United Kingdom Employment Appeal Tribunal

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URL: http://www.bailii.org/uk/cases/UKEAT/2011/0293_10_2306.html
Cite as: [2011] UKEAT 0293_10_2306, [2011] UKEAT 293_10_2306

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Appeal No. UKEAT/0293/10/DM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 4 February 2011

Judgment handed down on 23 June 2011

Before

THE HONOURABLE MR. JUSTICE UNDERHILL (PRESIDENT)

MR. P. GAMMON MBE

MS. G. MILLS CBE

MISS. H WILCOX APPELLANT

BIRMINGHAM CAB SERVICES LIMITED RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant

MS. JENNY ANDREWS

of:

a2emc Ltd.

53 Aldin Way

Hinckley

LE10 0GE

For the Respondent

MS. GEMMA ROBERTS

(of Counsel)

Instructed by:

Bates Wills and Braithwaite LLP

2-6 Cannon Street

London

EC4M 6YH

SUMMARY

DISABILITY DISCRIMINATION – Direct disability discrimination

DISABILITY DISCRIMINATION – Reasonable adjustments

UNFAIR DISMISSAL – Constructive dismissal

Claimant, working as a debt adviser, suffers from agoraphobia and travel anxiety – Resigns when Respondent refuses to move her to bureau closer to her home on a guaranteed permanent basis – Tribunal dismisses claim under section 3A (2) of Disability Discrimination Act 1995 (failure to make reasonable adjustments) on basis (a) that Respondent had neither the actual nor the constructive knowledge required by section 4A (3) (b) and (b) that in any event the refusal was reasonable – Claim of direct discrimination dismissed on basis that Respondent’s decision was not on grounds of Claimant’s disability – In so far as constructive dismissal claim based on the same matters, claim dismissed on basis that Respondent had not breached the contract in any relevant respect – Constructive dismissal claim also based on reduction in Claimant’s salary two years previously: as to that, Tribunal holds that in so far as that was a breach Claimant did not resign in response to it.

Held, dismissing appeal:

(1) Tribunal entitled to find that Respondent did not have the necessary knowledge at any relevant time – Eastern and Coastal Kent Primary Care Trust v Grey [2009] IRLR 429 and Secretary of State for Work and Pensions v Alam [2010] ICR 665 explained

(2) Tribunal entitled to find that Respondent’s conduct was not on the ground of the Appellant’s disability

(3) Tribunal decision on constructive dismissal not vitiated by having directed itself by reference to Claridge v Daler Rowney Ltd. [2008] ICR 1262, notwithstanding Buckland v University of Bournemouth [2010] ICR 908 – Tribunal entitled to find Claimant had not resigned in response to salary reduction.

THE HONOURABLE MR JUSTICE UNDERHILL

INTRODUCTION

1. This is an appeal against a decision of an Employment Tribunal sitting at Birmingham, chaired by Employment Judge Dimbylow, dismissing the Appellant’s claims of disability discrimination and unfair dismissal. The Tribunal sat for five days between 30 November 2009 and 2 February 2010. The Judgment and Reasons were sent to the parties on 22 March 2010.

2. Before the Tribunal the Appellant was represented during most of the hearing by counsel; but for the submissions she was represented by her sister, Ms. Rachel Wilcox, who has substantial experience as a representative in social security tribunals. The Respondent was represented by counsel. Before us the Appellant was represented by an employment law adviser, Ms. Jenny Andrews, and the Respondent by Ms. Gemma Roberts of counsel (who did not appear below).

THE FACTS

3. The facts are very fully and clearly set out in the Reasons, making use of, but also summarising and supplementing, a helpful statement of agreed facts provided by the parties. We set out here only the bare minimum necessary for the purpose of this appeal.

4. The Respondent at the material times operated debt advice services at six of its bureaux in Birmingham – City Centre, Castle Vale, Tyseley, Kingstanding, Handsworth and Northfield. The Appellant started employment with it as a debt advice caseworker in September 2002. Her contract provided for her to work at the City Centre bureau.

5. The Respondent’s debt advice services were funded from two sources – the Legal Services Commission (“the LSC”) and the Department of Business Enterprise and Regulatory Reform, through its Financial Inclusion Fund (“FIF”). The LSC was the more demanding of the two. It required that specific employees, with appropriate experience and training, be designated and allocated to the work which it funded. The Appellant was such an employee. FIF did not impose similar requirements, and work funded by it was typically done by less experienced caseworkers. In 2006 the LSC was dissatisfied with the Respondent’s performance and was showing a much greater desire to scrutinise the way in which the work for which it was paying was being done. In due course this culminated in a new contract giving it a great deal more control; but in advance of the new contract the Respondent in mid-2006 renegotiated the terms and conditions of its employed debt advisers, both to effect a reduction in salary and to achieve more efficient working practices. In the latter regard it introduced a clause under which advisers could be required to work at any of its bureaux. The Appellant agreed to the new terms, though she recorded that she was only doing so under protest.

6. The Appellant’s practice until the new terms took effect had been to travel to her work at the City Central bureau by car; but in the light of the pay cut she felt that she could no longer afford the costs of parking. She made an arrangement with her immediate manager under which she could work part of the time at home. The manager had no authority to make that arrangement, and when the Respondent’s CEO, Ms. Davies, learnt of it in February 2007 she countermanded it. The Appellant and Ms. Davies met on 22 February. Ms. Davies asked her why she could not take public transport, but she said that she got anxious travelling and needed to use her own car. Ms. Davies asked if there was an underlying medical condition and the Appellant said that she had never investigated that: the Tribunal observed that that was confirmed by her GP records. In a note of the meeting produced by the Appellant, which the Tribunal was prepared to accept as accurate, Ms. Davies is recorded as saying:

“Not that I know much about it but, even with agoraphobia, aversion therapy can work in 8 to 10 weeks. Get some medical advice! I don’t want to lose you, I think you’re a very good caseworker”.

The Appellant asked if she could transfer to a bureau nearer her home where she did not need to pay to park. Ms. Davies said that there was a vacancy at Tyseley, but the Appellant said that she would prefer Handsworth or Kingstanding. Ms. Davies said that she was unclear whether those bureaux had LSC franchises. The Appellant wrote following the meeting confirming her request to move to a bureau nearer home where there were no parking costs. She did not mention her travel anxiety.

7. There was no immediate response to the Appellant’s request, but at a meeting on 15 May 2007 she was told that she would be required to work from Tyseley as from the following week, though the possibility of working two days a week at Castle Vale was also floated. The following day she went off sick, her certificate referring to “work-related stress”.

8. The Appellant never returned to work thereafter. Over the rest of 2007 and into 2008 the formal communications between the parties were in the context either of the Respondent’s attendance management procedures or of a grievance raised by the Appellant in June about various matters, including the requirement that she move to Tyseley. In the early stages the Appellant said nothing about any travel-related anxiety, about which she had still not consulted her GP. She told the Tribunal that she was embarrassed about the problem and that she “did not want the respondent to make a decision based on my travel anxiety”. She also accepted that she tried to delay attempts by the Respondent, in accordance with its procedures, to obtain a medical report.

9. On 9 October the Appellant met her Area Manager, Mrs. Felton, who told her that she was no longer required to work at Tyseley. It was suggested that she might work on FIF-funded work at Winson Green prison; but the Appellant said that she could not do so because it was too far for her to travel.

10. The Appellant eventually agreed to the Respondent obtaining a report from a cognitive behavioural therapist, Mr. Brooks, to whom her GP had referred her. His report was received on 19 November 2007. He confirmed that the Appellant was suffering “a great deal of anxiety in relation to travel generally and also to heights, both of which can trigger off high levels of anxiety and indeed sometimes a panic response”. He recommended that she “be allowed to work at a venue that involves a relatively short and straightforward journey by car”. Mr. McDonnell, the new Area Manager, sought and received further clarification from Mr. Brooks in early 2008.

11. There were meetings between the Appellant and Mr. McDonnell in February and March 2008 and with Mr. Farnham, the Respondent’s Corporate Services Manager, in April. The position crystallised that the Appellant was only willing to return to work at Handsworth or Kingstanding; that the Respondent was willing to allow that for the time being but was not prepared to guarantee that the arrangement would be permanent, since the exigencies of the LSC contract meant that it might need her services elsewhere; but that the Appellant was only prepared to work at those bureaux on the basis that the arrangement was permanent. The Respondent offered to explore the possibility of obtaining free taxi journeys to work for a three-year period under the Government “Access to Work” scheme, but the Appellant said that this would not reduce the journey times or her travel anxiety. It also offered her administrative work at a fixed location: the Appellant’s response was that she found that offer “insulting”.

12. On 18 June the Appellant met Mr. O’Donnell to discuss the potential termination of her employment on capability grounds. The Respondent was anxious to obtain its own advice on the Appellant’s condition. She was not prepared to visit the occupational health consultants with whom the Respondent had an existing relationship, City Doc, because they had offices on an upper floor and, as mentioned by Mr. Brooks, she had a fear of heights. City Doc nevertheless produced a report, dated 1 August, based only on her medical notes. The author stated that “there is no substantial evidence of a psychiatric diagnosis and … no medical grounds … for either protracted absence or alternative to [the Appellant’s] travel arrangements”. The Appellant was seen by the Occupational Health Service of Sandwell Borough Council on 28 August. Its report, dated 1 September, was somewhat equivocal. It suggested that the Appellant would need a full psychiatric assessment “if she has travel phobia as she claims”. But it also described her problems in travelling as “more a capability issue than medical” and referred to “work issues medicalised”. In truth, neither report was particularly clear or helpful.

13. In the meantime, consideration had been given to whether, since the problem about guaranteeing that the Appellant could work permanently at Handsworth or Kingstanding lay in the requirements of the LSC contract, she might be able to undertake FIF-funded work at one of those bureaux. A Ms. Hussain did FIF work at Handsworth. Mr. McDonnell approached her in August 2008 and asked if she would be prepared to move (it seems, to Winson Green) in order to allow her job to be given to a colleague with a disability. She declined to agree.

14. The Appellant and Mr. McDonnell met again on 9 October 2008 to discuss the situation in the light of the reports from City Doc and Sandwell. The Appellant was anxious to see the letters of instruction which the Respondent had sent to those bodies. Those were supplied following the meeting.

15. On 20 October Mr. McDonnell wrote to arrange a further meeting. The letter said (so far as material):

“The purpose of this meeting is to explore with you whether you will consider returning to work in light of the responses received from Occupational Health. As you are already aware, the Bureau has discussed with you a number of possibilities designed to assist your return to work, including:

(a) returning to work at either the Kingstanding or Handsworth sites on a trial basis but with no guarantee of either site as a permanent base for you;

(b) returning to work in the vacant FIF case worker post at Winson Green prison

(c) taking on a position within the admin support team at a fixed location;

(d) taking advantage of Access to Work assistance – subsidised taxi fares for up to a period of 3 years at the sites at which you may be required to work,

You have been absent from work since 16^th May 2007. Although we are sympathetic to the difficulties your anxiety causes for you, the Bureau is unable to support indefinitely your absence from work. We therefore ask that you again consider the proposals above, particularly in light of the guidance provided by Occupational Health.

Again, however, you must be aware that if you are still not prepared to return to work, there may be no alternative but to terminate your employment on capability grounds. A possible outcome of the meeting therefore includes dismissal.

16. Before the proposed meeting could take place, the Appellant on 5 November 2008 wrote to the Respondent. She said that the background information supplied to the occupational health advisers characterised her as “unconscientious, a selfish lazy and thoughtless employee and … a liar”. She said that that was “a complete breach of mutual trust and confidence” and that she was resigning forthwith in response to that breach and to the Respondent’s continuing disability discrimination. She also lodged a further grievance, which was in due course considered and dismissed.

THE PROCEEDINGS

17. The Appellant brought two sets of proceedings. At the end of June 2008, i.e. while she was still employed, she presented a claim complaining that her treatment up to that date constituted disability discrimination. On 9 April 2009 she presented a claim complaining of further discrimination following the date of the first claim and of unfair (constructive) dismissal. The claims were in due course consolidated.

18. Pursuant to directions made in the first proceedings the parties jointly commissioned a report from a consultant psychiatrist, Dr. Briscoe, on the issue of whether at the material times the Appellant was suffering from a disability. It was his opinion that she had since December 2005 been suffering from agoraphobia, which had a serious impact on her mobility, and that that condition was continuing. In the light of that report the Respondent conceded that the Appellant was at all material times a disabled person.

19. At a CMD on 1 July 2009 the parties were directed to agree a list of issues of fact and law. This task was evidently approached very conscientiously. The parties agreed five “core legal issues”, as follows:

“1. Whether the Claimant has been treated less favourably on the grounds of her disability;

2. Whether the Respondent has applied a provision, criterion or practice which placed the Claimant at a substantial disadvantage compared to persons who are not disabled; and if so;

3. Whether the Respondent has failed to take all such steps, as are reasonable in all the circumstances of the case for the Respondent to have taken, in order to prevent the provision, criterion or practice having that effect;

4. Whether the Claimant was constructively dismissed from her employment; and, if so;

5. Whether the circumstances of this dismissal were unfair.”

Issue 1 thus raises a claim of direct discrimination, contrary to section 3A (5) of the Disability Discrimination Act 1995. Issues 2 and 3 relate to whether the Respondent discriminated against the Appellant contrary to section 3A (2) by failing to make adjustments required by section 4A. Issues 4 and 5 raise the claim of unfair dismissal.

20. The specific legal and factual sub-issues arising under each of the “core” issues were also agreed: we will return to these so far as necessary below. As already mentioned, the parties produced a 53-point statement of agreed facts, which the Tribunal was able to incorporate wholesale into its Reasons.

21. The agreement of the facts and issues must have involved a lot of work and, we are sure, some give-and-take on both sides, and the parties are to be commended for doing so much to try to make the task of the Tribunal more manageable. It should be said, however, that where the parties agree issues the tribunal is not required to accept uncritically every detail of the formulation. The sub-issues as drafted here did not always encapsulate the relevant law accurately or economically, and the Tribunal’s strict adherence to the issues in the form served up to it has at some points made its reasoning less clear than it should have been.

THE STATUTORY PROVISIONS

22. Section 1 of the 1995 Act defines “disability” as follows:

Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

There is no need for present purposes to set out the terms of Schedule 1.

23. Section 4 proscribes various forms of discrimination against disabled persons in employment. We need not set out its terms here. “Discrimination” is defined in section 3A as follows:

“3A Meaning of “discrimination”

(1) 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.

(2) For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.

(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.

(4) But treatment of a disabled person cannot be justified under subsection (3) if it amounts to direct discrimination falling within subsection (5).

(5) A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.

(6) If, in a case falling within subsection (1), a person is under a duty to make reasonable adjustments in relation to a disabled person but fails to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with that duty.”

24. The “duty to make reasonable adjustments” referred to at sub-section (2) derives from section 4A, which reads (so far as material):

“(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) …

(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—

(a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the employment; or

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

We will refer to knowledge which the employer “could reasonably be expected to have had” within the meaning of section 4A (3) (b) as “constructive knowledge”. (We will also refer to the second of the two things of which knowledge is required under (b) as being that the employee is disadvantaged by his or her disability – though strictly speaking that telescopes the terms of sub-section (1).)

25. The requirements of section 4A are glossed at section 18 of the Act, but we need not set out its terms here. Section 17A (1C) provides for the “reverse burden of proof” in terms that are too familiar to require to be set out.

26. In principle, section 3A provides for three distinct kinds of disability discrimination – “disability-related” (sub-section (1), as glossed by sub-sections (3), (4) and (6)); failure to make reasonable adjustments (sub-section (2)); and “direct” (sub-section (5)). However, the effect of the decision of the House of Lords in London Borough of Lewisham v Malcolm [2008] IRLR 700 has been that the scope of disability–related discrimination has been for all practical purposes reduced so that it is co-extensive with direct discrimination: see the recent summary by Elias LJ in J.P. Morgan Europe Ltd v Chweidan [2011] EWCA Civ 648, at paras. 4-9, (also City of Edinburgh Council v Dickson (UKEATS/0038/09), at paras. 31-33).

THE REASONS

27. The Tribunal’s Reasons are clearly-structured and thorough. The section containing its conclusions and supporting reasoning begins at para. 78. In summary:

(1) Disability. At para. 79 of the Reasons the Tribunal said this:

“We conclude that the respondent knew of and could only reasonably be expected to have known that the claimant had, during her employment, a disability, and also in particular the disability of agoraphobia when it received the psychiatric report prepared by Dr. Briscoe in January 2009. Prior to that time, we have regard to the conduct of the parties. As we have set out in our fact finding, the claimant had not discussed this matter with her GP and the notes would have revealed nothing about it. The claimant accepted that she had delayed in agreeing to have a medical report prepared. She was reluctant to repeat and divulge information about her condition. No report was obtained from the claimant’s GP and reference was made to the GP in a very short way by Mr. Brooks in his report. That report was not detailed enough to give the respondent notice of the disability. It was quite entitled to seek further information, and the details that were given later did not advance their state of knowledge. Whilst there was a delay before the respondent then obtained its OH reports, the contents of then did not plant in the minds of the officers of the respondent that the claimant was disabled. It is possibly regrettable that there was no joint instruction of Mr. Brooks or the two OH practitioners. There may be some criticism of the respondent in the delay and possibly not escalating matters to the extent that on its own volition it sought assistance and advice from a consultant psychiatrist. Once this was done later the issue resolved immediately. However, we cannot look at this is a vacuum. The fact was the claimant was very reluctant to give away her true medical history and condition. It would be speculative to say that she would have agreed to a psychiatrist examining and reporting her before the parties agreed to this step in the face of the proceedings and the requirements of proper case management in a DDA claim.”

That is not, perhaps, perfectly expressed; but it is reasonably clear that it is intended as a finding that the Respondent did not know, and could not reasonably have been expected to know, that the Appellant suffered from agoraphobia, or any disability, until it received Dr. Briscoe’s report, i.e. at any time prior to her resignation.

(2) Direct Discrimination. The parties had agreed seven sub-issues under the heading of direct discrimination, though it is debatable how many of the points raised really belonged under that head. At paras. 80-90 the Tribunal went through the seven issues and held that there had been no direct discrimination by the Respondent.

(3) Failure to make reasonable adjustments. The parties had identified eight sub-issues under this head, though again it may be debatable how accurately these identified the essential issues in law. At paras. 91-97 the Tribunal considered those sub-issues and held that there had been no breach of the duty under section 4A.

(4) Unfair dismissal. The claim of unfair dismissal is addressed at paras. 98-104 of the Reasons. The Tribunal concluded at para. 103 that the Appellant had failed to prove any breach of contract on the part of the Respondent, or in any event any breach of sufficient seriousness to entitle her to resign. Accordingly she had not been dismissed.

(5) At paras. 105-107 the Tribunal gave a short summary of its conclusions as follows:

“105. In relation to the disability discrimination claim, and in particular the direct disability claim, the claimant did not establish that she had been treated less favourably than a real or hypothetical comparator. The claimant failed to prove such facts from which the tribunal could conclude that the treatment was on the grounds of the claimant’s disability. Had we been wrong about that and the claimant had reversed the burden of proof, having heard all of the evidence, we would have gone on to have found that the respondent had proved that it did not treat the claimant less favourably in any sense whatsoever on the grounds of the claimant’s disability. The claim for direct discrimination fails and is dismissed.

106. With regard to the claim for failure to make adjustments, the PCP in relation to the mobility clause did not place the claimant at a substantial disadvantage in comparison with non-disabled persons. The claim failed at that stage. Again, the claimant did not get past the first stage test in Igen and prove such facts which reversed the burden of proof from which we could conclude that the treatment was on the grounds of the claimant’s disability. The respondent offered a number of reasonable adjustments which were not acceptable to the claimant. The one significant adjustment that she wanted the respondent to make was not reasonable. This part of the claim fails and is dismissed.

107. The unanimous judgment of the tribunal is that the claims for direct discrimination, failure to make reasonable adjustments contrary to the DDA and the claim for constructive unfair dismissal are all not well-founded, fail and are dismissed.”

The summary is perhaps rather too condensed for its own good, and some fault could be found with how it is expressed. But what matters is the detail of the reasoning in the preceding paragraphs.

THE APPEAL

28. The Notice of Appeal was amended following the hearing under rule 3 (10) (of the Employment Appeal Tribunal Rules 1993) at which the appeal was permitted to proceed. As amended, it raises six grounds, as follows:

“It is submitted that the tribunal:

a) Erred in law in determining the issue of reasonable adjustments

b) Erred in law/made a perverse finding of fact in determining whether the respondent knew or could reasonably have known that the claimant was disabled at the material times

c) Made a finding of fact not open to it and failed to apply the correct legal test and as a result erred in its judgment as to the ‘comparator issue’

d) Applied the incorrect burden of proof with regards the issues

e) Erred in law in determining the issue of constructive dismissal and as a corollary of the above points erred in its finding with regards constructive unfair dismissal

f) …

g) Made a perverse finding of fact that the claimant would not have accepted an offer of FIF work.”

Those grounds as pleaded do not seem to us to follow an entirely logical sequence. We prefer to take the three claims – failure to make reasonable adjustments; direct discrimination; and constructive dismissal – in turn and deal with the particular grounds of appeal in that context.

A. FAILURE TO MAKE REASONABLE ADJUSTMENTS

29. We consider this part of the appeal under two heads – (1) knowledge; and (2) paras. 91-97 of the Reasons.

(1) KNOWLEDGE

30. As set out at para. 27 (1) above, the Tribunal found at para. 79 of the Reasons that the Respondent neither knew nor could reasonably be expected to have known at any material time that the Appellant was disabled. Ms. Roberts submitted before us that it necessarily followed that, unless that finding could be impugned, any claim under section 3A (2) of the 1995 Act must fail, since section 4A (3) provides that an employer is under no duty to make adjustments if he has neither actual nor constructive knowledge that the employee was disabled and disadvantaged by his disability. She accepted that on that basis it was unnecessary for the Tribunal to have performed the exercise at paras. 80-90 of the Reasons, but she suggested that it may have felt obliged to resolve the issues as formulated by the parties; in any event, even if the Tribunal had failed to appreciate the full implications of the findings which it had made on knowledge that was no reason why they should not be given their full effect.

31. Ms. Andrews’ response was twofold – (a) that the Tribunal’s finding at para. 79 of the Reasons was wrong in law; and (b) that in any event it did not fall within the terms of section 4A (3) – in this regard she relied on the decision of this Tribunal in Eastern and Coastal Kent Primary Care Trust v Grey [2009] IRLR 429.

32. As to (a), the Appellant’s essential point was that there was from early 2007 onwards sufficient information known to the Respondent either for it to have concluded for itself, or for it to have taken steps which would have led to it being advised, that she was suffering from a mental impairment which had a substantial long-term adverse effect on her ability to carry out a normal day-to-day activity, namely to travel to work; and thus that she suffered from a disability as defined at section 1 of the 1995 Act. It was unnecessary that it should have been able to attach the label “agoraphobia” to that impairment, though in fact if it had sought at the right time specialist advice of the kind eventually received from Dr. Briscoe, that diagnosis would have been made: Ms. Andrews referred in this connection to H.J. Heinz Co. Ltd. v Kendrick [2000] ICR 491. Ms. Andrews relied on the findings that that at the Appellant’s very first meeting with Ms. Davies, in February 2007, she referred to travel anxiety, and that Ms. Roberts herself on that occasion used the term “agoraphobia”. Thereafter the term “travel anxiety” was repeatedly employed in the meetings and correspondence between the parties, and importantly, by Mr. Brooks. Ms. Andrews also relied on the contents of Mr. Brooks’ report.

33. We agree with Ms. Andrews that as a matter of principle if the Respondent knew, or could reasonably have been expected to know, that the Appellant suffered from an impairment within the meaning of the Act it did not matter that it had no precise diagnosis. (We are not sure that Heinz v Kendrick is directly in point, since that was concerned with the question of the employer’s “reason” for acting, for the purpose of what is now section 3A (1); but that does not matter so far as the question of substance is concerned.) But we do not think that the Tribunal treated the availability of a precise diagnosis as the legal touchstone. The finding at the start of para. 79 explicitly distinguishes between knowledge “that the claimant … had a disability” and knowledge that she had “also in particular the disability of agoraphobia” [our emphasis]”; and the remainder of the paragraph refers generally to knowledge that the Appellant was disabled. As we read the Reasons, the Tribunal was focusing on when the Respondent first knew, or should have known, that the anxiety of which the Appellant complained constituted a mental impairment with the characteristics identified in section 1.

34. On that basis, the real question is whether the Tribunal was entitled on the evidence before it to conclude that the Respondent had neither actual nor constructive knowledge of the specified matters. We have not found this altogether straightforward. We are not particularly troubled by Ms. Davies’ early reference to agoraphobia. The Tribunal found in terms that this was no more than a “speculative comment by a lay person” (Reasons para. 59); and that is a factual conclusion to which it was entitled to come. Nor do we have any difficulty with the proposition that for the rest of 2007 there was nothing else that gave it either actual or constructive knowledge. The Appellant was herself keen to avoid any suggestion of a mental health problem. But we do see the force of the argument that the position was changed by the receipt of Mr. Brooks’ report and that thereafter, or in any event over the following months, the Respondent must, or in any event should, have appreciated that the Appellant’s “travel anxiety” – the existence of which it never disputed – amounted, whatever the precise diagnosis, to an impairment which substantially affected her mobility on a long-term basis. However, the essence of the Tribunal’s reasoning, as it appears at para. 79, is that it would be wrong to find actual or constructive knowledge on the part of the Respondent before such time as it should reasonably have obtained authoritative medical advice. In the end we have concluded that that was a legitimate approach in the circumstances of this particular case. It is important not to lose sight of the fact that, while (as we have said above) the statute does not require that the employer should know (actually or constructively) the precise diagnosis of a putative disability, it does require that he should know (actually or constructively) that the employee is suffering from a mental impairment whose adverse effects are both substantial and long-term. The Appellant’s condition was on any view an unusual one; and, without in any way impugning her good faith, it was not easy to disentangle the effects of any mental health condition from the effects of unhappiness about her working conditions more generally. We can see why the Tribunal thought it reasonable for the Respondent not to be treated as “knowing” the requisite matters until it had obtained a medical opinion. Unfortunately, but through no fault of the Respondent, the obtaining of an occupational health opinion took some time; and when first the opinion of City Doc and then that of Sandwell were obtained they did not confirm the existence of a disability within the meaning of the Act. The question thus becomes simply whether a definitive psychiatric opinion should have been sought sooner. The Tribunal thought that the omission to do so was reasonable in the light of the Appellant’s own avowed reluctance to acknowledge a psychiatric problem. Even if we might have taken a different view on this last point, or indeed have thought that the Respondent might reasonably have appreciated the Appellant’s condition earlier, we must recognise that the question of what the Respondent knew or should reasonably have been expected to know is one for the factual assessment of the Tribunal. It carried out that assessment conscientiously and we cannot say that its conclusion was perverse.

35. We turn to Ms. Andrews’ second point. This, as we have said, depends on the decision of this Tribunal in Grey. That was a case in which a nurse who suffered from dyslexia complained that adjustments for the effects of that disability were not made in the conduct of a job interview. The employment tribunal upheld that complaint. The question of knowledge under section 4A (3) was in issue. The tribunal found that the respondent was aware of the claimant’s dyslexia but it made no finding on whether it knew, actually or constructively, that she was disadvantaged by it at the interview. This Tribunal, Silber J. presiding, held that that was an error of law. At paras. 11-15 (pp. 431-2) it said:

“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.”

The case was remitted to the employment tribunal for a finding on the question of whether the respondent knew that the claimant was disadvantaged by her disability.

36. Ms. Andrews relied on Silber J’s statement that it was necessary for an employer invoking section 4A (3) (b) to prove each of the four elements identified. She submitted that even if, as the Tribunal found, the Respondent in the present case had no actual or constructive knowledge of the Appellant’s disability, it had not been shown that it had no knowledge of whether she was disadvantaged by it – i.e. Silber J’s “matter (ii)” had not been satisfied.

37. With all respect to Ms. Andrews, that submission makes no sense. The disadvantage referred to in section 4A (1) is, necessarily, a disadvantage arising from the employee’s disability (because, that is, the “PCP” or physical feature in question creates a disadvantage for someone with that disability) – yet if the Respondent did not know that the Appellant was disabled how could it know that she was disadvantaged by the disability ? The submission depends on divorcing the passage quoted from Grey from the context of the issue in that case. The point being made there was that even if the employer knew (actually or constructively) of the disability he was still not liable unless he knew (actually or constructively) that the employee was disabled by it. This was clearly explained by Lady Smith in the more recent judgment of this Tribunal in Secretary of State for Work and Pensions v Alam [2010] ICR 665: see at paras. 14-20 (pp. 670-2). The commentators seem to have got into a rather a pother about these cases. Alam is described in Harvey on Industrial Relations and Employment Law as having “disapproved” Grey (see paras. L [405] and Q [953.02]); and Ms. Andrews in her skeleton argument invited us to “give guidance as to which competing EAT decision is correct”. In our view there is no conflict between the two cases, properly understood. It seems to us perfectly clear, in context, what was meant in Grey, and we can see no room for any real doubt about the effect of section 4A (3) (b). However, to spell it out, an employer is under no duty under section 4A unless he knows (actually or constructively) both (1) that the employee is disabled and (2) that he or she is disadvantaged by the disability in the way set out at in section 4A (1). As Lady Smith points out, element (2) will not come into play if the employer does not know element (1).

38. In our view, therefore, the Tribunal was entitled to find that the Respondent did not at any material time know (actually or constructively) that the Appellant was disabled. It follows that the claim under section 3A (2) could not succeed. That means that the Appellant’s challenge to the conclusions in paras. 91-97 of the Reasons is academic. We will nevertheless consider it in case our conclusion on this aspect is wrong.

(2) REASONS PARAS. 91-97

39. These paragraphs address the issues raised by the parties under the heading “reasonable adjustment”. Those issues ignore the question of knowledge which arises under section 4A (3), so that in effect they are concerned with whether the Respondent would have been in breach of the duty under section 4A if it had the requisite knowledge. The drafting of the sub-issues is, we have to say, confused and confusing, and this confusion is reflected in the Reasons. As already observed, although it was right for the Tribunal to show respect for the parties’ formulation of the issues, it was not bound to accept it, and a more critical analysis would have avoided some difficulties. That being so, we will not set out either the issues or the Tribunal’s reasoning in full. In essence, the case being made was that the requirement that the Appellant, as an employee doing LSC-funded work, should be prepared to move to different bureaux from time to time was a provision criterion or practice which put her at a disadvantage because of her agoraphobia – and specifically the travel anxiety which it caused – and that the Respondent should have adjusted that requirement by guaranteeing that she could work permanently at Handsworth or Kingstanding.

40. The Tribunal addressed that case at paras. 95-97 as follows:

“95. … During the course of this Hearing evidence was led about (i) consideration being allowed to the claimant to work solely from one of the offices she had stated (Kingstanding or Handsworth) on a permanent basis, and (ii) consideration of allowing the claimant to work flexibly between the two offices on a permanent basis. The respondent was not prepared to offer these adjustments. They were certainly considered by the respondent. If the respondent had made these adjustments then they would have removed the disadvantage in that the claimant would no longer be bound by the PCP which she objected to and could not forced to work from any of the other offices. We have regard to Section 18B. We conclude that it was no practicable for the respondent to take such a step. We conclude that it would not be practicable to have the claimant based at an office in Handsworth and/or Kingstanding where the LSC contract had been fulfilled before the end of the financial year and the claimant faced the prospect of remaining there without any work to do which would be remunerated under that particular contract. The claimant was an experienced caseworker. The LSC contract terms had altered. The claimant’s proposal that files be opened at other offices and the work transferred to her was not feasible on the evidence before us and would have been outside the terms of the LSC contract with the respondent. The suggestion that clients be referred to the office where she was working from other parts of Birmingham was not a reasonable suggestion. The nature of the clients seeking advice from the respondent was such that to a large extent they would seek advice from their nearest geographical location. The claimant was not accepting that the contract was client led and believed that it should have been adjusted to put her at the forefront. Even if the respondent had been willing to change its arrangements over where new clients were introduced and where the work was carried out, there may have been some disruption to the activities, which would have had financial and other resource implications, for example in the cost of transporting files and documentation. There may have been additional transport costs for the respondent’s client. We did not receive any evidence as to the availability to the respondent of financial or other assistance with respect to taking this step and so we cannot assess any such impact upon it. We could not perceive the LSC being willing to pay the claimant’s salary whilst she was not undertaking work within its contract with the respondent. Ms. McDonnell tried to assure the claimant that the management projections would be able to indicate whether or not a move was required with some 2 months notice. This was gauged by reference to the new starts that were undertaken in relation to the LSC contract. Mr. McDonnell encouraged the claimant to have a trial period so that he could ascertain how accurate that would be. The respondent was closely monitoring progress on the LSC contract because it did not want to fall into the same trap as it experienced previously when there was the substantial claw back. The claimant was unwilling to accept any sort of trial period unless the mobility clause was removed from her contract. We have had regard to the nature of the respondent’s activities and the size of its undertaking. There can be no dispute that it was in a precarious financial position and subject to the very stringent terms of its contract with the LSC. We do wonder why the respondent did not seek some professional advice form an independent source to find out if there were any other reasonable adjustments including sources for contributions to any potential revenue shortfalls arising out of this particular adjustment. However, the claimant made no positive case about this particular issue.

96. In looking at the practicability of the step under consideration, the fact is that the respondent was, in effect, offering a temporary adjustment to accommodate what the claimant was seeking. Had the claimant accepted it on that basis then the picture may have cleared so as to enable an adjustment to have been made on a permanent basis. We find that there would have been a lead in time of some two months before any change would have become effective.

97. When we put this matter under the microscope, we conclude that it was not a reasonable adjustment. We have looked at the overall picture very carefully. The respondent is a relatively large employer, but it did have financial issues to consider, problems which it needed to address and which had caused serious trouble in the recent past. It had considered and offered redeployment to an administrative role at one case in the City Centre office or a FIF contract caseworker job at one base in Winson Green. It had offered the adjustment sought on a temporary basis exactly where the claimant wanted and this had been rejected by the claimant. We also acknowledge the fact that whilst the respondent took the claimant down the AMP in order to try to get her back work, it did not do so in hasty fashion. On the contrary, the procedure was quite gentle and lengthy. The wording was sometimes more aggressive than the claimant may have wanted to see, for example describing her absence as “misconduct” but nevertheless it was entitled to use the AMP as a means to encourage the claimant to return to work. To remove the mobility clause immediately and permanently so that the claimant only worked from one office or between two offices of her choice as an LSC caseworker was not a reasonable adjustment on the facts of the case.”

41. Ms. Andrews’ primary submission as regards that reasoning, as helpfully clarified in her oral submissions, was that the Tribunal had failed to have regard to the burden of proof. In particular she referred to the passage in para. 95 where the Tribunal said that it had heard no evidence of whether the Respondent could have sought financial assistance to meet the costs of adjusting its arrangements to meet the Appellant’s needs, and to its observation at the end of the paragraph that the Appellant had made no positive case about this aspect. She submitted that the Tribunal was in those passages putting the burden of proof on the Appellant to prove that the adjustment in question was reasonable rather than on the Respondent to show that it was not.

42. We do not accept that submission. The adjustment in question was a guarantee to the Appellant – by way of derogation from the mobility requirement negotiated in 2006 – that she would not be required to work elsewhere than at Kingstanding or Handsworth. The Tribunal rightly treated the burden as being on the Respondent to prove that it was not reasonable for it to be required to give that guarantee; and it held that that burden was discharged. In the passages relied on by Ms. Andrews it was speculating as to whether the difficulties on which the Respondent relied might have been met in another way. But the fact that such a possibility might have existed was not by itself sufficient to require the Respondent to address it. The fact that the burden of proof is on a party does not require him to meet every possible point. Some points clearly need to be addressed from the start, but others will only require attention if they are raised. In Project Management Institute v Latif [2007] IRLR 579 this Tribunal (Elias P presiding) made it clear that the burden of proof is only on an employer to prove that a particular adjustment was not reasonable if there is a sufficient indication as to what that adjustment is (see para. 53, at p. 583). The same must go for any particular counter-argument. Whether a point has been sufficiently raised will depend on the case. In our view all that the Tribunal was saying here is that the possible answer to the Respondent’s case which it identified had not been raised and accordingly did not undermine the case that was otherwise proved. That is unobjectionable. As formulated by the Tribunal, the point is simply too speculative and general to require to be addressed by the Respondent. Indeed, that being so, it might, with all respect, have been better for the Tribunal not to refer to it all. But what matters is that it placed the burden of proving why the proposed adjustment was not reasonable on the Respondent, and its carefully considered conclusion on that issue cannot be impeached.

43. The Tribunal does not in these paragraphs consider whether it would have been a reasonable adjustment for the Respondent to insist on moving Ms. Hussain from Handsworth to Winson Green in order that the Appellant could be given her role as the FIF caseworker there (in relation to which mobility was not a requirement) – in shorthand, to “bump” her. Although the Notice of Appeal only raises this question very opaquely it was at the forefront of Ms. Andrews’ oral submissions before us that the Tribunal erred in law by not addressing that question. The extent, however, to which this issue was raised in the Tribunal is not straightforward. The parties had, as we have said, agreed in considerable detail the issues which the Tribunal was required to determine. The failure to bump Ms. Hussain was not raised explicitly in any of the eight sub-issues under the heading of “reasonable adjustments”. (There was, it is true, following the questions which raised specifically whether the Appellant should have been allowed to do LSC-funded work permanently from Handsworth or Kingstanding, a catch-all question (no. 6) which asked “what other adjustment were considered and/or offered … [and] … whether they were reasonable”; and Ms. Andrew submitted that that covered the possibility of moving Ms. Hussain. But if that were all that was said it would, in the light of Project Management v Latif (above), be hard to see that it would have sufficed to raise the issue.) The position of Ms. Hussain was raised in the list of issues, but under a different head, namely “direct discrimination” (see item 3).

44. Thus far, though it might seem odd that the Appellant did not raise the failure to bump Ms. Hussain as a breach of the duty under section 4A, the Tribunal could hardly be blamed for dealing with the case as presented to it. However, that is not the end of the story. The Appellant’s sister produced impressive written closing submissions, explicitly replacing the earlier skeleton argument of counsel (which we have not seen); and these do clearly identify the bumping of Ms. Hussain as an adjustment which should have been made (see para. 43), claiming that this had become apparent from “new information” provided by the Respondent. The Tribunal explains at para. 69 of the Reasons that it was not taken through these submissions orally but was invited to read them later, since Ms. Wilcox wanted to focus on points in rebuttal. The Tribunal’s summary of her oral submission shows that she did address the position of Ms. Hussain (Reasons paras. 72-73); but it is not entirely clear from the summary how the Tribunal understood the point being made.

45. It is pretty clear that the reason why the Tribunal did not deal with the bumping of Ms. Hussain as a reasonable adjustment was that it was – in principle, commendably – structuring its reasons by reference to the issues drafted by the parties. It went in paras. 91-97 through the eight sub-issues and did not mention Ms. Hussain because she was not mentioned in them. It did deal, carefully and in detail, with the direct discrimination case cased on the failure to move Ms. Hussain (see para. 82 of the Reasons); but that was a different issue. The question is whether it should have treated Ms. Wilcox’s written closing submissions, and perhaps also her oral submissions, as introducing, even if belatedly, a new point with which it now had to deal. That is not easy to judge from our vantage point. We certainly cannot be sure what the Tribunal would have decided on the issue. It may be that if the point were live, we would have had to remit the case to the Tribunal to find out why the point was not dealt with and, if it should have been, to give a reasoned decision on it. Ms. Andrews pointed out that at para. 82 of the Reasons, i.e. when it was dealing with the direct discrimination case, it appears to have questioned whether the Respondent did enough to persuade – or, it may be, compel – Ms. Hussain to move; but the passage is not very clear and was not directed to the issue under section 4A, and we do not think that we can assume what conclusion it would have reached if the question had been squarely considered as one of reasonable adjustment. Ms. Andrews also referred us to the recent decision of this Tribunal (Cox J presiding) in Chief Constable of South Yorkshire Police v Jelic (UKEAT/0491/09/ZT); but that lays down no general principle about “bumping”. But the fact is that the issue is not live.

46. We should mention for completeness that in the course of para. 82 of the Reasons the Tribunal made a finding that even if Ms. Hussain had been willing to move the Appellant would not have taken her position, because she would not have been prepared to do FIF work. If that finding stood, it would be fatal to any claim (on this aspect) under section 3A (2); but it is contended in the Amended Notice of Appeal (paras. 97-106) that there was no sufficient basis for it. We need not seek to resolve that issue.

CONCLUSION ON REASONABLE ADJUSTMENT APPEAL

47. For the reasons given above we dismiss the appeal against the Tribunal’s rejection of the claim under section 3A (2).

(B) DIRECT DISCRIMINATION

48. It is necessary to start with the issues as drafted by the parties. These defined the direct discrimination case in two ways:

(a) It was the Appellant’s case that the Respondent’s insistence on maintaining the right to move her, if necessary, constituted less favourable treatment than that accorded to Ms. Hussain, who was not moved from Handsworth in order to make room for her; and that that treatment was on the grounds of her disability – see item 3 in the relevant part of the list of issues.

(b) At item 5 in the relevant part of the list seven particular criticisms of the Respondents’ conduct were identified – e.g. requiring the Appellant “to discuss her condition with numerous different managers”, failing to accept that she was disabled on the basis of Mr. Brooks’ report; and failing to deal adequately with her grievance – and the issue is raised whether the matters thus complained of constitute direct discrimination.

49. The Tribunal loyally went through each of those issues at paras. 80-90 of the Reasons. In relation to (a), it found at para. 82 that the Appellant had indeed been less favourably treated than Ms. Hussain but that:

(i) the treatment was not on account of her disability;

(ii) in any event Ms. Hussain was not an appropriate comparator for the purpose of section 3A (5) because her circumstances, as a FIF worker, were materially different: it referred in this connection to a Ms. Leach, an LSC caseworker who, according to the Respondent, had been dismissed for refused to move sites in breach of her mobility clause.

In relation to (b), it found that some of the acts complained of did not occur; but in any event it concluded generally at para. 90:

“The claimant has failed to establish that any of the seven items referred to paragraphs 83 to 89 above amount to less favourable treatment individually and/or collectively on the ground of her disability. Any real or hypothetical comparator would have been dealt with in the same way. The comparator is a person not having the claimant’s particular disability whose relevant circumstances including their abilities are the same as those of the claimant.”

50. The Amended Notice of Appeal challenges that reasoning on two grounds – one relating to the issue of the appropriate comparator and the other to the burden of proof. We take them in turn.

COMPARATOR

51. Most of the pleading under this head consists of a complaint that the Tribunal should not have relied on anything said about Ms. Leach because it had heard no evidence about her and that she had first been referred to by counsel in closing submissions. There is also a submission based on what was said to have been an acceptance by one of the Respondent’s manager that a wheelchair user who could not access all the sites would not have been dismissed.

52. These points, with great respect to Ms. Andrews, cannot succeed. It has been repeatedly emphasised in the authorities – see most recently Chweidan (above), at para. 5 – that debates about the identity or characteristics of the correct comparator are often unhelpful and can distract from the essential question of whether the treatment complained of was on the proscribed ground, applying the familiar jurisprudence (most recently summarised in Martin v Devonshires [2011] ICR 352, at paras. 34-36 (pp. 367-371)). In the present case there was no basis on which the Tribunal could have found that the treatment complained of was “on the ground of” the Appellant’s disability. In the first place, it did not, on the Tribunal’s findings, know that she was disabled. But in any event there was no reason whatever to suppose that the Appellant’s agoraphobia was the reason why she was treated in the ways complained of, either in the sense of being the criterion applied or in the sense of being what motivated the Respondent. As regards the primary complaint, i.e. that the Respondent refused to guarantee that the Appellant would not be moved, the Tribunal found – and it was in any event clear – that the reason its stance was that it believed that an insistence on mobility was essential in order to be able to meet the requirements of the LSC. That had nothing to do with the Appellant’s disability. Of course, the requirement had had an adverse impact on her because of her disability; but that is something quite different. In a case of this kind the right tool for an employee is not a claim of direct disability but a claim of failure to make reasonable adjustments. Likewise, as regards the various other acts complained of, there was again no possible basis for saying that they were done because of her disability – i.e. that her disability was the reason why they were done. Even to the extent that the Respondent was found to have done the things complained of, the fact that they were done in the context of a claimed disability does not mean that the disability was the reason for them: that is a non sequitur (cf. Prison Service v Johnson [2007] IRLR 951, at paras. 63-64, 69 and 121 (pp. 962-3, 964-5 and 973).

BURDEN OF PROOF

53. The Appellant’s appeal here is based on the language used by the Tribunal at paras. 90 and 105 of the Reasons, set out at paras. 49 and 27 (5) above respectively. In both passages it used the phrase “the claimant has failed to establish”. The Appellant contends that that shows that it failed to apply the “reverse burden of proof” as required by section 17A (1C).

54. We cannot accept that submission. The Tribunal had set out the law relating to the burden of proof in discrimination claims in great detail at paras. 4-6 of the Reasons, in terms which Ms. Andrews accepted were accurate. Although it is not unknown for tribunals which have directed themselves correctly to fail thereafter properly to follow their own direction, it is prima facie unlikely that this Tribunal, whose approach throughout was careful and thorough, would have fallen into this error, and the language relied on by the Appellant is insufficient to show that it did. As regards what we have above called the primary case, the issue was whether the reason for the Respondent’s stance was the Appellant’s disability. That was plainly not the case, for the reasons already given; and it does not matter whether the conclusion is expressed in terms of the Appellant not having passed “Igen stage 1” or of a finding that the Respondent had discharged the burden of proof at “stage 2”. The same applies to the “secondary” claims listed at item 5 in the list of issues (see para. 48 (b) above). The Tribunal’s positive findings as to whether the acts complained of occurred and (if they did) the Respondent’s motivation in doing them make nice points as to the burden of proof redundant.

CONCLUSION ON DIRECT DISCRIMINATION

55. We dismiss the appeal against the Tribunal’s rejection of the claim of direct discrimination under section 3A (5).

C. CONSTRUCTIVE DISMISSAL

56. The list of issues identified seven questions for the Tribunal’s consideration under this head. The drafting is elaborate but what it boils down to it that the Appellant claimed to have been subjected to a series of breaches of contract between 2006 and 2008 which were sufficiently serious to undermine her trust and confidence in the Respondent; and that the discovery of the terms of its letters of instruction to the occupational health advisers (see para. 15 above) constituted a “last straw” entitling her to resign when she did. She itemised thirteen such breaches: the first was what she described as the “forced reduction of wages” (see para. 5 above), but the remainder consisted of various aspects of the problem about where she should work and the Respondent’s handling of that problem.

57. At para. 98 of the Reasons the Tribunal went through the thirteen alleged breaches. It summarised the effect of its findings at para. 99-101. We return below to the question of the reduction in the Appellant’s salary; but, as to the remainder, in some cases it found that the conduct complained of did not occur, and in others that it did occur but did not constitute a breach of contract. Its overall conclusion, at para. 101, was that:

“The respondent’s conduct was not calculated or likely to destroy or seriously damage the relationship of trust ad confidence between the respondent and the claimant.”

58. At para. 102 the Tribunal considered the alleged last straw. It held that there were some flaws in the language of the letters of instruction but that they were not such as to damage or destroy the relationship of trust and confidence.

59. At para. 103 the Tribunal addresses the overall question of whether the Appellant had been unfairly dismissed. The paragraph contains a number of general observations, but the central conclusion, inevitably on the basis of the preceding paragraphs, is that:

“We conclude that the claimant has failed to establish on the balance of probabilities the breach of contract on the part of the respondent. We remind ourselves that the breach must be sufficiently important to justify the claimant resigning or else it must be the last in a series of incidents which justify her leaving. Regrettably for the claimant, she has simply not come up to proof in this part of the claim.”

60. The grounds of appeal on this issue are not entirely clearly expressed but on analysis they come down to three points:

(1) that the Tribunal misdirected itself by following the decisions of this Tribunal in Abbey National plc v Fairbrother [2007] IRLR 320 and Claridge v Daler Rowney Ltd [2008] ICR 1267, which were subsequently disapproved by the Court of Appeal in Buckland v Bournemouth University [2010] ICR 908;

(2) that the Tribunal took the wrong approach to the complaint about the reduction in salary; and

(3) that if the claim of disability discrimination was well-founded the claim of unfair dismissal was bound to succeed.

Point (3) does not arise in view of our earlier findings. We take the other two in turn.

FAIRBROTHER/CLARIDGE/BUCKLAND

61. In Fairbrother this Tribunal (Lady Smith presiding) held that in judging whether the conduct of an employer was such as to entitle the employee to resign and claim constructive dismissal a tribunal should ask whether the conduct in question was unreasonable, applying the “range of reasonable responses test”. That approach was somewhat modified in Claridge, but Elias P. accepted that in a case where the question was whether the employer had been in breach of “the Malik term” (see Malik v Bank of Credit and Commerce International S.A. 1997 ICR 606) – that is whether the employer has conducted himself, without reasonable or proper cause, in a manner likely to destroy or seriously damage the relationship of trust and confidence between employer and employee – the test could not be satisfied if his conduct had been within the range of reasonable responses. In Buckland the Court of Appeal rejected these glosses and held that tribunals should apply “the unvarnished [Malik] test”. Sedley LJ acknowledged that questions of reasonableness could be relevant, but reasonableness was not as such the criterion of breach. He also pointed out that in cases where the breach relied on was not of the Malik term but of an express term – such as to pay the agreed remuneration – questions of reasonableness were irrelevant.

62. The Tribunal, in accordance with the standard pattern, dealt with the law in a separate section of its Reasons, divorced from its consideration of the issues. It specifically directed itself in accordance with Claridge.

63. The case pleaded in the Amended Notice of Appeal is not that the Tribunal’s reliance on Claridge vitiated the entirety of its reasoning. That is realistic. It does not follow from the fact that the Tribunal formally misdirected itself in its statement of the general law that its actual reasoning was fatally infected, and if one looks at the terms of paras. 98-102 it appears indeed to have applied “the unvarnished Malik test”. But the Appellant pleads that the misdirection led the Tribunal astray at one particular point in its reasoning, namely para. 100. That reads:

“Where we found the acts set out above to have taken place, the respondent acted within the terms of the contract in acting as it did. The purpose of the reduction in salaries was to save jobs and avoid redundancies in difficult trading conditions. The respondent had been teetering on the brink of administration.”

As we understand it, the Appellant’s point is that the reduction in her salary was a breach of an express term, yet the Tribunal by its reference to the Respondent’s financial difficulties was assessing whether the breach was repudiatory by reference to whether its conduct was reasonable.

64. We agree that the drafting of para. 100 is too compressed for the Tribunal’s reasoning to be entirely clear. But, whatever it means, we do not agree that it vitiates the conclusion on the constructive dismissal issue. At para. 99 the Tribunal pointed out that the reduction in salary occurred in 2006, i.e. two years before the Appellant’s resignation. It described that breach (if it was one) as “out of time” and found explicitly that “the claimant did not resign because of the reduction in salary”. Unless that conclusion can be impugned (as to which see para. 65 below), any error in para. 100 is immaterial. (We would observe in passing that although the Tribunal seems to have accepted that the reduction in salary was a breach, we are not clear that that was so. It was an agreed fact that the Appellant had been invited to sign a contract containing the new terms and had done so, albeit that she was “unhappy”. But reluctant agreement is still agreement. There is no finding of duress.)

THE SALARY REDUCTION

65. The Appellant contends that the Tribunal was wrong to hold that she could not complain of the salary reduction in 2006 as part of the reason for her dismissal because it was part of the chain of events culminating in her resignation: she invoked the “last straw doctrine”, as conveniently summarised by Judge Clark in para. 32 of the judgment of this Tribunal in GAB Robins (UK) Ltd. v Triggs [2007] ICR 1424. But the fact that a previous chain of unaccepted breaches can be kept alive by a subsequent breach does not mean that an employee can rely on all past breaches whatever. It is necessary that any such breach be part of the sequence of events in response to which he or she resigns. The Tribunal found that that was not the case here. That finding is unimpeachable.

CONCLUSION

66. For those reasons this appeal must be dismissed. We regret the time taken to promulgate this judgment, which is a consequence of the pressure of other cases in the Tribunal.