United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	MR P THORNTON (of Counsel) Instructed by: British Telecommunications Plc Legal Services PP5 IAQ Alexander Bain House 15 York Street Glasgow G2 8LA
For the Respondent	MR J POUSSON (The Respondent in Person)

HIS HONOUR JUDGE D SEROTA QC

Introduction

1.      This is an appeal from a decision of the Employment Tribunal at Newcastle upon Tyne sent to the parties on 9 March 2004. The Chairman was Dr R I Watts. The Employment Tribunal upheld the Claimant's complaint of disability discrimination. It found he had suffered less favourable treatment which the Respondent had failed to justify under Section 5 of the Disability Discrimination Act 1995. It also upheld his complaint for discrimination under the Act by reason of the Respondent's failure to make adjustments, and to justify that omission pursuant to Sections (2), (5) and (6) of the Act. The Employment Tribunal held that the Claimant had failed to establish a complaint that the Respondent was in breach of Section 55 of the Act in relation to withholding of documents. It ordered that a remedies hearing be held.
2.      The Claimant was unrepresented before the Employment Tribunal and the Respondent was represented by its solicitor.
3.      His Honour Judge Birtles QC referred the matter to a preliminary hearing on 21 April 2004 and on 6 July 2004 His Honour Judge Prophet referred the matter to a full hearing. The matter came before the Employment Appeal Tribunal presided over by Bean J on 5 November 2004. Bean J had to recuse himself and the matter came before me for directions and was adjourned. The matter came before the EAT presided over by His Honour Judge Reid QC on 10 February 2005. We have seen a reference to the Respondent having declined to amend its Notice of Appeal and serve a skeleton omitting references to allegations of perversity and impropriety. The matter was adjourned to 8 April 2005 before a differently constituted Appeal tribunal. We were told that His Honour Judge Reid QC was obliged to recuse himself. We were told by Mr Thornton who appears on behalf of the Respondent that if we were told why His Honour Judge Reid QC had to adjourn the case and recuse himself we would simply have to recuse ourselves. So what happened before His Honour Judge Reid QC remains unknown to us.

Factual Background

4.      We now say something of the factual background which we have taken from the full and detailed judgment of the Employment Tribunal.
5.      The Claimant suffers from diabetes. He needs to control his diabetes by insulin injection and the ingestion of food when appropriate. His condition requires frequent monitoring and the testing of blood glucose levels. The Claimant's condition was known to the Respondent when the Claimant was first employed in July of 1999.
6.      The Employment Tribunal accepted the Claimant's case that the Respondent disregarded the provisions of the Disability Discrimination Act 1995. His line manager was unsympathetic to his disability and his need to have time away from his desk by reason of his diabetes. This led to his being placed on a poor performance improvement plan. He was discouraged from leaving his desk to test his blood sugar levels. When he did test the blood sugar levels at his desk he was told (perhaps understandably) by his work colleagues that he was causing offence. As a result he was reluctant to test himself and suffered a hypoglycaemic attack on 15 August 2001 and suffered a head injury. He did not work thereafter until his employment terminated on 12 October 2003.
7.      The Claimant was employed as a Customer Service Adviser at Dundas House, Middlesborough. His work involved answering calls from the public. Initially he worked in the "Home Highway" team and his duties allowed him to accommodate his diabetic condition but circumstances changed in March 2001 when he was transferred to a team known as "150 Customer Service Team", the Manager of which was Ms Hanna.
8.      The Employment Tribunal set out in detail the manner in which the Claimant worked at the 150 Customer Service Team. He worked five hour shifts and was allowed 15 minutes for unscheduled breaks calculated in seconds. Thus if he logged on for 17,100 seconds there would be 100% adherence. If he logged on for less than 90% (or 92%) his adherence was regarded as unacceptable. The Respondent maintained a computer-based absence from work reporting system. The computer automatically generated reports when thresholds were triggered; details are set out in paragraphs 7:4 and 7:5 of the Employment Tribunal decision. These reports had disciplinary implications and led to the invocation of the poor performance attendance procedure ('PPA') initial warnings and formal warnings which might lead to dismissal.
9.      The Respondent's records showed the Claimant's work absences. Diabetes, the medical evidence showed, makes diabetics more susceptible to infections than persons who do not suffer from diabetes. It is probable, therefore, that a number of absences by reason of such matters as colds, influenza, and stomach upsets would have been the result of diabetes.
10. The Claimant was issued with warnings as a result of the invocation of the PPA on at least four occasions between September 1999 and August 2001. This was despite the fact that the Claimant had been referred by the Respondent to its Occupational Health Service. He had been given one warning which was relevant to his disability in September 2000 shortly before he was examined by Dr Almond of the Respondent's Occupational Health Service.
11. The Employment Tribunal recorded Dr Almond's advice at paragraph 7 (7):

"Dr Almond confirmed that the applicant was an insulin dependent diabetic and she emphasised that he had a history of difficulty of controlling his condition and keeping his blood sugar within a stable range. She noted that his condition would have had an effect on both "his attendance at work and his work performance". Dr Almond also advised that in order to maintain control over his condition the applicant would need to "check his sugar levels, inject himself with insulin and have food or drink readily available". Dr Almond went on to advise that "the nature of diabetes is such that sufferers can be more prone to general viruses and infections and in addition such conditions can last longer or be more debilitating than in somebody without diabetes". Dr Almond indicated that the applicant's sickness absence would be likely to exceed a healthy colleague's because of his disability. She suggested that a reasonable adjustment under the DDA would be to consider an allowance regarding sickness absence. Dr Almond then suggested further adjustments. These were: (a) time off line (in order to allow the applicant to test his sugar level or give himself an injection), (b) being allowed access to food and drink at his place of work (so that it was readily available to him) and (c) that his shift pattern should be altered to assist him in controlling his condition."

12. The Respondent was fully cognizant, having received Dr Almond's report, of the fact that the Claimant's diabetes was a factor in viral infections and similar illnesses. The Employment Tribunal concluded that the Respondent had attempted to justify actions under the PPA as being unrelated to diabetes when they had "the clearest unequivocal medical advice" to the contrary. The Employment Tribunal considered that the Respondent's actions in treating his viral infections as having no connection to his diabetic condition were "utterly untenable". The Employment Tribunal concluded that the Respondent did little in reality to implement or act upon Dr Almond's advice and described (see paragraph 7:12) the basis upon which some of the Claimant's managers started as being "abject ignorance" because they had received no training and no support from management level.
13. The Employment Tribunal concluded at paragraph 7:12 :

"…As soon as Dr Almond's report had been issued someone with the necessary authority, competence and understanding of disability should have taken over the management of this situation and issued the necessary advice and guidance to the line managers. Such intervention was it seems totally absent throughout these events. It is this fundamental failure on the respondent's part which has in the main given rise to many of the unhappy consequences that followed."

14. The Respondent did not carry out a work assessment or risk assessment. Mr Fox, who was the Claimant's line manager at the time, knew that the Claimant needed to test his blood and inject himself. No enquiries were made by Mr Fox as to how, where and when Mr Pousson tested his blood and injected himself although, of course, he was aware he was required to do so. Ms Hanna also made no enquiries (see Decision 7:12 - 7:14.) There was no stable place for blood testing and injecting save the Welfare Room and the disabled toilet which were both unsuitable. No enquiries were made as to how the Claimant was required to dispose of lances and needles. He was left to his own devices.
15. A further reference was made to the Occupational Health Service and Dr Makepeace reported in April 2001. She reiterated what Dr Almond had said that the Claimant's diabetes made it likely that his sickness absence would exceed that of healthy colleagues. She emphasised what Dr Almond had already told the Respondent:

"That prolonged periods of absence appear to be associated with viral infections that in a diabetic can be more symptomatic and cause greater problems in controlling the underlying condition."

16. The Employment Tribunal concluded that no action was taken on Dr Makepeace's report. The Employment Tribunal found that Mr Fox not having got the answer that he wanted on the pattern of absences (paragraph 7:17 :

"…regarded the medical advice as not worthy of any further attention. In making that decision he made a very serious error. At that point the respondent had been told to take action by two different medical practitioners and had manifestly failed to address most of their advice and recommendations. In particular it failed to consider the application of its Poor Performance / Attendance Policy to the applicant in the light of that advice."

17. The Employment Tribunal drew attention to the fact that the guide to the PPA stipulated it was not intended to cover situations appropriate to be dealt with under alternative procedures which included where "people with disabilities or whom become disabled whose poor performance through absences are connected with their disability".
18. The Employment Tribunal concluded that it was "clear as daylight" that the PPA should not have been applied to the Claimant and in applying it the Respondent was in breach of its own procedures and policies. It ignored clear medical advice that had been received on two occasions.
19. The Claimant was interviewed by his line managers on a number of occasions in relation to his sickness absences and the Respondent offered to reduce his working week. This was, however, irrelevant to his problems. The Employment Tribunal considered that when the Respondent pursued the suggestion of reducing the Claimant's working week, despite the advice received from the Occupational Health Service, the Respondent was unreasonably harassing the Claimant in relation to his disability.
20. Miss Hanna took over as the Claimant's manager on 21 March 2001. The Employment Tribunal concluded that she did so without "a glimmer of understanding" about his diabetes. This lack of understanding contributed significantly to the Respondent's failure to address the Claimant's needs. Further, she was not supported by her managers.
21. Another manager, Ms Jackie Shaw, on an occasion when the Claimant returned to work on 30 May 2001 after a sickness absence, inappropriately persisted in offering to reduce his working hours. The Employment Tribunal concluded that this put inappropriate pressure on the Claimant for a reason connected with his disability. The conduct was later repeated by Ms Hanna, the accuracy of whose evidence was doubted by the Employment Tribunal.
22. The Employment Tribunal concluded (see paragraph 7: 28-31) that the Respondent had ignored medical advice and had treated the Claimant on the basis that the same standards of attendance were required of him as were required of employees without his disability.
23. An Annual Performance Review for the period ending 31 December 2000 was completed on 13 July 2001. Ms Hanna was now the Claimant's line manager but Mr Fox completed the form which was countersigned by the Centre Manager, Ms Stonehouse, more than three weeks before the review had been completed. The Employment Tribunal drew attention to the fact that the Annual Performance Review had highlighted problems the Claimant was experiencing

"With the increased focus on answering calls (in the new department) where on [Highway where he had originally worked] there may have been long periods of the day when no calls required answering."

24. The Employment Tribunal considered that the Respondent had identified a key issue in connection with the Claimant's disability but had then proceeded to ignore the implication of the finding. The Annual Performance Review stated:

"that at one stage there was also a concern regarding Janvier's ability to start on time and retain his breaks to 15 minutes…"

25. It was noted that there had been an improvement in punctuality although he had received an informal warning due to absences from work. It was noted that he fell within the terms of the Disability Discrimination Act 1995. The Employment Tribunal then had this to say at paragraph 7:32:

" The Annual Performance Review refers to only one of the two warnings issued to the applicant by Mr Fox. Given the medical advice the respondents knew that these warnings related to the applicant's disability. The APR provides for improvements to the applicant's productivity and performance and although these were not specifically related to adherence times or absences from work, nevertheless, the overall context is telling. The first objective was to reduce call times and the second was related to sales. However, those objectives were set in the context that Mr Fox and Ms Hanna had raised issues concerning the applicant's absences and adherence times. Ms Hanna, for example, admitted that she had spoken to the applicant regarding his time away from his workstation several times. Accordingly, this was the background against which the poor performance action was being taken. The effect of that was to put the applicant under very considerable time pressure by requiring substantial improvement in performance over a four week period together with a daily reporting regime."

The APR under the heading of Personal Development review, agreed action, and proposed arrangements and supervision to enable the average time he spent on calls to be reduced from 330 seconds to 300 seconds. As a result of the APR the Claimant was placed on a Performance Improvement Plan. The purpose of placing an employee on the Performance Improvement Action Plan is ostensibly not disciplinary. It is designed to improve and enhance performance. The Claimant's evidence was that in his case, he was placed on the Plan for reasons connected with his disability, including his absences from work and absences from his desk. The plan, so far as concerned the Claimant was expressed to give effect to the proposal in the APR. The proposals involved assisting the Claimant to reduce the time spent on various stages of calls, some of which related entirely to time spent on the telephone with customers, but one aspect of which was 'wrap' time spent after completion of a call.

26. From mid-July 2001 for a four week period the Claimant was expected to meet increasingly tighter times on his call handling. The Respondent knew that the Claimant's aptitudes and skills were not particularly well suited to his work at the 150 Customer Service Team which required, as we have already noted, considerable time to be spent on telephone calls and where there was pressure to conclude the calls quickly so that more might be taken. However, neither Mr Fox nor Ms Hanna considered the implications of moving the Claimant away from Home Highway, which was more suited to his abilities and enabled him to manage his diabetic condition more effectively. The Performance Improvement Action Plan required achievement of various targets on a weekly basis and his performance was to be reviewed on a daily basis. He was under considerable pressure. He made some progress during the first three weeks of the plan, for two weeks of which Ms Hanna was on holiday and the Claimant reported to a temporary manager, Ms Nelson, whom he found reasonably sympathetic as opposed to Ms Hanna who he found decidedly unsympathetic. Ms Hanna returned to work on 6 August and assumed responsibility for managing the Claimant until his last day of work on 15 August 2001.
27. On 9 August 2001 Ms Hanna spoke to the Claimant about testing at his desk. The Claimant was under pressure not to take time away from his desk. This was revealed by a document, known as document 134, which the Respondent initially claimed it could not find and it only came to light after the Claimant was allowed to amend his Originating Application to include an allegation of victimisation against the Respondent for not producing this document. The Employment Tribunal found that document 134 showed in effect that the Claimant was being forced to test himself and inject, should he wish to do so, at his desk. This was unsuitable by reason of lack of privacy and he was therefore discouraged from so doing. This was in accordance with his evidence and pointed to the failure by Ms Hanna and her superiors to ensure that there was a proper system and framework to accommodate his disability. The Employment Tribunal was satisfied that the Claimant felt under pressure not to take time away from his desk and exceed the allowed break times and to achieve the targets for time "logged on".
28. The Employment Tribunal noted the importance of balancing insulin injections and food ingestion. If these are not properly balanced or there is a long delay between injection and eating of food there might be an adverse effect on the match between the two. Infections or other physiological changes of the body can affect the body's mechanisms and result in further imbalances which are hard to predict. The Employment Tribunal concluded (see paragraph 7: 41-42) that:

"(41)…As the two doctors' reports indicate it is sometimes very difficult with the best will in the world for a diabetic to manage this difficult task. In conditions of instability therefore testing in the period from the injection and the intake of food is critical to ensuring that no serious imbalance is incurring either in low or high blood glucose levels

(42) In such circumstances it would be prudent to test at least once between the pre-lunch time injection, the food intake at lunch and the mid-afternoon break. Such a test would therefore fall in the period 1:00 pm to 3.30 pm, If the first test result was indicative of blood glucose levels outside the acceptable range further tests would be needed and possibly either high glucose food or drink or an additional injection of insulin to counteract either low or high levels respectively. This is not a predictable situation and requires flexibility to respond to the changing situation."

29. On 15 August 2001 the Claimant did not carry out any testing. The Employment Tribunal found as a fact that this was because of the pressure he was under from the Respondent. He had arrived at work at 1 pm and at about the time of the mid-afternoon break he experienced a serious hypoglycaemic episode. As a result he fell and hit his head and sustained a subdural haemorrhage. Thereafter he never returned to work with the Respondent. He has, so we were told, continued to suffer with the consequences of this injury.
30. He later invoked the Respondent's grievance procedure. The grievance was heard by a Senior Manager, Mr Mark Evans. Mr Evans learned from a Mr Rob Jones who had access to the relevant records, so it would appear, that the Claimant was spending more time away from his desk over a 5 hour shift of some 45 minutes as opposed to the 24 minutes that was considered appropriate. The documents on which Mr Jones's information was based were no longer available, something the Employment Tribunal considered to be:

"extraordinary in circumstances where there had been a serious injury to someone at work and the employee concerned had raised a specific contention regarding that injury alleging that these statistics were relevant."

The Employment Tribunal was critical of the way in which the grievance procedure had been handled.

31. We should note some additional findings by the Employment Tribunal. The Respondent failed to disclose the procedure it applied to disabled persons. The Employment Tribunal considered the Respondent's submission that it did not apply to the Claimant as being "untenable". The Employment Tribunal (see paragraph 2) considered that the Respondent decided to withhold that documentation "in full knowledge of the relevance of this material to the cause of action before the Tribunal".
32. The Employment Tribunal was highly critical of the Respondent for the belated disclosure of document 134.

The decision of the Employment Tribunal

33. We have already noted that the Claimant was unrepresented before the Employment Tribunal as he was before us. The Employment Tribunal was satisfied that the complaint he made as expressed by an unqualified and unrepresented Claimant

"encompassed the whole of his treatment by the employer for the purposes of the Disability Discrimination Act 1995."

He had filed Further and Better Particulars which had been drafted with the assistance of the Citizens Advice Bureau. These Further and Better Particulars were not as well drafted as they might be but were considered by the Employment Tribunal to be consistent with the broad claims in the Originating Application.

34. The Employment Tribunal directed itself correctly by reference to the decision of Elias J in Law Society v Bahl [2002] IRLR 640 in relation to the burden of proof and drawing of inferences (the decision of Elias J was subsequently approved by the Court of Appeal). The Employment Tribunal also directed itself by reference to the decision of the House of Lords in Shamoon v Chief Constable of the RUC [2003] IRLR 285 in relation to detriment. It also referred to the decision of the Court of Appeal in Chapman v Simon [1994] IRLR 124 in support of the proposition that an employment tribunal could not make findings of direct discrimination save in respect of matters set out in the Originating Application and that the employment tribunal should not extend the range of complaints of its own motion.
35. The Employment Tribunal then went on to consider Clark v Novocold [1999] IRLR 318 in relation to section 5(1) of the Act and to authorities in relation to section 6 and justification. No complaint is made by the Respondent as to the manner in which the Employment Tribunal directed itself as to the law.
36. The Employment Tribunal concluded that the Respondent did not emerge with much credit in relation to document 134 but found there was insufficient evidence to justify a finding of victimisation.
37. The Employment Tribunal went on to find that the complaint under section 5(1) of the Act was well founded. The Respondent applied the PPA to the Claimant when it did not properly apply because he was disabled and there was a link between his absence and disability. The Respondent's position was characterised as being "wholly untenable" and "manifestly absurd" in the light of the medical evidence available to the Respondent. The PPA procedures were not applied by way of an isolated incident but were repeated on a number of occasions. There was "not a shred of doubt" that that amounted to less favourable treatment and related to the Claimant's disability. The Employment Tribunal was satisfied that the Performance Improvement Plan should not have been applied to the Claimant in connection with his poor performance because it related to his disability. The Respondent disregarded medical advice and ignored the Claimant's disability. It had no doubt that it was the attitude of the Claimant's line manager, Ms Hanna, that had "directly precipitated the events of 15 August 2001". Irrespective of the breach of the Respondent's own policies the Claimant was "generally" treated less favourably (paragraph 19):

"…Action was taken against the applicant for poor attendance for reasons related to his disability. The applicant had to attend a series of interviews which had been arranged because he had been absent for reasons related to his disability. The applicant was spoken to about absences away from his workstation when those absences were related to his disability. The applicant was subjected to an Improvement Plan when he had to report daily when his poor performance had a relationship to this disability. By reason of its failure to make reasonable adjustments in connection with the testing of his blood the respondents exposed the applicant to complaints from other employees. In one instance Ms Hanna interviewed the applicant in March 2001 and he was required to explain his disability to her in circumstances that were wholly inappropriate. Had the respondents taken proper steps following receipt of Dr Almond's report in September 2000 such an interview would not have been held."

38. At paragraph 20 the Respondent's justifications were rejected in fairly strong terms. The argument that the Respondent took action against the Claimant in accordance with its policies and was in respect of matters not related to his disability, was characterised in regard to poor attendance as being "utterly untenable" or "ludicrous". Given the terms of the reports of Dr Almond and Dr Makepeace the Employment Tribunal found it difficult to conceive how the Respondent reconciled the contentions it put to the Tribunal with the "irrefutable terms of those reports". In relation to poor performance there was an "arguable case (although a very weak one)" that the Claimant's poor performance was not related to his disability. The Employment Tribunal then had this to say:

"20. …The law as it stands does not require a direct causal connection between the disability and the matter complained of only that there is some relationship between the two. In this case there was evidence that the applicant's performance did have a relationship to his disability. The respondents not only had actual knowledge of the disability but they had specialist advice the greater part of which they ignored. The respondents themselves identified in the Annual Report the link between the applicant's performance and his disability but failed to follow that up."

39. The Employment Tribunal then went on to reject the Respondent's argument that its treatment of the Claimant was justified as it had made reasonable adjustments. It considered there had been the clearest possible breaches of section 5 (1) of the DDA and that the Respondent had failed to show those breaches were justified.
40. There is no appeal against finding that the Respondent had failed to make reasonable adjustments so we do not need to deal with this matter in any great detail. We do note, however, that in paragraph 21 the Employment Tribunal found that the Respondent had failed to make a number of reasonable adjustments, in particular in relation to affording the Claimant facilities for blood testing and insulin injection and arrangements permitting him access to high glucose food and drink. Failure to make reasonable adjustments placed the Claimant at a substantial disadvantage, and in the words of the Employment Tribunal, amounted to the clearest possible breach of the Respondent's obligations.
41. The Employment Tribunal was critical of the Respondent's response to the Claimant's condition and found that at the heart of its deficiencies were fundamental systems failures for which the line managers were not to blame. The key failure of the Respondent, a large multi-national organisation, was in failing to give adequate guidance or training to line managers and to have the reports of Dr Almond and Dr Makepeace assessed by someone with suitable training and knowledge of managing persons with disabilities. The failure was "quite inexcusable".
42. We were told that the Employment Tribunal made an award at the remedies hearing in favour of the Claimant for injury to his feelings of some £10,000. We are asked, should we allow the appeal, to set aside the entire award notwithstanding there is no appeal against the findings related to reasonable adjustments.

Grounds of Appeal - the pleading point

43. We have already noted that there is no appeal against the decision that the Respondent failed to make reasonable adjustments under section 5 of the Act. The appeal is limited to the findings that the Claimant suffered less favourable treatment under section 6.
44. The first ground of appeal is that the Employment Tribunal adjudicated on issues that were not raised by the Claimant. It is said that it made findings of discrimination under section 5(1) of the Act which were not pleaded. Complaint is made as to the findings at paragraph 7: 8 that absence for cold and influenza was regarded as having no connection with his diabetic condition whereas, the medical evidence we have referred to suggested these were disability related because of the particular susceptibility of diabetics to viral infection. It is said that this was not raised in the Originating Application. The Claimant in his Originating Application referred only to absences dues to hypoglycaemia.
45. The Employment Tribunal at paragraphs 15, 16 and 19 made findings in relation to the application of the PPA when no complaint had been made by the Claimant. It made findings, it is said in relation to acts going back more than three months before the presentation of the Originating Application on 5 November 2001 without any extension of time being granted or specific finding that matters complained of "constituted an act extending over a period"; see paragraph 3 (3) (b) of schedule 3 to the Act.
46. The Respondent relied upon the principle in Chapman v Simon to which we have already referred.
47. The Originating Application was prepared by the Claimant in person. Paragraph 11 contains a box in which the Claimant was asked to give details of his complaint. He started as follows:

"The nature of my complaint is concerning the way in which my employer disregarded the regulations of the Disability Discrimination Act in their treatment of me in the workplace."

He referred to the fact he was an insulin dependent diabetic who needed to control his blood glucose levels with insulin injections to maintain his glucose levels. He complained that his line manager was "totally unsympathetic" and referred to pressure to reduce his hours and complaints in relation to his sickness absences. On the second page (page 40 of our bundle) he referred to complaints about the time he had spent away from his desk despite his explanations that he needed to test his sugar levels or inject himself. He referred to the fact that as objections were taken to doing testing at his desk, a practice he was told was "unacceptable" by his manager, he was placed under the PPA for reasons that included the amount of time he spent away from his desk. He maintained he was placed on the PPA and the Performance Improvement Action Plan by reference to the talk time on the phone to customers, the time taken between calls whereby he would be addressing complaints and signing off and time taken away from his desk during work time.

48. He referred to his manager saying that it would be acceptable for him to carry out testing under his desk but he found this stressful leading to his ceasing to test blood under his desk. He referred specifically to the hypoglycaemic attack on 15 August 2001 and subsequent injuries. He stated

"Had I been allowed to freely test and maintain my glucose levels at work then this would have been avoided".

He also stated that his manager disregarded the implementations of the Disability Discrimination Act which led to his injury.

49. We now turn to his Further and Better Particulars, which as we have already noted were drafted on his behalf by the Citizens Advice Bureau.
50. The Further and Better Particulars refer to his complaint that he was placed on the PPA partly for reasons relating to his disability; reference is made to the amount of toilet or break time by reason of his need to take time away from his desk to administer medication and carry out tests.
51. Paragraph 5 of the Further and Better Particulars referred to the fact that the Claimant was not provided with any suitable location to carry out tests and injections but was asked not to do so at his desk. It also refers to the fact that Ms Hanna had asked him to carry out the tests at his desk (or perhaps under his desk) which he was reluctant to do and this led to a reduction in his testing.
52. The Claimant produced a detailed witness statement in which specific reference is made to his being prone, as a diabetic, to viral infections.
53. We should also note that in its decision of 1 May 2003 when he was permitted to raise the victimisation complaint, the Employment Tribunal described the Claimant as an educated and intelligent young man who has "unwittingly ventured into a legal minefield into which the most experienced employment lawyers would tread with the greatest of caution".
54. In its Extended Reasons of 1 May 2000 the Employment Tribunal noted in terms that the Claimant's case involved a complaint that he was placed on the Performance Action Plan by reason of time he spent away from his desk by reason of his disability and by reason of poor attendance.
55. In his submissions to us, in relation to the first ground of appeal the Claimant states that the Employment Tribunal based its decision on complaints he had made as to how the Respondent treated his sickness absences and his complaint that he had been placed on the PPA and Performance Improvement Action Plan.
56. We have no doubt that the findings made by the Employment Tribunal of which the Respondent complains were sufficiently before the Employment Tribunal and are sufficiently set out in the Originating Application and Further and Better Particulars. The Employment Tribunal was correct in finding that these matters were encompassed in the pleadings. The purpose of pleadings in the Employment Tribunal is essentially to define the issues and to enable the opposite party to know the case it has to meet. Where pleadings are prepared by unrepresented parties, Employment Tribunals should not be too legalistic in their approach providing of course that the opposing party knows the case it has to meet and has a proper opportunity to do meet that case . In the present case we consider, as did the Employment Tribunal that the nature of the Claimant's case was spelled out in his pleadings and that the evidence or particulars by which he sought to prove his more general allegations were adequately set out in his witness statement, the documents before the Tribunal and his evidence. There was no question of the Respondent not knowing the case it had to meet or being taken by surprise.
57. The time point was never taken and it is manifest that the Employment Tribunal regarded the treatment of the Claimant and failure to make reasonable adjustments as amounting to continuous acts; see schedule 3 paragraph 3 (a) (b) to the 1995 Act. The findings of the Tribunal are wholly consistent with the Respondent having been guilty of discrimination throughout the latter part of the Claimant's employment in respects that clearly continued – such as the failure to provide proper facilities and have regard to the medical evidence as to his absences.
58. It is also clear that the Employment Tribunal had regard to the fact that the Claimant suffered a detriment in that he was subject to the PPA, the Performance Improvement Action Plan and disciplinary procedures by reason that he was absent from work for viral infections linked to his diabetes despite advice having been given to the Respondent by its Occupational Health Service. We have also drawn attention to the specific mention in the Annual Performance Review that he did not retain his breaks to 15 minutes.
59. It is also clear that he was placed on the Performance Improvement Action Plan partly by reference to excess "wrap time". We should explain that "wrap time" is the time between calls when the Claimant was to press a button making himself unavailable for another call while he "wrapped up" the last call and presumably made necessary notes for action by others. He used the time between calls on occasions to leave his desk to inject or test himself.
60. Mr Thornton initially submitted to us that "wrap time" was part of the call and therefore was not part of the down time. Mr Poussson pointed to the Respondent's notice of Appearance in which it was made clear that "wrap time" was "the time taken to conclude the customer transaction after the call is completed, for example by updating the customer's records". Mr Thornton retorted that the Employment Tribunal made no findings that the Claimant used wrap time for testing. It is evident, that time between calls was logged as "wrap time" and it is also clear that the Employment Tribunal were satisfied that the Claimant was obliged to take time between calls for the purposes connected with his disability of testing and injecting which we have mentioned. He could not have left his desk for the purposes of testing himself, injecting himself and possibly eating while remaining logged on to the telephone.
61. We reject the ground of appeal that the Employment Tribunal made findings in relation to matters that were not pleaded.

The perversity appeal

62. The second ground of appeal is that the Employment Tribunal made a number of findings not supported by the evidence or which were perverse. The Respondent submits that there was no evidence to support the finding that placing the Claimant on the Performance Improvement Action Plan related to anything concerning his disability. It is then said that the Employment Tribunal ignored the Respondent's defence, when rejecting its case, as to its concerns about the Claimant's performance which related exclusively to the performance of his duties and not to the time spent away from his desk. It is said that the Employment Tribunal conflated issues arising as to complaints about work he carried out at his desk and the time he spent away from his desk, which the Respondent says was not taken into account. The point was put in a number of ways but the thrust was the same.
63. Submissions were made in relation to the finding at paragraph 7: 28 of the Decision, to which we have referred where the Employment Tribunal refers to a key issue in connection with the Claimant's disability. It is said that this is wrong because no such issue was identified or that the finding was perverse. The Employment Tribunal, it is said, has quoted selectively from the Annual Performance Review by reference to the passage that he had not made the transition to his new post at the 'Help Desk' department :

"with the increased focus on answering calls where on Highway (where he had previously worked) there may have been long periods of the day when no calls required answering."

It is said that the Employment Tribunal took this out of context. The Annual Performance Review dealt with his call handling skills and need to deal with calls quickly. This was said to be the source document and could not sustain the finding that the Employment Tribunal had made as to a link between his disability and performance.

64. We do not see how, even if this is correct, it undermines the findings of the Employment Tribunal, all the more so because it is clear one of the items of concern was the "wrap time" which would include time during shift, apart from breaks, when the Claimant was away from his desk.
65. The Claimant submitted to us that part of the issue related to his inability to limit breaks to 15 minutes. He pointed out that the Occupational Health Service had recommended an adjustment to give him sufficient time to carry out his testing and injections. He also pointed to what had been said by the Occupational Health Service in relation to his sickness absences which was ignored in the annual review. The key issue raised in the Occupational Health Service report, Mr Pousson submitted, was about enabling him to have time off line so that he could test and inject himself. This was something which was easily possible at Home Highway but it was not possible in the new department where he had too many calls to take and was effectively restricted in the time he spent between calls or was under pressure to reduce that time.
66. It is said, that in paragraph 7 (29) the Employment Tribunal found there was a nexus between the Claimant not starting on time and his extended breaks and his general performance. There was no evidence to support this finding or the finding was perverse. The Claimant maintains that the nexus was the link between informal warnings given to him by reason of sickness absence and his being asked to ensure that his breaks did not exceed 15 minutes.
67. The Respondent submitted in relation to paragraphs 7: 32, in which it is said the Employment Tribunal elided the Claimant's absence from his desk and his performance while present at his desk, that there was no evidence in relation to this and it was a perverse finding.
68. The Employment Tribunal had found that the Annual Performance Review had referred to only one of the two warnings given to the Claimant by Mr Fox. It found that the Respondent by reason of the medical evidence it had received, knew that these warnings related to the Claimant's disability. The Employment Tribunal noted that although the Annual Performance Review provided for improvements to the Claimant's productivity and performance and although they were not "specifically related to appearance times or absences from work, nevertheless, the overall context is telling". Although the objective was to reduce call times and also there was an objective relating to sales, these objectives needed, said the Employment Tribunal, to be "set in the context [that] Mr Fox and Ms Hanna had raised issues concerning the Claimant's absences and adherence times". The Employment Tribunal went on to find that "this was the background against which the poor performance action was being taken. The effect of that was to put the applicant under very considerable time pressure by requiring substantial improvement in performance over a four-week period together with a daily reporting programme".
69. The finding of the Employment Tribunal (at paragraph 7: 33) is also criticised. It is said that the finding by the Employment Tribunal failed to have regard to the Respondent's case that time spent on individual calls and their concerns about excessive time spent by the Claimant on calls, were unaffected by his disability.
70. It is said also that in paragraph 17 of its decision the Employment Tribunal was wrong to find that the Performance Improvement Action Plan should not have been applied by reason that the Claimant's poor performance related to his disability. It was perverse for the Employment Tribunal to say that the "background" of the performance review was absence when it was not absence based and hence not disability based. It was self-evident there was no connection between the performance review and issues as to disability. Mr Thornton again stressed that there was no link between the Performance Action Plan and the Claimant managing his diabetic condition. In those circumstances he submitted that the finding of the Employment Tribunal (paragraph 18 of the Decision) that the Respondent failed to recognise the impact of the kind of performance measures they were imposing would have on the Claimant's ability to manage his condition was perverse.
71. The Claimant submitted to us that the Annual Performance Review made clear that he was being monitored both in relation to break times and sickness absences in breach of the Respondent's own procedures. He also submitted that the performance review was used to monitor his absence from his desk. The Employment Tribunal was entitled to find that he suffered a detriment by reason of the pressure under which he was placed. Mr Thornton also criticised the finding at paragraph 19 that the Claimant was treated less favourably by reason of his disability because action was taken against him for poor attendance for reasons related to his disability. This finding is said to be perverse as is the finding at paragraph 20 that the Claimant's performance had a relationship to his disability. Mr Thornton submitted there was no evidence to support this finding. The Respondent's only concerns related to what the Claimant did at his desk and did not relate to his disability. There was no evidence that the Respondent in its Annual Performance Review had identified any link between the Claimant's performance and his disability. Alternatively it was perverse for the Employment Tribunal to make such a finding. There was also no finding by the Employment Tribunal that Ms Hanna had told the Claimant not to test at his desk. It was said by Mr Thornton that it was "incoherent" for the Employment Tribunal to say that the Performance Action Plan should be seen against a particular background. It either was, or was not, based on concerns as to his disability. There was no finding that the Action Plan as implemented was discriminatory. The Employment Tribunal failed to make any finding that the Respondent imposed any restriction on the Claimant leaving his desk.
72. The Claimant submitted that the Employment Tribunal was perfectly justified on the evidence before it in concluding that he had suffered less favourable treatment and had thus been the victim of discrimination. He pointed to paragraphs 7 (7) of the Employment Tribunal's decision when Dr Almond's advice is noted to the effect that his diabetes would have an effect on both:

"his attendance at work and his work performance".

The pressure placed upon him not to leave his desk was proved by the fact that document 134 and the findings at paragraph 7 (37) showed that when Ms Hanna supervised him he spent more time at his work station.

73. Mr Pousson then drew our attention to the Annual Performance Review. He pointed out that there was no reference to the Occupational Health Reports as to his disability or to information relating to his disability, which he submitted, was contrary to the Respondent's own policy and thus showed it failed to make reasonable adjustments. He was still moved from the Home Highway Team to Ms Hanna's team despite the recommendations made.
74. The language in his Annual Performance Review showed that the Respondent disregarded the Occupational Health Service's recommendations. In his Originating Application he had made the point that he was placed on the poor performance indication by reason of time away from his desk and had been told by Ms Hanna that the time he spent away from his desk was unacceptable. He again drew our attention to the Action Plan reference to the need for him to control his "cut and wrap" time. When he had been told he was not allowed to leave his desk for injection and testing he had used his "cut and wrap" time for testing. This inability to leave his desk and the fact that he had to use his wrap time had an impact on his disability. If the PPA was not intended to effect the management of his testing this should have been clearly stated in accordance with the Respondent's sickness policy and explained to his managers.

Conclusions on Perversity Arguments

75. Mr Thornton conceded having regard to the decision of the Court of Appeal in Yeboah v Crofton [2002] EWCA civ 794 that a perversity appeal should only succeed where an overwhelming case was made out that the Employment Tribunal reached a decision no reasonable tribunal on a proper appreciation of the evidence and the law would have reached. However, he submitted that in this particular case he met that threshold and the decision of the Employment Tribunal was riddled with errors of law and perverse findings of fact.
76. We are satisfied that the Employment Tribunal was entitled to find as it did that over a period of time the poor performance and attendance procedures were applied to the Claimant by reason of absences from work and absences from his desk which were related to his disability.
77. Although it is correct that on its face the Performance Action Plan that followed on from the annual review related only to performance improvement relating to standard targets for dealing with telephone calls, it was the Claimant's case, accepted by the Employment Tribunal, that this was in part the result of concern as to absences from work and absences from his desk which were disability related. In any event, the concern as to cut and wrap time was linked to the Claimant's need to spend time testing himself and injecting, and no consideration appears to have been given to Dr Almond's advice that the Claimant's diabetic condition affected his work performance.
78. The Employment Tribunal on the facts and evidence before it was entitled to conclude as it did in paragraph 17 that:

"Dissatisfaction with sickness absences and adherence times form the background to the Respondent's decision to pursue performance related issues. The additional pressures in terms of reducing call times and being monitored on a daily basis were part and parcel of the overall approach being adopted towards the Applicant."

79. We are also satisfied that there was evidence to support the finding in paragraph 18 that the Respondent failed to recognise the impact of the kind of performance measures it was imposing would have on the Claimant's ability to manage his condition.
80. While, as we have said, the performance improvement action plan on its face related to the time spent on each call, this needed to be seen in the context of the Claimant's need (and inability) to spend time testing himself and injecting. Further no regard was paid to Dr Almond's advice. We also are satisfied that the decision of the Employment Tribunal at paragraph 19 that the Claimant was generally treated less favourably by reason of his disability, was justified on the evidence. It was clear that the Claimant did have to attend a series of interviews because he had been absent for reasons relating to his disability and that he was spoken to about absences from his workstation when those absences related to his disability. The Employment Tribunal was also entitled to conclude, for reasons we have already touched upon, that the Claimant was subjected to an improvement plan and daily reporting when his poor performance had a relationship to his disability.
81. Equally the Employment Tribunal was entitled to conclude as it did in paragraph 20 that the Claimant's performance did have a relationship to his disability.
82. We are accordingly satisfied that the case advanced by Mr Thornton that the decision of the Employment Tribunal was perverse in relation to the finding of discrimination under section 5 (1) of the Act does not succeed and the appeal must be dismissed.