United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR B CARR (of Counsel) Instructed By: Disability Discrimination Act Representation and Advice Project 18 Dedicote Street London EC8 4PG
For the Respondents	MISS S MOOR (of Counsel) Mid Sussex District Council High Street Needham Market Suffolk IP6 8DL


 


JUDGE D M LEVY QC:

1. By an Originating Application dated 22 March 1998, Mr Robert Edwards ("the Appellant") brought proceedings in an Employment Tribunal against Mid Suffolk District Council ("the Council"). He claimed Disability Discrimination and/or Unfair Dismissal from his employment as Head of Corporate Development for the Council.
2. A Notice of Appearance by the Council was entered dated 24 March 1998. There was a six-day hearing before a Tribunal sitting at Bury St Edmunds, three days in September and three days in October 1998, at which both parties were represented by Counsel.
3. The decision of the Tribunal, running to some 14 pages, was promulgated on 21 December 1998. The decision of the Tribunal was that the Appellant had not been unfairly dismissed and that his complaint under the Disability Discrimination Act 1995 ("DDA") was not well founded and was dismissed. From that decision, the Appellant appealed by Notice dated 28 January 1999.
4. There was a preliminary hearing of his appeal before a panel of the EAT headed by Judge Hicks QC on 15 September 1999. On that occasion the Appellant was represented by Counsel under the ELAAS Scheme. The Tribunal gave leave to the Appellant to amend his Notice of Appeal within 28 days of the Order on grounds which had been identified in the course of the hearing. An amended Notice of Appeal, signed by Mr Carr who appears for the Appellant on this appeal, was received by the EAT shortly after 12 October 1999. It was inadvertently dated 12 October 1998.
5. The Respondents submitted an answer and cross-appeal dated 17 December 1999. The Appellant lodged a reply to the Respondents' cross-appeal dated 5 February 2000. It was on this basis we heard submissions on the appeal and cross-appeal on 20 November 2000.
6. Ms Moor appeared for the Council here, as she did below. She kindly provided us and Mr Carr with a chronology which we understood had been used at the hearing before the Employment Tribunal. It assisted us in following the submissions of Counsel as expressed both in the Skeleton Arguments which each had lodged and their oral submissions.
7. So that the issues raised on the appeal and cross-appeal can be considered in context, we will first summarise in outline the facts which led to the Appellant's complaint.
8. The Appellant's employment with the Council commenced on 1 March 1983. In February 1989 he was diagnosed with post viral fatigue system ("ME"). Subsequently the working diagnosis of his illness by his medical advisers was an anxiety state (rather than depressive illness with anxiety symptoms).
9. In January 1996 Mr Geoffrey Chilton ("Mr Chilton") joined the Council as Chief Executive. By then, the Appellant had started psychotherapy with a local Counsellor to assist his anxiety syndrome problems.
10. In the summer of 1996, structural changes across the Council led to the Appellant being required to accept a re-deployed employee, Mrs Batchelor, as his assistant. From then on, because of the inability of the Appellant to work with Mrs Batchelor, relations between the Appellant and the Council deteriorated steadily.
11. On 4 September 1997, Mr Chilton wrote to Mr Lungley of the Occupational Health Service at the Allington NHS Trust asking him to examine the Appellant who had been re-deployed from his post of Head of Corporate Development. In the letter of instructions, Mr Chilton said:

"[The Appellant] feels that he can no longer cope with the pressures associated with the post and its responsibilities and circumstances, and its detrimental effect on his health".

A brief edited history of his employment was given to Mr Lungley, the concluding paragraphs of which read:

"His attempts to carry out the operational instructions, which he and I had agreed, to manage his assistant and meet her at least weekly to discuss workload and priorities appear to cause him such stress that he is unwilling or unable to comply. In June 1997 [the Appellant] indicated to me that he was finding the whole situation too much and was so fearful of the effect on his health that he formally requested redeployment from his post. The effects on his assistant have lately become extreme. As a very senior manager, [the Appellant's] situation and the effects on both myself and the elected Members, have also now become intolerable."

12. That letter appears to have been passed by the addressee to Dr James Duncan for him to provide a report to Mr Chilton.
13. Dr Duncan in turn asked for a medical report from the Appellant's GP, Dr Catherine Helps. By letter dated 20 October 1997, Dr Adam Mowles, a locum at Dr Helps' practice, provided that report, subsequent to meeting the Appellant on 2 October 1997. His summary said:

"In summary [the Appellant] appears to have made progress in understanding and controlling his anxiety state in most situations since starting psychotherapy in 1995. This has also involved sensible use of medication. His most recent difficulties have been largely associated with stresses arising in his workplace, in particular his working relationship with his allocated assistant. I would consider this aspect the most useful to try to rectify to enable him to make further progress and alleviate his anxiety."

14. Dr Duncan reported to Mr Chilton by letter dated 6 November 1997 in these terms:

"On 30 October 1997 I was able to complete the process of occupational medical assessment of the above named, which I commenced on 25 September 1997, in accordance with your request of 4 September 1997.

I note the contents of your detailed referral letter, together with the attached summarised sickness absence record, and job description, in respect of [the Appellant]. Occupational medical assessment has included medical evidence from [the Appellant's] own health care advisers, as well as medical assessment in this department.

After examination, with consideration of duties and of all the above, I can now give you my opinion which is as follows.

1 [The Appellant] is subject to symptoms of anxiety and tension at times, for which he co-operates with the appropriate recommendations of his own health care advisers.

Notwithstanding his symptoms of anxiety and tension, he is medically fit for all his contracted duties and with no restrictions.

2 [The Appellant] and myself freely acknowledge a major interpersonal difficulty which he perceives in his working relationship with one particular fellow employee, a lady who has been re-deployed as his assistant.

Interpersonal difficulties rather than illness have been the reason that [the Appellant] has not been in a position to undertake his usual duties.

[The Appellant] has been fully advised of my opinion as set out above. I hope this is of help."

15. Events which took place both before and after the medical report had been sought on 4 September 1997 are dealt with in some detail in the Extended Reasons, though little is said of the medical views expressed in the period. Those events culminated in a letter of dismissal on notice being sent to the Appellant by Mr Chilton by letter dated 8 December 1997. Paragraph 52 of the Extended Reasons summarises that letter and sets out the conclusion:

"Given the irretrievable breakdown of relationships, the loss of trust and confidence as outlined above, there are no options open to the Council. The Personnel Subcommittee has therefore decided to dismiss you and hereby gives notice to terminate your employment in accordance with the terms of your contract. Twelve weeks notice, on full pay, applies from today's date to expire 1^st March 1998."

16. Before and after the letter the Appellant had been on sick leave from which he returned on 15 January 1998.
17. On 22 December 1997 at the Appellant's Solicitors' request, Dr Mowles made a written report to them "to assist the processes of determining whether or not [the Appellant] is a disabled individual as defined by the [DDA]".
18. On 22 January 1998 Dr Mowles wrote a further letter to the Appellant's Solicitors in these terms:

"Thank you for your letter dated 13 January 1998 requesting a couple of details perhaps not entirely clear in my medical report from 29 December 1997.

(1) I do think that [the Appellant] should be considered a disabled person within the meaning of the Disability Discrimination Act. By definition this requires the medical condition to affect the person persistently and in a wide range of circumstances, i.e. not solely in the context of a particular job. Though [the Appellant] has been undoubtedly most severely affected in recent times by the relationship with his nominated assistant, his anxiety state placed significant restrictions on his daily life before this.

(2) I have not been contacted by Dr Duncan since his detailed letter dated 8^th October 1998 which I answered on 20 October 1997.

I hope this information is some help to you on behalf of [the Appellant]."

19. The appeal by the Appellant against his dismissal was heard by a panel on 5 and 17 March 1998. The appeal was rejected on 18 March. We have been shown a copy of a document headed:

"APPEALS PANEL HEARING

5 FEBRUARY AND 17 MARCH 1998"

It is an 8 page document, ("the Appeal Hearing Decision") signed by the Chairman of the Panel and dated 30 March 1998, recording the appeal hearing and decision to dismiss the appeal. This is the last document listed in Ms Moor's chronology. From that document, it does not appear that the Appellant was represented at the hearing.

20. Among the documents before the Panel was a Medical Report by Dr Mowles. Paragraph 7 of the Appeal Hearing Decision, under the heading "The Case for the Appellant" refers to a report by Dr Mowles dated 29 December 1997. We do not know if this report differs from that of 22 December 1997 which we were shown in the course of the hearing.
21. The Appeals Panel considered that there were three issues to be determined. The first of them was worded:

"1 Was [the Appellant] a disabled person within the context of the Disability Discrimination Act 1995 and, if so, did the Council discriminate against him by not making reasonable adjustments?

2 Was [the Appellant] fit to undertake the full range of responsibilities and duties of his post?

3 Was the reason for [the Appellant's] dismissal one which fell within the category of 'some other substantial reason' within the meaning of the Employment Rights Act 1996 Section 98 and, if so, did the Council act reasonably or unreasonably in treating it as a sufficient reason for dismissing him."

22. Thus the first issue was in two parts. As to the question was the Appellant a disabled person under the DDA the answer was clear.

"1 [DDA] defines a 'disabled person' as a person with a 'physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day to day activities'. In this case it was clear from the evidence that [the Appellant] does suffer from an impairment in that in 1989 he was diagnosed as suffering from post-viral fatigue syndrome and that since 1991 he has also suffered from chronic anxiety syndrome. It was clear that the effect of his impairment is substantial and that that effect is long-term in that it has lasted for more than 12 months."

23. The other question raised in 1 and those in 2 and 3 were answered in the affirmative and led to the dismissal of the Appellant's appeal.
24. From the Extended Reasons of the Employment Tribunal, it is clear beyond peradventure that the reason why they found the Applicant was not unfairly dismissed was because of his failure to work with Mrs Batchelor. In paragraph 11 of the Extended Reasons there is a holding:

" …the whole of this litigation stems from [the Appellant's] refusal from the start to accept the Council's decision and to manage or work with Mrs Batchelor … ."

25. In paragraph 24, in the context of summarising a meeting between Mr Chilton and the Appellant on 13 June 1997, there is as a further holding:

"We are satisfied that [the Appellant] was trying, as he tried consistently, to block any attempt to force him to manage Mrs Batchelor or make any positive suggestions to work with her."

26. In paragraph 25 the Employment Tribunal held that they were satisfied that the Appellant had no grounds at all to complain about the actions of Mr Chilton towards him and in paragraph 26 that Mr Chilton's patience with the conduct of the Appellant in very difficult circumstances was admirable and hold:

"Insofar as [the Appellant] accuses Mr Chilton of harassment, we find his claim to be disingenuous. In so far as there was any harassment, it was being done deliberately by [the Appellant] of Mrs Batchelor."

27. In paragraph 33, when dealing with a meeting between the Appellant and Mr Chilton on 19 September 1997 and events leading to it, the Employment Tribunal find that "Mr Chilton had exercised the patience of a saint". Paragraph 41 deals with a meeting between Mr Chilton and the Appellant on 12 November 1997 where Dr Duncan's Report was under consideration. The Reasons state Mr Chilton had considered the report from Dr Duncan that:

"… notwithstanding the applicant's symptoms of anxiety and tension, he was medically fit for his contracted duties with no restrictions. Mr Chilton was concerned that the allegation that [the Appellant] was disabled within the meaning of the 1995 Act appeared to conflict with the occupational health report [of Dr Duncan]."

Paragraph 42 finds the Employment Tribunal satisfied that the Appellant by that stage "having been in contact with Solicitors, was setting out quite deliberately to build a case against the Council".

28. Paragraphs 43 to 57 deal in some detail with events leading to the Appellant's dismissal. There was a letter handed to the Appellant on 18 November 1997 setting out that dismissal would be a probability following a meeting of the Personnel Subcommittee on 8 December 1997. That meeting took place and resulted in the Appellant being dismissed on notice by way of letter dated 8 December 1997. The Appellant's appeal against dismissal was lodged on 19 December 1997. He returned from sick leave on 15 January 1998. The appeal hearing commenced on 5 February 1997 and adjourned till 17 March 1998 so that the panel could hear medical evidence. On 1 March the Appellant's employment ceased. At the conclusion of a hearing which the Appellant accepted was fair, the appeal was dismissed. The panel accepted that the Appellant was disabled under the provisions of the DDA but held that he had not been discriminated against. Paragraph 57 makes a finding that both sides accepted there was a breakdown of trust and confidence. The Appeal panel on "reasonable, indeed overwhelming evidence" were entitled to believe that the fault for this was that of the Appellant". Paragraph 58, the final paragraph, regarding events leading to dismissal before the Employment Tribunal turned to deal with disability, concludes:

"We are also satisfied that the Applicant at no stage was interested in redeploying to other tasks and further that there were no reasonable tasks on which he could be employed, and that, by his conduct, it was unrealistic to expect the Council to continue employing him."

In these paragraphs the Tribunal made findings critical of the Appellant and his Solicitors and in praise of the Council and its Officers.

29. Paragraphs 59 to 62 of the Extended Reasons deal with disability thus:

"59 However, this case is also an allegation that the applicant was suffering from a disability and was discriminated against on the basis of his disability. We first of all acknowledge that the respondents have conceded that the applicant was suffering at all material times from a disability within the meaning of the 1995 Act. Having reviewed the evidence in this case, because we were not minded at first to accept that concession by the respondents, we are satisfied that it is properly made. The applicant, by reason of his chronic anxiety state, was substantially disadvantaged from time to time and over a period of years from carrying out everyday activities. We do not propose to elaborate on that matter since it seems not to be germane to the other considerations we have to consider.

60 We are very conscious that in a case like this it may well be that, by reason of a mental illness, an employee acts in a manner which would not be appropriate for someone not suffering from that disability. We are also alive to the duty upon an employer to take reasonable steps, pursuant to the provisions of the Act, to ensure that a disabled employee is not disadvantaged thereby.

61 The difficulty we face in this case is that we are satisfied on the evidence presented to us that the cause of the breakdown in the relationship between employer and employee was nothing whatsoever to do with the applicant's disability. The applicant deliberately, selfishly, consistently and obdurately set his face against working with Mrs Batchelor. It is right that he had suffered from ME in the past and that he has a chronic anxiety state. It may well be the case that his conduct has exacerbated his illness. We are satisfied, however, that he has not established that his conduct towards Mrs Batchelor and Mr Chilton was caused by his illness. We are satisfied that, with the benefit of hindsight and having visited solicitors, that he is using his mental illness as a stick with which to beat the employer. We are therefore satisfied that the disability claim is a complete red herring and that the applicant was well capable of performing his duties at all relevant times in accordance with the report of Dr Duncan and that there is nothing in this case, other than the applicant's evidence which we do not accept, to gainsay that medical opinion. In reaching that conclusion we bear in mind the evidence both of the applicant and of his wife. We regret to have to reach the conclusion that the applicant was not an impressive witness. He was given to self pity and to blaming others for matters that were manifestly within his control had he chosen to co-operate with his employers. His wife in her evidence painted a picture of a man who, if evidence was accepted in toto, could not on any reasonable view of the matter have held down a job of any consequence. We find her evidence to be partial and exaggerated.

62 We do not in the circumstances rehearse the medical evidence. It is in the bundles. We have taken it into account and we are satisfied, just, that the applicant is disabled within the meaning of the Act. But since we are not satisfied that his disability caused or contributed to his conduct in this matter we see no point in elaborating further."

30. Having dealt with the reasons for believing the dismissal was not unfair, the Tribunal turned to the questions raised under the DDA. Paragraphs 69 to 72 set out their findings.

"69 In the normal course of events, we would set out those submissions in detail and make relevant findings based on our findings of fact in this case. However, that is not necessary. There is no causal link between the applicant's dismissal and his disability. We remind ourselves that under section 5 of the Act an employer discriminates against a disabled person if, for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does or would not apply and he cannot show that the treatment in question is justified.

70 We are satisfied that the treatment of the applicant was not for a reason which relates to the applicant's disability. We have set out in detail earlier in this decision the reasons for the applicant's dismissal and that the applicant's conduct may or may not have exacerbated his disability. His conduct and his attitude, however, was not caused by his disability. Further, we are also satisfied that any person who behaved as the applicant behaved, without his disability, whether there was any causal link or not, would have been treated in exactly the same way. Indeed, it is arguable that the applicant, by reason of his history, was treated more gently and allowed more latitude than someone who did not suffer from chronic anxiety syndrome. Thus, we are satisfied that there is no causal link and that in any event a comparator pursuant to the provisions of the test laid down in the Novocold case would not show disparity of treatment towards the applicant.

71 For the avoidance of doubt, we consider section 6. We are not convinced that the employment provisions of Mrs Batchelor come within the meaning of 'arrangements made by or on behalf of the employer' but it is a concession made by the respondents. We are satisfied that the applicant was not subject to a substantial disadvantage by reason thereof. Indeed, in so much as he suffered from a disadvantage, it was entirely of his own choosing by his own obduracy.

72 For all the above reasons, we find that the Disability Discrimination Act claim is entirely spurious and we have no difficulty at all in the circumstances of this case, although it gives us no pleasure, in dismissing that claim. It is not well-founded."

31. It is clear from these extracts from the Extended Reasons that the Tribunal's sympathy on the facts as found was entirely with the Council and that theirs was a clear holding that the Appellant was the author of his own misfortunes and that the DDA claim was "entirely spurious".
32. With that background, we will set out the grounds of appeal and the grounds of the cross-appeal. Paragraph 7 of the amended Notice of Appeal reads:

"7 The grounds on which the Appellant appeals are that the Employment Tribunal erred in law in that:

(1) Having correctly recognised that the Appellant was a disabled person within the meaning of the DDA, the Tribunal then failed to make any finding as to the effect of such disability and the extent of any impairment from which the Appellant suffered in relation to his ability to undertake normal day to day activities and to undertake work responsibilities. Such findings were essential if the Tribunal was properly to consider the Appellants complaints that:

(a) he had been unfairly dismissed within the provisions of the Employment Rights Act 1996 and/or had been discriminated against under section 5 DDA in relation to his dismissal;

(b) the Respondent had failed to make any or any reasonable adjustments in accordance with their duty under section 6 DDA;

(2) they failed to take into account the medical evidence submitted to the Tribunal by the Appellant and/or failed to give any reasons or explanation as to why such evidence was not taken [into] account where it differed from the medical evidence submitted by the Respondent;

(3) they failed properly to consider the Appellant's complaint under section 6 DDA in that they failed to follow the guidance set out in Morse v Wiltshire County Council [1998] IRLR 352. The ET should have:

(a) Determined whether the Respondent was under a duty to consider the question of reasonable adjustments under section 6(1) DDA;

(b) If such duty was imposed (as in the present case it is submitted it was), they should then have decided whether the Respondent had taken such steps as were reasonable in order to prevent the Appellant being placed at a disadvantage in comparison with other persons who are not disabled;

(c) In turn, the Tribunal should have considered whether the Respondent could reasonably have taken any steps, including those set out in paragraphs (a) – (l) of section 6(3), whilst also having regard to those factors which are set out at paragraphs (a) – (e) of section 6(4);

(d) The Tribunal should then have considered the question of objective justification as appropriate."

33. We note that the grounds of appeal refer to Morse v Wiltshire County Council, which was reported in the IRLR reports of July 1998, before the Tribunal hearing. No authorities were referred to in the Extended Reasons. Given the complexity of the DDA we found this omission surprising.
34. As to the grounds of cross-appeal, paragraphs 5 and 6 of the Amended Answer read:

"5 The Respondent cross-appeals from the decision of the Employment Tribunal at paragraph 71 of its decision that the Respondent conceded that the employment provisions of Mrs Batchelor came within the meaning of 'arrangements' under section 6(1)(a) of the Disability Discrimination Act 1995 ('the Act').

6 The Respondent's grounds of appear are:

(a) No such concession was made.

(i) The Respondent, in its Reply to the Disability Discrimination Act Questionnaire at paragraphs 33 and 36, denied that the allocation of Mrs Batchelor was an arrangement within the meaning of the Act and denied that Mrs Batchelor placed him at a substantial disadvantage.

(ii) The Respondent maintained its denial on those two points in its oral submissions. It developed the latter by reference to facts

(b) A particular fellow employee cannot amount to an 'arrangement' within the meaning of section 6(1)(a) of the Act. Therefore the duty under Section 6 did not arise.

(i) The Applicant's case was that the allocation of Mrs Batchelor was the 'arrangement' under Section 6(1)(a) of the Act. (He did not allege that the requirement for him to manage any support worker placed him at a disadvantage).

(ii) The Applicant alleged that Mrs Batchelor was of such a character that he found it impossible to manage her. He made very personal allegations about her character and personality.

(iii) It cannot have been the intention of Parliament to include in the meaning of 'arrangement' the particular traits or personalities of fellow employees. The character or personality of a colleague is not a job-related matter. The job-related is that the Appellant was required to manage a support worker. He did not challenge this arrangement."

35. The grounds set out in the reply to the Respondents' cross-appeal for resisting it are:

"3. The Appellant wishes to resist the cross-appeal for the following reasons:

(1) In relation to paragraph 6.a: the Appellant disputes the suggestion that the concession was not made. Further, the contents of paragraphs 33 and 36 of the Respondent's Reply to the DDA Questionnaire, do not support the contention put forward by the Respondent in its Cross-Appeal;

(2) In relation to paragraph 6.b: the Appellant contends that the construction placed by the Respondent on the meaning of the word 'arrangement' is unnecessarily and inappropriately narrow. Further, whilst an employee may not be an 'arrangement' (as suggested by the Respondent), there is no proper basis on which to suggest that the DDA should be construed so as to put particular arrangements made in relation to particular employees outside the scope of the protection afforded to disabled persons under the Act;

(3) Further, the Appellant relies on the reasoning of the Tribunal in making its decision."

36. Mr Carr submitted that the Tribunal albeit unsurprisingly, having accepted that the Appellant was under a disability, it was essential for it to examine the nature and extent of that disability to understand its impact on his behaviour and ability to carry out his work. He reminded us of the Sections of the DDA material to this appeal, which are in these terms:

Section 4 (2) to (6) provides:

"(2) It is unlawful for an employer to discriminate against a disabled person whom he employs –

(a) in the terms of employment which he affords him;

(b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit;

(c) by refusing to afford him, or deliberately not affording him, any such opportunity; or

(d) by dismissing him, or subjecting him to any other detriment.

(3) Subsection (2) does not apply to benefits of any description if the employer is concerned with the provision (whether or not for payment) of benefits of that description to the public, or to a section of the public which includes the employee in question, unless -

(a) that provision differs in a material respect from the provision of the benefits by the employer to his employees; or

(b) the provisions of the benefits to the employee in question is regulated by his contract of employment; or

(c) the benefits relate to training.

(4) In this Part 'benefits' includes facilities and services.

(5) In the case of an act which constitutes discrimination by virtue of section 55, this section also applies to discrimination against a person who is not disabled.

(6)..This section applies only in relation to employment at an establishment in Great Britain."

Section 5 (1) to (5) provides:

"(1) For the purposes of this Part, an employer discriminates against a disabled person if -

(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and

(b) he cannot show that the treatment in question is justified.

(2) For the purposes of this Part, an employer also discriminates against a disabled person if -

(a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and

(b) he cannot show that his failure to comply with that duty is justified.

(3) Subject to subsection (5), for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial

(4) For the purposes of subsection (2), failure to comply with a section 6 duty is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial.

(5) If, in a case falling within subsection (1), the employer is under a section 6 duty in relation to the disabled person but fails without justification to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 6 duty."

Section 6 (1) to (4) and (7) provides:

"(1) Where –

(a) any arrangements made by or on behalf of an employer,

(b) …

place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect.

(2) Subsection (1)(a) applies only in relation to –

(a) arrangements for determining to whom employment should be offered;

(b) any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded.

(3) The following are examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1) –

(a) making adjustments to premises;

(b) allocating some of the disabled person's duties to another person;

(c) transferring him to fill an existing vacancy;

(d) altering his working hours;

(e) assigning him to a different place of work;

(f) allowing him to be absent during working hours for rehabilitation, assessment or treatment;

(g) giving him, or arranging for him to be given, training;

(h) acquiring or modifying equipment;

(i) modifying instructions or reference manuals;

(j) modifying procedures for testing or assessment;

(k) providing a reader or interpreter;

(l) providing supervision.

(4) In determining whether it is reasonable for an employer to have to take a particular step in order to comply with subsection (1), regard shall be had, in particular, to –

(a) the extent to which taking the step would prevent the effect in question;

(b) the extent to which it is practicable for the employer to take the step;

(c) the financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his activities;

(d) the extent of the employer's financial and other resources;

(e) the availability to the employer of financial or other assistance with respect to taking the step.

…

(7) Subject to the provisions of this section, nothing in this Part is to be taken to require an employer to treat a disabled person more favourably than he treats or would treat others."

Mr Carr analysed the medical reports from September 1997 which were before the Tribunal to identify:

•    first that the Appellant suffered both from ME and more significantly chronic anxiety disorder;

•    secondly that these disabilities were known to the Council, certainly before dismissal of the Appellant's appeal;

•    thirdly that the Tribunal heard medical evidence from Dr Helps, the Appellant's GP as well as Dr Duncan;

•    fourthly that Dr Helps' evidence was to the effect that the Appellant's inability to cope was due to problems with Mrs Batchelor and that adjustments to his working arrangements would have reduced his stress levels and caused improvement in his performance, important factors when considering the material and provisions of Section 5 (2) and Section 5 (6) of the DDA.

37. Mr Carr pointed out that the Tribunal in paragraph 59, albeit grudgingly, held that the Appellant was disadvantaged but went on to conclude that the identified disability did not cause or contribute to the conduct of which the Council complained. The decision, he submitted, did not analyse the evidence of Dr Helps. It does not say why her evidence was rejected.
38. Ms Moor submitted that from the finding that the disability claim was a red herring and that the report of Dr Duncan, found to be an impressive witness, each supported a finding that the Appellant was "well capable of performing his duties" In those circumstances she submitted we could be satisfied that other medical evidence to that of Dr Duncan had been considered and rejected.
39. We are unable to accept Ms Moor's submission. If a Tribunal is to reach a conclusion that there is no connection between disability and an appellant's work behaviour, we agree with Mr Carr's submission that it is necessary for the Tribunal to explain why. It is not sufficient simply to state that there is no connection.
40. Mr Carr referred us to the decision of the EAT in Pottage v Stonham Housing Association Ltd [EAT/935/99 decided on 6 April 2000]. There a panel headed by Mr Commissioner Howell QC, considered a preliminary point in an appeal as to whether the depressive illness from which the Appellant was suffering constituted a disability within section 1 of the DDA. In the course of the judgment, reference was made to the decision of a panel headed by the former President, Morison J, in Goodwin v the Patent Office [1999] IRLR 4. Having considered the approach recommended in Goodwin, a majority of the EAT in Stonham found the findings made by the Employment Tribunal inadequate, a minority felt sufficient of the reasons could be found within the decision. Mr Carr submitted that we should find here that the judgment was deficient in explaining why the disability was unconnected with work behaviour.
41. Where dismissal under the provisions of the DDA is a ground of complaint, in our judgment it is jejune of the Tribunal to state, without more, why conduct and disability are unconnected and why the possibility of adjustment being made to benefit a person under a DDA disability is not to be considered. In our judgment it is essential in a case such as this for a Tribunal, first to make findings of the nature and extent of an Applicant's disability and then to consider its impact in terms of his ability to carry out his allotted work. We think Mr Carr is right in submitting that in order to consider whether an employer fails to make reasonable adjustments to a disabled employee's work, it is essential to consider the nature and extent of disability in the context of his work. We cannot find such analysis here and this fatally flaws the Tribunal's decision. The Employment Tribunal does not appear to have taken sufficient account of the fact that the test of unfair dismissal, under the Employment Rights Act (ERA) 1996, and the test of a non-discriminatory dismissal under the Disability Discrimination Act (DDA) 1995 are different and that the latter is a higher test than the former. It may be that an applicant is fairly dismissed under the ERA but it does not necessarily follow that the dismissal is non-discriminatory under the DDA.
42. We have referred already to the evidence of Dr Helps. Amongst the medical reports we read was hers dated 21 August 1998. It therefore post-dated the appeal panel's report, the last document in Ms Moor's chronology. We understand that it was before the Tribunal and we were asked by Mr Carr to look at it which, without objection from Ms Moor, we did. The letter was addressed to the Appellant's Solicitors. We set out the text in full. The emphasis in the last two paragraphs is ours:

"This report is based on my own conclusions with [the Appellant] and from previous medical records.

[The Appellant] has been suffering with post viral fatigue syndrome or myalgic encephalomyelitis (ME) since March 1988 when he developed episodes of fatigue and general malaise. More significantly as a part of this he has an anxiety disorder leading to frequent panic attacks. This is a well-recognised mental illness, characterised by marked feeling of dread associated with frightening physical symptoms. The symptoms are a racing heart beat, sweating, dizziness, hyperventilation, chest pains, poor co-ordination, diarrhoea and stomach cramps. During these attacks memory and concentration fail, there is a feeling of losing control and often a fear that death is imminent. These attacks can last from a few minutes to several hours, as there is a natural fear of further attacks that perpetrates the anxiety state.

[The Appellant] has suffered numerous episodes of anxiety and panic. During his attacks he has all the classical symptoms as described. When he first presented in 1988 he was fully assessed by Dr Hughes and Dr Irvine, Consultant Physicians at Ipswich Hospital. Full investigations for a physical illness were negative.

He was referred to the Community Mental Health Team in 1992 for help with dealing with his anxiety state. He became worse in 1995 and he started seeing a psychologist for regular counselling. He was again assessed by Dr Paulley (Physician) who could find no physical problem. A referral has been made recently to St Clements Hospital, Ipswich, to see a psychiatrist.

[The Appellant] has developed a lot of very effective coping strategies to avoid stressful situations. He has learnt to pace himself and to avoid confrontation. By reducing his stress levels his anxiety level falls and he is able to manage normal day to day activities remarkably well. He has used Diazepam (a sedative) on occasions when stress has caused an exacerbation of his symptoms. This helps calm his nerves and enables him to deal with situations more effectively. Without the use of this drug he would have found certain situations too stressful. He also uses propranolol, a drug that helps control the physical symptoms of anxiety.

He has attended my surgery on numerous occasions at times of particular stress and I have witnessed his anxiety symptoms. He attended surgery particularly frequently during October/November/December 1997 when he saw my locum Dr A Mowles.

[The Appellant's] illness has affected his home and social life as well as his work. He has had to make significant adaptations to all parts of his life. He has had a lot of support from his family and friends and he has managed well with this support.

I believe that [the Appellant] is a disabled person within the meaning of the Disability Discrimination Act. He has a mental illness that has a substantial and long term adverse effect on his ability to carry out normal day to day activities.

I believe that if [the Appellant's] employers had recognised his disability and had identified his problems it would have helped him considerably. The problems encountered with his assistant exacerbated his anxiety state and he was unable to cope. If the Council had made reasonable adjustments to [the Appellant's] working arrangements his stress levels would have been reduced and performance would have improved significantly."

43. We appreciate, as Ms Moor submitted, that the Tribunal accepted the evidence of Dr Duncan that the Appellant's anxiety symptoms were not the cause of the difficulties with Mrs Batchelor. They then set out in their decision Dr Duncan's reasoning, finding him an impressive witness. We accept, as Ms Moor submits, that in paragraphs 60 and 61 of the Extended Reasons the Tribunal rejects the submission that illness caused his inappropriate behaviour to Mrs Batchelor and Mr Chilton. However, it is clear that Dr Helps expressed the view that his disability contributed to that behaviour. The Tribunal may have been entitled to reject, as they did, the Appellant's own evidence as to what caused the breakdown. However, there is no analysis of why Dr Helps' evidence was rejected, as it appears to have been, in the sentence in paragraph 61 of the Extended Reasons which reads:

"We are therefore satisfied that the disability claim is a complete red herring and that the applicant was well capable of performing his duties at all relevant times in accordance with the report of Dr Duncan and that there is nothing in this case, other than the applicant's evidence which we do not accept, to gainsay that medical opinion. In reaching that conclusion we bear in mind the evidence both of the applicant and of his wife."

44. It is clear therefore, by implication, the Tribunal is not considering Dr Helps' evidence. In a case where a disability claim is put forward by a litigant, who has disabilities coming within the DDA, in our judgment a Tribunal is not entitled to side-step the medical issues raised. It is under a duty to summarise and take into account medical evidence adduced on behalf of the Applicant; if it rejects that evidence, it is under a duty to explain why. The other findings on which Ms Moor relied, all findings of the Tribunal as to the effect of the Appellant's ability to work are, in our judgment, flawed because of the failure to examine and make findings on medical evidence put forward.
45. For the Respondent, Ms Moor also submitted that dismissal of the Appellant was inevitable in any event, given the findings of fact of the Tribunal. She sought to support the decision on that ground. Mr Carr submitted that Ms Moor's submission ignored the fact that the Tribunal appear not to have considered the nature and extent of the Appellant's disability and the requirement placed upon the Council by the DDA. Had the Tribunal concluded that the nature of his disability was such that there was a connection between the Appellant's behaviour in relation to Mrs Batchelor and/or that the Council should have made reasonable adjustments by removing her from contacts with him, their conclusion that the dismissal was nevertheless fair might not have followed. We accept Mr Carr's submission that if the breakdown in a working relationship had arisen substantially out of an employer's failure to comply with the provisions of the DDA by making adjustments, a claim by the employee of unfair dismissal might succeed in the light of the failure by the Tribunal to make sufficient findings as to the extent of the Appellant's impairment and the effect of this on his work behaviour. We cannot accept Ms Moor's submission that dismissal was inevitable in any event.
46. We have already expressed some surprise that no reference was made to the decision in Morse v Wiltshire County Council in the Extended Reasons. That decision gives guidance as to the sequential steps to be taken where a complaint is made by an employee falling within Section 5 (2) of the DDA. We observe that in paragraph 68 of the Extended Reasons, the Tribunal state they heard detailed submissions on the provisions of the DDA. In paragraph 69 reference is made to Section 5 of the DDA. However, the reference made is only to the provisions of Section 5 (1). Section 5 (2) is not considered. Consideration of that subsection leads to consideration of Section 6 of the DDA, a section which "for the avoidance of doubt", the Tribunal states in paragraph 71 was considered. This leads to consideration of the Cross Appeal of the Council.
47. An issue of fact arises as to whether a concession was made by the Respondent that the employment provisions of Mrs Batchelor came within the meaning of "arrangements made by or on behalf of the employer" under the DDA. Ms Moor who appeared below told us that she made no such concession. Mr Carr relies on the words of the decision itself to submit that, whatever Ms Moor had intended, the Tribunal understood that that had been such a concession, which he submitted would in any event have been appropriate. Both sides rely on paragraphs 33 – 36 of the reply by the Respondent to the DDA Questionnaire to support their respective submissions - Mr Carr's that there was "an arrangement" within the section, Ms Moor that there was not. There is certainly nothing in the paragraphs of the DDA questionnaire to suggest that at the time that document was prepared, the Respondent did not consider that the arrangements in place for Mrs Batchelor to assist the Appellant were not within the scope of a Section 6 arrangement. Ms Moor referred us to the decision of the EAT in Kenny v Hampshire Constabulary [1999] IRL 76 to support the submission that the supply of an assistant could not be an arrangement. There the judgment of the Tribunal was given by the former President, Morison J. Having examined Section 6 of the Act and looked at the facts of the case, the Tribunal concluded:

" … not every failure to make an arrangement which deprives an employee of a chance to be employed is unlawful. It is to s.6 (2) that one must turn for a definition of what is covered. It seems to us that in the context of the language used, namely 'any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded', Parliament had in mind what might be called 'job-related' matters. In other words, Parliament is directing employers to make adjustments as to the way the job is structured and organised so as to accommodate those who cannot fit into existing arrangements".

Mr Carr submitted that the decision as to what was an "arrangement" was wide enough to encompass the disabilities of the Appellant, if they had properly been considered by the Tribunal.

48. In our judgment, prima facie the words of Section 6 are sufficiently wide to encompass an arrangement for the provision of assistance to someone in the Appellant's position, with an employer such as a Council, suffering disabilities under the DDA as he undoubtedly did. The conclusion in paragraph 71 that the Appellant was not subject to a substantial disadvantage is in our judgment flawed because of the failure by the Tribunal to analyse Sections 5(2) and 6 of the DDA in the light of the Appellant's disability.
49. We appreciate that the Tribunal's decision was reached in the light of clear findings carefully made after hearing evidence where they were impressed neither by the Appellant nor the case presented for him and were impressed by the Council's case. It may be that another tribunal, making appropriate findings on the medical evidence and its effect on the Appellant's disability in employment, would come to a similar conclusion, as did this Tribunal on the merits of the Appellant's claim. However, without findings of fact on the medical evidence by the Tribunal, together with an analysis of the effect in law of those findings under the DDA, the decision appealed against cannot stand. We therefore allow the appeal and dismiss the cross-appeal.
50. In the event of the appeal succeeding, Mr Carr invited us to order that there should be a re-hearing of the Appellant's complaint before a differently constituted Tribunal. Ms Moor did not submit otherwise. In Pottage, the case was remitted to the Employment Tribunal to be reconsidered either by the same or the differently constituted Tribunal. Having regard to the trenchant findings of fact adverse to the Appellant, it would be inappropriate for us to remit the Appellant's complaints for re-consideration by the same Tribunal in the light of this judgment. A rehearing of a long and complicated case and on evidence which may now be stale may well give difficulties to all those involved in a rehearing. Nonetheless, we feel obliged to order that there should be a rehearing before a differently constituted Tribunal.