United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR EDWARD BROWN (of Counsel) Instructed by: DEFRA Area 3C, Ergon House Horseferry Road London SW1P 2AL
For the Respondent	MR SIMON CHEETHAM (of Counsel) Instructed by: Bindmans LLP Solicitors 275 Gray's Inn Road London WC1X 8QB


 


SUMMARY

DISABILITY DISCRIMINATION

Direct disability discrimination

Reasonable adjustments

UNFAIR DISMISSAL – Reasonableness of dismissal

The Employment Tribunal did not follow earlier CMD orders for the trial of issues and made findings on different issues. It did not address time-bar and justification. Its finding on unfair dismissal was so connected with the failure to deal adequately or correctly in law with the Disability Discrimination Act 1995 points that it could not stand. Appeal allowed and a controlled remission to a fresh Employment Tribunal.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about disability discrimination and unfair dismissal. It is the Judgment of the court to which all members, appointed by statute for their diverse specialist experience, have contributed. We will refer to the parties as the Claimant and the Respondent.

Introduction

2. It is an appeal by the Respondent in those proceedings, against a Judgment of an Employment Tribunal chaired by Employment Judge Silverman sitting at London South over three days. We will correct the error in the date. Full Reasons were sent on 6 May 2011. The Claimant appeared in person and Mr Edward Brown appeared for the Respondent. Today the Claimant has the distinct advantage to be represented by Mr Simon Cheetham of counsel.
3. The Claimant made a number of claims which were refined at a Case Management Discussion held by Employment Judge Spencer, and recorded in an order dated 7 December 2010. The order is important because it set the tramlines for the hearing under appeal but, as will be clear, the Tribunal failed to steer by them.
4. The Respondent denied the allegations of unlawful discrimination on the grounds of disability, unlawful harassment, failure to make reasonable adjustments and unfair dismissal. The Respondent conceded that the Claimant was disabled within the meaning of the Disability Discrimination Act 1995.
5. The essential issues before the Employment Tribunal were thus clearly defined for it, and they are these:

"2. The acts of disability discrimination in respect of which the Claimant seeks a remedy are as follows:

(i) In October 2007 the Respondent initiated a three month trial period under its procedure for poor attendance;

(ii) In January 2008 the Respondent gave the Claimant notice of dismissal due to non-attendance (subsequently revoked);

(iii) The Claimant was given a non-satisfactory appraisal report for the year April 07 to April 08;

(iv) In January 2009 the Claimant was transferred to a new post for which he was not qualified and in respect of which he was being set up to fail; and

(v) He was dismissed in June 2010.

3. The Claimant alleges that the above conduct amounts to harassment contrary to section 3B of the Disability Discrimination Act 1995 (the DDA) and to less favourable treatment for a reason related to his disability contrary to section 3A(1) of that Act. In respect of the latter complaint the Claimant relies on a hypothetical comparator.

4. In addition the Claimant complains that the Respondent failed to make reasonable adjustments contrary to section 3A(2) of the DDA in that they should:

(i) have allowed him to remain in the post for which he was qualified;

(ii) not required him to undertake a trial period.

6. An issue arises under paragraph 3 of schedule 3 of the Disability Discrimination Act 1995 as to whether the Claimant's earlier complaints (i.e. those not related to the dismissal itself) were presented in time.

7. In addition the Claimant claims that he was unfairly dismissed. The Respondent's case is that the Claimant was fairly dismissed for capability. The issues are to establish the reason for the Claimant's dismissal and whether that dismissal was fair or unfair under section 98(4) of the Employment Rights Act 1996."

6. Sadly, the issues in paragraph 4 are not replicated in the copying of those orders into the Judgment. Those claims for reasonable adjustments continued to be weighed by the Claimant but are not recorded. The two issues are given no express consideration, whereas some six others are, a matter which has caused us considerable concern. The Tribunal found in favour of the Claimant on the majority of his claims under the DDA, and under the ordinary unfair dismissal provisions.
7. The Respondent appealed against the findings under both of the statutes. Directions sending this to a full hearing were given by HHJ Peter Clark, and further directions were given by HHJ David Richardson, inviting the Judge's note in respect of a certain passage, said in the cross-examination of the Claimant to constitute a concession by him as to what is described as issue 4(iii) above.

The legislation

8. The relevant provisions of the legislation are not in dispute. Section 3A(1) of the DDA provides as follows:

"For the purposes of this Part, a person discriminates against a disabled person if -

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

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

9. Significantly, justification is provided as a defence by section 3A(3) as follows:

"(3) Treatment is justified for the purposes of subsection (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial."

10. This was not cited by the Employment Tribunal, nor was it the subject of any decision despite its clear earmarking as an issue. The Tribunal set out in full section 3B, which is to do with harassment. There was no finding by the Tribunal on harassment, nor is that defect sought to be remedied by any cross appeal, so we will say no more about the law on harassment.
11. The obligation to make adjustments known by the short headline in the statute is to make reasonable adjustments, and that is provided in section 18, again, not cited by this Employment Tribunal. Time limits apply to claims and these are set out in paragraph 3 of Schedule 3:

"(1) An [employment tribunal] shall not consider a complaint ... unless it is presented before the end of the period of three months beginning when the act complained of was done.

(2) A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

(3) For the purpose of sub-paragraph (1) -

[...]

(b) any act extending over a period shall be treated as done at the end of that period."

12. As to unfair dismissal, the Employment Rights 1996 provides under section 98 that an employer must show a reason for dismissal; capability is one. It is common ground that that was met. Section 98(4) deals with fairness and provides as follows (again, a provision not set out by the Employment Tribunal):

"98(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

The facts

13. Since we have already announced to the parties that the Judgment is to be set aside and remitted to a freshly constituted Employment Tribunal, it ought to be necessary for us to limit the scope of our Judgment.
14. We know nothing of the Respondent from this Tribunal Judgment, but doing our own examination of the papers, we find that the Respondent is an agency of DEFRA, which employs some 1,266 people, of whom 860 worked at its facility in Addlestone, Surrey. The Claimant was employed as a scientist on £40,667pa. The Tribunal described the Claimant as follows:

"5. The Claimant commenced employment with the Respondent on 13 September 1999. He was dismissed with effect from 22 June 2010 and filed his application with the Tribunal claiming unfair dismissal and disability discrimination.

7. The Respondent conceded that the Claimant was a disabled person for the purposes of the Disability Discrimination Act 1995.

8. The Claimant was employed as a senior research scientist band C and his job description said that his job was as a mammalian virologist.

9. In March 2001 the Claimant sought medical advice in relation to an ongoing problem which affected his ability to work effectively after eating."

15. The Claimant had a condition of which the Respondent was made aware as long ago as 2006. Medical advice recommended reasonable adjustments be made to do with the flexibility of his lunch hour. The Tribunal went on to make the following findings:

"15. Adjustments were however made to his workload by relieving the Claimant of some of his managerial responsibilities which the Claimant said was counterproductive because it estranged him from the work of his team.

16. In October 2007 the Respondent initiated a three month trial period under its inefficiency policy (p230) because of the Claimant's continued absences. This was followed in January 2008 by a notice of dismissal (indicating that the Respondent considered that the Claimant had failed the trial period) but this notice was withdrawn and the trial period abandoned.

17. Up until this period the Claimant's annual appraisals/reports had been wholly satisfactory. However for the year April 2007-8 the Claimant received an unsatisfactory appraisal against which he appealed in December 2008 (p120).

18. That appeal was rejected. Upon the Respondent's procedures the appeal should have been dealt with in 28 days but in fact was not dealt with by Professor Boriello until 19 August 2009 (p157).

19. No consideration appears to have been given by the Respondent to the Claimant's disability either in the appraisal itself or during the appeal process.

20. On 8 January 2009 seven months before the Claimant received the outcome of his appeal a meeting was held (p126) as a result of which the Claimant was required to transfer to a different department (albeit on the same grade) to undertake a non-funded position in a specialism for which the Claimant was not qualified. This was considered by the Respondent to be a permanent transfer irrespective of the subsequent outcome of the Claimant's appeal (p126).

21. The Claimant objected to that enforced transfer at the meeting on 8 January 2009. He did try the job for periods totalling about two months before signing off sick with stress and depression from which never returned.

22. Shortly after the Claimant was transferred to the new department (CERA) the Respondent advertised a vacancy in the Claimant's old department for a head of mammalian virus investigation. This was a job similar to that which the Claimant had been doing prior to the transfer and for which he was suitably qualified. He applied for the job and was interviewed and rejected (p565). His request for reasons for the rejection was never answered.

23. During his absence he received sick pay under the terms of his contract but that entitlement expired in August 2009 since which time he has received no pay at all."

16. Notice of termination was given to the Claimant on 14 June 2009 at the end of a very substantial period of non-attendance, due to certified sickness. He appealed. The appeal was not heard because he was one day late.
17. The Tribunal made findings on what we will now focus as being the issues which are live on appeal. Of the five grounds advanced by the Claimant and identified in the CMD, the Tribunal appears to have made no finding in his favour that his dismissal was to do with his disability or an act of discrimination. Mr Cheetham does not say otherwise. It follows that the finding is of ordinary unfair dismissal, unaffected by the anti-discrimination statute.
18. On issues 2(i) and 2(ii), the Tribunal found against the Claimant and also that the claims could not succeed, for they were out of time. This left issues 2(iii) and (iv), the non-satisfactory appraisal and the transfer to the new post. The Tribunal made the following findings:

"32. The Claimant's third allegation relates to a non-satisfactory appraisal report for the year 2007-8. This report is significantly different both in style and content from previous reports and, as acknowledged in oral evidence by Professor Drew one of the Respondent's witnesses does not comply with Civil Service guidelines for completion of this type of document e.g. it does not provide examples of the Claimant's weaknesses. The Respondent had been aware of the Claimant's disability since 27 April 2006 but no consideration appears to have been given to that in the assessment and criticism of the Claimant contained in the appraisal.

33. Although the Claimant had been warned (p44) that he could receive an unsatisfactory report the full procedure outlined on pp233-4 seems not to have been complied with in this case. Further the criticisms of the Claimant in the report are generic and unspecific and do not match those voiced on p44.

34. No questions appear to have been raised by the Respondent as to why the Claimant an experienced scientist who had a previous satisfactory work and conduct record should suddenly cease to perform adequately. Instead, actions were taken by the Respondent to remove the Claimant to a job for which he was not qualified and which he did not wish to do, only days after the Claimant had lodged his appeal against the appraisal.

35. The Tribunal infers from the above (para 34) that the interest of the Respondent in the writing and the processing of the unsatisfactory appraisal was to prepare the way for the Claimant's removal from the department because of his absences which in turn were a result of his disability. The Tribunal therefore concludes that this was an act of discrimination directed at the Claimant.

36. The Claimant's fourth allegation (transfer to an unsuitable post) is linked to and occurs as a direct consequence of the unsatisfactory appraisal report discussed above. There was no evidence that in deciding to transfer the Claimant to a new job they had considered his skills qualifications and expertise. It appears that the person who was to be the Claimant's line manager in the new department was unaware of the Claimant's CV until he commenced work in the department. Under the Respondent's procedures, and as confirmed in evidence by Mrs Streeter, the only way in which they could transfer him to another job and department was under their inefficiency policy, and this in turn was dependent on an unsatisfactory appraisal. The Claimant's unsatisfactory appraisal is itself unsatisfactory from an evidential point of view since it does not justify by way of example the failings of the Claimant. It also fails to follow the normal guidelines for report writing, as confirmed in evidence by Professor Drew. The Tribunal infers from this that the appraisal was deliberately constructed to be unsatisfactory in order to invoke the inefficiency procedures allowing transfer. Given that the Claimant was a disabled person, as acknowledged by the Respondent in correspondence dating from 2006 (p25), this must be construed as an act of discrimination against the Claimant on the grounds of his disability. The Claimant alleged that he was 'set up to fail'. His transfer to a different department where he had no qualifications or expertise to do the job required of him (his job description was specific and narrow and defined him as a virologist) and where the new department head had no knowledge of the Claimant's skills and expertise seems to have been designed to ensure that he would not succeed. It is also noted that whereas the Claimant's previous job had been funded, the job to which he was transferred was not funded."

19. Those include a reference, specifically in paragraph 35, to paragraph 34, which is the subject of submissions by Mr Brown to which we will turn. As to reasonable adjustments the Tribunal, in paragraphs 37-46, addressed and made findings on points advanced by the Respondent in its response to the claim. None of these is earmarked by the CMD. On the other hand, the two so earmarked feature nowhere in the Judgment. Thus, it is accepted by both counsel that the Tribunal failed to make decisions about the two listed reasonable adjustments and instead went off and made findings about other adjustments, which the Respondent had offered and had made.
20. The Tribunal then turned to unfair dismissal. It correctly directed itself, under what is plainly a reference to section 98(4). It acknowledged, as a matter of fact, that the Respondent had shown that it dismissed the Claimant for capability under the inefficiency procedures, following his accumulated absences. That is a potentially fair reason. The Tribunal then came to its conclusion as to why this was unfair, and said this:

"51. The absences which led to the actual dismissal were a result of the Claimant's certified illness (stress and depression) which commenced after the Claimant was forced to transfer to a new department and job. The Claimant's original illness, although remaining a disability, was by this time managed. The Respondent knew that the Claimant was unhappy with the transfer but still imposed it and also subsequently did nothing to try and ameliorate the situation. His subsequent illness appears to have arisen and continued as a direct result of this forced transfer. Therefore the whole procedure which led to the Claimant's dismissal appears to have been predestined by the Respondent's own actions by creating the circumstances in which the transfer could take place. These are not the actions of a reasonable and responsible employer who is dealing with an employee who to their knowledge had a disability.

52. Although the Tribunal accepts that the Respondent could not continue to sustain an employee who was continually absent from work, the manner in which they effected his dismissal through the inefficiency procedure appears to have been callous and premeditated and did not follow the Respondent's own procedures. For example, the Claimant was only given 8 days actual notice before his contract was ended (p181) whereas he should have been allowed at least 11 weeks' notice due to his period of service and possibly longer depending on the terms of his contract (the contract was not supplied to the Tribunal). Further, the Claimant was deprived of his pay in lieu of notice because the Respondent said that he had exhausted his sick pay entitlement. It is unclear whether the Claimant had in fact exhausted his sick pay entitlement because it appears that the calculation of the Claimant's absence has included periods when he had actually been at work and working but had been required by his manager to self certificate.

53. The Claimant was given five days in which to give notice of his intention to appeal against the decision to dismiss him. It is clear that he complied with this time limit although the Respondent denies having seen his letter. They then treated his letter of appeal as a notice of intention to appeal and having received no further communication from him within the requisite time limits refused him the right to appeal. The Claimant explained to them that a letter from the Respondent had been delivered to a neighbour and that he had not received it timeously, thus resulting in his appeal being lodged one day late. The Respondent refused to accept this explanation and refused to exercise their discretion to allow the Claimant's appeal to be lodged out of time. The Tribunal does not consider that this refusal to allow the appeal, which was only factually one day late, was the action of a reasonable employer, particularly in circumstances where, known to them the Claimant was continuing to suffer a disability and where earlier in the sequence of events the Respondent had themselves taken many months in which to respond to a grievance lodged by the Claimant (p96)."

21. The depiction of this dismissal as both substantively and procedurally unfair relies, therefore, upon the factors in paragraphs 51-53 above. Those appear to be findings about procedure. Even what might be described as the predetermination of the outcome, is reflected in paragraph 51 as predestination of the procedure. Certainly, the illustrations given in paragraphs 52 and 53 are all procedural matters and the correct description of this case, it seems to us, is one of procedural unfairness.
22. The Tribunal then went on, in order to assist the parties to try and resolve matters between them (instead of having a hearing), to give views about remedy. We do not need to deal with these because we have decided to allow the appeal. Nevertheless, the points made by Mr Brown in his written argument, as to which we have not heard Mr Cheetham, appear to us to have force. It is not necessary for us to decide them.

Discussion and conclusions

23. We will take the arguments of counsel in the same order in which they have been put, and give our Judgment on them as we go. The first contention by Mr Brown relates to the way in which the Tribunal set about its duty to determine what it thought were the issues. It is contended that the Tribunal made findings on complaints which were not pleaded, and not in the CMD order. As to that Mr Cheetham, as he does in a number of places in this case, expresses his helpful realism. These complaints, if at all, must be implied.
24. The duty of a Tribunal, particularly where a CMD has taken the trouble to set out what the issues are, is to make findings upon them. Rule 30 says a Tribunal must say why it has not decided a point in issue between the parties. It is common ground that the parties presented evidence, cross-examined witnesses and provided written closing submissions, by reference to the reasonable adjustments which had been pleaded and ordered at the CMD. There was no application to amend, and so neither of these two was the subject of an express finding. The failure to decide a listed issue is an error. The making of adverse findings against a party, on an issue which has not been pleaded and identified, is also an error (see Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664, given by Underhill J on behalf of the EAT.
25. The issues at a Tribunal are those which have been identified and no other (see Chapman v Simon [1994] IRLR 124, in the Judgment of Peter Gibson LJ at paragraph 42) unless they have emerged in the hearing and the parties understand the Tribunal will deal with them. That is sufficient for allowing the appeal on this ground. Naturally the first approach and most, in accordance with the overriding objective, would be to send the matter back. We will park that matter as to relief, until we have dealt with the rest of the case.
26. This first ground also invokes an error in relation to the statutory duty to make reasonable adjustments. We accept the submission of Mr Brown that the Tribunal seems to have based its findings on adjustments which were made by the Respondent, and which were held to be inadequate, rather than asking what adjustments were required and whether those were made.
27. The answer is the reasonable adjustments required were those pleaded by the Respondent. Finding what the Respondent did in respect of other possible adjustments is neither here nor there. The only issues which appear to be live were as to the Claimant's lunch break, and that the full issues were not discussed with the Claimant. But that procedural matter of discussion of adjustments is not one which is, in itself, a breach of the duty to make an adjustment (see Tarbuck).
28. In those circumstances, ground one succeeds on the first two challenges made in support of it. There is also a contention that the Tribunal erred and reached a perverse conclusion when it held that the Respondent did not ask the Claimant what adjustments would assist him. Plainly it did, as its evidence shows.
29. Ground one is allowed in part (the substantive part) and we are greatly assisted by the sensible approach adopted, out of necessity, by Mr Cheetham. The second ground relates to absence levels, said to be the cause of the discrimination. The short, answer to this is that the definition of unlawful discrimination includes recognition of the defence of justification. The Tribunal failed to deal with the issue of justification, which is part of the statutory framework.
30. That alone is sufficient to allow this ground of appeal, again on its own. This might be a matter which could be remitted to the same Employment Tribunal to make good its failure. In any event, the previous issues in relation to discrimination relate to the absence levels, and it is apparent from the Tribunal's finding that the Respondent would have treated a non-disabled employee in the same way, presenting with these absence levels. We consider that there is also force in the argument that there were insufficient reasons given, but principally the issues were affected by the incomplete treatment of the CMD orders.
31. It is also contended that the Tribunal had no business dealing with what is issue 2(iii), because it was withdrawn by the Claimant. This is where the Judge's letter, and a transcript of her notes, comes to the fore. It is common ground that in cross-examination, the Claimant was asked about the appraisal report for 2007 and 2008, and his answer was "it was unfair, professional harassment. I am not saying the report was based on disability".
32. With that answer, Mr Brown paused and adjusted his approach to the remainder of this allegation. No further matters were addressed upon it. The Employment Tribunal, in answering HHJ David Richardson's question from the EAT, said this:

"There is no further reference to this matter in the Employment Judge's notes and no indication within those notes that there was any indication that Dr Sandvik intended expressly or impliedly to withdraw that complaint."

33. We accept the concision with which the Judge answers this question. It is to do with her notes. However, we have had read to us the written submission made by Mr Brown, whose submissions at the end of the case preceded the Claimant's (the Claimant having the last word). He submitted to the Tribunal that this third issue on disability was conceded by the Claimant. Mr Cheetham, taking instructions from Dr Sandvik, said that it is the consequences of the appraisal that constitutes the discrimination, and that is what he meant when he gave his evidence.
34. This is an unsatisfactory way in which to decide the matter. Dr Sandvik was a litigant in person and may not have been precise. He has less excuse when confronted with the written submission that says he has conceded something. Nevertheless, the point was not obvious to the Judge. If it was, if she had read carefully the written submission at the time she was answering HHJ David Richardson's questions, she might have drawn our attention to this issue. The most generous way of dealing with it is that if the Tribunal did not recognise the Claimant had conceded and thrown away this part of his case, then he should not be penalised for the words he used. As we have decided to remit the case on the issues which will be live, that is issue (iv), we will include issue (iii) because we do not regard it as satisfactory to hold the Claimant to what is said to be a concession by that note. We bear in mind he was representing himself, he was cross-examined and, on this material as it is presented to us today, we do not consider he has thrown away issue (iii). That and issue (iv) will go back.
35. The third ground of appeal relates to time points again. Mr Cheetham comes to the assistance of the EAT by acknowledging there is no reference to the time-bar point in the Tribunal's upholding of the Claimant's complaints of issues (iii) and (iv). He says it is implicit. It is plain the Tribunal did not deal with it expressly. In our judgment, the fact that the Tribunal expressly deals with it as a ground for dismissing the first and second complaints, is a reason to demand the same treatment for third and fourth; they are within the same time period.
36. As a matter of logic, there should be read across from issues (i) and (ii), to issues (iii) and (iv) on time-bar. Nevertheless, the issue was not dealt with by the Employment Tribunal. It is a fact-sensitive matter for it. Again, on its own, this could be dealt with on a controlled remission.
37. We turn then to unfair dismissal. In the submissions Mr Cheetham made in relation to possible outcomes of this case, he acknowledged that there is substantial connection between the disability and the dismissal claims. But he submitted that it would be appropriate, if we were in his favour on dismissal, to retain that finding and to remit only the disability claims.
38. As we deal with the substance of the appeal, we consider it right to say that there is very substantial connection between the circumstances leading up to the dismissal and forming the disability claims, and the circumstances of the dismissal. There is no challenge to the failure by the Tribunal to make a finding expressly in his favour that the dismissal was disability-connected, but that is not a live issue before us. We consider that there is such a connection and that it will be difficult to dissect.
39. As to the substance, it is put to us that the Tribunal failed to have in mind the statutory test, as too clearly rephrased by Mummery LJ in Sarkar v West London Mental Health NHS Trust [2010] IRLR 508 CA which is as follows:

"(4) The landmark judgment in Iceland Frozen Foods Ltd v Jones [1982] IRLR 439, [1983] ICR 17 (Brown-Wilkinson J) and later authorities binding on this court and on the tribunals identify the question for the ET in this way: was it within the range of reasonable responses for this employer to have dismissed this employee? The ET must answer the question without substituting themselves for the employer. Substitution happens when the members of the ET decide what they would have done."

40. A Tribunal is not obliged to set out the statute or the authorities, provided the law is correctly summarised. But it does run a risk if it does not do so. The range of reasonable responses test is not immediately visible on the Tribunal's findings.
41. The passages we have cited in paragraphs 51-53 indicate, in our judgment, sympathy for the Claimant and substitution by the Tribunal for the Respondent's view. For example, the decision that a reasonable employer would have extended the procedure by a day is a value judgement. What, however, the three paragraphs above demonstrate is a finding by the Tribunal that the Respondent could not continue to keep the Claimant on, while continually absent from work.
42. That, it seems to us, is a finding in favour of the Respondent and, as a matter of substance, what it leaves is the manner in which it carried out the dismissal, and by manner it seems to indicate the procedure. In this case, some issues of the procedure are set up, but these are within the inefficiency code of the Respondent, and are to do with the exercise of discretion by the Respondent.
43. In our judgment, the Employment Tribunal was dealing with procedural unfairness and not with substance. But if it was (as it said) dealing with both, we hold that the Tribunal failed to apply the correct test, by standing back and asking, in the round, whether this decision fell within the band of reasonable responses of an employer in these circumstances. This includes the decision-making itself and the way in which it was done, that is the procedure.
44. On its own, this decision might have survived, but we do not have confidence in the recording of the Judgment of the Tribunal, particularly its juxtaposition with the errors we have found in the treatment of the disability claim. After all, the claim by the Claimant as to the two substantive grounds (the 2007/2008 appraisal report and his transfer to a new post in 2009, after which he never returned to work) are linked to it.
45. In our judgment the Tribunal has not shown that it has applied section 98(4) and the authorities correctly. We are diffident in overturning a Judgment on unfair dismissal of an Employment Tribunal (see the majority Judgment of Mummery LJ in Brent London Borough v Fuller [2011] ICR 806 CA. Nevertheless, we are confident this is the correct thing to do here, in light of the errors we have found in the Judgment as a whole.
46. As to the matters relating to remedy, it follows that since we set aside the Judgment on disability discrimination and unfair dismissal, the Tribunal's indications on mitigation, contribution and Polkey, must be set aside with it.
47. The Tribunal mentioned harassment but that no longer is part of the case.
48. There will be a controlled remission now of the issues set out in the CMD. For the avoidance of doubt, these will be paragraphs 2(iii), (iv), 4(i) and (ii), 6 and 7. Time bar and justification are relevant. It is common ground that the remission is to a fresh Employment Tribunal. The appeal is allowed.