United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS L COX QC Instructed By: Mr P Daniels Messrs Russell Jones & Walker Solicitors Swinton House 324 Gray's Inn Road London WC1X 8DH
For the Respondent	MR D BEAN QC Instructed By: Mr A Whitfield Solicitor Group Legal Services Employment Law Team British Telecommunications Plc BT Centre 81 Newgate Street London EC1A 7AJ


 


MR JUSTICE CHARLES:

Introduction

1. This is an appeal by the Applicant before the Employment Tribunal (Mr Wilding) against a finding (the Remedy Decision) of an Employment Tribunal sitting at London (North) on 18 and 19 May 1999 to consider the compensation which the Respondent before the Employment Tribunal (British Telecom Plc – BT) should pay to Mr Wilding in respect of the earlier findings of the same Employment Tribunal (a) that Mr Wilding had been discriminated against contrary to section 4(1)(d) Disability Discrimination Act 1995, and (b) that he had been unfairly dismissed (the Liability Decision).
2. The Extended Reasons for the Liability Decision and the Remedy Decision were sent to the parties on respectively 21 January 1999 and 10 June 1999.
3. The appeal that is before us is an appeal by Mr Wilding against the finding in the Remedy Decision that he failed to mitigate his loss by refusing to pursue an offer of re-employment made by BT. Only two issues were argued at the Remedy Hearing namely (i) mitigation and (ii) the appropriate amount for damages for injury to feelings which Mr Wilding (through counsel) argued should include an element of aggravated damages. Mr Wilding's notice of appeal included a ground asserting that the Employment Tribunal erred in refusing to award an element of aggravated damages. In our judgment correctly that ground was not pursued before us and we accordingly dismiss it.
4. Prior to Mr Wilding's refusal of the offer of re-employment and the hearing on remedy BT had appealed against the Liability Decision. Shortly before the hearing date set for both appeals (25 January 2001) BT abandoned its appeal against the Liability Decision. Mr Wilding made an application for costs in respect of that appeal which we refused at the hearing. The existence of, and the grounds for, that appeal are relevant to the arguments on Mr Wildings's appeal against the Remedy Decision and accordingly we shall return to them later.

General Background and the Liability Decision

5. Mr Wilding is 52 and had worked for BT for 29 years and thus for virtually all his working life. By 1998 he was employed as a senior manager. He was dismissed in March 1998. In 1970 the year he started working for BT Mr Wilding had an accident whilst on duty and injured his back. In 1993 he was in a road accident which severely injured his back. It was his back problem that led to his dismissal. At the time of his dismissal he was not working because of his back problem. The following further brief description of the background and the following points are included in paragraphs 2 to 13 of the Extended Reasons for the Liability Decision:

(a) from 1994 adjustments were made to Mr Wilding's working conditions to enable him to continue working and until 1997 his reviews and appraisals showed that he was performing his duties satisfactorily,

(b) Mr Wilding saw Dr Sinha in 1994,

(c) in July 1995 Mr Wilding was off work and the question whether he should be medically retired and an assessment from the Occupational Health Service and a specialist were obtained. The prognosis was that providing there were no complications there was a good chance of a full recovery. Adjustments were made to Mr Wilding's car parking and he returned to work in December 1995,

(d) Mr Wilding was off work again in November 1996 by which time further adjustments had been made to his work schedule to enable him to work from home. His GP arranged for him to see a specialist and it became clear to Mr Wilding and the doctors that surgical treatment was unlikely to be successful,

(e) a meeting took place on 3 January 1997 and Mr Wilding indicated that he did not wish to consider medical retirement and returned to work, but the benefits of this were then explored,

(f) Mr Wilding continued to work and was concerned about his financial position. He started to explore the possibility of obtaining compensation for an industrial injury under the scheme that was in place with BT,

(g) in April 1997 Mr Wilding became manager of BT's NET and CSC NET Operations and was supervised by Mr Townsend.

6. The findings of the Employment Tribunal relating to the period between April 1997 and Mr Wilding's dismissal in March 1998 are set out in paragraphs 13 to 26 of the Extended Reasons which are in the following terms:

"13 In April 1997 he had become manager of BT's NET and CSC NET Operations and Services, and was supervised by Mr Townsend. Mr Townsend took over the team management at the end of May or the beginning of June 1997 and he had an interview with all his managers of which the Applicant was one of eight. He met with Mr Wilding in June 1997 and he discussed with him the work that he could do and including the disability that the Applicant suffered. Mr Townsend therefore allocated a project to Mr Wilding which had s substantial budget of £3m per annum and was reporting back to someone called Steve O'Neill. This project would allow Mr Wilding to work from home and give him the flexibility which he needed. Unfortunately Mr Wilding then had reoccurrence of his back problem and was absent through sickness and was unable to work at all and therefore Mr Townsend reallocated this work to another team member during his absence. During the ensuing months Mr Townsend did keep in contact with the Applicant and the Applicant constantly consulted his GP. The general practitioner advised the Applicant not to return to work and not to work from home as he had further medical problems which may or may not have been related to his back. The Applicant was advised to speak to the Occupational Health Service to seek counselling.

14 Mr Townsend visited Mr Wilding on 2 October 1997 to discuss how work could be progressed and medical retirement was mentioned. Mr Wilding was reluctant to take this step because of the financial considerations and it was at that time that he was optimistic that his compensation under the Injury Compensation Scheme would be successful. He indicated that whilst this was being progressed by his union he would wish to remain in employment. In regard to working from home the Applicant said he would take the advice of his doctor.

15 Miss Flanagan requested a medical report from Dr O'Neill, the Applicant's GP in October 1997 who reported

'There is really no effective treatment other than pain relief which we are providing him with. I think therefore that medical retirement is the only viable conclusion to his unfortunate story. I know that he has been keen to work as long as possible perhaps the time has come for him to consider medical retirement'.

We saw many notes of subsequent conversations between the nurses at the Occupational Health Scheme's office during November and December 1997 and his medical condition was discussed and also his inability to return to work. Dr Sinha did not re-examine him personally but on the notes of his staff and from the notes of telephone conversations, Dr Sinha concluded that medical retirement was the only option having had discussions with Mr Wilding about his condition in the light of consideration of the general practitioner's report. Dr Sinha was of the view that Mr Wilding accepted that medical retirement would be the doctor's decision and this was confirmed in a letter from Dr Sinha to Mr Townsend on 10 December. He stated:

'I have now reviewed Mr Wilding's papers and discussed with Mr Wilding his health and future prospects. Mr Wilding is now in full agreement that he is unable to give a regular and effective service. His medical condition is permanent and long standing and therefore it is unlikely that he will be able to give a full and effective service. Medical retirement has been discussed and now I am fully agreeable that medical retirement should be considered here as the best option. I agree to issue you a medical retirement certificate in this case subject to authorisation. Mr Wilding is fully aware of this decision'.

16 Mr Townsend wrote formally to Mr Wilding regarding his sick pay on 12 December 1997 and on the 16^th Mr Townsend informed Mr Wilding that he was changing the PCGU work and consolidating it under Roy Traube and suggested that he co-operated with this man.

17 On 19 December 1997 Mr Townsend wrote finally to Mr Wilding asking for continuation of medical certificates and suggested he contacted his union about the matter of sick pay and at the same time the injury compensation was being pursued. To that end Dr White wrote on 7 January that in his opinion Mr Wilding did not qualify under the scheme as his injury appeared not to have been caused by the accident in 1993.

18 On 8 January 1998 Mr Wilding saw his GP, Dr O'Neill, again who said he would if necessary give the Applicant a medical certificate for one year if he would recover greater benefits in that way. Mr Wilding informed the general practitioner he did not wish for this to happen and asked for a month's certificate but he also informed Mr Townsend that this is what the GP had offered. On the same day the Applicant learnt that his application under the Injury Compensation Scheme had been refused. Under that scheme he would have been entitled to 80% of lost earnings until his retirement which appeared to be at 65. The Applicant informed that because of this he was determined to return to work.

19 It is clear that the Respondents were now actively considering medical retirement under the scheme. Mr Townsend held a case conference on 16 January with personnel for Human Resources to ensure that correct procedures were followed. As a result Ingrid Simmons of the Equal Opportunities Adviser who wrote to Dr Sinha on 19 January 1998 pointing out that Mr Wilding had been classified as disabled under the Disability Discrimination Act 1995 and that as a medical retirement certificate had to be signed by Dr Sinha in order to satisfy the company's procedures, she needed to have a notification of Mr Wilding's capabilities within the confines of this disability. She pointed out that Mr Wilding anticipated being back to work within the next month.

20 In reply to Ingrid Simmons Dr Sinha replied on the same day by e-mail that he could not foresee Mr Wilding giving a regular and effective service at his or any other position in the future.

21 On 30 January the Applicant had a meeting with Mr Townsend regarding the situation. There was some dispute as to whether the letter requesting the Applicant to come to a meeting and inviting him to bring a union representative had been received. We conclude from the documentation that was before us that the letter of 26 January asking the Applicant to come to a meeting to discuss the medical retirement from the Respondents had been received and the Applicant had known about it. In that letter:

Mr Townsend informs him that:

'I am now giving serious consideration to processing medical retirement but before I can take any decision I would like to suggest that you and I meet to discuss your situation in order to address any issues you may wish to be taken into consideration'.

He was also invited to bring a friend or someone from his trade union.

22 On 30 January a meeting took place, Mr Wilding informed Mr Townsend that he did not wish to leave British Telecomm but felt that it was a 'fait accompli' but he wanted the best financial package to support his family. He was offered either voluntary redundancy called 'Workwise' in the Respondents policy or medical retirement. He was given one week to consider the position and let Mr Townsend know how he wished to proceed.

23 The Applicant telephoned Mr Townsend on 5 February and informed him that he would not accept voluntary redundancy as this would exclude him from other benefits and he was waiting for the union to give advice. He also informed Mr Townsend on 10 February that he was appealing against the refusal of benefits under the ICS scheme.

24 On 12 February 1998 the Applicant still not having returned to work he was advised by letter by Mr Townsend that after consultation with the Occupational Health Service, retirement on medical grounds was being considered and he was invited within 5 days to make representations before any decision was taken to address any issues that Mr Wilding might wish to be taken into consideration. The Applicant did not submit any views on the matter and in evidence stated that the letter was shown to his union representative and he thought that his union representative was dealing with the matter. On 25 February Dr Sinha signed the medical retirement certificate.

25 We heard from Mr Kurer who was the specialist who had been treating the Applicant since 1994. He made a report to the union in January 1998 on the Applicant's condition but this report was not seen by Mr Townsend prior to his making his decision to dismiss and neither did it address the long term effects. This report was addressing the origin of the Applicant's injury and been requested by the Applicant's union to further his appeal against the refusal to award compensation under the Industrial Injuries Compensation claim. He was not asked about Mr Wilding's capabilities and nor informed of or asked about his adjustments. He was asked to comment whether there were any further steps to alleviate the symptoms and whether anything further could be done. Mr Kurer felt that the Applicant could not work a full day but in evidence he appeared to say to us that in his opinion could continue to work until he was 60 or so and work a 20 hour [week]. A further report by Mr Kurer was submitted to us which was on an examination which took place in December 1998. It was clear from the evidence Mr Kurer had not been informed that the Applicant had already been working at home, working flexible hours and that many adjustments had been made to enable the Applicant to continue working from 1994 until 1997. We do not therefore consider that Mr Kurer's oral evidence is of assistance in reaching our decision.

26 After Dr Sinha had signed the certificate of medical retirement on 25 February 1998 Mr Townsend processed the matter. On 20 March a letter of termination was sent to the Applicant setting out his right of appeal, which he did, at the same time the Applicant's union was appealing against the refusal to pay injury compensation."

As appears from those findings in the period up to the decision made by Mr Townsend to dismiss Mr Wilding:

(a) in October 1997 Mr Wilding was hopeful that his claim for compensation under BT's scheme would be successful,

(b) in October 1997 Mr Wilding's GP said that "perhaps the time has come for him to consider medical retirement",

(c) in November / December 1997 Dr Sinha without re-examining Mr Wilding reached the conclusion that medical retirement was the only option (see also paragraph 35 of the Extended Reasons),

(d) as appears later in the Extended Reasons (paragraph 31) Mr Wilding's permission to approach his consultant had been sought but this was never pursued because of the conclusion reached by Dr Sinha,

(e) on 8 January 1998 Mr Wilding learnt that his claim under the Injury Compensation Scheme had been refused and because of this he informed BT that he was determined to return to work,

(f) on 5 February 1998 Mr Wilding told Mr Townsend that he would not accept voluntary redundancy and was appealing against the refusal of benefits under the Injury Compensation Scheme,

(g) on 12 February 1998 Mr Wilding was told that retirement on medical grounds was being considered and was asked to make representations within 5 days, and

(h) on 20 March 1998 a letter of termination was sent.

7. After that on 31 March 1998 Mr Wilding, who had not been working for some time, indicated that he was able to work part-time and would be prepared to do so.
8. Mr Kurer is the specialist who had been treating Mr Wilding since 1994. His evidence is dealt with in paragraph 25 of the Extended Reasons (set out above). It contains a typing error "20 hour day" should read "20 hour week". This evidence and the findings on it, which relate to periods both before and after the dismissal letter are important. In particular for the reason given (namely lack of information having been given to Mr Kurer) the Employment Tribunal did not accept Mr Kurer's evidence that he felt that Mr Wilding:

"could not work a full day ---- but could continue to work until he was 60 or so and work a 20 hour week"

9. It follows that at the following times (i) the date of the dismissal letter, (ii) the date of the internal appeal, (iii) the dates of the Liability Hearing and Decision and (iv) the dates of the Remedy Hearing and Decision Mr Wilding had not produced evidence that had been accepted BT or the Employment Tribunal that he was able to work a 20 hour week (or at all).
10. In our judgment this is an important piece of background information that was known to the Employment Tribunal and the parties at the following times (i) the date when BT made its conditional offer of re-employment, (ii) the refusal of that offer and (iii) at the Remedy Hearing. This offer of re-employment and its refusal lie at the heart of the appeal. They took place between the Liability Decision and the Remedy Hearing. We shall return to them later.
11. Mr Wilding's internal appeal was refused.
12. Paragraph 32 of the Extended Reasons sets out the findings of the Employment Tribunal as to Mr Townsend's thinking in deciding to dismiss Mr Wilding. It is in the following terms:

"32 The person who made the decision to dismiss the Applicant was Mr Townsend and his evidence was significant on this matter. He believed that once the Occupational Health Officer ie Dr Sinha, had agreed that he would sign a medical retirement certificate that he himself had no option but to go along with it. He in evidence stated that there were difficulties with the job but he had managed to arrange for the projects that had been assigned to Mr Wilding to be done by someone else and he confirmed that he would be able to, if necessary, arrange the work pattern to accommodate Mr Wilding if he wished to work part-time. He admits that he did not have any discussion about the possibilities of his remaining with the Respondents. Mr Townsend was of the view that he could only follow the internal medical advice and therefore these matters were not within his remit. He did not believe that he could question the process that had been followed and question whether all the reasonable adjustments processes and procedures had been followed, he left that to the personnel department. It is clear that Dr Sinha had indicated to Mr Townsend that he would advise medical retirement and be willing to sign the certificate in November 1997 and at the time that Mr Townsend was dealing with medical retirement he had not seen the general practitioner's reports but he did know that Mr Wilding was able and willing to come back to work at that stage."

It is important to note that Mr Townsend thought that he could only follow the internal medical advice and that he was of the view that he could arrange the work pattern to accommodate Mr Wilding if he wished to work part-time.

13. On the appeal Dr White concluded that from a management point of view it was not practicable for there to be any other decision but medical retirement (see paragraph 36 of the Extended Reasons).
14. The findings of the Employment Tribunal on liability are at paragraphs 51 to 61 of the Extended Reasons. These are in the following terms:

"51 In this case it is agreed that the Applicant is disabled within the Disability Discrimination Act and that he was dismissed to bring him within Section 4(2)(d)

52 We find that he was within Section 5(1)(a) in that the Respondents dismissed him for reasons relating to his capability to do the job which he was contracted to do and in coming to that conclusion they did not follow the procedures and make the enquiries that we consider they would have done if the capability question had not arisen because of this man's disability and the history of his employment up to that time.

53 The Respondents are under a duty to make adjustments to accommodate the Respondent and it is clear that the Respondents had made many adjustments to enable the Applicant to consider from 1994. Section 6(1) states:

'… 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'.

54 We are satisfied that many adjustments had been but at a time when the Applicant's dismissal was being considered no further adjustments were considered and the extent to which a further adjustment would or could prevent the dismissal and this is confirmed in the fact that they did not consider part-time work for the Applicant.

55 Whether this matter can be justified was the subject of the evidence of the Respondent's witnesses but we are satisfied with the evidence that his mind was not directed to making a further adjustment to prevent the medical retirement of the Applicant. He felt that he was constrained because the doctor had already decided that medical retirement was the only option and he confirmed that if he had thought about it that he could have arranged for part-time work to be available to the Applicant, whether in all the circumstances the Applicant would have agreed to a change in his contract and reduction of pay is another matter.

56 We considered the code of practice relating to the Disability Discrimination Act 1996 and the direction that the employer must be flexible and consider whether there should be further advice given before dealing with a dismissal of a disabled person. In this case we are satisfied there seems to be no dispute that this Applicant was disabled within the meaning of [the]Act. That the Respondents were aware of this is pointed out by the request from the Occupational Health nurse to obtain consent from Mr Wilding to obtain a further consultant's report in November 1997. The important thing about the code is that an employer should not treat a disabled employee less favourably by reason of his disability and therefore when it came to the dismissal we looked objectively at the manner he was dismissed and compared him to a non-disabled employee who had been absent from work and was dismissed because of capability.

57 In considering whether it is reasonable for an employer to make an adjustment we considered the fact that the Applicant was of senior: management but overwhelmingly the evidence of Mr Townsend was that if they wished to keep Mr Wilding it was possible to make a further adjustment to allow him to work part-time as his physical needs had already been accommodated by the adjustments that had been made since 1994. We do not accept the adjustments that had been made since 1994 to accommodate the Applicant were conclusive, the Respondents had a duty to look at further adjustments before deciding whether to dismiss. We considered the guidance given in paragraph 4.25 of the code bearing in mind the nature of the Respondents, the amount of resources and the employee's length of service. We are satisfied that it was reasonable for the employer to make a further adjustment in this particular case.

58 The discrimination relates to the manner of the dismissal which we consider would have been unfair because of the procedures that were followed, if the Applicant had not been disabled. Section 98 of the Employment Rights Act states that:

'… it is for the employer to show the reason for the dismissal'.

We find in this case that the reason for the dismissal was the Applicant's capability which is potentially a fair reason within the Act. By Section 98(4) we have to determine whether the dismissal was fair or unfair having regard to the circumstances of the dismissal and whether the Respondents acted reasonably in these circumstances.

59 It is clear that a reasonable employer dealing with a capability dismissal would at the time of the dismissal have consulted with the employee to ascertain the employee's views on the matter and also obtained an independent new medical report so that at the time of making the decision to dismiss updated evidence was available to decide not only on the cause of the ill-health and the incapability but also on the prognosis for the future. In this case the Respondents relied on the original diagnosis of Dr Sinha in 1994 and the medical report Dr Sinha requested of Mr Wilding's GP and the history of the employment and the adjustments that had been made including the Applicant's absences from work during the period of his employment from 1994. His absences from work during that time were not substantial and following his absence from work in July 1997 it is clear that Dr Sinha took the view that medical retirement was the only option because it was clear to him at that stage that there was no further treatment for the Applicant which could alleviate his condition. We are satisfied that a reasonable employer dealing with a non disabled manager with such long service and experience would have arranged for a consultant to independently examine the employee to ascertain the capabilities of the employee and the prognosis as to whether that employee would be able to work different hours, at what level and in addition the manager would have consulted the employee having received the information to ascertain whether the employee would be willing to change his contract of employment in order to remain in work.

60 In addition although the Respondents procedures are quite explicit as to how these matters should be dealt with these were ignored which leads this Tribunal to infer that the Respondents had decided in November that medical retirement was the convenient option and they were more concerned with the Applicant's claim for compensation under the Industrial Injuries Compensation Scheme than with his medical retirement. It appears that at that time the Applicant also was concerned with his claim under the Industrial Compensation Injuries Scheme and appears to have acquiesced in Dr Sinha's opinion that medical retirement was the only option. The Respondents based their decision solely on notes and reports from the Occupational Health Service and from the general practitioner's certificate. No opinion had been sought from the general practitioner when he gave his certificates as to whether it was likely that the Applicant would be able to attend work in the near future. For those reasons we find the Respondents acted unreasonably in dismissing the Applicant for his incapability and therefore that dismissal was unfair.

61 Bearing in mind that the incapability and the failure to deal with these matters properly arose from the fact that the Applicant had been treated as disabled and the matters arose because of his disability we find that the Applicant was discriminated against because of his disability contrary to the Disability Discrimination Act 1995."

Unsurprisingly in considering what further adjustments it was reasonable for BT to consider and make the Employment Tribunal had regard to Mr Townsend's evidence (see paragraph 57). But it is to be noted that:

(a) the Employment Tribunal do not expressly consider whether on the basis of the adjustments that had been made in the past to accommodate Mr Wilding's physical needs (and/or further adjustments) Mr Wilding would, or would probably, have been able to work part-time, and

(b) the conclusion of the Employment Tribunal was simply that BT had a duty to look at further adjustments before deciding to dismiss.

15. The Employment Tribunal find that BT should have arranged for a consultant to examine Mr Wilding (see paragraph 59) but at this stage do not refer back to the fact that Mr Wilding had been seeing a consultant (Mr Kurer) since 1994 and that Mr Kurer had written a report about him in January 1998. The Employment Tribunal also do not return to their finding as to Mr Kurer's evidence or express a view as to what the likely results of an examination of Mr Wilding by a consultant would have been. Their point and finding is that a reasonable employer would have caused such an examination to be carried out and then, having regard to the result of that examination and thus the prognosis of the consultant, would have discussed with Mr Wilding whether he would be prepared to change his contract of employment in order to stay in work (see paragraph 59).
16. In our judgment it is important to remember this when considering the conditional offer of re-employment, BT's grounds of appeal against the Liability Decision and the refusal of that offer of re-employment by Mr Wilding.

The claim under the Injury Compensation Scheme

17. We were told, and accept, that this was the subject of separate litigation, which has now been settled. We were not told the nature of the issues in that litigation.
18. This litigation is referred to in paragraph 4(9) of the Extended Reasons for the Liability Decision and the fact that there was such litigation (and thus continued refusal to meet his claim under the Scheme) was a point relied on by Mr Wilding in his argument that he had not failed to mitigate his loss.

A Chronology of Events after the Liability Decision

19. This is set out in paragraphs 4(1) to (12) of the Extended Reasons for the Remedy Decision. These are in the following terms:

"4 We heard evidence from Mr Wilding and from his union representative, Mr Marshall, about his hurt feelings and the way that he felt regarding British Telecommunications Limited.

Chronology of Events

(1) 21 January -The decision of the Tribunal which was reserved was sent to the parties. The Remedies Hearing was listed for 17 and 18 February.

(2) There was an exchange of letters regarding the remedy regarding the fresh medical evidence which was to be produced.

(3) By letter of 11 February, Applicant's solicitors wrote:

'in relation to re-employment, the Applicant is prepared to consider proposals by the Respondent for a return to work. However, bearing in mind the way he has been treated in this case throughout, he has grave doubts over whether the Respondent could make an offer of a job with suitable terms and conditions and assurances in relation to his future treatment which would be reasonable for him to accept. If the Respondent wishes the Applicant to consider re-employment then it will be essential for the Respondent to set out precise details of the nature of any job proposal together with full terms and conditions, salary, hours of work, duties, place of work, promotion prospects and supervisory officer'.

(4) On 15 February the Respondents wrote to the Applicant's representatives saying:

'in the interests of reaching a compromise prior to the hearing and in the absence of definite confirmation from yourselves as to the remedy being sought before the Tribunal, I can confirm that the Respondent is prepared to offer re-engagement to your client. This offer will be based upon the basis of the 20 hour working week as advised by Mr Curer, your own medical expert. This will be subject, of course, to medical confirmation, this is still the position'.

(5) On 16 February the Applicant's solicitors set out a schedule of loss prior to the proposed hearing, which was due to [take] place on the 17th, and schedules were exchanged.

(6) The hearing on 17 February was postponed and on 3 March the Respondents lodged a notice of appeal against the Tribunal's findings in respect of the disability discrimination only. In their letter of 3 March, the Respondents state:

'this has been done in order to protect the Respondent's position given the time scales imposed by the E.A.T, I would like to assure you that this appeal in no way detracts from the genuineness of the open offer made to your client in my letter dated 15 February 1999'.

Further schedules of loss were exchanged.

(7) In the letter of 29 April, the Respondents set out to the Applicant's representative full details of the offer of re-engagement. They made it clear that back-pay from the date of medical retirement to the date of re-engagement would be paid under the terms of the offer of settlement and it set out the hours that the Applicant would be expected to work, the pay, the bonus, the company car and the healthcare arrangements. It also included the words:

'the 20 hour part-time job would include a pro rata amount of lunch time, break time, namely two and a half hours out of the 20 would be allocated lunch break'.

(8) The remedies hearing was then re-listed for 18 and 19 May, and further documents were exchanged relating to the schedule of loss.

(9) On 9 March, the Applicant issued a writ against the Respondents claiming damages for the failure to pay to the applicant under their injury compensation scheme and a defence to that writ appears to have been served on or about 8 April 1999. This case is due to be heard in the High Court on some future date.

(10) The appeal from the decision of this Tribunal is set down for a preliminary hearing on 30 June 1999.

(10) By letter of 29 April, the Applicant asked for further and better particulars of the job that was being offered and this was set out in detail by letter of 10 March 1999, giving the job title, the place of work and other details. It also included a job description.

(11) By letter of 13 May, the Applicant, through his representatives, rejected that offer. They state:

'Mr Wilding simply does not have trust and confidence in the Respondent as a future employer. He has little faith in the offer as anything more than a device to seek to reduce your potential [liabilities] to him. Frankly, this seems to us and leading counsel a wholly reasonable position on his part'.

And they summarise the reasons why he felt like that, and they were:

(i) That BT was appealing that the decision of the Employment Tribunal was perverse, in that the Tribunal had come to the conclusion that Mr Wilding was capable of doing part-time work and the Respondents had maintained that as he had been dismissed for medical reasons and was unable to work at all.

(ii) The manner in which the employment was terminated.

(iii) His injury to feelings as a result of this treatment he has received.

(iv) The way in which his appeal against medical retirement was conducted.

(v) The considerable delay in making an offer of re-employment.

(vi) The way in which the Tribunal case was defended over the five day hearing.

(vii) The manner in which the initial offer of employment was made and the failure to provide adequate particulars at that time.

(viii) The fact that there were not full particulars in the offer as set out in the letter of 10 March 1999.

(ix) The fact that the Respondents had refused his injury compensation scheme application.

(x) That he was not confident that the Respondents would make the ongoing reasonable adjustments to accommodate the Applicant."

20. In addition it appears from paragraph 4(17) of those Extended Reasons (and paragraph 12 of Mr Wilding's statement for the Remedy Hearing) that Mr Wilding had on an unspecified date (but before the conditional offer of re-employment was made) fully co-operated in an examination by Mr Nigel Harris a consultant orthopaedic surgeon chosen by BT and BT had never disclosed to him the results of that examination.

The offer of re-employment

21. This followed the letter of 11 February 1999 from Mr Wilding's solicitors. The relevant part of that letter is set out in paragraph 4(3) of the Extended Reasons. In it Mr Wilding through his solicitors says that he is prepared to consider proposals for re-employment but does so with caveats and a requirement that full details of any such proposals be provided.
22. We have referred to the offer of re-employment as a conditional offer because of the reference therein to "medical confirmation". The second paragraph and part of the third paragraph of that letter are quoted in paragraph 4(4) of the Extended Reasons. The second paragraph continued and ended with the following sentence:

"I would suggest that all proceedings be stayed pending this confirmation."

That is a reference to the medical confirmation referred to earlier in the letter. This letter did not contain any of the details referred to and requested in the letter from Mr Wilding's solicitors. Also it pre-dates the service of BT's appeal against the Liability Decision.

23. In their letter dated 16 February (which may have been written before receipt of the letter from BT dated 15 February) Mr Wilding's solicitors state that he is not prepared to settle unless there is full and final settlement of both his claim concerning the Injury Compensation Scheme and his claim of disability discrimination.
24. Some agreed directions were made on 17 February and in response to them (and perhaps the letter from Mr Wilding's solicitors of 11 February) on 10 March BT sent details of what they describe as "the open job offer which was originally made to your client on 15 February 1999". This letter enclosed a job description. It made no reference to the "medical confirmation" referred to in the letter of 15 February 1999.
25. There seems to be an error in paragraph 4(11) of the Extended Reasons and it and paragraph 4(7) thereof may have been transposed. We are therefore unclear whether Mr Wilding through his solicitors made any request for further particulars of the job offered after the agreed directions on 17 February or the receipt of BT's appeal against the Liability Decision. We shall assume in Mr Wilding's favour that they did not and in this context note that the Employment Tribunal consider his change of position after the letter of 11 February 1999 (and not a later date when further particulars of the job offered were sought).
26. We were shown a further letter from BT of 29 April which (amongst other things) provides further details of the "offer made on 10 March" and ended with (i) a comment of surprise at not having had a reply to the letter of 10 March (which indicates that further particulars of it had not been sought), and (ii) a reference to Mr Wilding's wishes expressed to the Employment Tribunal at the Liability Hearing to return to work. This letter again makes no reference to "medical confirmation".
27. As appears from its express terms the letter from Mr Wilding's solicitors of 13 May 1999 was written after advice had been taken from Leading Counsel. It is summarised in paragraph 4(12) of the Extended Reasons. It sets out Mr Wilding's reasons for rejecting the offer of re-employment made in the letters of 15 February, 10 March and 29 April. Clearly this letter was drafted with the legal principles relating to mitigation in mind. It sets out principal points in Mr Wilding's case that his refusal is not a failure to mitigate his loss.
28. That letter refers to BT's appeal against the Liability Decision in principal point (i). Where reference is also made to "clear evidence from his [Mr Wilding's] orthopaedic surgeon that he was capable of part-time work" that is a reference to Mr Kurer's evidence but as we have said the Employment Tribunal did not find that evidence helpful. There is no express reference to the "medical confirmation" referred to by BT in its offer.

Inconsistency between the "job offer" and the bases of BT's appeal against the Liability Decision

29. This was not emphasised in the skeleton argument put in on behalf of Mr Wilding and was not expressly referred to in the letter of 13 May 1999. Paragraph 15 of Mr Wilding's statement for the Remedy Hearing was in the following terms:

"15 On 26 March 1999 I learnt that the company had decided to appeal against the Employment Tribunal decision making a finding of unfair dismissal and disability discrimination. The basis of their appeal is that this Tribunal is 'perverse' both in holding that:

15.1 I am medically able to work part-time for BT; and

15.2 It is reasonable for BT to make the adjustment of allowing me to work part-time.

I understand that this means that they consider the Tribunal's decision is so unreasonable that no reasonable Tribunal could possibly have come to this conclusion. Frankly, this destroyed any faith I had left that the offer of a job was made with the intention of actually continuing a working relationship with me. I simply don't see how they can tell the Court that they still consider that I am clearly unable to do a part-time job and that it is clearly unreasonable to expect them to provide me with one and yet expect me to take the job offer seriously."

Further it appears from paragraph 4(33) of the Extended Reasons that the appeal against the Liability Decision (together with the rejection of Mr Wilding's schedules of loss) was asserted by Mr Wilding to be the last straw which broke his trust and confidence in BT and thus, as we understand it, underlay his assertions (i) in the letter of 13 May 1999 that the offer was a "device to seek to reduce" BT's liabilities to Mr Wilding, and (ii) in his statement as to BT's intention of actually continuing a working relationship with him.

30. As to those assertions and doubts it is to be remembered that in its letter of 3 March 1999 BT make the statement quoted in paragraph 4(31) of the Extended Reasons. This is quoted at the start of the Employment Tribunal's conclusions on mitigation which cover the effect of BT's appeal against the Liability Decision. These are in paragraphs 4(30) to (36) of the Extended Reasons, which are in the following terms:

"4(30) It appears from the judgement, however, that each case must be decided on the fact by the court or tribunal that is hearing them. We concluded that the Applicant had acted unreasonably in not accepting the offer of re-employment that was put to him by the Respondents and the reasons by which we came to that conclusion, from the evidence that is before us can be stated as follows:

(i) The Applicant, at all times, has stated that he wanted to go back to work.

(ii) The Applicant, at all times, at the original hearing and at the time that his representatives wrote to the Respondents saying that he was willing to seek re-engagement, was obviously anxious to return to work on a part-time basis.

(iii) His manager at the time and his doctor had both stated that he would be able to work part-time for some considerable time.

(iv) We considered what had happened to change the Applicant's mind between the offer of the job in March and the refusal in May. From the evidence the only thing that had happened in that period was the exchange of schedules of loss which had to [be] prepared by the representatives in the normal course of events to enable them to attend the hearing; and the fact the Respondents had put in an appeal against the decision of the Industrial Tribunal.

(31) We considered the contents of the letter of the 3 March, which first offered the further employment and informing the Applicant's representative that they were putting in an appeal. They state in that letter:

'I would like to assure you that this appeal in no way detracts from the genuineness of the open offer made to your client in my letter dated 15 February 1999'.

(32) It is quite clear that in view of the nature of the claim, that the Respondents were perfectly entitled to question the Tribunal decision and appeal if they were so minded; and they were constrained by the time limits laid down by the Employment Appeal Tribunal. They had to put in their appeal within 42 days and this matter should have been apparent to the Applicant at the time. In any event there was a long delay between him learning of this appeal and his refusal of the offer of employment.

(33) We considered all the reasons that the Applicant had given for this refusal and stating that this exchange of schedules rejecting the Applicant's schedule of loss, together with the appeal was the last straw which broke his trust and confidence in the Respondents.

(34) The fact that there is ongoing litigation between the Applicant and the Respondents and he is claiming injury compensation in the High Court also, in our opinion, should not detract from this offer of employment. The actual managers with whom the Applicant would be working do not supervise or have control of the injury compensations scheme. The refusal was based on the interpretation of the scheme to whom and to what injury it applies. It has no bearing on the way that the Applicant worked or with whom the Applicant had to work with. We can compare such a claim with a personal injuries claim against an insurance company when there has been an accident and that does not necessarily destroy the trust and confidence between the parties involved.

(35) The Applicant's claims that in evidence that he felt let down by the treatment that the Respondents have [metered] out to him from the time that they dealt with his medical retirement and their failure to apologise for the wrong does not allow our opinion to give the Applicant adequate reason to fail to mitigate his loss.

(36) The Applicant has to mitigate his loss, he was unable to obtain a job from any other employer except British Telecommunications Plc, he is willing to work, they have offered him a post which is suitable to his capabilities and we find that it was not reasonable for the Applicant to refuse that offer of re-engagement and therefore we find that the Applicant did not mitigate his loss and therefore is not entitled to certain damages."

These paragraph should be read with paragraphs 4(15) to (22) and the discussion of the law in paragraphs 4(23) to (29).

31. As appears above in paragraph 4(12) the Employment Tribunal refer to the letter from Mr Wilding's solicitors dated 13 May 1999. This was the letter by which Mr Wilding rejected the conditional offer of re-employment. The Employment Tribunal do not cite the letter in full and summarise the principal reasons for Mr Wilding's conclusion set out therein. The letter is in the following terms:

"We refer to your letters of 15 February 1999, 10 March 1999 and a follow-up letter dated 29 April 1999 regarding a job offer to our client.

We have taken full instructions from Mr Wilding and Mr Wilding has received advice in conference from leading counsel in relation to this issue (amongst other things).

We now write to confirm the Applicant has decided to reject the 'offer of employment' made.

Mr Wilding simply does not have trust and confidence in the Respondent as a future employer. He has little faith in the offer as anything more than a device to seek to reduce your potential liabilities to him. Frankly, this seems to us and leading counsel a wholly reasonable position on his part.

The Applicant will provide full details for his position in the remedies hearing. However, we thought it would assist if we summarised the principal reasons for him reaching this conclusion:

(i) Your client is currently maintaining a position before the EAT that it is 'perverse' for the Employment Tribunal to consider both that Mr Wilding is capable of part-time work and that providing such part-time work is a reasonable adjustment for you to make. This position is in the teeth of the clear evidence from Mr Wilding's own line manager that part-time working could easily be accommodated and from his consultant orthopaedic surgeon that he was clearly capable of doing it. If this is your position before the court Mr Wilding has no confidence that it is not your position in the work place.

(ii) The manner in which his employment was terminated by the Respondent (see his full statement for the original tribunal hearing for further particulars);

(iii) The considerable injury to feelings he has suffered as a result of his discriminatory treatment.

(iv) The way in which his appeal against medical retirement was conducted by the Respondent and the decision to dismiss the appeal;

(v) The considerable delay in making an offer of re-employment in this matter;

(vi) The way in which he felt the Tribunal case was defended by the Respondent over the five day hearing in a vigorous and uncompromising manner;

(vii) The manner in which the initial offer of employment was made on 15 February and the further offer on 10 March, without any adequate particulars on fundamental issues;

(viii) The fact that the latest offer of employment still fails to set out key particulars of the proposed job including the precise duties proposed; the supervisors and the specific job description (this is notwithstanding that Mr Townsend had clear and definite ideas about how Mr Wilding could have been deployed in his evidence before the Tribunal);

(ix) The way in which the Applicant's BT Injury Compensation Scheme application has been refused and dealt with thereafter;

(x) Employment by the Respondent would depend on a conscientious application of the ongoing duty to make reasonable adjustments yet the Employment Tribunal have already found you have not been prepared to do. The Applicant believes that the substantial trust and confidence required for a senior employee such as the Applicant to return to work at the employer in such circumstances has, in truth, been damaged irretrievably.

Accordingly, the Respondent's job offer is rejected and the Applicant will be seeking damages at the remedies hearing on 18 and 19 May 1999 in accordance with the schedule of loss served."

As appears in paragraph 19 above the Employment Tribunal summarised principal reason (i)

In the following terms:

(i) That BT was appealing that the decision of the Employment Tribunal was perverse, in that the Tribunal had come to the conclusion that Mr Wilding was capable of doing part-time work and the Respondents had maintained that as he had been dismissed for medical reasons and was unable to work at all

This summary leaves out the last sentence of the principal reason or point contained in the letter and does not follow its wording or make reference to the evidence referred to therein.

32. When reading the papers in this case it seemed to me that there could be force in an argument that inconsistency between the grounds of BT's appeal against the Liability Decision fuelled;

(a) the first principal reason set out in the letter of 13 May and in particular the last sentence thereof which is not quoted or summarised in the Extended Reasons, and therefore

(b) an argument that in reaching their conclusion on mitigation the Employment Tribunal failed to give any or any proper weight to the effect of BT's appeal against the Liability Decision having regard in particular to the allegation made in the letter of 13 May concerning the evidence given by Mr Wilding's orthopaedic surgeon (Mr Kurer), which is not referred to in the description or summary set out in the Extended Reasons.

The point I had in mind in respect of the effect of BT's appeal against the Liability Decision was that it could be said that in issuing it BT was taking a stance that was starkly inconsistent with the offer for re-employment because the appeal was based on an assertion and stance that Mr Wilding was not able to work part-time and that the Employment Tribunal had failed to give any or any proper weight to this inconsistency in their Extended Reasons (see in particular paragraph 4(32) thereof).

33. When I raised this point it naturally provoked a consideration of BT's grounds of appeal against the Liability Decision. These are in the following terms:

"Ground one

2. The Employment Tribunal based its decision on an alleged failure by the Appellant to make adjustments (within the meaning of section 6 of the Disability Discrimination Act 1995). Their key finding was at paragraph 54 of the Extended Reasons, namely that the Respondent 'did not consider part-time work' for the Respondent to this Appeal. This finding was in error, in that it was clear from page 223 of the bundle (which evidence was not challenged) that Ingrid Simmons, an Equal Opportunities Advisor of the Appellant had spoken to Dr Sinha, a Regional Medical Officer within the Appellant's (internal) Occupational Health Service on 20th January 1998, and had been advised that the Respondent to this Appeal 'will not be able to perform a regular and effective service even if he changed to part-time working'. Thus in truth, they had in fact considered an adjustment to part-time working for the Respondent to this Appeal, but had not made that adjustment as they did not feel it would benefit the Respondent to this Appeal.

Ground two

3. The Employment Tribunal appears, from paragraph 54 of their Extended Reasons to have misunderstood the application of section 6 of the Disability Discrimination Act 1995. The Employment Tribunal appears to believe that the duty on an employer is to 'consider' adjustments. In fact, the duty is 'to take such steps as it is reasonable, in all the circumstances of the case'. Thus, the Employment Tribunal appear to have found against the Appellant on the basis of a failure to consider adjustments, rather than a failure to take steps which were reasonable in all the circumstances.

4. The key question is for Employment Tribunal to determine in this regard is whether, in all the circumstances of the case, there were in fact any remaining steps which it was reasonable for the employer to take. In such a consideration, the Employment Tribunal is required, under section 6(4)(a), to consider 'the extent to which taking the step would prevent the effect in question', i.e. whether, in this case, the Respondent to this Appeal would in fact have been able to work had part-time hours been offered to him. It would appear that the Employment Tribunal did not, and/or were not in a position to answer such a question. If an offer of part-time hours would not in fact have enabled the Respondent to this Appeal to work, then it was not 'reasonable, in all the circumstances' for the Appellant to offer such an adjustment.

Ground three

5. If, contrary to the preceding paragraph, the Employment Tribunal did purport to resolve the question of whether, in this case, the Respondent to this Appeal would in fact have been able to work had part-time hours been offered to him, and purported to resolve it to the effect that they formed the view that such an adjustment would have assisted the Respondent to this Appeal, they did so

(a) in contradiction of the medical evidence that was before them, and

(b) without any evidence before them which they found of assistance to them which tended to support such a conclusion.

6. Thus in this respect the Employment Tribunal's decision was perverse.

7. Before them they had evidence which tended to the view that the Respondent to this Appeal could not perform part-time hours, namely

(a) The aforesaid page 223 (the view of the said Dr Sinha);

(b) The views of the Respondent to this Appeal's own GP, at page 188 of the bundle and also his subsequent medical certificates which declared that the Respondent to this Appeal was unfit for any work (not just full-time);

(c) The fact that at the time of the dismissal the Respondent to this Appeal had in fact been off work continuously, doing no work whatsoever (not even part-time) since at least September 1997 (some 5 to 6 months prior to notice of dismissal being given);

(d) The view of the Respondent to this Appeal own Consultant Orthopaedic Surgeon, Mr Michael Kurer FRCS at page 288 of the bundle, as of April 1998 that the Respondent to this Appeal could not work at that time.

8. The only medical evidence that the Employment Tribunal had before them that supported the view that the Respondent to this Appeal was, at the time of dismissal, capable of part-time work was the oral evidence of Mr Michael Kurer FRCS before the Employment Tribunal. However, at paragraph 25 of their Extended Reasons, the Employment Tribunal expressly rejected his oral evidence on that subject as 'not ... of assistance in reaching [their] decision'. They formed that conclusion (correctly it is submitted) by reason of the fact that it was clear that Mr Kurer had not been properly (or at all) informed about the Respondent to this Appeal's working arrangements before giving evidence.

9. In the circumstances, if it is the case that the Employment Tribunal formed the view that the Respondent to this Appeal was capable of part-time work, then such a conclusion was, given the evidence, perverse.

Ground four

10. Even if, contrary to the foregoing, the Employment Tribunal

(a) did make a finding that the Respondent to this Appeal was, at the time of dismissal, capable of working part-time, and

(b) such a finding was not perverse

the Appellant contends that it was not 'reasonable', within the meaning of section 6 of the Disability Discrimination Act 1995, to adjust a senior manager's job, such as the Applicant's, to half its original hours. Hence the Respondent was not required to make that adjustment as it was not 'reasonable in the circumstances'."

34. In our judgment when these grounds of appeal are read in isolation they demonstrate that in the appeal BT would be asserting that (i) Mr Wilding was not medically capable of working part-time, and alternatively (ii) if he was an adjustment to part –time work was not a reasonable adjustment within the DDA. In our judgment if the position on the ground at the time the appeal was heard was that Mr Wilding had been (and/or was) working part-time in pursuance of the offer of re-employment we accept that technically BT could have argued that there was no evidence before the Employment Tribunal upon which they could have reached the conclusion that he was capable of so working at the time of his dismissal. But this would have been an arid and unattractive argument. We accept that BT would not have advanced such an argument.
35. When the notice of appeal is read alone the apparent inconsistency between BT's grounds of appeal against the Liability Decision and the offer or re-employment is that a basis of the appeal is that Mr Wilding was not physically fit to work part-time (and if the Employment Tribunal had found that he was that finding was perverse on the evidence before it). However that analysis ignores:

(a) the point that the offer of re-employment was a conditional offer dependent upon "medical confirmation",

(b) the point that the offer or re-employment was advanced in settlement,

(c) the issues that were before the Employment Tribunal and would have been the subject of the appeal on liability,

(d) the findings of the Employment Tribunal particularly as to the evidence of Mr Kurer.

36. The condition in the letter is not clearly drafted. This is particularly so when one remembers the finding of the Employment Tribunal as to Mr Kurer's evidence and the fact that Mr Wilding had also been seen by a consultant instructed by BT (Mr Nigel Harris). One asks: Who was to give the medical confirmation? The answer to our minds is that this is unclear. But as appears above it was not an issue pursued in correspondence.
37. However in our judgment:

(a) given the dispute as to Mr Wilding's medical ability to work part-time and the finding of the Employment Tribunal in respect of Mr Kurer's evidence, and notwithstanding

(b) the fact that Mr Wilding had been examined by BT's consultant (see paragraph 20 above)

the "medical confirmation" was something that BT could reasonably seek as a condition precedent to the commencement of Mr Wilding's re-employment on a part-time basis. Also it was a natural continuation of the dispute relating to Mr Wilding's physical ability to work that was before the Employment Tribunal.

38. Additionally in our judgment when BT's grounds of appeal are read with the Extended Reasons for the Liability Decision it is understandable why they were drafted in the way that they were. In our judgment those grounds are based on the findings made by the Employment Tribunal on the evidence before them and reflect (and thus continue or keep alive) the dispute between the parties. In respect of adjustments the dispute had two elements namely (i) Mr Wilding's physical ability to work part-time, and (ii) if he did have that ability whether as a matter of law part-time work was a reasonable adjustment. As to the second element Mr Townsend's evidence that it was practical to arrange the work pattern to accommodate part-time working by Mr Wilding meant that the appeal was on a point of law having regard to Mr Wilding's seniority (see paragraph 10 of the notice of appeal).
39. If Mr Wilding had pursued the offer of re-employment on a part-time basis and had satisfied the "medical condition" by producing evidence from Mr Kurer that took into account adjustments that had been made previously (or other evidence) with the result that he was so re-employed we accept that BT's appeal against the Liability Decision would have become academic or effectively academic and would not have been pursued. We are of this view because subject to Mr Wilding's claim under the Injury Compensation Scheme this re-employment together with the remainder of the offer made by BT would have settled his claims for damages pursuant to the Liability Decision and have rendered it academic.
40. In our judgment it follows that when BT's grounds of appeal against the Liability Decision are read in the light of (i) the conditional offer of re-employment on a part-time basis, and (ii) the issues before and the findings of the Employment Tribunal:

(a) the apparent or possible inconsistency between them and the offer of re-employment disappears or is explained,

(b) the real effect of the notice of appeal is that it is a continuation and confirmation of the fact that BT dispute (or at least do not accept) that Mr Wilding is (and was) physically capable of working part-time, and that this continued after Mr Wilding had been examined by BT's nominated consultant and had not disclosed the results of that examination (see paragraph 20 above), and

(c) Mr Wilding (through his advisers) was correct to treat the appeal as part of a continuum, confirmation or last straw and not as a free standing point that had independent significance by reference to inconsistency or otherwise.

41. It also follows in our judgment that:

(a) the argument in paragraph 32 above which I identified and put during the hearing is not a basis for allowing this appeal, and

(b) the Employment Tribunal did not err in failing to give particular weight to an inconsistency between BT's position in making its offer of re-employment and in its appeal against the Liability Decision.

42. We add that in our judgment the Employment Tribunal were obviously aware of the background relating to the issues on liability and their findings thereon. Also it is clear that Mr Wilding received advice from his solicitors and leading counsel before he decided to reject the offer of re-employment and therefore when this decision is assessed for the purposes of mitigation that background should be taken into account.

The "medical confirmation" sought by BT and Mr Wilding's physical ability to work part-time with appropriate adjustments

43. The Employment Tribunal made no finding as to the stances of the parties on this.
44. In our judgment, having regard to the finding of the Employment Tribunal in respect of Mr Kurer's evidence Mr Wilding was wrong to assert through his solicitors that his expert (Mr Kurer) had given evidence that or to the effect that, he was clearly capable of doing part-time work. The evidence when given may have been clearly to that effect but the Employment Tribunal did not find it of assistance because it was not given on a fully and properly informed basis and the Employment Tribunal did not accept it.
45. We shall assume in Mr Wilding's favour that his view was that he was physically capable of doing part-time work and that he could provide appropriate medical confirmation of that through Mr Kurer (or otherwise). This accords with the stance taken by him in the letter of 13 May and his general approach. It also accords with:

(a) the absence of the point being raised expressly in correspondence or argument before us (and it seems the Employment Tribunal) that Mr Wilding had not provided the medical confirmation,

(b) paragraph 4(30)(iii) of the Extended Reasons for the Remedy Decision where the Employment Tribunal do not refer back to their view of Mr Kurer's evidence set out in their Extended reasons for the Liability Decision, and

(c) the dispute in paragraph 5 of the schedule prepared for the Remedy Hearing dealing with loss of future earnings and which was sent by BT to Mr Wilding's solicitors on 26 April1999 (the Remedy Schedule) which we refer to again below (see paragraphs 49 to 51) coupled with the point mentioned in paragraph 20 above that Mr Wilding had been examined by BT's nominated consultant and not disclosed the results of that examination.

46. However in our judgment if the issue as to Mr Wilding's physical ability to work part-time is assessed objectively on the basis of the evidence put before the Employment Tribunal and their finding as to Mr Kurer's evidence the position is that at the times when the conditional offer of re-employment on a part-time basis was made and was rejected there was no clear evidence that Mr Wilding was physically capable of working part-time at all, or for any lengthy period.
47. Also judged objectively and on the information put before the Employment Tribunal the issue as to Mr Wilding's physical ability to work part-time with appropriate adjustments was clearly a central point both as to the immediate and more long term future both as to the duty to mitigate and the quantification of damages.
48. For example, if the Employment Tribunal had concluded that Mr Wilding had not failed to mitigate his loss by refusing the offer of re-employment on a part-time basis it seems to us (and neither counsel demurred when we put the point to them) that Mr Wilding would have to have established that he was physically capable of working part-time before he could obtain damages for loss of earnings. Additionally and this is reflected in paragraph 5 of the Remedy Schedule Mr Wilding would have to have established the period during which he would have been able physically to continue working part-time. The Remedy Schedule shows that he maintained that he would have been able to continue to age 60 whereas BT maintained that he would only have worked to 55.
49. The refusal of BT to accept his schedule of loss was a point relied on by Mr Wilding, together with the issue of BT's appeal against the Liability Decision as the last straw (see paragraph 4 (33) of the Extended Reasons). This refusal was communicated by the service of BT's counter schedule on loss (the Remedy Schedule) with the letter of 26 April 1999
50. The Remedy Schedule shows that the nature of that non acceptance in respect of his claim for loss of earnings included issues as to his physical ability to work. However the non acceptance or dispute so identified was not as to whether he was physically able to work part-time at all but was as to whether he would be able to do so beyond the age of 55. The inferences and indications of that include:

(a) that BT were expecting, or were of the view, that Mr Wilding would be able to provide the medical confirmation sought in the conditional offer of re-employment, and

(b) that this view was at least in part based on the views of the consultant BT had nominated and whose opinion had not been disclosed by them and thus that that consultant had not been of the view that Mr Wilding was not physically capable of working part-time but thought that he would not be able to do so beyond the age of 55.

We heard no submissions (and naturally heard no evidence) as to these inferences and indications and we accept that that is all that they are.

51. However there is some inconsistency between the stance taken in BT's grounds of appeal (if it is read alone) and the Remedy Schedule. However in our judgment that does not provide a ground for altering our conclusions and reasoning set out above under the heading "Inconsistency between the "job offer" and the bases of BT's appeal against the Liability Decision".
52. Those conclusions are reflected in Mr Wilding's stance as set out in his letter of 13 May 1999, in his statement at the Remedy Hearing and in argument before the Employment Tribunal and ourselves. That stance was that the continued refusal by BT through (i) the issue of the appeal against the Liability Decision, and (ii) the Remedy Schedule to accept that he was physically capable of working part-time, and further or alternatively that he would (or would be likely to be) physically capable of doing so until he was 60 demonstrated a lack of commitment by BT to making any such part-time work a continuing success. This was at the heart of (i) his last straw argument, and (ii) his assertions that the offer was a device and not a genuine job offer.
53. It follows that on a proper analysis Mr Wilding's main point in this respect was not one of inconsistency. Rather it was one based on a continued, or repeated, refusal or failure by BT to accept that he was physically capable of working part-time and further or alternatively that he would continue to be so capable until he was 60. Put in a different way his point was that BT's stance and approach was one of continued, or repeated, inappropriate non-cooperation and insensitivity.
54. Overall in our judgment the position at the Remedy Hearing having regard to the evidence before the Employment Tribunal at the two hearings and their findings in the Liability Decision (and acknowledging that BT had not disclosed the opinion of the consultant orthopaedic surgeon it had instructed and who had examined Mr Wilding) was that:

(a) Mr Wilding was maintaining that he was physically capable of working part-time and this is reflected in paragraph 4(30)(iii) of the Extended Reasons, but

(b) there was a dispute and thus some doubt as to both:

(i) Mr Wilding's physical ability to accept the offer of re-employment on a part-time basis, but BT were not taking that point in the Remedy Schedule which indicates an expectation that Mr Wilding would be able to provide the medical confirmation which was a condition to that offer, and

(ii) Mr Wilding's physical ability to work until he was 60 (or beyond 55) which was an issue raised in the Remedy Schedule and as appears from paragraph 4(21) of the Extended Reasons the Employment Tribunal were asked to consider at the start of the hearing (but as to which they made no finding).

55. However that dispute and consequential doubt did not lead to an argument on the issue of mitigation that a factor in Mr Wilding's decision to refuse the conditional offer of re-employment was a doubt as to his physical ability to work part-time and this was not a factor in the reasoning of the Employment Tribunal on the issue of mitigation.
56. In our judgment that is the correct approach on mitigation because the issue is whether judged on an objective basis Mr Wilding failed unreasonably to take up the conditional offer of re-employment and thereby avoid or attempt to avoid the damages based on the loss of part-time employment that he claimed. If Mr Wilding had accepted the offer he would have tested "on the ground" his ability to provide adequate medical confirmation and to physically do the part-time work. The objective assessment of mitigation falls to be made in the light of the unresolved dispute and the respective stances of the parties as to those matters. It is only if it is found that Mr Wilding did not fail to mitigate his loss that the disputes as to those matters have to be resolved.

Device or sham

57. In paragraph 4(17) of the Extended reasons for the Remedy Decision the Employment Tribunal state that Mr Wilding felt that the offer of re-employment was a "sham".
58. Leading Counsel for Mr Wilding who appeared before us and the Employment Tribunal confirmed to us that no submission was made that the conditional offer of re-employment was a sham or a device in the sense that the intention of BT was (i) not to honour its commitments under the offer if it was accepted and /or (ii) to deliberately cause the part-time work to fail. This would have been an allegation of dishonesty or bad faith and in our judgment as a matter of procedural fairness it was not one that could properly have been pursued unless it had first been clearly and unequivocally put. If it had been so put it seems very likely (if not inevitable) that BT would have wanted to call evidence to refute it.
59. It is not so put in the letter of 13 May 1999 and Mr Wilding's statement. There the assertions that, or to the effect that, the offer was a device, a sham or not a genuine offer do not go that far. They relate to the history, BT's continued and repeated stance that Mr Wilding was not physically fit and the alleged lack of detail. They are assertions that those (and other matters relied on) demonstrated a lack of commitment by BT which in turn demonstrated that the mutual trust and confidence that would have been necessary to make part-time employment a success was not present. They do not assert dishonesty or lack of good faith.
60. In our judgment it follows that the Employment Tribunal were clearly entitled to accept and proceed on the basis that as stated in its letter of 3 March that the open offer or re-employment was a genuine one. In reaching this view we have not forgotten that the burden of proof is on BT in respect of the issue of mitigation.

BT's first point on this appeal

61. BT argued that the issue whether Mr Wilding had taken reasonable steps to mitigate his loss is a question of fact not of law and that proposition effectively disposes of this appeal. We accept that Payzu Ltd v Saunders [1919] 2 KB 581 (in particular at 588) is binding authority that the issue is one of fact. But in our judgment it does not follow that that effectively disposes of the appeal. This is because in reaching that finding of fact an Employment Tribunal has to apply the correct test in law and if they do not do so, or if, having regard to that test, they take into account irrelevant factors, or leave out of account relevant factors, or give inappropriate weight to factors they err in law. Further a decision on such an issue of fact can be appealed on the grounds that it is perverse. Mr Wilding's grounds of appeal contain the above grounds.
62. In support of our conclusion in paragraph 61 we would add that in the field of employment law and other areas a number of issues are properly described as issues of fact, or of secondary fact. But they can only be properly and lawfully decided by an application of the correct test or approach in law and it is not a general answer to an appeal or challenge to a decision on such an issue to assert that it is an issue of fact (see for example Hutchinson v West [1977] ICR 279 at 282 E/F, R v Monopolies and Mergers Commission ep SYT [1993] 1 WLR 23 at 29E and 32 C/H and also Fyfe v Scientific Furnishings Ltd [1989] ICR 648 where as the headnote shows an appeal on the issue of mitigation was successful).

The correct test or approach on mitigation

63. This is well established. Given the experienced representation of the parties before us and the Employment Tribunal it is unsurprising that there was common ground as to this test and approach before us and the Employment Tribunal (see paragraph 4(22) of the Extended Reasons). Both tribunals were taken to the relevant cases. Some of them are set out in paragraphs 4 (24), (25) and (28) of the Extended Reasons. We were taken in particular to the following cases which are referred to in the Extended Reasons:

(a) Fyfe v Scientific Furnishings Ltd [1989] ICR 649 at in particular the headnote and 650 –652,

(b) Ministry of Defence v Hunt [1996] 554 in particular at 561 and 563, and

(c) Emblem v Ingram Cactus Ltd (Unreported Court of Appeal 5 November 1997) in particular at 1A/B, 2C to 3C, 4B/C, 4F to 5C, 6G to 7A and 10E/G.

We were also referred in this context to the Payzu case (in particular at 588).

64. These cases establish the common ground between the parties which it was accepted (in our judgment correctly) by leading counsel for Mr Wilding is properly reflected in the Extended Reasons. That common ground is that (i) the onus was on BT as the wrongdoer to discharge the burden of showing that Mr Wilding had failed to mitigate his loss by refusing the offer or re-employment, (ii) in considering that issue the circumstances in which the offer was made and refused, the attitude of BT, the way in which Mr Wilding had been treated and indeed all the surrounding circumstances should be taken into account, (iii) it was the duty of Mr Wilding to act as a reasonable man would do if he had no hope of compensation from BT his old employer, (iv) the test of reasonableness is an objective one based on the totality of the evidence and (v) the court or tribunal charged with deciding the issue must not be too stringent in their expectations of the injured party and thus the test or standard of reasonableness required of Mr Wilding is not particularly high.

The Grounds of Appeal

65. These were helpfully summarised and dealt with in the skeleton argument put in on behalf of Mr Wilding. We will adopt the headings used in that skeleton.

Ground 1: Failure to apply an objective test

66. The first ground was that although it was accepted that the Employment Tribunal set out the correct test or approach in the Extended Reasons their reasoning (and in particular paragraphs 30(i), (ii), (iv), 32, 33 and 34 of the Extended Reasons) demonstrated that they erred in law by applying a subjective approach of looking at the actual thought process taken by Mr Wilding and speculating as to the actual reason he may have had for refusing the offer rather than at the objectively justified reasons.
67. We do not agree. In our judgment the Extended Reasons show that the Employment Tribunal applied the correct test which was common ground before them and is referred to in the Extended Reasons and paragraph 64 above.
68. As the submissions made on behalf of Mr Wilding before us amply demonstrated in applying the correct objective test it is necessary and appropriate to look at the reasons for refusing the offer advanced by and on behalf of Mr Wilding.
69. In our judgment the approach taken by the Employment Tribunal of asking what happened to change the Applicant's mind between the offer of the job and the refusal was a permissible one in the circumstances of this case. We accept that a criticism of that approach might be that by indicating that he would consider an offer of re-employment Mr Wilding was going further than he had to seek to mitigate his loss and that the Employment Tribunal failed to assess whether if (i) he had not made that approach, and (ii) he had summarily refused an offer of re-employment made by BT he would by reference to an objective approach and the history not have failed to mitigate his loss. However in our judgment this is not a valid criticism, or one that founds an appeal, in this case because:

(a) the Employment Tribunal were very familiar with the history including the history of Mr Wilding's back problems, the way in which they had been dealt with by BT over the years, the circumstances in which he was dismissed and the manner in which the proceedings has been conducted, and

(b) in our judgment a fair reading of the Extended Reasons shows that having regard to all the circumstances up to the making of the offer of re-employment the Employment Tribunal were satisfied that judged objectively Mr Wilding ought reasonably to have accepted the offer.

As to point (b) we note that in paragraphs 4 (12) and (23) of the Extended Reasons the Employment Tribunal have (i) through the letter of 13 May 1999 referred to the parts of the history highlighted by Mr Wilding to support his argument that assessed objectively he acted reasonably, and (ii) expressly referred to the point that they have heard evidence relating to the history at the hearing on liability.

70. In our judgment the approach of the Employment Tribunal is then correctly to go on and see whether on the test and approach that was common ground before them the situation changed after the offer of re-employment was made.

Ground 2: Failure to consider or give weight to relevant considerations

71. In our judgment, having regard to the well established approach to the content of Extended Reasons and the approach of this Tribunal to them it was correctly not argued that the Employment Tribunal erred in law in not mentioning expressly in the Extended Reasons each of the considerations listed in the Appellant's skeleton argument.
72. We repeat paragraphs 29 to 56 and paragraphs 69 and 70 hereof. In our judgment having regard to (i) the points made therein, (ii) the manner in which the Employment Tribunal set out and dealt with the position after the offer of re-employment was made and (iii) the general approach to Extended Reasons by this Tribunal (see for example Meek v Birmingham District Council [1987] IRLR 250) this ground of appeal fails.

Ground 3: taking into account irrelevant considerations

73. There is an overlap between this ground and ground 1. In our judgment it falls with ground 1. The point made that the Employment Tribunal took into account (or gave too much weight to) the period of time between BT's appeal against the Liability Decision and the refusal of the offer is not one that establishes an error of law which founds an appeal although for our part we regard it is a minor factor that has little weight. In this context it should be remembered that immediately after the Employment Tribunal mention this point in paragraph 4(32) of the Extended Reasons they go on to consider BT's refusal to accept Mr Wilding's schedule of loss in paragraph 4(33) (which occurred at the end of April 1999 - see paragraph 49 above) and thus much nearer to the refusal of the offer of re-employment. In our judgment this, and the language of the last sentence of paragraph 4(32), show (should this be needed) that the Employment Tribunal did not place any great weight on this point. As explained earlier in this judgment Mr Wilding relied on both BT's appeal and their refusal of the schedule of loss to make the point that BT were not accepting his ability to work and thus the point that it was reasonable for him to refuse the offer or re-employment.

Grounds 4 & 5: Perversity/Erroneous application of the burden of proof – Applying an unduly onerous standard to the employee's conduct

74. These grounds have an overlap with grounds 1 to 3. As free standing grounds we agree with the submission made on behalf of BT that on a proper analysis they are an attempt by Mr Wilding to re-argue the merits of the mitigation argument and the conclusion reached thereon on the facts and are thus not permissible grounds of appeal.
75. Although we acknowledge that there was the potential in this case for an Employment Tribunal to reach the opposite conclusion on the issue of mitigation in our judgment the conclusion they reached was clearly open to the Employment Tribunal and was a "permissible option" and one that was well within the "range of decision open to the Employment Tribunal".
76. In this context we add that in our judgment the Employment Tribunal was in a unique position to assess the points made by Mr Wilding as to the conduct of the hearing on liability and as a result of that hearing had heard evidence upon which they could base properly informed decisions on (i) Mr Wilding's evidence as to his perception of the history and his reactions thereto, and (ii) the reasonableness of his decision to refuse the offer of re-employment assessed in the manner set out in paragraph 64 hereof. In doing that the Employment Tribunal did not have to accept all the evidence of Mr Wilding as to, or as to his perception of, the way in which BT had acted and having regard thereto, and generally, his arguments as to mitigation assessed objectively.

Overall conclusion

77. For the reasons we have given we dismiss this appeal.