United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS JUDE SHEPHERD (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors 324 Grays Inn Road London WC1X 8DH


 


HIS HONOUR J McMULLEN QC

1. This case is about disability discrimination and constructive unfair dismissal. It is an appeal by the Applicant in those proceedings against the Decision of an Employment Tribunal sitting at Cardiff, under the chairmanship of Mr M J Bird, over eight days in 2002, promulgated with Extended Reasons on 8 July. The Applicant and Respondent were represented by Counsel. Miss Shepherd appears again for the Applicant today. We will continue to refer to the parties as Applicant and Respondent.
2. The Applicant claimed that he had been discriminated against, contrary to the Disability Discrimination Act 1995, and, in addition, had been constructively unfairly dismissed, contrary to sections 95 and 98 of the Employment Rights Act 1996. The Respondent denied dismissal and discrimination. The Tribunal so found. The Applicant appeals against that finding on nine grounds, which we will come to, once we cite from the Employment Tribunal's description of the background. It was conceded by the Respondent that the Applicant, for the purposes of the proceedings under the DDA, was disabled. The Tribunal summarised its findings in the case as follows:

"We have not found it necessary to refer to [Counsel for the Respondent's] submissions, but in fact we agree with each and every one. ……The Applicant was not credible on a large number of important matters. The medical report which we have quoted, identifies only problems at work as a significant factor in his illness. This is consistent with the difficulties which common sense dictates must have resulted from his infatuation with a work colleague. The GP entries do not record any "stress" problems until 9.2.00, there is no reference at all to "problems at work". The grievance was launched because, essentially, the Applicant wanted improved financial terms, the position of IT officer with managerial responsibility. It was prompted by his unreasonable attitude on 17 May when he did not wish to comply with a simple instruction to copy [a relevant] file or to complete the landscape study. What happened afterwards was a genuine and reasonable attempt by the Respondent to deal with his unreasonable requests. In our view these Respondents deserve praise, and not the unfair criticism to which they were subjected over many days."

It can be seen from the summary that the Tribunal's attitude to the complaints made by the Applicant was adverse. The question is whether the Tribunal erred in law.

3. The Tribunal directed itself expressly by reference to the relevant provisions of the DDA and to the Employment Rights Act and to the two prevailing authorities, respectively Morse -v- Wiltshire County Council [1998] IRLR 352 and to Western Excavating (EEC) Ltd-v- Sharp [1978] 13 ITR 132 CA.
4. The Appellant's case before the Employment Tribunal is fully cited, for wherever Miss Shepherd, in her submissions today, has made a criticism, that submission is recorded by the Employment Tribunal.
5. The Respondent is a Trust, whose activities are funded by local authorities and bodies such as the Royal Commission on the Ancient and Historical Monuments of Wales; local authorities provide funding on a project basis. There was money available to finance the post of Sites and Monuments Record Officer, SMR. The Applicant was appointed to that post on 1 April 1997 until he resigned on 12 October 2000. During that time, the Respondent saw a marked decrease in real terms in the main financial resources received for its work. The Trust was forced to offer additional work to the Applicant in order to provide him with a full year's employment, fully funded.
6. In April or May 2000, the Applicant applied for a different job elsewhere, and in a reference, the relevant officer of the Respondent, Mr Dowdell said this:

"He is a very complex, deep thinking individual who, whilst working very hard and long hours (because of his undoubted interest in matters archaeological) can also be difficult to manage, this on the understanding that he finds it difficult to accept authority, systems and deadlines. Having stated this, he is nevertheless a likeable person, extremely intelligent and highly motivated."

The Applicant raised a grievance on 17 May 2000 when as the Tribunal held, matters came to a head. The Tribunal found, in the passage that we have cited at the outset of this judgment, that the grievance was due to his wish to have a different or more senior post, and improve his terms and conditions. Immediately thereafter, the Applicant was suspended while the grievance was investigated, and then the Applicant submitted a doctor's note which followed the manager's view that the Applicant was somewhat overwrought.

7. The advice of his trade union was sought in the submission of that note of grievance. The consequence of the note was that the Applicant was reduced to half pay rather than continuing on full pay. The Tribunal found that despite his notified illness on the ground of depression, his doctor considered that it would be to his advantage to discuss the grievance before his recovery. This occurred and the Tribunal found that the Applicant's approach revealed a misunderstanding of the nature of the occasion. He was not being interviewed pursuant to disciplinary action, but to a search by the Respondent to resolve the grievance.
8. A number of proposals were put forward for resolving the matter which included the Applicant's reduction to a part-time contract. The Applicant raised claims under the DDA. At the hearing, he raised what was described as his unrequited love for a co-worker, and his infatuation with her. The Tribunal went on to consider the context of work and over-work which had been squarely put to it, as it had to the Respondent. The Tribunal considered that his infatuation with the co-worker was a major preoccupation in his life. It went on to find that far from giving his colleagues the impression that he was struggling as a result of over-work, he appeared to them to be consistently ambitious.
9. The Tribunal made criticisms of the approach of the Applicant and his trade union to the resolution of his grievance, describing their conduct as "playing cat and mouse". It upheld the Respondent's contention that the Respondent's approach was to try and resolve the matter by reasonable means. The Tribunal rejected the Applicant's claim under the DDA as having no substance. It considered separately his claim of constructive dismissal on the basis that the Applicant had been given a workload, under which he was unable to cope. As the Tribunal said:

"We reject that argument. The evidence convinces us that the workload was well within his capacity"

10. In response to the contention that he was wrongly suspended on 17 May, the Tribunal said this:

"…….that was a sensible and reasonable reaction to the grievance which he raised and the circumstances in which he raised it."

The Tribunal considered the relationship which, as Miss Shepherd points out, exists between the claim under the DDA and the claim of constructive dismissal. It said this:

"We have already dealt with this. He was offered help. He rejected it. The real problem was that he wanted to decide what was a priority and what was not."

And that was not the approach of the Respondent .

11. The Tribunal also rejected as part of the constructive dismissal claim the contention that the Respondent had breached the contract of employment, when it decided that upon his return to work, he would be offered a part-time job and four weeks' notice would be given to terminate the full-time contract. The Tribunal held that that was not a breach of contract.
12. Turning then to the grounds of appeal:

Ground 1

contends that the Tribunal erred in, as it was originally put in the Skeleton Argument, placing such emphasis on the cause of the Applicant's disability; counsel contends that was an error of law. In responding to questions from the Tribunal, she indicated that the question was irrelevant to the decision on disability, and that her real submission was that the Tribunal had erred in placing any emphasis on the matter, in other words, that the Tribunal should not have considered the infatuation which the Tribunal found that the Applicant had for his co-worker. The position as we hold it to be is that since the Applicant himself raised the issue, it cannot be irrelevant. The Applicant did so on legal advice, in order to head off what might be evidence coming from the Respondent. It appears that the Respondent considered the evidence relevant, so did the Tribunal. It cannot be faulted as a matter of law, for considering the matter as relevant, once it did, the emphasis which it placed on that relevant evidence was entirely a matter for it of fact and degree.

13. Ground 2

This is that the Applicant adopted an incorrect approach to section 6 of the DDA. The Tribunal decided that as a matter of fact the Applicant was not overworked. Given that Miss Shepherd accepts that that is a finding of fact, in our judgment, the question of work, over-work and so on, are matters of fact. The issue arises as to whether or not the Tribunal was required to go on with the further stages set out in Morse. As can be seen, the Tribunal encapsulated what Miss Shepherd today agrees was her submission which is that the workload caused the Applicant difficulties because of his depression. Given the finding of fact against the Applicant's case on overwork, it seems to us that the Tribunal was not required to carry on making the further decisions enjoined by Morse, and we find no error of law in the approach it undertook.

14. Ground 3

This relates to how the Tribunal heard about long hours. It will be clear from the citations from the we have given, that the question of hours was very much at the forefront of the Tribunal's mind. Nevertheless, when the Applicant gave evidence, he could well assume that the reference meant what it said. We are told that he was not cross-examined about the content of that reference. Nevertheless, the Tribunal went on to find, having heard the evidence of Mr Dowdall, drawing a distance between himself and what he had written in that reference, as follows:

"Mr Dowdall explained in particular, that the Applicant left work every day on time. He caught the same train and did no more than his contractual hours. The reference to hard work and long hours was intended to be a reference to his archaeological interests generally."

We can see that Miss Shepherd may well feel that the Tribunal has adopted what Mr Dowdall said and which had not been put directly to the Applicant. Nevertheless, we are satisfied no injustice occurred during the hearing. Miss Shepherd did cross-examine Mr Dowdall upon the distinction between what he said in his evidence and what he wrote in his reference, and, having heard what he said, decided to make submissions on that basis. She did not ask the Tribunal for permission to recall her client in order to deal with the specific point mentioned above, and we think, in the light of the general approach to this case, no disservice was done to her client by that forensic decision, properly made, whilst she was on her feet. As we say, the Tribunal had very much in the forefront of its consideration the question of the workload of the Applicant.

15. Ground 4

The contention is that the Tribunal misdirected itself in deciding that the Respondent was not under a duty to make adjustments during the course of the Applicant's suspension, following 7 May 2000. In our judgment, the Tribunal has found that the Respondent was prepared to make an adjustment, that is, to take the view that the workload had not been excessive, and to form the opinion as follows:

"The obvious response to any complaint about overwork, is to reduce the workload, which is exactly what was proposed ie to limit the Applicant to his SMR role."

It seems to us that the Tribunal is there acknowledging that the Respondent was making an adjustment. Its phrasing as the obvious response indicates that the Tribunal felt that that was a reasonable adjustment and we reject the contention that it failed to deal separately with the submission under this head.

16. Ground 5

Miss Shepherd contended that the Tribunal failed to consider whether his suspension was a reason related to his disability, and whether it constituted less favourable treatment. This question which is expressly posed by the Tribunal is expressly answered by it. We have already referred, in our opening, to its general view, but in specific terms, the Tribunal said the Applicant:

"reacted badly to a reasonable request….."

In our judgment, that is a complete answer to the question "Why was the Applicant suspended?" and no grounds for criticism of the Tribunal seem to us to exist.

17. Ground 6

This is that the Tribunal failed to account for industrial practice, when it was noted that the Applicant's pay would be reduced to 50% once he went on to sick pay. Since Miss Shepherd acknowledges no submission was made to the Employment Tribunal, and no evidence was led about what industrial practice is, it was not a matter for the Employment Tribunal to consider. If we held that it was in error it would, as Miss Shepherd acknowledged, be a matter for us, instructed as we are by the industrial experience of the members of this Tribunal to form our own view. Nevertheless, we are happy to indicate that the view of the members of this Tribunal corresponds with the view of the Tribunal that there is no error of law in the practice adopted by the Respondent.

18. Ground 7

Here Miss Shepherd contends that the Tribunal failed to make sufficient findings or to make a properly reasoned decision about the Applicant's complaint about his reduction in hours. She further contended that the Tribunal reached a perverse decision. In our judgment, that claim fails, since the Tribunal has, in its Reasons, set out precisely why it decided as it did in relation to the reduction in hours. The Applicant was to be given reduced hours, and, in the context of the difficulties in funding in this organisation, it seems to us that the Tribunal was correct in indicating there was no breach of the DDA in so doing. It certainly is not a perverse decision for it to have reached, and the highest that Miss Shepherd puts it is that had the Tribunal considered further this matter, then it might have reached a different conclusion. We consider it did not err in the judgment which it made.

19. Ground 8

As Miss Shepherd acknowledged, these points are connected and there was no need for the Employment Tribunal totally to rehearse its findings when coming to its conclusion in respect of constructive unfair dismissal. As the Tribunal says:

"We have already dealt with this. He was offered help. He rejected it.

Thus it is that the findings on disability are played into the finding on constructive dismissal. It must be right, as a matter of logic as well as presentation, that the Tribunal considered the larger and more valuable claim under the DDA before it considered the claim of constructive dismissal, shorn of its unlawful discrimination background. That it correctly did.

20. Ground 9

This is that the claim for constructive dismissal included an allegation that the employer had unilaterally varied the contract of employment of its employee by offering part-time work. We refer to the minutes of the meeting which Miss Shepherd relies on. It seems to us that there was, as indeed industrial practice informs us, a straightforward termination by notice of the full-time employment, coupled with a related offer of employment on a part-time basis. That, in our judgment, cannot be a breach of contract, as the Tribunal agreed.

21. In these circumstances, we dismiss the appeal.