United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	ADAM TOLLEY (Of Counsel) Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS
For the Respondent	MR SHANTANU MAJUMDAR (Of Counsel) Instructed by: Messrs Irwin Mitchell Solicitors Imperial House 31 Temple Street Birmingham BE2 5TB


 


HIS HONOUR JUDGE BIRTLES

Introduction

1. This is an appeal from the decision of an Employment Tribunal sitting at Stratford on 14 -17 April 2003. The chairman was Ms J M Laidler and the members were Mr N Bannantyne and Mrs O Cushing. The decision was sent to the parties and entered in the Register on 14 April 2003. The unanimous decision of the Employment Tribunal was that:

(1) The Applicant (Respondent to this Appeal) was constructively unfairly dismissed.

(2) The Appellants treated the Respondent less favourably by reason of her disability in breach of the Disability Discrimination Act 1995.

(3) Compensation was assessed at £7,414.45 plus interest of £315.92.

The Material Facts

2. Mrs Armstrong was employed by the Ministry of Defence Police ("MDP") as an Administrative Officer ("AO"). In Civil Service terms, this is one grade up from the entry-level grade, Administrative Assistant. She worked in the Fraud Squad at MDP's HQ, at Wethersfield, Braintree, Essex.
3. In about April 1997 Mrs Armstrong was, unfortunately, diagnosed with Multiple Sclerosis and she notified MDP of her condition.
4. During the course of her employment, Mrs Armstrong had suffered a number of falls, particularly while climbing or descending stairs (the building where she worked had three floors and no lift). She had sought to blame such falls on the requirements of her job, which involved use of the stairs.
5. On 24 June 1999 Mrs Armstrong commenced a period of sickness absence, which was to prove long-term. In August 1999 Mrs Armstrong was referred to BMI Health Services Limited ("BMI"), an independent occupational health advisory service used by MDP. On 21 October 1999 BMI, by Dr Richard Copeman, recommended that Mrs Armstrong be medically retired and certified that, by reason of her medical condition, Mrs Armstrong was incapable because of ill-health of giving regular and efficient service and the incapacity was likely to be permanent.
6. By letter dated 30 November 1999 MDP notified Mrs Armstrong of the decision to dismiss her on medical grounds. She was given notice expiring on 18 February 2000. However, by letter dated 31 January 2000 Mrs Armstrong lodged an appeal against her medical retirement, alleging that the only adjustment necessary to her duties was "the halting of being continuously expected to climb up and down stairs several times a day". Her appeal was supported by her hospital consultant.
7. It was common ground at the hearing that the appeal (unless and until allowed) did not have the effect of suspending the termination of Mrs Armstrong's employment, and her contract of employment did terminate on 18 February 2000.
8. On 23 February 2000 BMI recommended that a workplace assessment be carried out with Mrs Armstrong present [83]. Dr Copeman noted that her main disability was one of mobility, in that she seemed rather unsteady on her feet at times, so that "a ground floor office would be suitable unless there is access by lift".
9. The workplace assessment, attended by members of the Employment Service Disability Service Team, as well as by Mrs Armstrong and representatives of MDP, took place on 3 May 2000.
10. In relation to Mrs Armstrong's appeal, further evidence was sought from her consultant, and after some delay, provided on 26 June 2000. BMI decided on 7 July 2000 that the medical retirement certificate should be withdrawn and therefore Mrs Armstrong's appeal against medical retirement allowed. She was notified of the decision by letter dated 14 July 2000, at which time, it was accepted that she again became an employee of MDP.
11. At the same time she was offered a number of vacant posts, in the Personnel and Finance departments. There was a telephone conversation between Mrs Armstrong and Mr Bryant on 17 July 2000, of which Mr Bryant made a contemporaneous note [91] and as a result of which Mrs Armstrong eventually communicated in writing, on 21 August 2000, her unwillingness to accept any post but the precise one she had occupied prior to her departure on sick leave 14 months earlier.
12. On 26 September 2000 MDP offered Mrs Armstrong a post in the Fraud Squad which was not identical to the post she had previously occupied, but which involved (even on Mrs Armstrong's case) a substantial overlap of job content. However, far from accepting that offer, Mrs Armstrong's response, by a solicitors' letter dated 29 September 2000, was to resign forthwith, on the basis of an alleged breach of the implied term of trust and confidence.
13. The present proceedings were commenced on 4 October 2000. An earlier set of tribunal proceedings had been commenced on 7 September 2000, alleging sexual harassment and sex discrimination. Those other proceedings were eventually, on 10 December 2001, withdrawn during a preliminary hearing to determine jurisdiction/time-limits.
14. In the meantime, there had been no progress in relation to the pursuit of the present proceedings. MDP applied to strike out for want of prosecution, alternatively for a determination that certain parts of Mrs Armstrong's complaint of disability discrimination were outside the Tribunal's jurisdiction because out of time. Those matters were determined by a decision made at a hearing on 11 December 2002 and recorded in writing on 30 December 2002 [71-78]. In summary, the Tribunal dismissed the application to strike out, but upheld MDP's case on jurisdiction, so that certain parts of Mrs Armstrong's case were ruled out of time. The only surviving allegation of disability discrimination was that contained in paragraph 24(iii) of the Grounds of Complaint [47], namely "refusing to reinstate the Applicant into her original position as Administrative Officer with the same duties within the Fraud Squad".
15. The final hearing took place between 14-17 April 2003. The Tribunal heard evidence from Ms Lorraine Walsh and Mrs Armstrong on her own behalf and from Mr Bryant on behalf of MDP. They delivered a short judgment in favour of Mrs Armstrong and remedies were determined on 17 April 2003. The written decision [1-19] was sent to the parties on 14 May 2003.

The Employment Tribunal Decision

16. The Extended Reasons for the Employment Tribunal's decision are in conventional form. The Tribunal begin by setting out the nature of the application and recite the history of the case (paragraphs 1-8); recite the facts it found (paragraphs 9-39); set out the relevant law (paragraphs 40-51); reach its conclusions on unfair dismissal (paragraphs 52-57) and disability discrimination (paragraphs 68-75); assess compensation (paragraphs 76-87). It then heard an immediate application for a review by the Appellant which it allowed (paragraphs 88-90 and schedule) and finally made an award of interest (paragraphs 91-92).

The Notice of Appeal

17. The Respondent employer appeals against the decision of the Employment Tribunal and its findings of constructive unfair dismissal and disability discrimination. The factual matrix to this case is quite complicated and it is therefore necessary to set out the relevant parts of the Employment Tribunal decision before addressing the grounds of appeal.

Unfair Dismissal

18. The Tribunal said this:

52. The medical retirement took effect on 18 February. Until 14 July when the Applicant was told that her appeal was upheld she was no longer in a technical sense an employee. The retirement had taken effect even though she had appealed. We do not think that prevents us from looking at the course of conduct throughout that period. Even though the Applicant was not technically an employee it was the Respondent's conduct as her employer that is being considered during that period and we believe it is relevant to look at what happened in that time.

53. The Applicant's appeal against medical retirement was 31 January and by 23 February the Respondents had Doctor Copeman's report recommending a workplace assessment. We do not find there to be anything ambiguous about his letter. The workplace assessment should have been immediately set up. In our view Mr Bryant was seeking unnecessary clarification when it was not needed. It was quite clear that Doctor Copeman was stating that the Respondents could not proceed with the medical retirement. That conclusion, however, was not relayed to the Applicant. She was just told that Doctor Copeman's report was "inconclusive".

54. Although as stated the Applicant may not have been technically an employee at this stage the way that the Respondents dealt with her is relevant to our conclusions because of the way that this treatment was perceived by the Applicant. So far as the Applicant was concerned at this time the delay was unexplained.

55. Further, the letter of 17 April was misleading to the Applicant in that it stated that Doctor Copeman's "provisional conclusion is that there are insufficient grounds for withdrawal of the certificate of medical retirement". In fact he had not said that in his letter but had indicated that the medical retirement should not be proceeded with.

56. As stated in our findings of fact a workplace assessment was carried out without the Applicant present in March 2000 and one with the Applicant was eventually arranged for 3 May 2000. On the following day, however, Mr Bryant sought approval from his Head of Department for the Applicant's job to be filled by Lisa Edson. In fact, the admin function had already been offered to Lisa Edson and Mr Bryant was merely seeking approval to that step "given the uncertain outcome of Mrs Armstrong's appeal are you content to allow the staff moves to take place?" Again the situation was somewhat misrepresented in that memo in that Mr Bryant advised his Head of Department that it was conceded by all concerned including the Applicant "that stairs are a major issue". That was not, in fact, the case.

57. Following the workplace assessment and despite the fact that the Applicant's Consultant had provided a report in February supporting her appeal and desire to return to work another report was sought from him. This was not forthcoming until 26 June 2000 and we have quoted from it above. He wholeheartedly supported the Applicant in her return to work. Following receipt of that report Doctor Copeman confirmed to Mr Bryant that her appeal should be allowed. He set out recommendations including a return to work part time.

58. When Mr Bryant relayed this information to the Applicant by letter of 14 July 2000 he offered her two vacant posts in Personnel and one in Finance. He made no mention of the Applicant's old job. It is our view, supported by his evidence to us that he had decided that she should not go back into the Fraud Squad that he wanted her to take the job in Personnel. This is despite the fact that the Applicant had made it clear to him in the telephone conversation on 3 March that she wanted to return to her original job. Mr Bryant did not deal with that desire in his letter of 14 July.

59. We accept that the Applicant needed time to consider her position and that she did, in fact, speak to Mr Bryant on the telephone on 17 July, again reiterating that she wished to return to her former post. She said the course of action proposed was "unacceptable". She specifically explained and we accept it was understandable that she would find learning a new job too stressful. She was asked to confirm her position and this was clearly set out in her letter of 21 August 2000.

60. There was no attempt made by the Respondents to encourage the Applicant to meet with them. There was no .reassurance that she would be given training to enable her to take on new posts and no discussion as to how she could be facilitated in returning to work, initially on a part time basis. Although the welfare branch had been involved earlier we have not been told of any involvement of them at this stage.

61. It was not until the letter of 26 September that Mr Bryant offered the Applicant a job in the Fraud Squad. The irony, however, was, from the Applicant's point of view, that this was not her original job but a different job. We accept that this job was not the same as the one that she had had previously and although at the same grade involved different duties with which she was not familiar. We accept and find that the Appellant was entitled to treat this as the last straw. We are satisfied that the behaviour of the Respondents throughout the relevant period was sufficient to undermine the implied term of trust and confidence in the relationship with the Applicant. No account was taken of the nature of her Illness or the length of time that she had been absent and her understandable desire to get back into her old job. We have not looked at this as a contractual right to her old job back but that was never even considered by the Respondents. It is the Respondent's own case that being that an employee is appointed to a particular grade and not a particular position they have the right to move employees around within their grade. Whilst we do not necessarily accept that that would be correct from an employment law point of view there was no consideration to moving Lisa Edson to enable the Applicant to return. In fact, as we have recorded the decision was made to put Lisa Edson in the Applicant's old job in May before the work assessment and was ratified by the Head of Department shortly thereafter. The Respondents had decided that whatever the outcome of the work assessment or indeed the appeal the Applicant was not returning to that job.

62. Mr Bryant tells us in evidence that he was concerned for the Applicant and did not feel it was in her best interest to go back into the Fraud Squad which is why he wanted her to take one of the jobs in Personnel. He did not demonstrate this concern at the time by discussing these concerns with her. All the Applicant ever saw was the Respondents determination that she was not going to go back into her old job.

63. Whilst this may be a consideration that is more relevant to the Applicant's claim under the DDA we also find that the Respondents placed an unnecessary and unwarranted emphasis on the Applicant's use of the stairs which was unsupported by her medical advisors and even her own, who said that the use should be limited to two to three times a day and not specifically excluded.

64. What rang very true to us in the evidence was that Mr Bryant had discussed with Equal Opportunities the concerns about the Applicant returning to the Fraud Squad and as he explained to us his worry that if she did "they might end up in this type of Tribunal". It is our view that the Respondents focused their considerations on that issue rather than in trying to facilitate the Applicant's return to work following her successful appeal.

65. The Applicant understandably believed that "reinstatement" meant her old job back and in none of the documents was she disabused of that belief.

66. It follows from these conclusions that the Applicant was entitled to treat the offer of a new job in the Fraud Squad as the last straw and was entitled to resign as a result of the employer's breach of the implied term of trust and confidence.

67. The Respondents have not put forward a reason for the Applicant's dismissal within Section 98 of the Employment Rights Act and her claim for unfair dismissal must therefore succeed."

Grounds of Appeal

19. These were three-fold:

(a) Whether an employer may be held to have acted in breach of contract in

circumstances where there is no contract of employment in existence⁽¹⁾

(b) Whether, and in what circumstances it is possible for the implied term of trust and confidence to be regarded as overriding an expressed term of the contract⁽²⁾

(c) Whether it is a breach of the implied term of trust and confidence for an employer, considering the position of an employee absent on sick leave for over a year, to take into account its views on the likely effect of returning the employee to the same position she had occupied before her absence commenced, in circumstances where she had made allegations for sexual harassment and sex discrimination arising out of the conduct of colleagues, prior to her departure on sick leave, in the department in which she worked ⁽³⁾.

20. We are grateful to both Mr Adam Tolley who appeared for the Appellant and Mr Shantanu Majumdar who appeared for the Respondent for their helpful skeleton arguments and oral submissions. It seems to us that the grounds of appeal on constructive unfair dismissal are misconceived.

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(1) Notice of Appeal, paras 6(1)(2)

(2) Notice of Appeal, paras 6(3)-(5)

(3) Notice of Appeal, para 6(6)

20. We propose therefore to deal with them by setting out how we see the Employment Tribunal approached its decision and then testing that against the grounds of appeal. The issue on constructive unfair dismissal was whether the Respondent was entitled to resign on 29 September 2000 as a result of a breach of the implied term of trust and confidence implied in her contract of employment. In Lewis v Motorworld Garages Limited [1986] ICR 157 at 167A-D Neill LJ said this:

"It is right that at the outset I should remind myself of the heavy burden which rests on an appellant who seeks to upset a finding of an industrial tribunal in a case such as the present. An appeal from an industrial tribunal lies only on a question of law: see section 136(1) of the Employment Protection (Consolidation) Act 1978. Moreover where an employee complains that he has been constructively dismissed, it is necessary for him to prove that he terminated the contract in circumstances such that he was entitled to terminate it without notice by reason of the employer's conduct: see section 55(2) of the Act 1978. The conduct must therefore be repudiatory and sufficiently serious to enable the employee to leave at once. On the other hand it is now established that the repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term of the contract of employment that the employer will not, without reasonable and proper cause, conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: see Woods v W. M. Car Services (Peterborough) Ltd [1981] ICR 666 in the Employment Appeal Tribunal".

21. Apart from the change of legislation that statement of principle remains good. At page 169D-170A Glidewell LJ said this:

"The principles to be found in the relevant authorities can, I believe, be summarised as follows.

(1) In order to prove that he has suffered constructive dismissal, an employee who leaves his employment must prove that he did so as the result of a breach of contract by his employer, which shows that the employer no longer intends to be bound by an essential term of the contract: see Western Excavating (E.C.C.) Ltd v Sharp [1978] ICR 221.

(2) However, there are normally implied in a contract of employment mutual rights and obligations of trust and confidence. A breach of this implied term may justify the employee in leaving and claiming he has been constructively dismissed: see Post Office v Roberts [1980] I.R.L.R. 347 and Woods v W M Car Services (Peterborough) Ltd [1981] I.C.R. 666, 670, per Browne-Wilkinson J.

(3) The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term? (see Woods v W M Car Services (Peterborough) Ltd [1981] I.C.R. 666.) This is the "last straw" situation.

(4) The decision whether there has been a breach of contract by the employer so as to constitute constructive dismissal of the employee is one of mixed law and fact for the industrial tribunal. An appellate court, whether the Employment Appeal Tribunal or the Court of Appeal, may only overrule that decision if the industrial tribunal have misdirected themselves as to the relevant law or have made a finding of fact for which there is no supporting evidence or which no reasonable tribunal could make: see Pedersen v Camden London Borough Council (Note) [1981] I.C.R. 674 and Woods v W M Car Services (Peterborough) Ltd [1982] I.C.R. 693 both in the Court of Appeal, applying the test laid down in Edwards v Bairstow [1956] AC 14."

We emphasise what Glidewell LJ said in paragraph (3). See also Ackner LJ at 165G-166F to the same effect.

22. Applying these principles the Employment Tribunal found the following actions amounted to a situation where the last straw was the Appellant's refusal to offer the Respondent her old job back after her successful appeal against medical retirement even though that refusal was not in itself a breach of contract:

(1) The notification of the decision to dismiss on medical retirement grounds on 30 November 1999 following the long term sickness absence from 24 June 1999: Decision paragraph 61.

(2) The termination of contract of employment on 18 February 2000 following the receipt of a Notice of Appeal on 31 January 2000: Decision paragraph 52.

(3) The long delay between the Respondent's dismissal and the notification of the success of her appeal on 14 July 2000: Decision paragraphs 52-57.

(4) The fact that for much of this period of time there was no communication between the Appellant and the Respondent as to the progress of her appeal: Decision paragraphs 17-30 (Findings of Fact) and 52-57 (Conclusions).

(5) The Appellant's letter of 14 July 2000 to the Respondent informing her that her appeal had been allowed and offering her 2 vacant posts in Personnel and 1 in Finance and making no mention of Respondent's old job : Decision paragraph 58.

(6) The failure and/or refusal of the Appellant (Mr Bryant) to consider the Respondent for her old job: Decision paragraphs 59 and 61.

(7) The failure and/or refusal to inform the Respondent that the Appellant would not consider her for her old job: Decision paragraphs 58, 61-62 and 64.

(8) The failure and/or refusal to consult the Appellant (save for the brief telephone conversation on 17 July 2000) between 14 July 2000 when the Respondent was informed that her appeal was allowed and 29 September 2000 when the Respondent resigned: Decision paragraphs 60 and 62. See also Mr Bryant's note of his telephone conversation with the Respondent on 17 July 2000: EAT bundle page 91.

(9) The offer of a job in the Fraud Squad which was only part of the Respondent's old job. The Employment Tribunal made it clear that this was a different job. This was not disputed: Decision paragraph 61. It is quite clear from the Employment Tribunal's decision that it was well aware that the Respondent had no contractual right to return to her old job: Decision paragraph 61.

23. Taking these matters cumulatively we are satisfied that there was ample material upon which the Employment Tribunal could find that:

"It follows from these conclusions that the Applicant was entitled to treat the offer of a new job in the Fraud Squad as the last straw and was entitled to resign as a result of the employer's breach of the implied term of trust and confidence.": Decision paragraph 66.

24. In our judgment there is no substance in the Appellant's grounds of appeal. It is quite clear that approaching the decision of the Employment Tribunal in the way that we have the Employment Tribunal did not find that the Appellant had acted in breach of contract in circumstances where there was no contract of employment in existence i.e. from 18 February 2000 to 14 July 2000. What indeed was taken into account was the long period of delay by the Appellant in deciding the Respondent's appeal against the decision to dismiss her on medical retirement grounds. That was one (non-contractual) matter which was part of a succession of actions or failures by the Appellant which entitled her to resign as the result of the Appellant's breach of the implied term of trust and confidence. What the Appellant has overlooked is that the Respondent lodged her Notice of Appeal on 31 January 2000 against medical retirement and that appeal was unresolved when the termination took effect on 18 February 2000. The implied term of trust and confidence in this context means an implied term that the Appellant will process the Respondent's appeal with all deliberate speed. The fact that the contract of employment came to an end on 18 February cannot excuse the dilatory manner in which the Appellant dealt with the appeal. Since it is clear from Lewis v Motorworld Garages Ltd that an act of repudiatory conduct need not amount to a breach of the contract of employment in itself we do not see how the Appellant can rely on its own dilatoriness in this respect. If we are wrong about that then on 14 July 2000 the Respondent was informed that her appeal against medical retirement had been successful and she was again re-employed. She was entitled to have regard to the period of the delay in processing her appeal against retirement on medical grounds when she resigned on 29 September 2000.
25. Finally, even if we are wrong about that as the Employment Tribunal would be that does not vitiate the fact that there were ample grounds upon which this Respondent could treat the actions or failures by the Appellant as sufficient to entitle her to resign as the result of the employer's breach of the implied term of trust and confidence because of the matters set out above. If necessary we would substitute our decision on that issue for that of the Employment Tribunal.
26. It follows from the above reasoning that we do not regard the implied term of trust and confidence as overriding an express term of the contract of employment namely that the Respondent had no contractual right to return to her old job. The Employment Tribunal expressly decided that she had no such contractual right: Decision paragraph 61.
27. Finally, we find no substance in the third ground of appeal. Whatever the reasons for the Appellant deciding not to return the Respondent to her old job they have (1) made that decision prior to the Respondent's appeal being allowed on 14 July 2000 (by the appointment of Lisa Edson to that position in May 2000); (2) failed to inform the Respondent of either of those facts; (3) failed to communicate or discuss the position of the Respondent's return to work adequately or at all and in the premises failed to disabuse the Respondent of her belief that "reinstatement" meant her old job back: Decision paragraphs 56, 58-62, 64-65. This led inexorably to the Tribunal's conclusion in paragraph 66 of its decision.
28. For these reasons there was no error of law in the way in which this Employment Tribunal dealt with the issue of constructive dismissal.

Disability Discrimination

29. The Employment Tribunal dealt with the issue of disability discrimination in the following way:

"68 Claim under the Disability Discrimination Act 1995

We repeat all of the conclusions that we have come to above.

69 It has been accepted throughout that the Applicant was disabled for the purposes of the DDA. Following the guidance given in the Clark v Novacold we are of the conclusion that the Applicant would not have been treated in the way that she was if she had not been disabled. Although we were not dealing with the issue of actual medical retirement that revolved totally around the Applicant's multiple sclerosis. The issues that we have been left to determine following the Appeal again would not have arisen if the Applicant had not been disabled. Further she would not have had to remain away from work awaiting the determination of her appeal and subsequent outcome.

70 We are looking at the issue of less favourable treatment from the granting of her appeal against medical retirement on 14 July but in conjunction with the excessive delay in the resolution of the appeal itself ie some five and a half months. We find that there was an unnecessary emphasis on the use of the stairs by the Applicant which was not supported by medical evidence and that this, in itself, amounted to less favourable treatment There was no evidence produced medically in relation to the Applicant that she could only work on the ground floor although Mr Bryant seemed to take the view that that was the case.

71 If, as the Respondents allege, all personnel can be moved to posts within their grade then Lisa Edson could have been so moved to allow the Applicant to get her job back. Again, the Applicant was treated less favourably in this respect.

72 Having found less favourable treatment we must look at the issue of justification. The first matter is that the Applicant could not use the stairs but we do not find that substantial and material. Mr Bryant in evidence accepted that he had decided he wanted the Applicant to go into the Personnel department to keep her out of the Fraud Squad because he was concerned about being called before an Employment Tribunal if he placed her back there. These concerns were never however discussed with the Applicant.

73 Although the Applicant never had a contractual right to her old job back this was not even considered. Before the workplace assessment even took place the Respondents had decided that they would be giving this job to someone else.

74 The Post Office -v- Jones reminds us that it is not for the Tribunal to determine what decision they would have taken but very much like the situation in cases of unfair dismissal to look at whether or not the employer's response was within the band of reasonable responses. We must consider whether the Respondent's carried out sufficient investigation to support its decision and whether it took into account all the evidence available to it. We do not find that the Respondent did and that their response was within the band of reasonable responses. There was no uncertainty with regard to the outcome of the appeal following Dr Copeman's original letter. It is quite clear that Mr Bryant was trying to protect the Respondent's position and not the Applicant in relation to her wish to return to the Fraud Squad. As stated above, the Respondent's attitude to the Applicant's ability to use stairs was not in accordance with the medical evidence and indeed contrary to it.

75 For all of those reasons we find that the Applicant's claim under the DDA is substantiated."

30. The grounds of appeal here are as follows:

(1) Whether the Tribunal was entitled to take into account events during a period which, it was conceded, were outside the Tribunal's jurisdiction because out of time (and, indeed, a previous Tribunal had ruled as much)⁽⁴⁾

(2) Whether the effective legal reason for the treatment of Mrs Armstrong was the application of a policy which applied equally to all employees⁽⁵⁾

(3) The correct application of the legal test for justification⁽⁶⁾

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(4) Notice of Appeal para 6(10).

(5) Notice of Appeal para 6(11).

(6) Notice of Appeal para 6(12).

31. We are completely unable to understand how the Employment Tribunal could rely upon all of its conclusions on unfair dismissal to justify a finding that the Appellant had discriminated against the Respondent on the grounds of her disability. It is crystal clear that the only issue of disability discrimination before the Tribunal was that contained at paragraph 24(iii) of the Originating Application namely that the Applicant was treated less favourably by the Respondent by:

"Refusing to reinstate the Applicant into her original position as Administrative Officer with the same duties within the Fraud Squad.": Decision paragraph 3.

32. Any other alleged grounds of disability discrimination had been struck out by an earlier Employment Tribunal on 11 December 2002 on the grounds that they were out of time and it was not just and equitable to extend time: Decision paragraph 2.
33. It follows that the Employment Tribunal had taken into account irrelevant matters which should not have been taken into account namely all of its findings on constructive unfair dismissal. Furthermore, in the paragraphs of the decision relating to the disability discrimination claim the Employment Tribunal went far beyond the sole issue of alleged disability discrimination before it by having regard to the whole history of the matter. It failed to focus on the only allegation of disability discrimination which it could properly consider.
34. In our judgment it was simply not open to the Employment Tribunal to take into account, in relation to the issue of disability discrimination, the events of the period from 31 January 2000 to 14 July 2000. This error undermines the entirety of the Tribunal's conclusion on this aspect of the case. It is simply not possible to disentangle the reasoning or to conclude that the Tribunal's decision would have been unaffected if it had left out of account such matters as it was not entitled to take into account. For this reason the Employment Tribunal erred in law and the appeal must be allowed in respect of its findings of disability discrimination. Because of our decision it is not necessary to consider the second and third grounds of the appeal on this part of the case.

Perversity

35. The Appellant also sought to argue that the Employment Tribunal's decision was perverse in that it reached conclusions that no reasonable Tribunal, properly directing itself, could have reached⁽⁷⁾
36. In fairness to Mr Tolley this particular submission was not argued with any great force. In perversity appeals, the Court of Appeal has pointed out that:

"There was an increased risk that the appellate body's close examination of the evidence and of the findings of fact by the employment tribunal may lead it to substitute its own assessment of the evidence and to overturn findings of fact made by the Employment Tribunal": Yeboah v Crofton [2002] IRLR 634 at paragraph 12 per Mummery LJ.

The Court of Appeal stressed that no appeal on a question of law should be allowed to be turned into a rehearing of the evidence by the Employment Appeal Tribunal. Having carefully considered the matters set out in the relevant paragraphs of the Notice of Appeal we are satisfied that this decision was not perverse in law.

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(7) Notice of Appeal paras 6(7)-(9)

Conclusion

37. For these reasons the appeal against the finding of constructive unfair dismissal is dismissed. The appeal against the finding of disability discrimination is allowed and the case will be remitted to a freshly constituted Employment Tribunal to hear the claim of disability discrimination.