United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS S McKIE (of Counsel) Instructed by: Messrs Henmans Solicitors 116 St Aldates Oxford OX1 1HA
For the Respondent	MR R LEIPER (of Counsel) Instructed by: Messrs Woodfine Batcheldor Solicitors Exchange Building 16 St Cuthbert Street Bedford MK40 3JG


 


THE HONOURABLE MR JUSTICE RIMER

1. This is an appeal by Electronic Data Systems Limited ("EDS") against the decision of an Employment Tribunal sitting at Bedford on 24 and 25 March 2003 under the chairmanship of Mr P. Willans. The tribunal's extended reasons were sent to the parties on 15 April 2003. The applicant before the tribunal was Dr Clive Harris. He had complained that EDS, his former employer, had discriminated against him for a reason related to his disability and had unfairly dismissed him. The tribunal upheld both his complaints. By its grounds of appeal, EDS claims that (i) a member of the tribunal manifested bias against it; (ii) the tribunal made an error in its approach to the discrimination claim; and (iii) made a further error in its approach to the unfair dismissal claim. EDS was represented before the tribunal by Mr C. Henney, its solicitor, but was represented before us by Ms Suzanne McKie. Dr Travis was represented before the Tribunal by Mr S. Oliver, his solicitor, but was represented before us by Mr Richard Leiper.

The tribunal's findings of fact

2. Dr Travis is 42. He is a highly qualified software engineer. The computer language he used in obtaining his PhD was "C/Unix". He started working for EDS in 1994. From May 1994 to January 1995 he was off work suffering from schizophrenia. He then worked until September 1995, when he was again off sick until December 1996 suffering a long illness. He then worked until June 1997, after which he was off sick until August 1999, when he asked to return to work.
3. That request led to a meeting with Ms McCartney, EDS's resourcing manager, and Ms Cordingley from EDS's human resources department. The purpose was to establish what Dr Travis wanted to do and to find a way forward. Ms McCartney was concerned about his re-introduction to the workplace since his IT skills were out of date. In addition, his security clearance had been suspended in January 1999 when EDS informed the Ministry of Defence ("the MOD") he was unwell. This posed an extra problem, because much of EDS's work was secret.
4. The outcome was that, as a temporary measure, Dr Travis was placed with Mr Ken Richardson for whom he carried out work on software in connection with project "PRAM". This required access database skills, which was one of Dr Travis's attributes. It was not revenue-producing work, but was perceived by Mr Richardson to be of value to him and his department. Dr Travis's overhead cost remained with the department in which he had originally been employed.
5. In September 1999, the MOD asked for a medical report on Dr Travis to assist in determining whether or not fresh security clearance should be provided for him. The report, produced in October 1999, showed that, although Dr Travis was fit to return to work, he suffered from a disability. The Tribunal does not explain its nature, but Mr Leiper told us it was schizophrenia. The tribunal said of this in paragraph 13(xii):

"(xii) … Line management were advised to consider him a vulnerable individual who was likely to benefit from a higher level of line management support than might otherwise be expected for a man of his age and experience. Care would need to be taken in changes to work practice and volumes. It made it plain that Mr Travis would require prophylactic medication indefinitely and in terms of structuring his work environment it was suggested that he would best respond to a situation where he was challenged at work but not given unrealistic targets or made subject to excessive demands. Similarly, he would respond best to an environment that was fairly consistent and, as already stated, any change which was introduced would have to be carefully structured and planned so as to lessen the prospects of him being destabilised in the process."

6. Ms Cordingley saw this report, but Ms McCartney did not. In November 1999, Dr Travis's security clearance was partially reinstated, subject to the qualification that he could not have access to highly classified material. Mr Eames, the security administrator, determined that to mean that he could not have access to material classed as secret or which bore a caveat such as "UK Personnel Only". Dr Travis's security clearance was to be reviewed in 12 months' time. He continued to work on PRAM. His limited security clearance prevented his return to the EDS Defence department, where much of the work was highly classified.
7. From the fourth quarter of 1999, EDS was engaged in its second major restructuring exercise of the year, one known as "Breakaway." The exercise was to review and make redundant all non revenue-earning staff. This led to the dismissal for redundancy over the following months of some 1,700 staff. Dr Travis's job was at risk as he was within the vulnerable class: his work was not directly billable to an account or client of EDS. He was not told of this, although Ms McCartney was well aware of it. His placement with Mr Richardson was a temporary arrangement, and from November 1999 onwards Ms McCartney was looking to find him a permanent role with EDS. In February 2000, she circulated his CV, making clear that every effort had to be made to redeploy him. The Tribunal said this was the first documentary manifestation of her efforts in this direction. It said that there was no evidence of any effort to train Dr Travis in any respect. The PRAM project involved him working on a program with which he was not familiar but, like other employees, he was required to train himself "on the job" and no special arrangements were made for him.
8. The tribunal referred to an e-mail dated 21 February 2000 which Ms Cordingley had sent to Robert Gerdes and to Ms McCartney. It read:

"Bob, I understand that Cheryl McCartney has contacted you recently regarding the redeployment of Clive Travis. So far we have been unsuccessful in placing Clive and are now considering our options with regard to possible redundancy. Before we go down this route I am going once more round the block to ensure that there are no vacancies UK-wide that Clive's skills would fit. I need to ensure that we are not discriminating against him in any way due to his previous medical history which I am sure you are aware of, as there are significant legal implications if he could prove this. We would be asked to justify our position at a Tribunal and would need to be squeaky clean with regard to our other vacancy/recruitment activity and also the possibility of retraining into vacancies.

Please can you confirm that you are comfortable that he is not suitable for any of the internal vacancies that we have at the moment. Many thanks for your help, Amanda."

Ms Cordingley also sent a similar e-mail to Bob Tuohy-Hoy.

9. In early February 2000, EDS's human resources department provided Mr Gerdes with a redundancy quote for Dr Travis based on an estimated leave date of 7 May 2000.
10. Mr Andrew Ralph of EDS was a project manager responsible for project "Tamper Package 2." In February 2000, he was looking for people to assist him resource it, and he notified EDS's Resourcing Group of his needs. Ms McCartney passed him Dr Travis's CV and asked him whether he might be suitable. Dr Travis was called for interview for the new job. Mr Ralph was unaware that Dr Travis was regarded as disabled, and his evidence was that, had he known this, he would not have dealt with him differently.
11. Dr Travis had two interviews. One covered the technical aspects of the job and was conducted by two of the existing Tamper team. The object was to assess his depth of knowledge in the relevant technical areas, his knowledge of development procedures and development life cycle, and his suitability for the team. Mr Ralph discussed the interview with the two interviewers and concluded that Dr Travis's C/Unix skills were not current, as they had not been used for a number of years, and that his depth of knowledge in the relevant areas of interest was insufficient. The tribunal found that Mr Ralph:

"… also had a number of concerns regarding [Dr Travis's] ability to work in a team which stemmed from [his] unease in describing his previous and current work and his apparent lack of motivation."

12. The Tribunal found that there was also an interview covering the managerial aspects of the role, but made no further finding as to it. The overall outcome was that, as the Tribunal put it, "In effect, [Dr Travis] was rejected for the job." Mr Ralph sent a memo to Ms McCartney on 2 March explaining why he felt Dr Travis was not suitable for any of the current roles within the Tamper team. These included roles junior to that for which Dr Travis had applied. The Tribunal also found that, had Mr Ralph been aware of Dr Travis's limited security clearance, he would been disqualified from consideration for the Tamper team from the outset. The Tribunal found, in paragraph 13(xxxii), that:

"… No effort was made by Ms McCartney or anybody else to address any of [Dr Travis's] perceived shortcomings either with [Dr Travis] or Mr Ralph."

13. On 6 March 2000, Dr Travis's GP issued him with a new certificate for depression, after which he was off sick for three weeks. At the end of March, he was still unwell with a cold. During his absence from work Ms McCartney visited him. They discussed several matters, but not his possible redundancy of which he remained unaware.
14. The Tribunal found that, as early as 21 February 2000, active consideration was being given by EDS to making Dr Travis redundant, and that by 3 April 2000 a decision had been made to do so. On, or shortly before, 3 April Mr Gerdes e-mailed Ms McCartney as follows:

"Cheryl, Who has [Dr Travis's] garden leave letter ready for issue this Friday. If it is not given to him, please let me know as soon as possible as his name will be reported to the States if we are not careful. Will forward his quote when I receive it. …"

Ms McCartney responded as follows on 3 April, with a copy to Ms Cordingley:

"Robert, Can I please ask that you tread carefully with Plano [a reference to America]. As you are aware, I have yet to receive the OK from Amanda as to whether or not we can proceed.

I don't want to find myself writing a book on why we were unable to 'get rid' of [Dr Travis] to Plano."

15. Ms McCartney saw Dr Travis on 3 May 2000 and explained to him that he faced redundancy unless another role could be found for him. This was the first he knew of the risk of redundancy. On 8 May, he was given a letter which confirmed the position. He was put on garden leave at the same time, and told he need not attend work at any EDS premises. On 30 May 2000, EDS sent him a letter saying that attempts to find redeployment had been unsuccessful and giving him formal notice of termination on the grounds of redundancy. His last day of employment was 8 June 2000. The Tribunal found that:

"(xli) … the only apparent effort made during the course of May to find an alternative role was a series of e-mails sent by Cheryl McCartney to Paul Bevan, Robert Brynde and Alan Hopton, enclosing [Dr Travis's] CV and asking if there were any alternative roles available? This was in response to an e-mail from Bob Tuohy-Hoy indicating that more vacancies were available to be looked at and referring her to those three individuals."

Submissions to and conclusions of the tribunal

(i) Disability discrimination

16. It was argued for Dr Travis that he had a disability and that section 6(1) of the Disability Discrimination Act 1995 ("the DDA") imposed a duty on EDS to make reasonable adjustments where any "arrangements" made by EDS placed him at a substantial disadvantage in comparison with those not disabled. The relevant "arrangements" were said to be those arising in consequence of the Breakaway exercise, which threatened to make redundant those employees not engaged in income-generating work. Dr Travis was said to be under an immediate disadvantage as compared with others not disabled because of (i) his limited security clearance, and (ii) his need for re-training as his skills needed updating. It was submitted that, in the circumstances, the "steps" which EDS was required to make by way of adjustments under section 6(3) of the DDA included "(g) giving him, or arranging for him to be given, training". It was also submitted that the criteria for the Tamper job could and should have been altered. It was further submitted that the criteria in section 6(4) pointed to the conclusion that it was reasonable for EDS to make the suggested adjustments. It was said that, whilst EDS had given consideration to alternative employment for Dr Travis, it had not considered the adjustments it could have made to enable him to do those alternative jobs.
17. EDS submitted that it had approached Dr Travis's situation sympathetically and had sought alternative employment for him. It pointed out that the DDA did not provide an employee with protection by way of a job for life. It submitted that, although Dr Travis's case was founded on an alleged failure by EDS to satisfy its section 6 duty, he had failed to identify the disability-based reason for the alleged discrimination. It was said that the relevant "arrangements" involved a reorganisation which called into question the roles and skills of the employees at the time. They did not give rise to any intrinsic disadvantage to disabled employees, and it was said that no freestanding duty came into being with regard to anyone who was so disabled. EDS submitted there was no duty to create a fee-earning vacancy for a disabled person, and that there were no steps it could take to avoid the consequences on Dr Travis of the reorganisation.
18. The Tribunal's conclusion was that EDS had discriminated against Dr Travis for a reason related to his disability. It was common ground that, on his return to work in October 1999, he suffered from a disability. EDS knew he lacked sufficient security clearance because of his disability and that his skills were rusty because they had not been practised during his illness. Despite that, EDS:

"47 … made no effort to provide him with any form of training, beyond 'on the job' training he was required to undertake himself whilst being slowly reintroduced to work under Mr Richardson's 'wing'. The Tribunal did not accept [EDS's] argument that training is something which [EDS] might only have considered with the benefit of hindsight. They had the benefit of medical advice and had made their own assessment of his capabilities and training was an obvious option.

48. When the Breakaway restructuring policy was introduced, [EDS] were aware that [Dr Travis] was vulnerable to redundancy and at a significant disadvantage to other employees when applying for fee-earning positions because of his lack of security clearance and rusty skills, both of which were the direct result of his absence from work and his illness.

49. Further, the Tribunal had noted … an extract of the Breakaway policy …, which provided for special cases. Those included medical cases relating to the long-term sick. This provided for Human Resources to review special cases of that sort of category and clearly the inference was that they should be dealt with accordingly. In the light of his disability he was an acknowledged special case.

50. The Tribunal find as a fact in this case that [Dr Travis] was not dealt with in the spirit even of the Breakaway agreement. As a consequence of his disability, in the circumstances which then arose, he was at a clear and substantial disadvantage in comparison with persons who did not suffer from a disability.

51. The Tribunal found that [EDS] did not sufficiently consider at that point alternatives to dismissal and what steps might reasonably have been taken by them to assist [Dr Travis] in the circumstances which confronted them. The Tribunal found unanimously that [EDS] did not take all reasonable steps to stop the disadvantage. The Tribunal went on to consider whether or not [EDS] had justified the failure to take such steps and unanimously concluded on the facts that they had found, that [EDS] had not justified and further, that the failure was both material for the circumstances of the case and substantial.

52. Having arrived at the decision that [Dr Travis] was discriminated against, the Tribunal found that [his] dismissal was unfair."

(ii) Unfair dismissal

19. As for the separate claim for unfair dismissal, it was submitted for Dr Travis that if he had been discriminated against, his dismissal was inevitably unfair, and we have referred to the Tribunal's reasons and conclusions for upholding that submission. Alternatively, it was said that the dismissal was procedurally unfair and that it was also unfair in view of the size and administrative resources available to the EDS. It was argued that EDS knew in December 1999 that Dr Travis was potentially at risk of redundancy but did not tell him until 3 May 2000. It failed at any stage to warn him that, to avoid redundancy, he needed to improve his skills to a fee-earning ability. It was said that the failure in November 1999 to consider his re-training was in breach of the commitment in the staff handbook to provide training and so rendered the dismissal substantively unfair. Nor, it was said, was there any right to put Dr Travis on garden leave, which hampered his ability to find alternative employment. Further, it was said that, in breach of its own policy, EDS failed to inform Dr Travis of his right to appeal against the dismissal decision.
20. EDS submitted that the reason for the dismissal was redundancy, being a reason within section 98(2) of the Employment Rights Act 1996 and that, for the purposes of the fairness requirements of section 98(4), there had been genuine consultation. The dismissal was because of a failure to match Dr Travis's skills to the available vacancies, and he was one of the 1,700 employees who lost their jobs.
21. The tribunal concluded that, even if EDS had not discriminated against Dr Travis on the grounds of his disability, his dismissal would have been "both substantively and procedurally unfair." It explained this in paragraphs 54 and 55:

"54. … [EDS] had failed to properly consider [Dr Travis's] training needs on his return to work after long illness absence. Further, he was not warned that he was at risk before he attended the interview at Hook on 25 February and he was not warned that he needed to improve his skills to a level to where he could be engaged in fee-earning. So far as procedural unfairness was concerned –

a) there was no effective consultation;
b) there was no effective alternative job search, in the view of the Tribunal. [EDS] were advertising numerous jobs in November 1999 (218 of the bundle); and
c) [Dr Travis] was never advised of his right of appeal.

55. In the unanimous view of the Tribunal, [Dr Travis] was unfairly dismissed."

The appeal to this appeal tribunal

22. EDS advances three grounds of appeal against the Tribunal's decision. The first is founded on the assertion that the Tribunal was biased against it, or at least displayed the appearance of bias. We deal with that first.

(i) Bias or the appearance of bias

23. The factual basis for this is as follows. The Tribunal announced its decision orally to the parties at the end of the hearing on 25 March 2003, saying it would give written reasons later. There followed a discussion about the approach to the question of fixing the quantum of the compensation to which the decision entitled Dr Travis. This related to the time which might be needed to deal with medical issues. During this discussion, Ms Cordingley overheard a wing member of the tribunal, Mrs S. Thomas, say to the chairman "They've got the money, haven't they," a reference to EDS. Ms Cordingley recorded this in her notebook and deposed to what she had heard in an affidavit of 22 July 2003. We shall call this "the first remark".
24. Shortly after that incident, Ms McCartney saw Mrs Thomas lean towards the chairman and, although Mrs Thomas covered the side of her head with her hand, Ms McCartney heard her say "they can afford it," again a reference to EDS. Ms McCartney deposed to hearing that remark in an affidavit she made on 4 July 2003. We shall call this "the second remark".
25. Ms Cordingley and Ms McCartney promptly related what they had each heard to EDS's representative, Mr Henney, who had not himself heard either remark. As he explained in an affidavit of 29 July 2003, at the time of the first remark he was engaged in a quiet discussion with Mr Oliver, Mr Travis's representative, about the possibility that EDS might appeal against the liability decision and also about Mr Oliver's suggestion that compensation might be sought in respect of the claimed deterioration in Dr Travis's health in the wake of the termination of his employment and as to what that would mean in respect of both sides having to be prepared with medical evidence and/or expert witnesses. He also explained that, at the time of the second remark, he was engaged in conversation with Ms Cordingley. However, once the remarks had been relayed to him, Mr Henney relayed them to Mr Oliver, who said he had heard neither remark. Mr Henney, with Mr Oliver's agreement, then requested a private meeting between himself, Mr Oliver and the Chairman. Mr Henney told the Chairman what had been heard. Mr Henney's evidence is that the Chairman's response was that he had not heard the remarks and that he must have been talking at the time but that he would bring the matter to the attention of the Regional Chairman.
26. On 25 March, Mrs Thomas wrote as follows to Mrs Tribe, the Regional Chairman:

"Reference my brief discussion with you today concerning an observation I made regarding the above case during the period the Tribunal were attempting to set a date for a Remedy Hearing.

During this period I became extremely concerned that [EDS's] solicitor Mr Henney was seeking an adjournment for an indeterminate period on a Remedy Hearing date. I fully accept further medical reports were necessary for both sides never-the-less. I have to say, I gained the impression [EDS] wished to delay as long as possible because they did not want to canvas a date.

I lent over to the Chairman to quietly express my concern and made the following observation 'The Respondents will go to Appeal, they have the money'. I understand my observation was heard by one witness for [EDS].

The reason for my observation is, my grave concern for [Dr Travis] who is diagnosed as schizophrenic and deemed fit for work by his General Practitioner and anxious to return to work.

I accept it would have been more appropriate had I requested a short adjournment to the Chairman to fully express my concerns. However, I do not consider my observations to be in any way prejudice [sic] to [EDS's] case.

Please accept my sincere apologies for any inconvenience that may be caused to the tribunal system."

27. We read that as an admission by Mrs Thomas that she had made the first remark. On 14 July 2003, Mr Willans, the Chairman, wrote to this Appeal Tribunal. He had by then seen Ms McCartney's affidavit of 4 July 2003. He said:

"The Chairman's recollection is that the discussion referred to in the Affidavit related to the length of the adjournment that would be required to deal with compensation in the light of the Tribunal's decision.

There was some discussion between the Advocat [sic] for [Dr Travis] and [EDS's] representative.

The Tribunal remained in the room and the comment that the witness McCartney partially (only partially) overheard was directed at the Chairman by Mrs Thomas who was concerned that there should not be a lengthy adjournment.

The Chairman cannot now recall the exact words but the member was concerned about [EDS's] in effect wanting to 'string matters out' and possibly to appeal and it was in that context that the remark 'they can afford it' was made. It had absolutely nothing to do with the decision which the tribunal had already made and announced. It was simply to do with the length of time that was to elapse between the announcement in favour of [Dr Travis] which had just been made and proceeding to deal with compensation. …

Whilst it is regrettable that the remark was made, the Chairman is quite clear in his recollection that it had nothing to do with any prejudice against [EDS] in any sense. It was merely an expression of concern by the member about matters being prolonged to [Dr Travis's] potential disadvantage.

The Chairman hopes these remarks are of assistance although Mrs Thomas herself will no doubt communicate exactly what she meant by the remarks that she made."

28. The remark to which the Chairman appears there to have been referring was the second remark. On 19 July 2003, Mrs Thomas wrote further to Mrs Tribe. She had by then seen both Ms McCartney's affidavit and the notice of appeal, which latter also set out what Ms Cordingley had heard. As to the latter, Mrs Thomas said that "Miss Cordingley's comment does partially reflect my own … she missed off 'The Respondents will go to Appeal." She does not make clear whether she admits the second remark that Ms McCartney heard, although the chairman had admitted hearing it in his letter of 14 July 2003. He had also explained that the second remark must be seen in the context of a concern by Mrs Thomas that there might be an element of prevarication on EDS's part and that they might be considering an appeal. Mr Henney's evidence is, however, that no mention had been made to the tribunal that there might be an appeal, although he had mentioned that privately to Mr Oliver. Mrs P. Tobin, the third member of the tribunal, also wrote two letters to Mrs Tribe, on 25 March and 21 July 2003. She denied hearing either remark and said in her first letter:

"On their departure the chairman informed us that [EDS's] solicitor had complained that one of his witness'es [sic] had overheard a comment made by one of the members to the effect 'they've got lots of money let them pay'.

I made no such remark nor did I hear my Colleague make any similar remark. The Chairman also stated that he did not hear the alleged comment.

As an experienced Tribunal member I would not contemplate making a remark of this nature and I cannot recall any circumstance past and present where such a remark has been made."

29. In her second letter, Mrs Tobin expresses her belief that the suggestion that two remarks were made was a figment of imagination. She clearly takes the view that the making of any remark of the nature alleged would be inappropriate. On 2 August 2003, Mrs Thomas wrote to Mrs Tribe disclaiming any suggestion that Mr Oliver had suggested that there was any prevarication on the part of EDS, or that EDS had said it did not want to "canvas a date. It was the impression I personally gained." Mr Willans, the Chairman, made a final evidential contribution in his letter of 6 November 2003 to this appeal tribunal. He said:

"It is correct that remarks were made by Mrs Thomas after the point where the decision had been briefly announced and consideration was being given to an adjournment to fix a remedy hearing.

As Chairman I can say quite categorically that the remarks made by Mrs Thomas related solely to her concern, forceably expressed, that there should not be too long an adjournment because she was concerned as far as I can recall, that a lengthy adjournment would be to the disadvantage of [Dr Travis] in whose favour we had decided.

There is no doubt in my mind whatever that the remarks that [were] unfortunately overheard by Ms Cordingley namely 'they have got the money haven't they?' and 'they can afford it' were directed by the member at the ability of [EDS] to appeal our decision.

In the event both [Dr Travis's] representative Mr Oliver and [EDS] were of the same view in terms of adjourning the matter for a remedy hearing and so we were not required to decide any contentious point on that particular issue.

Whilst I can understand that the remarks may well have given the listeners the wrong impression, I can say categorically that it was in the above context that they were made.

It is true that when Mr Henney first mentioned the matter to us, I at first was wholly unaware of what he was talking about. It wasn't at first clear what remarks he was referring to but when that was made clear and when I had had an opportunity of considering the position with the Members, there was little point in providing any explanation to Mr Henney who made it plain to the Tribunal that he was merely flagging up his concern that remarks had been made and indicating that the consequence of that might be an application for a Review or an Appeal.

After the parties had departed the Member in question was extremely upset at the impression that her words had caused. The matter was reported immediately to the Regional Chairman, to the best of my recollection, in the terms as I have indicated above.

There was absolutely no question of any bias on the part of the Tribunal during the hearing in favour of or against either of the parties. The matter arose against the background of the Members concern that the question of remedy should be dealt with sooner rather than later."

30. For EDS, Ms McKie submitted that the weight of the evidence is that both remarks were made, and we accept that: it appears to be admitted by the Chairman in the letter we have just quoted, although Mrs Thomas does not herself make quite such a clear admission. Ms McKie said they disclosed an apparent bias by Mrs Thomas against EDS, and that the Chairman's point as to the context in which they must be seen is insufficient to dispel the concern which EDS attaches to the remarks – namely, that they are equally indicative of a view held by Mrs Thomas about EDS throughout the case to the effect that EDS can afford to compensate Dr Travis and should do so. She submitted they disclosed a prejudicial view on Mrs Thomas's part about EDS. Ms McKie also pointed to the unsatisfactory inconsistency about the Chairman's recollection of the matter. First, he denied hearing either remark. Then he admitted hearing the second remark and sought to explain it in a context for which, at least in part, there was arguably no evidential basis. Finally, he admitted both remarks.
31. Ms McKie said that the remarks were evidence of hostility. They were made shortly after the decision had been made. Although there had been some discussion about the remedy hearing, there had not been full discussion. The comments could be interpreted as a reference to Mrs Thomas's view of what sort of company EDS is and as to her attitude towards it. She pointed out that the Chairman admitted in his letter of 6 November 2003 that the remarks may have given the wrong impression.
32. Mr Leiper, for Dr Travis, stressed the importance of the timing of the remarks and the context in which they were made. The Tribunal was obviously keen that the remedy hearing should be as soon as possible, against the background that EDS was facing a large compensatory award. On the other hand, paragraph 56 of the Tribunal's Reasons recorded that both sides foresaw complicated issues in terms of compensation, that there might be medical evidence on both sides and that both sides wanted an adjournment of not less than three months.
33. In considering EDS's allegation that Mrs Thomas's remarks reflected bias by her against EDS, we consider that the guidance to which we should have regard is that referred to in paragraph 14 of the opinion of the committee of the House of Lords in Lawal v. Northern Spirit Ltd [2003] IRLR 538. That shows that the question for us is "whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased." The House pointed out that such an observer will adopt a balanced approach, and will, as a reasonable member of the public, be neither complacent nor unduly sensitive or suspicious. We must, therefore, identify the circumstances which have a bearing on the suggestion that the tribunal was biased, and ask ourselves whether they would lead such a fair-minded and informed observer to conclude that there was a real possibility that it was biased.
34. We have set out the circumstances in which the two remarks were made, and find they were made in the context of a discussion between the tribunal and the parties' representatives as to the arrangements for the remedy hearing. We place no weight on the assertions from the tribunal that, despite the remarks, there was no question of Mrs Thomas or the tribunal generally being biased at any point during the substantive hearing, since we take the view that they are either irrelevant or are anyway ones to which we should attach no significance. That is because the resolution of whether or not there has been any bias, or a real possibility of bias, is not resolved by the self-serving assertions of the tribunal, but is to be assessed by reference to the objective consideration of the facts by the notional fair-minded and informed observer. If such an observer would infer from the facts that there was a real possibility of bias, no amount of denials by the Tribunal to the contrary can dispel that inference.
35. Given the context in which we find the remarks were made, the only sense we can make of them is that Mrs Thomas was concerned about a delay in the fixing of a remedy hearing and had in mind the thought that EDS would or might delay matters by seeking to appeal against the Tribunal's Decision to this Appeal Tribunal. The making of the remarks would not, in our view, entitle the fair-minded and informed observer to conclude that Mrs Thomas had, from the outset, been biased against EDS and determined by reason of such bias to find against it on the application. Having found in favour of Dr Travis, it was, we suggest, natural for the Tribunal to be anxious for the remedy hearing to take place with reasonable promptness, and we interpret Mrs Thomas's remarks as simply reflecting her expression of concern that EDS could or might delay that operation by taking steps they could afford to take, including by appealing. We regard the remarks as thoroughly unfortunate ones for her to have made, and they should not have been made, but we dismiss the appeal insofar as it is based on the allegation of bias.

(ii) Disability discrimination

36. The next ground of appeal goes to the Tribunal's decision that EDS had unlawfully discriminated against Dr Travis contrary to section 4 of the DDA. The relevant discrimination is that identified in section 5(2) of the DDA, the failure on EDS's part being said to be its failure to make reasonable adjustments under section 6 for Dr Travis's needs.
37. Section 5(2) provides:

"(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."

38. Section 6 provides, so far as material, as follows:

"6. Duty of employer to make adjustments

(1) Where –

(a) any arrangements made by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer,

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

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

(a) arrangements for determining to whom employment should be offered;
(b) any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded.

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

(a) making adjustments to premises;

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

(c) transferring him to fill an existing vacancy;

(d) altering his working hours;

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

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

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

(h) acquiring or modifying equipment;

(i) modifying instructions or reference manuals;

(j) modifying procedures for testing or assessment;

(k) providing a reader or interpreter;

(l) providing supervision.

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

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

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

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

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

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

This subsection is subject to any provision of regulations with respect to taking the step."

39. There is no dispute that Dr Travis was a disabled person, and that his long sickness absences from work, themselves a result of his disability, had caused his work skills to become rusty. In addition, he had by 1999 lost his security clearance. The Tribunal's findings were that the introduction of the Breakaway exercise in the last quarter of 1999 amounted to "arrangements" within section 6(1)(a) and called for the making by EDS of adjustments for Dr Travis by the taking of appropriate steps under section 6(3), on the basis that the "arrangements" placed him at a substantial disadvantage as compared with EDS's other employees. The Tribunal's finding was that EDS failed to take any such steps, and had failed to justify its failure.
40. Ms McKie was originally disposed to submit that the Tribunal had made no sufficient finding as to the manner in which the introduction of the "Breakaway" arrangements placed Dr Travis at a "substantial disadvantage" as compared with other EDS employees, but she did not persist in that and accepted that he was relevantly disadvantaged by it. We consider that was a proper concession by Ms McKie, the tribunal having in terms found (in paragraph 48) that:

"48. When the Breakaway restructuring policy was introduced, [EDS] were aware that [Dr Travis] was vulnerable to redundancy and at a significant disadvantage to other employees when applying for fee-earning positions because of his lack of security experience and rusty skills, both of which were the direct result of his absence from work and illness."

41. That being so, EDS was, on the face of it, under a section 6 duty to make reasonable adjustments for Dr Travis, although it would not be answerable for any failure to do so if it could justify it. Ms McKie's submission was, however, that, whilst the Tribunal found that EDS should have taken appropriate section 6 steps, but did not do so, it failed to explain what those steps were and how they would have prevented the continuance of the alleged disadvantage that Dr Travis was suffering. If it is said that he needed retraining, what retraining? And when should it have been given? Ms McKie pointed out that there was only a short period of time between Dr Travis's return to work and the implementation of Breakaway. She said that the only alternative employment for Dr Travis discussed at the Tribunal hearing was the Tamper job, in respect of which the chronology is important. Dr Travis returned to work in October 1999. In the fourth quarter of 1999, EDS engaged in Breakaway. Later, Dr Travis was called for interview for Tamper, and was rejected. There was a finding that he would not have been interviewed at all if his lack of security clearance had been known. If his lack of security clearance excluded him from it, what steps could have been taken by EDS to make him eligible for the job? How could EDS have obtained the necessary security clearance? In paragraph 13(xxxii) the tribunal find that "No effort was made by Ms McCartney or anybody else to address any of [Dr Travis's] perceived shortcomings either with [Dr Travis] or Mr Ralph." If this was a finding that steps could and should have been taken that were not taken, what were they; and would the taking of them have made any difference to the outcome of the consideration of Dr Travis for the Tamper job? Ms McKie submitted that unless the tribunal was first prepared to grasp the nettle of finding what steps might have been taken EDS in order to remove Dr Travis from his position of relative disadvantage, it could not address itself to the further questions of (i) whether such steps were reasonable ones for EDS to take (section 6(1)) and/or (ii) whether any failure by EDS to take them was justified (section 5(2)). The Tribunal dismissed EDS's justification defence in a single unreasoned sentence in paragraph 51.
42. For Dr Travis, Mr Leiper pointed out that the Breakaway policy itself provided for special treatment for medical cases relating to the long-term sick, and that in the light of his disability Dr Travis was acknowledged to be a special case (paragraph 49 of the reasons). As for the suggestion that the tribunal did not identify what reasonable "steps" EDS could and should have taken under section 6(3), Mr Leiper submitted that there was no deficiency in its reasoning. He referred to paragraph 47 of the tribunal's reasons in which it found that, upon Dr Travis's return to work in the autumn of 1999, EDS was aware that he lacked sufficient security clearance and that his skills were rusty but that, despite the latter, it made no effort to provide him with any training other than the "on the job" training he undertook himself when working for Mr Richardson. The tribunal said further in paragraph 47 that it:

"… did not accept [EDS's] argument that training is something which [EDS] might only have considered with the benefit of hindsight. They had the benefit of medical advice and had made their own assessment of his capabilities and training was an obvious option."

43. Mr Leiper referred to paragraph 13(ix) of the reasons, in which the Tribunal referred to the concern affecting Dr Travis's return to work by reason of his lack of security clearance and stated that "Much of [EDS's] work was of a secret nature." Mr Leiper said that the Tribunal's "much" conveyed that not all EDS's work was of a secret nature and that therefore there were or might have been other openings for a re-trained Dr Travis.
44. He said that EDS acknowledged its concern that Dr Travis's skills were out of date as a result of being off work, which resulted in his being placed in a specific non-revenue generating project. Dr Travis applied for the job in the Tamper project, for which he was rejected because his skills were not current and his depth of knowledge in specific areas was deficient. Dr Travis's case was that, in these circumstances, EDS should have trained him for the Tamper job, or else that the criteria for the job should have been altered. Mr Leiper submitted that the Tribunal accepted these submissions, and that its decision to do so could not be faulted. The reason why EDS's opposition to Dr Travis's application failed is because it gave no consideration to the making of the reasonable adjustments which it could and should have made.
45. In coming to our conclusion on this aspect of the appeal, we approach the case from the standpoint that the Tribunal found (in paragraph 48) that, when he returned to work in the autumn of 1999, Dr Travis was disabled and that his disability was manifested in particular in the fact that his skills were out of date and in his lack of security clearance. The Tribunal also found that, in these respects, and following the introduction of the Breakaway exercise, Dr Travis was at a substantial disadvantage as compared with other employees in applying for a fee-earning position. We do not understand Ms McKie to question that conclusion as being other than one which the Tribunal was entitled to make.
46. We consider that it followed in principle from that finding that EDS was under a duty to make reasonable adjustments for Dr Travis directed at stopping the suffering by him of that disadvantage. It is not obvious to us that EDS could have taken any immediate steps to achieve security clearance for Dr Travis, and we do not understand the Tribunal to have found that it could or should have done. On the other hand, it made it clear in paragraph 47 that it considered that EDS could and should reasonably have provided him with training so as to update his skills, and it rejected EDS's argument that its failure to provide such training was justified. It is correct that it did not identify more precisely what training was to be provided, but we do not regard any lack of precision in this respect as vitiating the decision: it was the training necessary to bring Dr Travis's IT skills up to date. Ms McKie did not persuade us that there was any error of law in the tribunal's conclusions to this effect, or that it was in error in concluding that EDS discriminated against Dr Travis for a reason related to his disability. We dismiss the appeal against the finding of discrimination for a reason related to Dr Travis's disability.

(iii) Unfair dismissal

47. Dr Travis also brought a freestanding unfair dismissal claim. There was no dispute that his dismissal was for redundancy. In dealing with this, the Tribunal held that, even if there had been no disability discrimination, the dismissal was anyway "substantively" unfair. Its reasons in paragraph 54 were that the dismissal was so unfair because EDS "had failed to properly consider [Dr Travis's] training needs on his return to work after long illness absence." That conclusion appears to reflect the tribunal's view that an employer has a duty to retrain an employee after his return from a long illness and then appoint him to a job within the organisation to which his retraining fits him, being a job which will be in a pool exempt from a risk of future redundancy. Ms McKie submitted that an employer is under no such duty. This ground was not raised in EDS's original notice of appeal, but we allowed an amendment enabling Ms McKie to argue the point. The point had earlier been clearly identified to Dr Travis, Mr Leiper had addressed it in his skeleton argument, and we were satisfied that no prejudice was occasioned to Dr Travis by allowing the point to be raised.
48. We did not understand Mr Leiper to argue very strenuously against Ms McKie's submission, and we accept it. We are considering EDS's submission on the hypothesis that there was no disability discrimination against Dr Travis by reason of a failure to train him for a fee-earning job. On that hypothesis, we do not understand on what basis it is or can be suggested that an employer who forms a redundancy policy in relation to employees in non income-generating work is under a duty first to retrain any of those employees so as to give them the opportunity of transferring to income-generating positions. We find that the Tribunal was in error in holding that Dr Travis's dismissal was, as the tribunal put it in paragraph 54, "substantively" unfair.
49. EDS advanced no challenge to the tribunal's further conclusion in paragraph 54 that the dismissal was "procedurally" unfair: in particular, Ms McKie did not question the findings of the Tribunal in paragraph 54(a) and (c) that there had been no effective consultation with Dr Travis prior to his dismissal or that he was not advised of his right to appeal against it. A point does, however, arise on the Tribunal's further finding as to procedural unfairness, that referred to in paragraph 54(b), where it said:

"(b) there was no effective alternative job search, in the view of the Tribunal. [EDS] were advertising numerous jobs in November 1999 (218 of the bundle); …"

50. That sub-paragraph appears to betray a mistake by the Tribunal, because the job advertisements referred to were in fact in November 2000, some months after Dr Travis's dismissal. We cannot see, and the Tribunal does not explain, how they can have been relevant to the fairness of a dismissal taking effect on 8 June 2000. We are, therefore, left with a concern that the Tribunal there had regard to evidence to which it should have had no regard and which may have coloured the making of its overall conclusion in paragraph 54(b). In saying this, we do not overlook that the question of whether alternative employment with EDS was available for Dr Travis was a live issue, and the Tribunal refers to it:

(a) in paragraph 13(xxii), which reads:

"The Tribunal were not referred to any documentary evidence to demonstrate any efforts made Ms McCartney to find an alternative role for [Dr Travis] until in fact February 2000. It was in February 2000 that she first circulated his CV in response to an e-mail from Amanda Cordingley in HR at Stockley Park, which made it clear that every effort had to be made to redeploy him."

(b) in paragraph 20, where it said that it "was apparent that [EDS] had given some consideration to alternative employment for [Dr Travis], …", and

(c) in paragraph 28, where it found that:

"28. … [EDS's] search for alternative employment after 3 May 2000 was inadequate, with [Dr Travis's] CV being sent out to some managers on 17 and some on 23 May. …".

51. Those findings might be said to justify the conclusion in the first sentence of paragraph 54(b) We have, however, a concern that the Tribunal misdirected itself in that conclusion by also taking account of the November 2000 evidence, whose relevance it does not explain, which it may in fact have thought was November 1999 evidence, and which we consider it should anyway have left out of account.
52. We do not regard this point as undermining the Tribunal's decision that the dismissal was procedurally unfair, since we regard grounds 54(a) and (c) as sufficient for that conclusion. But its paragraph 54(b) conclusion may, if left to stand, perhaps have consequences on the quantum of the remedy for the unfair dismissal. We consider that the fair way to deal with that is to direct that the Tribunal's conclusion in paragraph 54(b) shall be ignored, and that on the remedy hearing it will be open to the parties to adduce such evidence as they may be advised as to the making by EDS of any search for alternative employment for Dr Travis.

Result

53. (i) We dismiss EDS's appeal insofar as it asserted that the Tribunal was biased.

(ii) We dismiss EDS's appeal against the decision that EDS discriminated against Dr Travis for a reason related to his disability.

(iii) We allow EDS's appeal against the Tribunal's Decision in paragraph 54 of its extended reasons that Dr Travis's dismissal was substantively unfair.

(iv) We dismiss EDS's appeal against the Tribunal's Decision in paragraph 54 of its Extended Reasons that Dr Travis's dismissal was procedurally unfair. We direct that, on any remedy hearing, the Tribunal's conclusion in paragraph 54(b) shall be ignored, and that it will be open to the parties to adduce such evidence as they may be advised as to the making by EDS of any search for alternative employment for Travis.

(v) In case the above orders do not deal sufficiently with all issues raised by the appeal, we will give the parties liberty to apply in writing for such (if any) further Orders or directions as they may be advised to seek