance pay should not be paid for a second year of absence.

23.	(i)	The relevant law is found in the Disability Discrimination Act 1995, as amended by the Disability Discrimination Act 1995 (Amendment) Regulations (Northern Ireland) 2004. Sections 6A, 6B and 6C of the Act apply to partnerships. Article 6A makes it unlawful to discriminate against a disabled partner and Section 6B lays down a duty to make reasonable adjustments in relation to disabled partners. Section 3A(5) of the Act prohibits direct discrimination. It provides:-

“A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially difference from, those of the disabled person.”

(ii)

Direct disability therefore occurs where the person’s disability is the reason for the alleged less favourable treatment. Unlike disability-related discrimination, with which we are not concerned here, it cannot be justified.

As far as the comparator in a direct disability discrimination case is concerned the appropriate comparator is someone who is not disabled, or who did not have the same disability as a claimant (ie in this case someone who was not mentally ill). See : London Borough of Lewisham v Malcolm [2008] IRLR 701 and the Disability Code of Practice (Employment and Occupation) paragraphs 4.8 and 4.13.

In this case the claimant relies on a hypothetical comparator. It is perhaps also convenient to state at this juncture that we have borne in mind that direct disability discrimination often takes place where the employer makes assumptions, based on stereotypes, about a person’s disability and that this is particularly prone to take place in cases concerning mental illness. (See : Aylott v Stockton-on-Tees Borough Council [2010] EWCA Civ 90, CA.)

24.

(i)

Section 6B of the Act deals with the duty to make reasonable adjustments in relation to partners:-

“(1) Where –

(a) a provision, criterion or practice applied by or on behalf of a firm …

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the firm to take such steps as it is reasonable, in all the circumstances of the case, for them to have to take in order to prevent the provision, criterion or practice … having that effect.”

A failure to make a reasonable adjustment is not capable of being justified.

The factors to be taken into account by a court or tribunal in determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make a reasonable adjustment and a non-exhaustive list of examples of reasonable adjustments are set out at Section 18B of the Act, and we do not repeat them here. Whether something is a reasonable adjustment is for tribunal to decide, objectively, on the facts of the particular case. (See : Smith v Churchill Stairlifts PLC [2006] IRLR 41 CA.)

Also, the making of a reasonable adjustment does not lead to the situation where everything remains the same for a claimant. Taylor v Dumfries & Galloway CAS [2007] SLT 425.)

The duty to make reasonable adjustments, which applies to dismissal, is extremely wide in scope. This is clear from the judgment of Baroness Hale in Archibald v Fife Council [2004] IRLR 65.

(ii)

Archibald was a case concerning the position under the legislation of a disabled employer who had become incapable of doing the job for which she had been employed, but who could have done another job in the same organisation. Baroness Hall, discussing the transfer provision set out at Section 18B(2)(c), stated at p 660:-

“Section 18B(2)(c) merely refers to ‘an existing vacancy’. It does not qualify this by words such as ‘at the same or a lower grade’. It does refer to ‘transferring’ rather than ‘promoting’ her, but as a matter of language a transfer can be upwards as well as sideways or downwards.”

Notwithstanding the width of this provision, it is clear that the duty to make a reasonable adjustment is not limitless. At p 659, Baroness Hale stated:-

“It is … common ground that employers are only required to take those steps which in all the circumstances it is reasonable for them to have to take. Once triggered, the scope of the duty is determined by what is reasonable, considered in the light of the factors set out in Schedule 6(4) …

… There is no positive duty other than addressing the impact of the disability on her ability to do a job which she is otherwise well-fitted to do. This duty cannot arise where the disability means that she cannot do the job at all and there are no adjustments to the arrangements for that job which can make any difference.”

		We do, however, accept the respondent’s contention that the duty to make reasonable adjustments does not require them to create a role that is not necessary for the business. We do not read *Southampton City Council v Randall [2006] IRLR 18* as laying down such a proposition and consider that the decisions of the Employment Appeal Tribunal in *Tarbuck v Sainsburys Supermarkets Ltd [2006] IRLR 664 (EAT)* and *Chief Constable of South Yorkshire v Jelic [UKEAT/0491/04]* to be authorities to the contrary.

	(iii)	Regard must also be had to the guidance given to tribunals in *Environment Agency v Rowan [2008] IRLR 20 (EAT)* where His Honour Judge Serota stated, at paragraph 27, that a tribunal considering a claim that an employer has failed to make a reasonable adjustment must identify:-

“(a) the provision, criterion or practice applied by or on behalf of an employer; or

(b) the physical feature of premises occupied by the employer; or

(c) the identify of non-disabled comparators (where appropriate); and

(d) the nature and extent of the substantial disadvantage suffered by the claimant. It should be borne in mind that identification of the substantial disadvantage suffered by the claimant may involve a consideration of the cumulative effect of both the ‘provision, criterion or practice applied by or on behalf of the employer and the physical feature of premises’, so it would be necessary to look at the overall picture.”

He continued:-

“In our opinion, an employment tribunal cannot properly make findings of a failure to make reasonable adjustments without going through that process. Unless the employment tribunal has identified the four matters we have set out above, it cannot go on to judge if any proposed adjustment is reasonable. It is simply unable to say what adjustments were reasonable to prevent the provision, criterion or practice, placing the disabled person concerned at a substantial disadvantage.”

	(iv)	In *Tarbuck v Sainsburys Supermarkets Ltd [2006] IRLR 664 (EAT), Elias J, as he then was, held that there was no separate and distinct duty on an employer or other person to consult with a disabled person, while emphasising that it will always be good practice to do so, and that failure to do so may jeopardise a respondent’s legal position. The question for the tribunal is an objective one, namely has the employer complied with its obligations to make reasonable adjustments (Ibid p 673)*.

25.	(i)	The claimant’s claim of associative discrimination follows on from the decisions of the European Court of Justice in *Coleridge v Attridge Law and Anor [2008] ICR 1128 ECJ* and that of the Employment Appeal Tribunal in *EBR Attridge Law LLP v Coleman (No 2) [2010] ICR 242 EAT. In the former it was held that Equality Commission Framework Directive 2007/8* provided a remedy for a person who was not himself disabled where an employer or other person treated him less favourably than another would have been treated in a comparable situation, and the less favourable treatment was based on the disability of another (in that case a child) whose care was provided primarily by that person. The less favourable treatment must be because of the third party’s disability, not because of the caring arrangements.

	(ii)	We are satisfied, having regard to the respondent’s counsel’s submissions, in relation to Directive 2007/8 and the above cases, that the right to bring a claim for associated disability discrimination does not extend to cases where the allegation is of a failure to make a reasonable adjustment.

26. Section 55 of the 1995 Act, in common with all other anti-discrimination legislation, outlaws victimisation where the employee has performed a protected act, in this case the bringing of proceedings before a tribunal. The claimant must identify an appropriate comparator, and the doing of the protected act must be the cause of the less favourable treatment. The appropriate comparison is between the claimant and someone who had not done a protected act. See : Chief Constable of West Yorkshire Police v Khan [2007] ICR 2065 HL.

27.

(i)

Section 17A(1C) sets out the burden of proof in disability discrimination claims. Following the now common formula in legislation outlawing other forms of discrimination, it provides as follows:-

“Where, on the hearing of a complaint, under sub-section (1), the complainant proves facts from which the tribunal could, apart from this sub-section, conclude in the absence of a adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves he did not so act.”

	(ii)	In *Igen Ltd (formerly Leeds Careers Guidance) and Others v Wong; Chamberlain Solicitors and Another v Emokpae; and Brunel University v Webster [2005] IRLR 258, the Court of Appeal in England and Wales has set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race, and disability discrimination. This guidance is now set out in full at an Annex to the judgment in the Igen* case. We therefore do not set out again in full, but have taken it fully into account. In short, the claimant must prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent has committed an unlawful act of discrimination. The tribunal will also consider what inferences it is appropriate to draw from the primary facts which it has found. Such inferences can include inferences that it is just and equitable to draw from the provisions relating to statutory questionnaires, a failure to comply with any relevant Code of Practice, or from failure to discover documents or call an essential witness. If the claimant does prove facts from which the tribunal could conclude in the absence of an adequate explanation from the respondent that the latter has committed an unlawful act of discrimination, then the burden of proof moves to the respondent. To discharge that burden the respondent must show, on the balance of probabilities, that the treatment afforded to the claimant was in no sense whatsoever as a proscribed ground (here disability). The tribunal must assess not merely whether the respondent has proved an explanation for the facts from which inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that disability was not a ground for the treatment in question. Since the facts necessary to prove an explanation will normally be in the possession of a respondent, a tribunal will normally expect cogent proof to discharge the burden of proof. Although the above logically establishes a two-stage process, it is not to be applied slavishly or mechanically, and in deciding whether the claimant has made out a prima facie case the tribunal must put to one side the employer’s explanation for the treatment, but should take into account all other evidence, including evidence from the employer. (See : *Laing v Manchester City Council [2006] IRLR 748 EAT; Madarassy v Nomura International Ltd [2007] IRLR 246; and Arthur v Northern Ireland Housing Executive and Anor [20070] NICA 25*.)

	(iii)	These cases were considered more recently by HM Court of Appeal in Northern Ireland in *Curley v Chief Constable of the Police Service of Northern Ireland and Anor [2009] NICA 8* and *Nelson v Newry & Mourne District Council [2009] NICA 24*. In the former, Coughlin LJ at paragraph 16 of his judgment emphasised the need for tribunals hearing cases of this nature to keep firmly in mind that such claims are grounded upon an allegation of discrimination (in that case religious discrimination). This was re-emphasised by Girvan LJ at paragraph 24 of the judgment in the latter case.

	(iv)	More specifically, in relation to the duty to make reasonable adjustments, the burden of proof was considered in *Project Management Institute v Latif [2007] IRLR 579. In Harvey on Industrial Relations and Employment Law*, the position is summarised as follows:-

“… [T]he EAT held that a claimant must prove both that the duty has arisen, and also that it has been breached, before the burden will shift, and require the respondent to prove that it complied with the duty. There is no requirement for claimants to suggest any specific reasonable adjustments at the time of the alleged failure to comply with the duty; in fact it is permissible … for claimants to propose reasonable adjustments on which they wished to rely at any time up to and concluding the … hearing itself.”

28.	(i)	This case has caused us much difficulty. The claimant’s counsel characterised the conduct of the respondent in this matter as an example of how not to deal with disability discrimination in the workplace, and it is hard not to have sympathy with the claimant who gave loyal, devoted and enthusiastic service to PWC, worked hard to achieve the partnership status which he deserved, and lost it through no fault of his own. To use an inelegant expression, there was clearly a ‘macho’ culture within the firm, and as demonstrated by the crass e-mails passing between some of its senior partners, they were clearly at the end of the queue when tact and sensitivity were being handed out. However, our function is to determine whether the claimant has established the claims of disability discrimination which he has brought.

	(ii)	On a general level, there is no evidence that any of the respondent’s witnesses showed any animosity, prejudice, or intolerance to disabled persons. Indeed, Mr Crossey’s wife had been a mental health social worker. While, as we have said, some of the e-mails about the claimant (particularly those written in the Summer of 2008 when matters were reaching as head) were characterised by crassness and insensitivity, we find it significant that key players who were otherwise casual and careless about what they committed to print made no specific disparaging mention of disability.

	(iii)	We are satisfied that from September 2007 until September 2008 (the period prior to Project Sand) there was a clear desire on the part of management to get the claimant back to work. The claimant was clearly very ill during a substantial part of that period (albeit management did not know he was disabled in the legal sense) but that did not colour management’s attitude to him. Mr Terrington was particularly supportive of the claimant in efforts to get him back to work, most notably in their meetings in April 2008, but not just then, but at all times. We reject any suggestion that these efforts were not genuine. However from April 2008 onwards, it became increasingly unclear whether or not the claimant wanted to come back. Indeed, there were confusing messages from him in this respect, he shifted his ground, and at times he gave the impression of being unwilling to engage with the firm in its efforts to get back to work. From July 2008 onwards, Mr Crossey began to get concerned about when the claimant would return to work, and it was not unreasonable for the respondent to want some degree of certainty in this respect. In particular, the claimant had become entrenched and intransigent in his demand for an apology and an investigation into the BELB Project. He wanted this apology, not to prevent him from suffering any substantial disadvantage, but to right the wrongs which he considered had been done to him. He was still persisting in this demand in September 2008. We are also satisfied that the claimant was looking for a full apology on terms dictated by him. He accepted that he had alerted the press about the proceedings, and the latter’s attendance at the tribunal coincided with the times which were most embarrassing for the respondent’s witnesses.

	(iv)	As far as an investigation into the BELB Project was concerned, there was a limit as to how effective it might be, as the conduct in issue was that of persons who were not employees of PWC and who could not be compelled to co-operate. The results of any such enquiry might have been inconclusive at best, and there was certainly no guarantee they would have been to the claimant’s liking. In respect of the respondent’s failure to carry out a investigation into the BELB Project, there is no evidence that it would have acted any differently had the claimant not been someone who was suffering from any disability, or a disability other than that from which the claimant was suffering. Indeed the difficulties which the respondent saw in carrying out such an investigation in the claimant’s case would have been the same for any such person.

	(v)	As far as the actual dismissal of the claimant is concerned, he pointed to the general lack of sympathy towards him (we do not in general accept this hypothesis, but do accept that the respondent’s patience with him began to wear thin at the end), the respondent’s insinuations that the breakdown was his own fault, the raising of doubts above the genuineness of his illness and the refusal to advance all or any of the four elements of his proposed return to work plan, as being indicative of discrimination on the ground of his disability, and he contends that the respondent would not have dismissed a non-disabled person in such circumstances. He bases his case on a hypothetical comparator, but we find his case in this respect to be largely speculative. He has not adduced any evidence to show or to lay the basis for his claim that a non-disabled person, or a person suffering from another disability would have been treated any differently.

	(vi)	We are satisfied that by October 2008 events had moved on and that by that stage Mr Thompson, as Head of Consultancy, for the firm at national UK level, had decided that there was no longer a partner role for the claimant. Specifically in relation to Mr Thompson (as initiator of the retirement process) there is no evidence that the claimant’s disability played any part in his decision, that he was generally intolerant or ill-disposed to disabled persons, or that he would have treated someone who was not disabled any differently. Mr Thompson, in common with others involved in the various stages of the claimant’s retirement process, honestly and reasonably believed that there was a genuine redundancy situation. The claimant, for his part, equally genuinely did not agree with this assessment, but such a difference of belief does not take the issue of disability discrimination any further. We, for our part, do not accept that the redundancy was a sham. There was ample evidence before us to show that the claimant’s business case was no longer viable and that the PPP work within the firm was diminishing. Insofar as the claimant does compare himself with others within the firm, they are not in any event true comparators, for as has been pointed out they also had roles and had responsibilities which were not client facing.

	(vii)	Apart from Mr Thompson’s breach of procedure in telling the claimant of the proposed redundancy in advance (something for which he gave an explanation and from which we draw no inference) there is generally no complaint about the procedures followed by the respondent’s various internal panels, who acted in accordance with the firm’s procedures, and there is no evidence that the actions of the bodies in upholding Mr Thompson’s decision were in any way tainted by discrimination. We find that they were thorough in their examinations of the business case for redundancy and redeployment opportunities, and Ms Cottis and Mr Terrington in particular were subjected to detailed probing and did not have an easy time. This is significant in relation to the former, whose conduct in this matter was the subject of severe criticism on the claimant’s behalf. Indeed, the London role which the claimant was offered came about after Ms Cottis had been challenged by the PAC. We also note that at the appeal hearing, the panel worked on the hypothesis that the claimant was disabled (rather than treating him as disabled in fact) so there was no prejudice to him in this respect. The claimant does criticise the Appeal Panel because it did not obtain additional medical evidence. However, there was no requirement upon it under the Disability Discrimination Act 1995 to adopt such a course.

	(viii)	We are satisfied that the efforts to redeploy the claimant were genuine. Alternatives were considered, and the persons consulted in this exercise were those who were familiar with the claimant’s background and his work. We do not, as we have indicated previously, accept that the legislation placed the respondent under an obligation to create a new role for the claimant. It is up to a partner to deliver the business case he has developed, and which formed the basis for his admission. We do not see partners who have to develop and build up a client base on the basis of their skills and expertise as being like employees who can be moved around into vacancies which arise.

	(ix)	We also reject the claimant’s contention that the potential London role was offered to him by the respondent in the knowledge that he would not relocate because of his mother’s condition, thus effectively ensuring that his employment with the firm would end. This offer was made at a time when the decision to make the claimant’s role redundant was under intense scrutiny in the firm’s internal review and appeal processes and an offer of redeployment which was not genuine would have been unlikely to escape such scrutiny. In any event we do not accept that the post did in fact require him to re-locate. The claimant had previously, in correspondence with Ms Cottis, recognised the need for some flexibility with regard to location. Though it is true that he was not specifically told the post could be worked on a 3/4/5 basis he was well aware of that practice within PWC, and by that stage other Northern Ireland partners were working in London on that basis. The focus of their work had also shifted to Great Britain because of the economic downturn, and its effect on the respondent’s business in Northern Ireland.

	(x)	The decision to offer the claimant the London role was made following advice from Dr Ferrante that the claimant was fit to work in London. In that respect, Dr Ferrante was much more positive than Dr Miller, the claimant’s own treating psychiatrist. The respondent did not, other than for the purpose of defending these proceedings, obtain a full report from their own consultant, and it did that after the claimant’s partnership had been terminated. It has to be said that Dr Ferrante’s reports, mostly in the form of letters to senior managers, were laconic in the extreme. However, the respondent was entitled to rely on, and to prefer, the advice of its own in-house medical adviser. We do not consider that they were under a duty to obtain additional or more detailed medical reports. There is no evidence that in assessing medical evidence or requiring the claimant to re-locate to London, the respondent would have treated a non-disabled person any differently.

29.	(i)	As far as the claimant’s concern for associative disability is concerned, the allegation is that he had significant case responsibilities which stopped him taking the London job. The respondent, he alleges, did not take his mother’s disability into account, and generally in this respect also, demonstrated a lack of sympathy towards him and his predicament. In relation to this aspect of the matter, the evidence adduced by the claimant is generally weak, and there is a dispute as to the level of care required by his mother.

	(ii)	There is no evidence which persuades us that the claimant’s treatment by the respondent was in any way motivated or influenced by the stroke that his mother suffered in the Spring of 2008.

30. We are also satisfied that the claimant’s victimisation claim fails. He has not satisfied us that the reason for non-payment of performance pay for the financial year ending 2009 was because he had threatened or brought legal proceedings against the respondent. As pointed out, he had received performance pay for the year ending 2008, notwithstanding that he had been off work for most of that year (8¹/₂ months). The respondent took the view that he should not be paid for a second year, and we consider that was a reasonable and tenable view in the circumstances. The institution of proceedings by him (which it is accepted was a protected act) was not the reason for non-payment.

31.	(i)	We now turn to the issue of reasonable adjustments. We remind ourselves of the relevant law, which we have set out at Paragraph 24. above, and in particular that there has to be a provision, criterion or practice in place at the relevant time.

	(ii)	The reasonable adjustments for which the claimant has contended are set out at Paragraph 5 of the List of Issues. However, the List of Issues shows a tendency to set out as reasonable adjustments matters on which there has been a dispute as to the facts between the parties to the proceedings.

	(iii)	Paragraph 5.1 states that a reasonable adjustment would have been:-

“Requiring or allowing the claimant to return to work only on the basis that there would be no acknowledgement of, or no appropriate allowance made for:-

5.1.1 the manner in which the claimant had been mistreated by the respondent; and/or

5.1.2 the claimant’s disability”

		However, the respondent denies mistreating the claimant, and we do not accept that the respondent made no allowance or acknowledgement for the claimant’s disability. He had regular meetings with members of the firm, and we have made particular reference to the meeting with Mr Terrington of April 2008 which the claimant, initially at least, saw as being positive, though he shifted his ground soon afterwards.

	(iv)	Paragraph 5.2 of the List of Issues:-

“Offering the claimant the option of returning to work only on the basis of no appropriate adjustments being made”

		However, we are satisfied that the respondent accepted that any return to work would have to be phased. Again, at the claimant’s meeting with Mr Terrington in April 2008, there was much discussion of various alterative roles which the claimant could undertake, albeit in the end nothing came of any of these.

	(v)	Paragraph 5.3:-

“Selecting the claimant for redundancy and/or making the claimant redundant”

We are satisfied that the latter is a provision, criterion or practice. It is the claimant’s case that on being made redundant he could not take up the alternative post in London which was offered to him. Insofar as this relates to his mother’s disability, we have dealt with this in relation to associative disability above. In the context of the claimant’s own disability, and the allegation that a move to London would deprive him of his local support network in Northern Ireland, we are satisfied that the London post could have been performed on a 3/4/5 basis, and that as a consequence of this the claimant would not have had to re-locate, and that therefore there was no substantial disadvantage to him.

It is convenient at this stage to deal with Paragraph 5.6:-

“Requiring the claimant to relocate to London in order to remain with the respondent’; and

Paragraph 5.7:-

“Applying the mobility clause contained within the Members’ Agreement in order to require the claimant to re-locate to London”

		We have found that there was no requirement to re-locate because the job in London could have been done on a 3/4/5 basis. We accept that there was a lack of clarity above this when the job was initially offered to the claimant. However, he was specifically told of this at the appeal hearing. In any event, to our mind it follows that the London job could have been done on a 3/4/5 basis that the claimant was not placed at a substantial disadvantage.

(vi)

Paragraph 5.4:-

“Failing to follow a fair redundancy process, or to follow its own redundancy process for making an equity partner redundant. (The issue of failing to allow the claimant a person of his choice to attend the appeal hearing is dealt with separately).”

This cannot be a provision, criterion or practice because an issue inevitably arises as to what constitutes a ‘fair’ redundancy process. However, if we had to, we would make a finding that the respondent’s redundancy procedure was one which was fair. There was an elaborate multi-stage process involving confirmation, review and appeal by various internal boards and committees of the respondent firm. Insofar as that was any breach or non-compliance with the procedure, it was not significant. The claimant was told of his impending redundancy by Mr Thompson at an earlier stage than would normally have been the case.

This breach of procedure, in any event, cannot have placed the claimant at a substantial disadvantage, as in this respect he was treated more favourably than would otherwise have been the case.

(vii)

Paragraph 5.5:-

“Assessing the question of redundancy without regard to the fact that the claimant’s absence had impacted negatively on the Northern Ireland business, and his return would similarly impact positively on the business”

		The evidence before us is that the respondent did fully consider the state of the market as far as it Northern Ireland business was concerned. There was a diminution in PPP work across the market, but notwithstanding the claimant’s absence, the respondent secured all but one of the procurement contracts which came up. There is no evidence that the claimant’s absence, or his return, would have made any difference to the respondent’s business.

	(viii)	Paragraph 5.8:-

“Being unwilling to countenance the claimant continuing a role in Northern Ireland”

		We find that there was no such role. We are further satisfied that the claimant could have carried out the London role on a 3/4/5 basis. Consequently there was no substantial disadvantage.

	(ix)	Paragraph 5.9:-

“Exercising its right of veto over external persons permitted to accompany the claimant at his appeal hearing”

This was clearly a provision, criterion or practice. While we ourselves might not have taken the same attitude to this aspect of the matter as the respondent, we find that its decision not to allow the claimant a chosen companion (ie one of his brothers or his friend, Mr Reid, at the appeal hearing), did not place him at a substantial disadvantage. It is a feature of this case that the claimant despite his disability, in all his meetings with the respondent was always extremely well-prepared, with speaking notes, lists of points and questions to raise, and was always able to record extremely detailed minutes in records of what had taken place.

32. We are satisfied, having regard to the facts found by us, that there was no other reasonable adjustment which the respondent ought to have considered.

33. We dismiss the claimant’s claims.

Chairman:

Date and place of hearing: 6 – 25 May 2010; and

26 – 27 July 2010, Belfast

Date decision recorded in register and issued to parties:

A N N EX ‘A’

IN THE INDUSTRIAL TRIBUNAL 5877/09IT

BETWEEN:

MR COLIN TENNER

Claimant

-and- -

PRICEWATERHOUSECOOPERS LLP

Respondent

_______________
LIST OF ISSUES

Was the Claimant disabled?

1. Was the Claimant at all material times disabled within the meaning of section 1 (.1) of the Disability Discrimination Act 1995 (“the DDA”)? In particular:

1.1 Was the Claimant suffering from severe depression, acute anxiety and/or chronic fatigue from September 2007 until May 2009?

1.2 Have the effects of his mental illness had a long term substantial adverse effect on his ability to cay out day to day activities?

Was the Claimant’s mother disabled

2. Was the Claimant’s mother disabled and if so when did the disability begin and end?

Direct Disability Discrimination

3. Did the Respondent directly discriminate against the Claimant on the grounds of his disability contrary to sections 3A(5) and 6A(1) of the DDA, and/or on the grounds of his

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mother’s disability contrary to the DDA as interpreted by Underhill J in EBR Attridge Law LLP v Coleman UKEAT/0071/09/JOJ. In particular, did the Respondent directly discriminate against the Claimant on the grounds of his disability and/or his mother’s disability by:

3.1 Making him redundant, when there was no genuine case of redundancy?

3.2 Placing the claimant in a position whereby his only options were to consider moving to London, or to lose his employment?

3.3 Allowing him to return to work only on the basis that there would be no acknowledgment of, or appropriate allowances (as set out in paragraphs 32.1, 32.3- 32.12 and 39.1.1-39.7 of the Amended Particulars of Claim) made for:

(a) the manner in which the Claimant had been mistreated by the Respondent;

(b) the Claimant’s disability.

4. To the extent that the Respondent failed to make any of the adjustments set out at paragraph 4 below, did the Respondent thereby directly discriminate against the Claimant on grounds of his disability and/or his mother’s disability in so doing?

Reasonable adjustments

5. Has the Respondent failed to comply with its duty to make reasonable adjustments, contrary to sections 3A(2) and 6B of the DDA? In particular, did the Respondent apply any of the following provisions, criteria or practices to the Claimant, for the purposes of section 3A(2) of the DDA:

5.1 Requiring or allowing the Claimant to return to work only on the basis that there would be no acknowledgment of, or no appropriate allowance made for:

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2

5.1.1 The manner in which the Claimant had been mistreated by the Respondent; and/or

5.1.2 The Claimant’s disability.

5.2 Offering the Claimant the option of returning to work only on the basis of no appropriate adjustments being made;

5.3 Selecting the Claimant for redundancy and/or making the Claimant redundant;

5.4 Failing to follow a fair redundancy process, or to follow its own redundancy . .
process for making an equity partner redundant;

5.5 Assessing the question of redundancy without regard to the fact that the Claimant’s absence had impacted negatively on the Northern Ireland business and his return
would similarly impact positively on the business;

5.6 Requiring the Claimant to relocate to London in order to remain with the Respondent;

5.7 Applying the mobility clause contained within the Members’ Agreement in order to require the Claimant to relocate to London;

5.8 Being unwilling to countenance the Claimant continuing in a role in Northern Ireland;

5.9 Exercising its right of veto over external persons permitted to accompany the Claimant at his appeal hearing.

6. In the event that the Respondent applied any of the above provisions, criteria or practices to the Claimant, did their application put him at a substantial disadvantage in comparison with persons who are not disabled?

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7. Did the Claimant have primary and/or substantial care responsibilities for his mother and if so, in the event that the Respondent applied any of the above provisions, criteria or
practices to the Claimant, did their application put him at a substantial disadvantage in comparison with persons who do not have primary care responsibilities for someone who
is disabled? If so would this be unlawful?

8. Was the Respondent under a duty to make any of the following reasonable adjustments, in order to prevent the provisions, criteria or practices set out at paragraph 3 above putting
the Claimant at a substantial disadvantage?:

8.1 Take action to give effect to the proposals the Claimant made to facilitate his return to work. In particular, to:

8.1.1 Ensure that the Claimant’s role would be consistent with being a partner at the Respondent;

8.1.2 Ensure that the Claimant would operate in a more supportive working environment, especially by the Respondent learning lessons from what had occurred on the Belfast Education and Library Board Project (the “BELB Project”);

8.1.3 Take some action in relation to the bullying that the Claimant experienced from the client during the BELB Project;

8.1.4 Ensure that the Claimant received an apology from Mr Crossey and a recognition that the situation had not been dealt with appropriately;

8.1.5 Engage the Claimant in the preparation of a suitable return to work plan in the light of a suitable medical report;

8.1.6 Ensure that the Respondent’s policies applicable to employees who are sick, disabled or have care responsibilities were applied to the Claimant;

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8.2 Permit the Claimant to continue in his existing role, with suitable adjustments to assist him in returning to work;

8.3 Obtain a full medical report from Dr Ferrante, in consultation with the Claimant’s treating psychiatrist, to seek advice on what reasonable adjustments would be required to facilitate the Claimant’s return to work;

8.4 Comply with its own ethical standards and values, as detailed in the Code of Conduct and the Clear Blue Water initiative, both in terms of the way in which the BELB Project was managed, and in terms of the way in which the Respondent had responded to the Claimant’s illness and the factors giving rise to it;

8.5 Comply with the provisions set out in the Code of Ethics of the Institute of Chartered Accountants in England and Wales, both in terms of the manner in which the BELB Strategic Partnering was conducted, and in terms of the way in which the Respondent had displayed an unwillingness to investigate and address the real business issues raised by the project;

8.6 comply with its own internal policies in relation to harassment and bullying, stress,
and dealing with discrimination and harassment (namely the Bullying and
Harassment Standards and Policies, the People Managers’ Guide: Adjustments for
Disabled Workers and the People Managers’ Guide: How to Handle Long Term
Absence);

8.7 Take cognizance of the medical report prepared by the Claimant’s consultant psychiatrist, in relation to the Claimant’s mental health, the nature and cause of his illness, and his inability to accept a permanent position in London;

8.8 Waive or modify the mobility clause within the Respondent’s Members Agreement to take account of the Claimant’s disability;

8.9 Waive or modify the mobility clause within the Respondent’s Members Agreement to take account of the care responsibilities the Claimant has towards his disabled mother:

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8.11 Create a new role for the Claimant which would enable him to return to work in Northern Ireland, notwithstanding his disability and/or his mother’s disability;

8.12 Engage with the Claimant’s proposals as to the roles he could play within the Belfast office, rather than insist that there was no role for him and that he was to be made redundant;

8.13 Consider a split role between London and Northern Ireland;

8.14 Take proper account of the fact that the Claimant was a work-generating partner, in circumstances where the Claimant’s absence through disability had prevented him from generating work in the period leading up to his redundancy;

8.15 Comply with the provisions of the protocol for individual partner redundancy, in particular by producing an adequate and accurate Business Case for the Claimant’s proposed redundancy;

8.16 Adjust the application of any redundancy procedure by identifying an appropriate pool of individuals potentially at risk of redundancy, and then making allowances for the Claimant’s disability in selecting the individual to be made redundant;

8.17 Prepare the Business Case for the Claimant’s proposed redundancy, and conduct the redundancy process itself, in an unbiased, independent and objective manner;

8.18 Take Claimant’s disability and/or ill health into account in the decision as to whether to select the Claimant for redundancy;

8.19 Not make the Claimant redundant, in circumstances where there was no true case of redundancy;

8.20 Permit the Claimant to be accompanied by a companion of his choice to the appeal hearing, or, in the absence of the companion of the Claimant’s choice, postpone the appeal or conduct it in writing.

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9. If the Respondent was under a duty to make any of the reasonable adjustments set out above, did the Respondent fail to do so?

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