United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mrs WENDY OUTHWAITE (of Counsel) Instructed by Messrs Hempsons Solicitors Portland Tower Portland Street MANCHESTER M1 3LF
For the Respondent	Mr. JAMES PURNELL (of Counsel) Instructed by Messrs Fisher Meredith Solicitors, 405 Kennington Road LONDON SE114 PT


 


SUMMARY

DISABILITY DISCRIMINATION:

Reasonable adjustments

Disability related discrimination

The claimant suffers from dyslexia and was therefore "disabled" as defined in the Disability Discrimination Act 1995 ("the Act"). The issue on the appeal is whether the respondent employer was exempted from making adjustments for the claimant during the interviews process when the claimant applied for a job with the respondent.

The Employment Tribunal held that the respondent was not exempt in the light of section 4 A (3) (b) of the Act.

Held by the Employment Appeal Tribunal that:

The Employment Tribunal erred as it ought to have considered (but did not consider properly) the requirements of section 4A(3)(b) of the Act which means that an employer is exempt from the duty to make adjustments if each of four matters can be satisfied and they are that the employer:-

(a) does not know that the disabled person has a disability;

(b) does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled;

(c) could not reasonably be expected to know that the disabled person had a disability; and

(d) could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.


 


THE HONOURABLE MR JUSTICE SILBER

I. Introduction

1. The law relating to discrimination as applied to employment cases is inevitably very complicated as it has to draw a balance between the interests of the disabled person and those of his or her actual or potential employer. The Employment Tribunals are entrusted with the demanding task of construing these complicated provisions and then applying them to the facts of the cases before them. This appeal shows how important it is for Employment Tribunals to follow the statutory words rather than to paraphrase them before considering whether the facts of the case before them satisfy each of the relevant statutory tests.
2. The issue on this appeal is whether the Employment Tribunal has performed this function in the present case which concerns Mrs Jocelyn Gray ("the claimant"), who suffers from dyslexia and who therefore is regarded as "disabled" within the terms of the Disability Discrimination Act 1995 ("the Act"). She has brought claims under those statutory provisions. The central issue on this appeal relates to whether the Eastern and Coastal Kent PCT ("the respondent") was exempted from making adjustments for the claimant as a disabled person which it should otherwise have made during an interview process. In this judgment, it will be noted that we will use the terms "the claimant" and "the respondent" to describe the roles which each party played in the Employment Tribunal proceedings.
3. By a decision dated 3 July 2008, an Employment Tribunal sitting in Ashford held that the respondent had not directly discriminated against the claimant on the grounds of either her disability or of her age or apparent age. It was also decided that the claimant did not suffer less favourable treatment for a disability-related reason. None of these decisions are the subject of the present appeal but on this appeal, the respondent solely challenges the further decision of the Employment Tribunal, which was that it was in breach of its duty to make reasonable adjustments for the claimant and in consequence it discriminated against the claimant.

II. The Statutory Provisions

4. This appeal focuses entirely on the whether the respondent as a prospective employer of a disabled person (namely the claimant) was exempted from its duty to make reasonable adjustments in relation to the claimant as a disabled person. The duty to make adjustments is set out in section 4A of the Act, which provides that:

"(1) Where –

(a) a provision, criterion or practice applied by or on behalf of an employer, or

(b) any physical feature of premises occupied by the employer,

places 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 provision, criterion or practice, or feature, having that effect.

(2) In subsection (1), "the disabled person concerned" means –

(a) in the case of a provision, criterion or practice for determining to whom employment should be offered, any disabled person who is, or has notified the employer that he may be, an applicant for that employment; or

(b) in any other case, a disabled person who is –

(i) an applicant for the employment concerned, or

(ii) an employee of the employer concerned."

5. The issue on this appeal is whether the provisions in that section, which exempt the employer from its obligation to make adjustments if certain conditions have been satisfied. The respondent contends that it was exempt as a result of these provisions in sub-section (3) of section 4A of the Act while the claimant's case is that the Employment Tribunal was right to hold that the exemption does not apply. So the question on this appeal is whether the Employment Tribunal applied the provision of sub-section (3) correctly. This sub-section (insofar as is relevant to this appeal) states that:

"(3) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know –

…

(b) in any case, that the person has a disability and is likely to be affected in the way mentioned in subsection (1)."

III. The Findings of the Employment Tribunal.

6. The Employment Tribunal found that:-

(a) The claimant was a senior, extremely experienced and well- qualified nurse whose dyslexia was only diagnosed in 2005. At all material times, she had been employed by a Primary Care Trust formed following a reorganisation in the National Health Service;

(b) The claimant had reached the position of Junior Sister/Clinical Nurse Educator (Band 6) but she was looking for ways to obtain further promotion. In 2005, she had started a part-time BSc course in professional practice in Health and Social Care at the University of Greenwich;

(c) The claimant had many years of Cardiac Nursing experience particularly in High Dependency, Intensive Care and Coronary Care Units as well as having had substantial teaching experience;

(d) In May 2007, the respondent advertised five Community Cardiac Nursing posts which were to be Band 7 posts across Cardiac Rehabilitation and Heart Failure. A job description was produced and eleven applications were received from candidates many of whom could not fulfil all the essential criteria particularly the academic requirements. The criteria were widened;

(e) Nine candidates (including the claimant) were short-listed for interview which was to take place on 13 June 2007;

(f) On their application forms, candidates gave their personal details including whether they suffered from a disability. The claimant replied in the negative to the question of whether any special arrangements were required for her to attend the interview. She selected from a number of drop down answers as to her disability "learning difficulty/disability" in order to describe her disability and she also applied for a guaranteed interview (if necessary) under the "Positive about Disability" scheme;

(g) The members of the panel were not told of the claimant's disability and remained unaware of it although Mr N. Plummer who was overseeing the recruitment process on behalf of the respondent was aware of it but he made no enquiries about her disability nor did he give the panel any guidance as to the effects of the claimant's disability;

(h) When Mr Plummer invited the nine candidates for interview, he asked whether, if they were disabled, any special arrangements should be made for them at the interview. The claimant decided not to say anything about her disability as she was confident in her ability to perform well at an interview and she did not wish to risk the panel taking an adverse view about her if its members were told of her disability. The claimant had been involved in other recruitment processes and she knew that the personal details of the applicants were not given to the panel;

(i) The format of the interview was for each candidate to make a ten-minute presentation on a subject which had been explained in the invitation for interview. The candidates would then be assessed on this and would be scored out of fifteen marks as well as being assessed on the information given as to qualifications (ten marks), work background (ten marks), skills and experience (fifteen marks), communication (fifteen marks) and personality (five marks). The candidates were all to be assessed on seven key questions the contents of which were agreed by three panel members in advance but they were not given in writing to the candidates;

(j) On 13 June 2007, the claimant was due to be interviewed first at 9.30 am but there was a problem with the projector and the claimant together with all other candidates had to use the screen of the laptop instead. The claimant explained that she had used special software but she did not explain to the interviewing panel that this was because of her dyslexia. The claimant's interview started ten to fifteen minutes late and her presentation did not go as well as she had hoped. The panel were on the whole unimpressed and they marked the claimant's presentation with six marks out of fifteen The other candidates obtained between nine and fourteen marks for their presentations with Ms Bassett obtaining twelve marks;

(k) On the set questions, the claimant obtained six marks for the second question compared to between ten and thirteen marks for the other candidates and this was due to the fact that she misunderstood the question. Thus the claimant obtained 26 out of 55 marks for the set questions and her performance was marred by leaving sentences unfinished. The other candidates obtained between 32 and 45 marks for these questions;

(l) The claimant obtained a total of 63 marks with the next highest being 75 marks and Ms Bassett obtaining 77.5 marks. No sets of interviews could be entirely free from error but the Employment Tribunal was satisfied that the interviews were conducted in good faith and that the members of the panel marked the candidates on the basis of their performances at interview as fairly as they could;

(m) The panel concluded that one candidate (candidate A) could not be appointed because of a lack of cardiac experience and they agreed to offer the post to the five highest scoring candidates but one of these candidate B declined the offer having taken another post. This left the claimant (63 marks), Ms Bassett (77.5 marks) and candidate 1 (75 marks). Since she had the next highest number of marks, Ms Bassett was appointed; and

(n) The claimant was told on 28 June 2007 that she would not be offered the post and in a subsequent debriefing an hour or so later, Ms Sage gave the reason for the claimant's failure to obtain the post that she had not interviewed very well. The claimant was profoundly shocked when she was told that Ms Bassett had been offered the post.

IV. The Issues

7. Mrs Wendy Outhwaite, Counsel for the respondent, contends that the decision of the Employment Tribunal was flawed because:-

A. it did not consider properly the question of whether the respondent was entitled to rely on sub-section (3) as it did not know and "could not reasonably be expected to know" that the claimant was "at a substantial disadvantage in comparison with persons who are not disabled" (Ground A);

B. it applied an incorrect statutory test as it considered whether the claimant "might" be at a substantial disadvantage rather than as stated in sub-section (3)(b) that she was "likely" to be at a substantial disadvantage (Ground B);

C. there was no evidence that the respondents knew or ought reasonably to have known that the claimant was likely to be placed at a substantial disadvantage by the oral interview process. In so far as the Employment Tribunal had made such a finding, it was perverse. (Ground C); and

D. it failed adequately to follow a proper approach to the question of reasonable adjustments and or record adequate findings of fact to support its decision (Ground D).

8. Mrs Outhwaite accepted correctly in our view at the hearing that although she had put forward an additional ground in her skeleton argument, it would not have been possible for her to succeed on the appeal on that issue if she was unsuccessful on the other issues. Therefore we say no more about it.

V. Ground A.

9. The reasoning of the Employment Tribunal in relation to the applicability of sub-section (3) of the Act was that:-

a. "The respondent knew or could reasonably be expected to know of the claimant's disability"(paragraph 25.2);

b. The members of the interviewing panel were not in any way aware of the claimant's disability;

c. "The Tribunal finds that had the members of the panel been made aware of the claimant's ability, they would have been aware that a candidate with a learning disability, for that is how the claimant's disability was described in the application form, would or might be at a substantial disadvantage at the interview" (paragraph 25.3); and

d. "With the knowledge of the potential effect of the claimant's disability there were a number of steps which the respondent, in the persons of the panel members, could have taken."(paragraph 25.4)

10. No criticism is made of the findings of the Employment Tribunal set out in paragraph 9 (a) and (b) above. Mrs Outhwaite submits that the finding in paragraph 9 (c) above shows that the Employment Tribunal did not comply with its obligation in sub-section (3)(b) which we have set out in paragraph 5 above while Mr. James Purnell Counsel for the claimant contends that the reasoning of the Employment Tribunal is adequate. So it is necessary to analyse what has to be shown before an employer can rely on the sub-section (3) exemption.
11. In our view, sub-section (3)(b) means that an employer is exempt from the duty to make adjustments if each of four matters can be satisfied and they are that the employer:

i. does not know that the disabled person has a disability;

ii. does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled;

iii. could not reasonably be expected to know that the disabled person had a disability; and

iv. could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.

12. It is necessary to stress that these are cumulative and not alternative requirements and that is because of the use of the word "and" in two significant places in sub-section (3), which is set out in paragraph 5 above. The first use of the word "and" is between the words "the employer does not know" and the words "could not be reasonably be expected to know". The second is between the words "the person has a disability" and "is likely to be affected in the way…"
13. If the draftsman of this provision had intended the requirements to be alternative rather than cumulative, surely he or she would have used the word "or" rather than the word "and". Indeed, what is clear is that the section cannot be construed so that "and" means "or".
14. In this case, the Employment Tribunal held that the respondent's knowledge of the claimant's disability thereby constituted knowledge that she was likely to be placed at a substantial disadvantage by the oral interview process when it stated that:-

"25.3 The Tribunal finds that had the members of the panel been made aware of the claimant's ability, they would have been aware that a candidate with a learning disability, for that is how the claimant's disability was described in the application form, would or might be at a substantial disadvantage at the interview."

15. In our view, this constitutes an error by the Employment Tribunal as it did not consider if the respondent first "could not reasonably be expected to know" or second did "know" that the claimant was "likely to be affected" so as to be placed at a disadvantage at the interview in comparison with people who did not suffer from dyslexia. All the Employment Tribunal stated was that the respondent "would have been aware". Significantly, nothing was said by the Employment Tribunal about whether the respondent did "not know and could not reasonably be expected to know" that the claimant was "likely to be affected" so as to be placed at a disadvantage at the interview in comparison with people who did not suffer from dyslexia.
16. We cannot be satisfied that if the Employment Tribunal had complied with its obligations in relation to sub-section 4(3)(b) (which we have explained in paragraph 11 above) it would have then found in the respondent's favour for the reasons which we explain in paragraphs 27 to 33 below . Thus the matter will have to be remitted to consider whether the respondent did not know and could not reasonably be expected to know that as a result of her disability namely her dyslexia the claimant was likely to be "at a substantial disadvantage in comparison with persons who are not disabled" at the interview.
17. This case will have to be remitted to an Employment Tribunal unless the respondent succeeds on Ground C and so we can and will deal with the issues in Grounds B and D more briefly than we would have done if they were of critical importance in determining the outcome of this appeal.

VI. Ground B.

18. The case for the respondent is that the Employment Tribunal erred by not considering whether the claimant was "likely to be" at a substantial disadvantage in comparison with persons who were not disabled when it said in paragraph 25.3 of its reasons, which we have quoted in full in paragraph 14 above, that:

"a candidate with a learning disability, for that is how the claimant's disability was described in the application form would or might be at a substantial disadvantage at the interview".

19. Mrs Outhwaite submitted that the use by the Employment Tribunal of the words "might be at a substantial disadvantage" meant that it had not considered if she was in the words of the statute "likely to be" at a substantial disadvantage. A number of cases were cited to us on the meaning of the word "likely" in statutes. In Cream Holdings v Banerjee [2005] AC.253, Lord Nicholls of Birkenhead stated at page 259 that:

"12. As with most ordinary English words "likely" has several different shades of meaning. Its meaning depends on the context in which it is being used. Even when read in context its meaning is not always precise. It is capable of encompassing different degrees of likelihood, varying from 'more likely than not' to 'may well.'"

20. Thus in Three Rivers DC v Bank of England (No4) [2002] 4 All ER 881 at page 895, Chadwick LJ said that:

"33. we think that the word 'likely' when used in the Civil Procedural Rules, connotes a higher threshold of probability than merely 'more than fanciful'. But a prospect may be more than fanciful without reaching the threshold of 'more probable than not."

21. In the case of In Re O (minors) (Care: Preliminary Hearing) [2004] 1AC 523 Lord Nicholls said at page 538 in paragraph 16 in respect of section 31 (2)(a) of the Children Act 1989 that the word:-

"'likely' does not mean more probable than not. It means a mere possibility. A possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case."

22. In our view, the word "likely" does not have the same meaning as the word "might" because within the provisions in section 4A, the draftsman of the Act used the words "he may be, an applicant for that employment" in sub-section 2(a) and then (as we have explained) the draftsman proceeds to use the word "likely" in sub-section 3(b). We consider that the draftsman intended that by using the word "likely" in sub-section (3) (b), he or she intended some different meaning than "may" or "might".
23. In any event, there is a powerful reason why the respondent's submissions on this point must be rejected and that is because as we have explained in paragraph 14 above the wording used by the Employment Tribunal was that "the learning disability of the claimant would or might be at a substantial disadvantage at the interview". In our view, the use of the word "would" shows that a higher threshold has been reached than was required by the word "likely" which is used in sub-section (3) (b). So we reject this complaint of Mrs Outhwaite.

VII. Ground C.

24. Mrs Outhwaite contends that there is no evidence that the respondent knew or reasonably would have known that the claimant was likely to be placed at a substantial disadvantage by the oral interview process. She then submits that insofar as the Employment Tribunal did in fact make a finding that the respondent knew or reasonably ought to have known that Mrs Grey was placed at a substantial disadvantage in that way, such a finding is perverse because there was no evidence on which such finding could reasonably have been made. As we have explained when considering Ground A, we have found that the Employment Tribunal did not apply the proper test and so the relevance of Ground C is that if Mrs. Outhwaite is correct on Ground C there might be no point in remitting the case to an Employment Tribunal because the result would inevitably be that the respondent would be entitled to rely on the exemption in sub-section (3)(b).
25. It is said by Mrs Outhwaite that the information which was available to the respondents at the material time was first that the claimant had disclosed an unspecified "learning difficulty/disability" on her application form and second that she had subsequently stated that she did not need any special arrangements for her interview. Indeed she points out that when the claimant was asked at the time that she was invited to the interview if any special arrangements were necessary for her for the interview, she did not respond or significantly state that any special arrangements were needed with the result that her silence indicated to the respondents that the claimant did not need any special arrangements at her interview.
26. Mrs Outhwaite says that the claimant believed that she did not need any special arrangements first because she had previously performed well at an interview; second because she had interviewed candidates herself; third because the interview was entirely oral; fourth because the claimant considered that she had strong oral communication skills; and fifth because she was an accomplished teacher who taught groups of nurses and this required communication skills. Thus it is said by Mrs Outhwaite that there was nothing to alert the respondents to the fact that the claimant would be or might be at a likely substantial disadvantage in the interview process because the respondents had made proper enquiries of the claimant who had indicated that she did not need any special arrangements.
27. It is stressed by Mrs Outhwaite that an individual candidate particularly one with medical knowledge (such as the claimant) would be the best person to know whether special arrangements were needed especially as (was the case here) she had previous interviewing experience. In other words, the case for the respondent was that a prospective employer has no further burden on him to ascertain whether arrangements were needed after it had made an enquiry and it had then received a response from the candidate that no arrangements were needed.
28. In support of this submission, Miss Outhwaite relies on paragraph 5.1 of the Code of Practice which states that: "the employer must, however, do all it can reasonably expect it to do to find out whether" an individual is at a substantial disadvantage.
29. We are unable to agree with Mrs Outhwaite's submissions as there was adequate material from which an Employment Tribunal could have concluded that the respondent knew or ought reasonably to have known that the claimant was at a substantial disadvantage compared to persons without disability by the interviewing process. The Employment Tribunal had before it reports by Professor David McLaughlin of the Adult Dyslexia and Skills Development Centre who explained that the claimant was "dyslexic having difficulty in processing information in working memory" and he added that Mrs Grey needed more time to read and to assimilate information.
30. Professor McLaughlin considered that "adjustments should be made for [the claimant] when her academic work is evaluated" and that "should [the claimant] be in a position where she has to take tests for the purpose of selection/promotion, she should be allowed extra time to complete them so she is less disadvantaged by her slow rates of reading and writing". He suggested an adjustment in the work place so as to provide for written as well as verbal instructions to her.
31. Professor McLaughlin produced a further report dated 10 December 2007 for use in connection with the Employment Tribunal proceedings in which he provided a definition of dyslexia and its effects which had "an effect on verbal communication, organisation and adaptation to change".
32. He noted after a test of the claimant's memory skills that she "showed she had marked difficulty processing verbal information" with the result that she needed more time to read and assimilate information. The Employment Tribunal found that Professor McLaughlin's evidence was that the claimant would find it difficult to listen, understand, interact and take notes simultaneously as well as following instructions and remembering advice she had been given. He also explained that whereas working memory allowed an individual to remember information in the short term as well as recalling information from long term memory, the claimant's memory problem would be exacerbated by stress.
33. It is also noteworthy that Professor McLaughlin emphasised that dyslexia "was much more than a difficulty than reading and spelling". We regard those matters as important factors as were the facts first that the claimant said on her application form that she considered she had "learning disability/difficulty" and second that she indicated she wished to be considered under the Guaranteed Interview Scheme as a disabled person even though she considered at her skills and experience were good enough not to need special arrangements that she was aware that she might need more time.
34. The Employment Tribunal was told about aspects of the claimant's performance at the interview which showed that these difficulties caused by her dyslexia adversely effected her performance at the interview as it was noteworthy that the claimant misinterpreted question 2 and that she sought clarification which led to her being met with an uncomfortable silence from which she felt patronised and tense. It is also relevant and significant that when the interview panel recorded their comments on the claimant's performance at the interview, these included statements that the claimant had "poor time management", was "unable to summarise", "could have expanded more on answers re skills", was "slightly vague presentation not well time managed" and was "very vague in answers and presentation".
35. We consider that there was adequate information which could have justified the Employment Tribunal in finding that the respondent knew or ought reasonably to have known that the interview practice was likely to place the claimant at a substantial disadvantage. Of course, as we have explained the Employment Tribunal did not ask itself the relevant questions which we have set out in paragraph 11 above and for that reason this case has to be remitted to an Employment Tribunal for a further hearing. We stress that we do not know how the Employment Tribunal will finally determine this claim.
36. The alternative case for the respondent is one of perversity but the threshold for such a claim is extremely high. In Crofton v Yeboah [2002] EWCA Civ 794 Mummery LJ explained in respect of an appeal based on perversity that:-

"93. Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable Tribunal, on a proper appreciation of the evidence or the law, could have reached."

In our view the respondent falls a long way short of succeeding on that point essentially for the reasons which we have set out.

VIII. Ground D

37. Mrs Outhwaite contends that the Employment Tribunal failed to follow the required "step" approach on the question of reasonable adjustments and it made inadequate findings of fact to support its decision. The basis of this ground was described in the respondent's skeleton argument as being that:

"there is no medical or other evidence to support the assertion that the provision, criteria or practice [during the interviewing process] placed Mrs Grey at a substantial disadvantage."

38. It is said by Mrs Outhwaite that although the Employment Tribunal identified the reasonable adjustments which the respondents should have made at paragraph 25.4 of its reasons, it failed to identify the nature and extent of the substantial disadvantage. She stresses that it is necessary to bear in mind the pressurised nature of the job for which the claimant was applying as it required the successful candidate to communicate effectively with family members in the height of their distress when a loved one was in a life or death situation.
39. Thus, the job for which the claimant had applied, according to Mrs Outhwaite, required excellent communication skills and it is said that there should be no reasonable adjustment at interviews which could not possibly be replicated in the job itself. Her next point is first that there is nothing in Professor McLaughlin's report to suggest that the claimant was incapable of oral interview and second that on the contrary the claimant's teaching experience to groups of nurses suggests that she was and would be comfortable in an environment involving oral communication to a group. It is also said by Mrs Outhwaite that the job questions that the claimant was asked at interview were easily predictable and that they were common in job interviews. She therefore submits that the Employment Tribunal failed to undertake its analysis with the requisite clinical rigour and thereby erred in law.
40. We are unable to accept this ground as being valid in the light of what appears in the reasoning of the Employment Tribunal. First, it was sufficiently clear what the nature and extent of the substantial disadvantage it was because it stated in paragraph 15 of the judgment (with our emphasis added) that Professor McLaughlin had found that "the tests of the claimant's memory skills 'showed that she has a marked difficulty processing verbal information'". He then explained that the claimant had the difficulties which I have set out in paragraphs 29 to 31.
41. Second, in paragraph 11 of the judgment, the Employment Tribunal showed how the claimant's disability affected her memory as she misunderstood the second question and "her performance was marred by leaving sentences unfinished".
42. Third, the Employment Tribunal found that the claimant was unable to perform in the interview to her maximum potential because of her dyslexia "which led to her presentation being made less well than it might otherwise have been and affected her replies to questions" (paragraph 27.2).
43. Finally, the judgment sets out the steps which the respondent to the interview panel could have taken:-

"including giving the claimant more time without penalty, taking care that she was not unduly stressed, assisting the claimant by prompts or clarification of the questions, avoiding multiple questions, putting a written copy of the questions before the claimant, and taking the disability and its effects into account when scoring the claimant" (paragraph 25.4).

44. In our view, the conclusions of the Employment Tribunal were supported by evidence and this case does not go anywhere near reaching the level of perversity required for an appeal to succeed on that ground and therefore it must be rejected

IX. Conclusion

45. For the reasons which we have explained, the appeal is allowed and the matter must be remitted to an Employment Tribunal to determine if the provisions of section 4A(3)(b) of the Act have been satisfied so as to have exempted the respondent from its obligation to make adjustment for the claimant. At the end of the hearing, we asked both counsel if we were to remit this matter as to whether this matter should be remitted to the same Employment Tribunal as heard the original claim or to a different Employment Tribunal. They both agreed that we should remit it to a different Employment Tribunal as the matter would then be disposed of more speedily than if we were to remit it to the same Employment Tribunal as had heard the original claim.