United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ANTHONY KORN (of Counsel) Instructed by: Messrs Willmett & Co. Solicitors 34-36 The Broadway Maidenhead Berkshire SL6 1LU
For the Respondent	MISS REBECCA TUCK (of Counsel) Instructed by: Messrs Addison Madden Solicitors 12 Hampshire Terrace Portsmouth Hampshire PO1 2PS


 


HIS HONOUR JUDGE J McMULLEN QC

1. This case is about Employment Tribunal procedure in the handling of material adduced during the hearing of a disability discrimination case; and constructive dismissal.

Introduction

2. From the first part of this judgment, dealing with the adjectival history, it may appear that the points raised are pedantic and overly concerned with written presentation of the claim. There is however a real point of law about fairness in this part. We will continue to refer to the parties as Applicant and Respondent.
3. It is an appeal by the Respondent in those proceedings against a reserved decision of an Employment Tribunal sitting at Brighton over eight days in 2001, Chairman Mr M J Davey, registered with Extended Reasons on 28 January 2002. The Applicant was represented by Mr Llewellyn, Solicitor. The Respondent was represented, as here, by Mr Anthony Korn of Counsel. Today Miss Rebecca Tuck, of Counsel, represents the Applicant.
4. The Applicant claimed unfair dismissal, discrimination contrary to sections 5 (1) and 5 (2) of the Disability Discrimination Act 1995 and breach of contract (that is, loss of notice pay amounting to wrongful dismissal). The Respondent denied discrimination and wrongful dismissal. It denied dismissal but said nothing about unfairness.
5. The essential issues for the Employment Tribunal, although not defined by it, were:

(a) whether the Applicant was disabled prior to 17 November 1999;

(b) whether he was treated less favourably by reason of disability and, if so, whether that treatment was justified;

(c) whether the Respondent failed to comply with a duty to make what are described in shorthand as reasonable adjustments;

(d) whether his resignation was a constructive dismissal; and

(e) whether he was entitled to money in lieu of notice.

The Tribunal Decision

6. The Employment Tribunal found that the Respondent discriminated against the Applicant contrary to section 5 (2) of the 1995 Act and constructively dismissed him. That dismissal was unfair. It dismissed the claim for notice pay because the Applicant and the Respondent had made an agreement to extend the notice period which he gave.

The Legislation

7. The relevant provisions in the Disability Discrimination Act 1995 are as follows

5 "Meaning of Discrimination

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

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

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

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

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

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

The section 6 duty is to make certain adjustments which are reasonable where a disabled person is at a substantial disadvantage. There is a complex set of circumstances which may be relevant in order that an employer may discharge its duty to a disabled person to make reasonable adjustments in respect of his or her disability pursuant to section 5 (2).

8. The Employment Rights Act 1996, section 95 provides, in relevant part for what is widely known as constructive dismissal:

95 "Circumstances in which an employee is dismissed

(1) For the purposes of this Part an employee is dismissed by his employer if (and…only if) –

(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct."

Both statutes have a limitation clause: see schedule 3, paragraph 3 (1) of the 1995 Act and section 111 (2) of the 1996 Act. Claims must be made within three months.

9. By Schedule 1 to the Human Rights Act 1998, Article 6 of the European Convention on Human Rights provides as follows:

"ARTICLE 6

Right to a fair trial

1 In the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

The Grounds of Appeal

10. The Respondent appeals on the grounds set out in a Notice of Appeal, a Skeleton Argument and oral submissions before us. In short they are:

(a) An unfair procedure was adopted by the Employment Tribunal;

(b) The finding of the Tribunal of liability under section 5 (2) is an incorrect application of the statute;

(c) The finding that the Respondent repudiated the Applicant's contract was given without reasons, was perverse and is wrong as a matter of contract.

11. There is no appeal by the Respondent as to the unfairness of the dismissal, if a dismissal took place. There is no appeal by the Applicant as to the dismissal of his claim under section 5 (1) of the Disability Discrimination Act 1995. There is no dispute that the Applicant was a disabled person, at least from 17 November 1999, but not before.
12. This appeal can be divided into two parts. We will deal with procedure then substance. It is common ground that if the Respondent succeeded on the first part the decision on disability discrimination cannot stand. Miss Tuck argues that nevertheless the finding on unfair dismissal should stand.

EAT Directions

13. Directions were given in this appeal by Lindsay P and members at a Preliminary Hearing on 2 August 2002. The EAT ordered a full hearing on all points. We cite below paragraphs 2 to 9 of that judgment, with which we agree.

2 On 25 May 2000, Mr Garton, an employee of Yellow Pages, tendered his resignation and on 24 August 2000 he presented an IT1 for unfair dismissal, wrongful dismissal and for disability discrimination. He said that he had been employed since July 1995 to 31 May 2000. He was an Accounts Executive. He complained that he had suffered abuse from his manager; he said that he became ill and that his workload increased, as did the abuse. He signed off sick, he said, in November 1999 with stress and depression. He had been due to return to work on 24 May 2000 but was held up to ridicule by another employee, he said, and so felt unable to return to work. He asked the employer that the ridicule incident should be investigated, but it seemed to him that there was a cover-up and he claimed constructive dismissal and unfair dismissal. The disability he claimed was brief recurrent depressive disorder.

3 On 15 September 2000, Yellow Pages put in its IT3. They asserted that Mr Garton had simply resigned; he had not been discriminated against and there was no breach of contract which justified him treating himself as constructively dismissed. On 18 January 2001, the employer - but then I think under different ownership, or a different corporation - conceded disability.

4 On 26 July 2001, the Respondent requested Further and Better Particulars. It was agreed, it seems, that Particulars would go into Mr Garton's witness statement and a witness statement was received on 9 and 10 August 2001. A hearing of some six days followed, followed by two days of internal Employment Tribunal deliberations between 13 August 2001 and 17 December, at Brighton. Mr Garton was represented by a solicitor, Yell by Counsel.

5 On 28 January 2002, the Decision was sent to the parties. It was unanimous. The Respondents were held to have discriminated against Mr Garton, contrary to the 1995 Act. Mr Garton was held to have been unfairly dismissed but the claim for wrongful dismissal was dismissed. On 8 March 2002 there was a Notice of Appeal which was received at the Employment Appeal Tribunal.

6 On 1 May 2002 the Appellant's solicitor lodged a comprehensive affidavit, and it makes or supports or intends to support a number of points, including that Mr Garton set out his grounds of complaint under the Disability Discrimination Act only on 27 September 2001, after his case had been completed at the Tribunal and after the Appellant's first witness had finished his evidence. Moreover, that full setting-out of the Applicant's case on disability was not short, it was some thirteen pages of typescript.

7 The Employment Tribunal, after objection taken by the Appellants before us, Yell, the Respondents below, indicated that only parts of the Particulars thus furnished would be taken into account. Nonetheless, continued the affidavit, in closing submissions Mr Garton was still raising yet new issues, not raised in his earlier case, and there were issues that formed part of the Employment Tribunal's Decision that, truly speaking, Yell had never really had a fair opportunity to meet. There had, throughout, been no amendment to the IT1.

8 That affidavit having been filed, it was sent to the Chairman for comments and on 24 May 2002, the Chairman made a number of comments. The Tribunal itself, in its Decision, had referred to difficulties that had arisen by way of the way in which Mr Garton had presented his case. In our page 10, at paragraph 3 of the Extended Reasons, the Tribunal says this:

"3 It has to be said at the outset that the task of the Tribunal has been made extremely difficult because of the manner in which the Applicant's case has been presented. The Tribunal has before it the Originating Application, which is dated 22 August 2000. Further and better particulars delivered by the Applicant's solicitors on 27 September 2001, the statements of witnesses which were exchanged by the parties and to which reference will be made subsequently and a bundle of documents. The further and better particulars in response to a request by the Respondents' solicitors bears little or no resemblance to any normal format for such a document and it is only with the greatest difficulty that one can extract the allegations of fact from the arguments contained in that document. Further, the bundle which was presented to the Tribunal is put together with a want of logic which is compounded by non-sequential numbering or no numbering at all.

4 At the commencement of the hearing on 5 October 20012, Mr Korn…"

Intervening there, I have said that Yell was represented by Counsel below, and it was, of course, Mr Korn, who also appears for them here.

"…Mr Korn drew the attention of the Tribunal to the problems faced by the Respondents in answering the allegations which the Applicant had added to his original application during the course of his evidence and the need for the Tribunal to take account of the requirements of natural justice and the provisions of the Human Rights Act 1998 specifically Article 6.

Mindful of the Respondents' proper concerns in being able to answer serious allegations with regard to its conduct, the Tribunal has determined only to admit those allegations which are contained in the Originating Application and the further and better particulars."

9 That is the background. It is the argument of the Notice of Appeal, broadly speaking, as to disability discrimination and unfair dismissal, that, in the event, the admitted evidence and the findings of fact ranged well beyond what was in the IT1 and, indeed, what was in the later Particulars and that in consequence, the hearing was not fair, whether one judges fairness under the requirements of the Human Rights Act or the conventional requirements of natural justice, or, indeed, ordinary specified procedure."

The facts

14. The Respondent is a successor to BT in its endeavour to publish Yellow Pages directories. It employs 3,000 people in the United Kingdom, 40 at Portsmouth to which this application relates. The Applicant was employed by the Respondent as a Sales Account Executive to sell advertising space in the Yellow Pages from 1995 until the relationship ended by his resignation in a letter of 25 May, effective on 31 May 2000. The Applicant was found to have acute recurrent depressive disorder and to be a disabled person within the meaning of the Act from 17 November 1999.
15. The key actors in this drama, apart from the Applicant, were Mr Mills (the Regional Sales Manager), Mr Wyse (the Account Executive Manager, that is, the Applicant's immediate supervisor), and two persons with Human Resources functions, Mr Pike (the Regional Personnel Manager) and Mr Lane (his superior).
16. The Applicant's case was that over a period slightly in excess of 10 months a course of behaviour had been established by the Respondent, particularly by Mr Wyse, in which Mr Wyse victimised him and failed to protect him from the abuse and harassment of fellow employees.
17. The Tribunal made very careful findings about a sequence of events during 1999 and broadly speaking found against the Applicant in respect of every one. In particular, it was found that the Applicant did not draw his medical condition to the attention of his management before November or December 1999. Thus the Tribunal concentrated on the events of and following 21 December 1999.
18. The Tribunal therefore rejected most of the Applicant's allegations as the background to his case. However, on 21 December 1999, the Applicant having been off sick since 17 November 1999, Mr Pike and Mr Wyse conducted a welfare visit to the Applicant's home. Such a welfare visit is commonplace at the Respondent. The Applicant raised problems concerning other employees. He complained that Mr Wyse had not been supportive and indeed had conducted disciplinary hearings against him in 1999 based upon the Applicant's failure to meet particular targets.
19. The conciliatory nature of the home visit appeared to have been disrupted by Mr Wyse bringing up two matters. They were work related. The indication that was given to Mr Pike was that the Applicant was making complaints which required to be dealt with by way of an investigation.
20. Mr Pike's attitude was in marked contrast to the attitude of other witnesses called before the Employment Tribunal, in respect of whom trenchant findings are made. It found that none of the witnesses acknowledged that the Applicant had raised a grievance on 24 March 2000 and the matter could not have been more clear to any reasonable employer.
21. Thus, between December 1999 and March 2000 the Tribunal accepted a criticism in respect of the way in which the Applicant's concerns were dealt with by the Respondent. In particular, between those two dates unfortunate remarks were made either by Mr Wyse or by a Mr Arden-Brown, which were offensive. The Applicant's unstable mental condition was the subject of ill-judged comments by managers and other employees. This had been reported to the Applicant and led to his complaint, categorised correctly as a grievance, we hold, on 24 March 2000. This letter is a measured and, as it appears, justified approach by the Applicant to the problems with which he was beset. The Tribunal found that the Respondent failed to conduct an adequate or proper investigation into this grievance. Limited action appeared to have been taken.
22. The Tribunal found that the setting of targets was an understandable matter for a business such as this, but to have increased the targets during the course of a customer's account showed carelessness for the welfare of staff. That procedure had been backed up by a potential disciplinary procedure for failing to meet targets. The Applicant had complained himself in his witness statement of those matters.
23. The Tribunal found that the claim of unfair treatment under section 5 (1) failed, but on the other hand it upheld the Applicant's complaint of failure to make adjustments under section 5 (2). There was a duty on the Respondent to take such steps as were reasonable to prevent the arrangements placing the Applicant at a substantial disadvantage in comparison with a person who was not disabled. This was a simple situation for the Respondent to deal with and an investigation of the Applicant's complaints may well have assisted in bringing him back to work. Steps were taken between March and May 2000 to which the Tribunal refers. It does not refer to every single letter written by a manager pursuant to the Applicant's complaints, but nevertheless it is aware of what the Respondent was doing. The failure to investigate constituted a discriminatory act against the Applicant contrary to s 5(2).
24. It therefore upheld, in part, the Applicant's claim of disability discrimination. It then went on to decide what it described as very much a separate head of clam; that is, a claim of constructive unfair dismissal under the 1996 Act.
25. The Applicant had contended that as a consequence of a failure properly to investigate his complaints and in failing to take any steps which would limit the abuse the Applicant suffered, the Respondent was in breach of the term of trust and confidence implied in the contract of employment and thus he was entitled to leave his employment and claim unfair constructive dismissal.
26. The Tribunal addressed itself by reference to a number of authorities before it came to its conclusion that the reason the Applicant left was because of what had occurred, as a final straw breaking the camel's back, on 24 May 1999. The Applicant had been coaxed to return to work and at a meeting on 23 May 2000 plans were set for him to return on 25 May. There was a dispute about what precisely had occurred at that meeting. The Applicant had been expecting an apology to ensue. Nevertheless, the sail was set for the Applicant to launch his return to the workplace two days later.
27. Tragically, an event occurred on 24 May 2002 which put an end forever to that potential voyage. At a meeting on that day of the Applicant's team, which included three senior members of management, a joke was made at the cruel expense of the Applicant. Word was passed to the Applicant of this and as a next step he wrote his letter of resignation. This repays careful reading and we will recite the relevant parts. It is to the Chief Executive:

"Having worked for Yellow Pages for the best part of five years, in which time I have achieved excellent results and believed that I had a career for life, it is with great regret that I must inform you that I have been given no alternative other than to tender my resignation. I believe you deserve to know the reasons behind this decision and therefore I list them below.

On 24 March I came to the company for help regarding a series of incidents within Yellow Pages that followed psychiatric counselling I came to realise had made me very ill. My distress was compounded when to my extreme consternation I discovered that following private welfare visits to my home by Yellow Pages Human Resources and senior management, that the said senior manager returned to my canvass office and ridiculed my condition in front of my colleagues making me a figure of derisement throughout the canvass. I felt that the senior manager's actions and the actions of other senior managers within the canvass in not addressing this unbelievable breach of employer/employee trust severely threatened my career with Yellow Pages and, more importantly, my health.

Human Resources and senior Yellow Pages managers informed me that they would investigate the matter. The senior manager involved has admitted that what he was alleged to have said about me in front of my colleagues was true. I was devastated. However, it was not until I met Gary Lane on Tuesday 23 May, two months after I sent my original correspondence, that a vague series of solutions were discussed. At this time I was not being paid by Yellow Pages and for the last three months have received half pay. I have a young family and I am obviously committed to providing for them. The constant vacillation by Yellow Pages over my concerns about returning to work had left me in what I perceived to be an even worse position. It seemed that Yellow Pages had entered into a war of attrition with me, knowing that if they kept their heads in the sand for long enough then I would have no choice other than to return to work with nothing resolved. It was therefore with great consternation and, I admit, a lot of fear that I reluctantly agreed to return to work on Thursday 25 May. A crucial part of the agreement for my return to work was that there would be a public apology from Yellow Pages to me for the distress caused by senior managers in my canvass office allowing my condition to be falsely described in a derogatory manner which led to me becoming an object of ridicule among my colleagues and managers within my office."

He then describes the unfortunate comment and then goes on:

"I…was very concerned as to how managers and my colleagues within the cluster would perceive me. I now know.

The company has left me with no other recourse than to tender this, my resignation. When I talked to my colleagues yesterday I knew, sadly, that I no longer had a career with Yellow Pages. I am today still stunned by the indifference and cruelty of it all. It was not what I expected from a blue chip company who holds 'Investors in People' accreditation and has just won the European Quality Award."

He signed it "Yours sadly".

28. As it turned out, the parties agreed on an effective date of termination for the purposes of the Employment Rights Act 1996 as 31 May 2000, to which date he was paid.
29. The Tribunal found that following this letter an investigation was organised and Mr Mills carried out an investigation by telephone. The Tribunal found that this was "perfunctory in the extreme" and took place entirely on 25 May 2000.
30. The Tribunal came to the conclusion that the Applicant had resigned in consequence of the matters set out in his resignation letter. The Tribunal categorised this as a particular case of:

37 "…an employer who is already on notice that the Applicant is suffering from stress and depression, who is already complaining about behaviour which amounts to victimisation and has failed to stop, or in any way reprimand, an employee who believes it is acceptable to make offensive remarks about the Applicant."

31. The issue before the Tribunal was to decide whether or not there was a repudiation of the contract. It decided that the employer here had failed to take proper steps to protect an employee against victimisation and harassment and "on the track record of the Respondent the Applicant might reasonably deduce that the employer had no intention of changing the prevailing culture." It found in favour of the Applicant's case that he had been constructively dismissed, unfairly. As we have indicated, it dismissed the wrongful dismissal claim.

The Employment Tribunal' procedure

32. Quite separately from those substantive findings, it is necessary to consider the procedure with which the Tribunal conducted this case, because at the heart of Mr Korn's appeal is the plea that the Tribunal failed to apply a proper procedure.
33. The Applicant's Originating Application was presented on 24 August 2000. Initially it was thought to be necessary to conduct a Preliminary Hearing as to whether the Applicant was disabled, but on 18 January 2001 a concession was made that he was at least on that date disabled, or at the date of the termination of the relationship. A hearing appears to have been set up in May 2001 which did not take place.
34. On 26 July 2001 the Respondent's solicitor wrote to the Applicant who was at that stage unrepresented requesting further and better particulars of the Applicant's complaints under both of the statutes. The letter strongly recommended that the Applicant take legal advice on the contents of the letter. In the light of the Applicant's Originating Application certain particulars were very necessary for the preparation of the Respondent's case. The request is entirely proper.
35. The Applicant quickly obtained the services of Addison Madden Solicitors, for they wrote back on 3 August 2001 seeking further documents from the Respondent and indicating that the firm had a lot of matters to deal with to comply with the timetable for the hearing, which was due to start on 13 and 14 August 2001.
36. In the response to the request for particulars, it was indicated that these matters would be dealt with in the Applicant's witness statement. That, too, is a proper response due to the proximity of the hearing. But solicitors on behalf of the Respondent indicated that there would be practical difficulties with such an approach. They had already instructed Counsel and if further particulars were not provided the hearing might have to be postponed with the inevitable cost consequences.
37. In due course witness statements were exchanged, but on 10 August 2001 solicitors for the Respondent indicated that the statement of the Applicant failed to deal in important respects with the requests made. That too was a reasonable complaint for them to make.
38. The hearing started on 13 August. At the outset Mr Korn sought clarification of the Applicant's claim under the DDA. It was made clear by Mr Llewellyn, then representing the Applicant, that the Applicant relied upon a breach of the duty of trust and confidence in respect of his claim for unfair dismissal and intended to argue a course of conduct leading to a fundamental breach.
39. The Respondent's position was that this was inadequate. The Chairman's notes in respect of what occurred on this day have been adduced and there appears to be an indication that the Tribunal did not attempt to clarify or determine issues prior to the start of the hearing. It is of course clear (see Tchoula v Netto Foodstores Ltd EAT/1378/96, Morrison J presiding) that in discrimination proceedings either a Preliminary Hearing or at least clarification at the outset of the substantive hearing is usually well-advised in order to understand precisely what the issues are and to avoid protracted time in the hearing.
40. The hearing commenced for two days with the Applicant giving his evidence and the evidence including that of Mr McArdle. The Applicant's case closed at the end of the second day (14 August). It was contended that the Applicant had said in his evidence that he had resigned on health and safety grounds. The Tribunal ruled that the allegation did not form part of his original case and could not be pursued.
41. There then followed the first of five adjournments of this case to single dates. When it resumed on 31 August 2001 at Southampton (because of difficulties at Brighton) the case could not start because the papers had not been sent over. They were fetched. In the afternoon the Chairman invited the Applicant, and the Applicant agreed, to provide particulars of his complaint under the Disability Discrimination Act.
42. Mr Korn took a forensic decision which appeared to be well-advised. That is, he had a witness there who was unavailable beyond that date for personal reasons, and decided to open his case with that witness, rather than wait for the particulars to be provided. There is nothing wrong with that decision made, as it were, on his feet.
43. The particulars were served on 27 September 2001. These contained fresh allegations which had not previously been raised. Immediately, the Respondent wrote objecting to the admission of the document and set out full grounds for it.
44. The Tribunal met again on 5 October 2001, where the Tribunal ruled on the admissibility of these particulars. It is to be noted that these particulars are not expressly in response to the original request made. They can be divided into three. First, they consist of various statutory matters. Secondly, there are a number of factual assertions and submissions. Thirdly, there are some further submissions, noted at paragraphs 13 to 23, consisting of seven pages, which are of a different character. The Chairman ruled, on behalf of the Tribunal, that paragraphs 1 to 12 were admissible and may be relied upon and the introductory passages about he statute. The remainder were excluded. The case continued upon that attenuated basis.
45. The Respondent called further evidence, this time from Mr Wyse and Mr Mills. There then followed an adjournment of a month, when the Tribunal resumed on 6 November 2001 to hear the evidence of Mr Pike. Agreement was reached at the end of that day as to how closing submissions would be dealt with. There was a guillotine, agreed by advocates, and written submissions would be produced and addressed.
46. The Tribunal then adjourned until 27 November when closing submissions were heard. Mr Korn went first, then Mr Llewellyn. A limited right of reply was given to Mr Korn. The Tribunal then adjourned until 29 November for a discussion in chambers and then further adjourned for a further discussion in chambers on 17 December 2001.
47. The principal complaint made by Mr Korn is that the Tribunal acted unfairly when it agreed to the adduction of the material in these further particulars at all. He had never accepted on behalf of his client the correctness of any part of the decision to admit the particulars, because they contained matters not already extant in the Originating Application.
48. Of more importance, however, they came at a time when the Applicant had closed his case and when the Respondent had already begun, for understandable practical reasons, to give its case. At the end of the hearing the Respondent, Mr Korn submits, had addressed those issues which were properly within scope of the Chairman's ruling, and he would then go to make submissions upon it.
49. However, Mr Llewellyn in his closing submissions, strayed beyond the curtilage of the Chairman's careful decision. This left Mr Korn at a disadvantage. He assumed the Tribunal would cleave to its original decision, excluding this material. But it is apparent to us that in its decision on disability discrimination, certain traces of the excluded passages are referred to. Also the passages which were not excluded from the particulars, which include new matters, are also relied on.
50. In short, Mr Korn submits that there were three aspects of unfairness:

(a) The decision to allow the evidence of Mr McArdle, substantially departing from his witness statement to be admitted;

(b) The admission of the further particulars at all, or alternatively in the form they were admitted;

(c) That the case was advanced and the Decision made on a different basis from that originally advanced.

(a) Mr McArdle's Evidence

51. Mr McArdle's evidence contains matters which were not in his original statement. Although no objection was taken at that stage, Mr Korn rightly suggests that he was entitled to rely on the Chairman's ruling after the event that only matters within his direction should be included. Therefore, it would be unfair to rely upon Mr McArdle's evidence.
52. Mr McArdle's evidence is relied upon by the Employment Tribunal, although some of his evidence is independently given by the Applicant himself and by another witness whose evidence was given by way of a witness statement. Nevertheless, we feel that it was unfair to the Respondent to allow for the adduction of Mr McArdle's evidence beyond what became the ruling of the Chairman, and for attention to be given to that wider scope of his evidence.

(b) Further Particulars

53. It is this aspect which has caused us considerable concern. Tribunals are required to operate relatively informally and to eschew technicalities of evidence and of documentation wherever possible. They must, however, operate justly. The Tribunal has allowed in, after the close of evidence of one party and after the start of evidence of the other, material upon which either the complaining party should be allowed to seek adjournments, or should be excluded.
54. Mr Korn very frankly accepts that evidence was before the Tribunal on a range of matters. The unfairness which he points to is that it was unfocused. Without the ability to know precisely to what reasonable adjustments the evidence was directed, he was unable to call evidence himself or to make closing submissions based upon the evidence which was available.
55. Illustrating this point, he simply turns to the complaint in the Applicant's Originating Application that he was denied various forms of training. That is dealt with by the Respondent since it knew that case. There is some material in the documentation about a possibility of having the Applicant back on reduced hours, and that might well constitute a reasonable adjustment, but in the absence of a claim being made as to how the Respondent failed in its duty, which the particulars do not now advance, there is, we think, some unfairness to the Respondent.

(c) The Different Basis of the Decision

56. It is contended that the Tribunal made a decision on a basis which was not put forward and the Respondent did not have an opportunity, adequately or at all, to give a proper reply. The Applicant's claim is set out in his Originating Application. The Tribunal did not, in respect of unfair dismissal, make a decision on a basis different from the allegation of trust and confidence which he had there advanced.
57. As to his claim under the DDA for reasonable adjustments, given that it was only with the support of the particulars that he was able to advance any sort of claim, and even then did not properly particularise his complaint, we consider that this part of the submission of Mr Korn is well-founded.

The legal principles

58. The relevant principles which have informed our decision are as follows:

(1) A party has a right to know the case it has to meet at hearing, both as a matter of natural justice and as part of the common law right to a fair hearing: County Council of Hereford & Worcester v Neale [1986] IRLR 168, 175 paragraph 54.

(2) In the absence of amendment, the Employment Tribunal's jurisdiction is limited to the complaints presented to it: Smith v Zeneca (Agrochemicals) Ltd [2000] ICR 800.

(3) The fact that evidence of wrongdoing is disclosed in the course of the hearing does not justify a finding of unlawful discrimination or unfair dismissal in itself: Chapman v Simon [1994] IRLR 124, 129, paragraphs 33 per Balcombe LJ and 42 per Peter Gibson LJ.

(4) A party must rely on particulars, either given voluntarily or by order, and those matters in the Originating Application. Permission must be sought for any new complaint to be added: Smith v Zeneca (above).

(5) A Tribunal is under a duty to give proper reasons for its decision so that they are exigible to the parties and on appeal (see in the context of a discrimination case, Anya v University of Oxford [2001] IRLR 377, [2001] EWCA Civ 405, at paragraph 25 and Tran v Greenwich Vietnam Community [2002] IRLR 735, [2002] EWCA Civ 553, at paragraph 17).

(6) The Tribunal is not under a duty to make a finding on every issue or on every submission. So long as it complies with the responsibilities set out in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 to make findings on the vital, critical, or essential matters, it will discharge its duty.

Conclusion on Procedure

59. As we have indicated, the nature of Respondent's claim before the Appeal Tribunal essentially relates to fairness. Mr Korn has demonstrated what prejudice, if prejudice is required, about which we are uncertain, was found in his client's case. By way of illustration only, most of the claims to which objection is taken are new claims not in the Originating Application, not the subject of an application to amend, raised as a point only in closing and subject to potential arguments on limitation. These include points made about less favourable treatment, the investigation of certain matters and some matters which might well have been deemed to have been closed by reason of the Tribunal's finding on section 5 (1).
60. It is not necessary for us to descend into detail, since we accept the force of Mr Korn's point. We do not hold it necessary for him to show prejudice, but if it is we think he has done; both at common law and, if it is necessary to go this far, pursuant to Article 6 (1).
61. The Respondent did not have a fair hearing by reason of the introduction of matters too late in the proceedings and the lack of focus to which the citation given above by Lindsay P adequately attests. The Tribunal no doubt had grave difficulty understanding the Applicant's case: so did the Respondent. It was not cured by the late delivery of the particulars, nor by the reliance upon the evidence of Mr McArdle going off his witness statement.
62. Thus, we allow the appeal in respect of the procedural defects. It is not necessary for us to deal with the substantive point on disability discrimination since the decision on disability discrimination cannot stand. We then turn to unfair dismissal.

Unfair Dismissal

63. Mr Korn acknowledges that this is a case essentially about pleadings. The Respondent made no pleading in respect of the claim of unfair dismissal, except to deny dismissal. Thus, the pithy finding by the Tribunal of unfair dismissal is explicable. The complaint by the Respondent is that the Tribunal has relied upon matters which are not substantiated in its findings and its findings do not illuminate the reasoning.
64. The Tribunal, as we have pointed out, decided that the Applicant had left on account of the treatment which he had received. It is common ground before us, that the reference to the failure to stop, or immediately reprimand, an employee making offensive remarks, relates to what happened on 24 May 2000.
65. It is clear to us that what ought to have happened at that meeting was for there to have been a reprimand there and then, in front of all the employees, to put a stop to what was going on ie the common jocular talk about this Applicant's mental condition. The Applicant was, as the Tribunal found, offended by this since it occurred after his complaint about management's broadcasting of his condition by way of similar jocular remarks between January and March 2000.
66. Thus it is that the Tribunal is able to base its decision upon what had occurred on 24 May, what had led to it, and also to make the finding that the Respondent had a track record and cultivated a prevailing culture. We accept Miss Tuck's submissions, by reference to passages in the reasons, indicating that the Tribunal had well in mind, for example, the failure to handle the Applicant's complaint by way of grievance, the setting of a target and potential disciplinary action thereafter, and the illness and absence due to stress of the Applicant and Debbie Elkington.
67. In making this decision, we have excluded from our consideration the evidence of Mr McArdle, because we consider that the finding by the Employment Tribunal is rooted in evidence given by the Applicant himself and by Debbie Elkington, and is not affected by its view about the McArdle evidence. Thus the Tribunal's judgment can be traced to its findings and we accept Miss Tuck's arguments upon them.
68. The line has to be drawn somewhere. We accept as a matter of law Mr Korn's argument that the material available on 25 May 2000 is all that has to be considered in relation to finding a repudiatory act. It is true that the Tribunal criticises the Respondent for failure to investigate what happened on 24 May. It appeared to investigate on 25 May in a jejune fashion and reinvestigate in July; but quite properly focus has to be trained upon what was known to the Applicant at the time he submitted his resignation letter, albeit it was accepted he gave six days notice.
69. Thus excluding the Tribunal's criticisms of the failure of investigation in respect of the comment on 24 May, there is yet a perfectly adequate basis for the Tribunal's finding of failure by the Respondent at stages up to and including 24 May. It in particular failed to stop a culture in which managers either said or witnessed offensive remarks about a person's mental condition. The Tribunal was correct, in our judgment, in holding that this was a proper case of constructive dismissal. The Applicant was entitled to treat that as the last straw and thus a repudiatory act in aggregate. The Employment Tribunal did not need to consider section 98(4); it was automatically unfair.
70. Mr Korn submitted that the decision on unfair dismissal was perverse. It was contended by Miss Tuck that the high threshold set by Stewart V Cleveland Guest Engineering Ltd [1994] IRLR 440 EAT per Mummery P, at paragraph 33 had not been met. We agree that the decision of the Tribunal recorded at paragraph 37 of its reasons cannot be categorised by any of the phrases indicating perversity set out by Mr Justice Mummery.

Disposal

71. Having heard submissions we have decided to send it back to the same Tribunal. Any claim by the Respondent to have lost confidence in this Employment Tribunal are insubstantial. Our thinking is that this Tribunal has already found in favour of the Respondent in respect of limiting the time from which disability runs, contrary to the contentions of the Applicant; and in dismissing his claim under section 5 (1). No complaint is made about the fairness of its procedure in accepting the Respondent's defence on those matters. The Respondent did not criticise the Tribunal on the ground of bias or apparent bias, but simply for a procedural irregularity which led to an unfairness in the hearing and which we have now corrected by remission for rehearing.
72. The Tribunal has to deal with the remedy in relation to unfair dismissal, since we have found no fault in its decision and it is now seized again of its duty to determine that matter.
73. We consider it is proportionate and just to hand this case back to decide afresh the Applicant's claim under section 5 (2). The Applicant's medical condition militates against setting a completely new Tribunal, and in favour of a further hearing in front of this Tribunal of the unfair dismissal remedy.
74. We are deeply concerned at the protracted proceedings in this case. We therefore direct that the Applicant, within 14 days of today, provide to the Employment Tribunal detailed particulars in answer to the Respondent's request of July 2001. It is not in the interests of justice that a hearing of this case should go part-heard and therefore a case management conference (on the telephone if necessary) should be had when an early date should be fixed with an accurate estimate for the hearing of the disability discrimination case on liability and remedy, and remedy on unfair dismissal. The Applicant will submit a schedule of loss within 14 days and the Respondent within 21 days from today will submit a counter-schedule.
75. We would recommend that a timetable be set for the calling of the evidence and the making of submissions, which is to be rigorously adhered to, given the Applicant's medical condition and the delay in this case so far.
76. Mr Korn has applied for leave to appeal to the Court of Appeal on five grounds. In our judgment there is no reasonable prospect of success on any of them, for the reasons which we have given in our judgment. On disposal, in the circumstances of this case an eclectic approach allowing some parts to stay and some to survive, and remission to the same Tribunal because of that, is just.
77. We would like to thank the advocates very much for the help that they have given us in this case and completing it on time.