SUMMARY
UNFAIR DISMISSAL – Reason for dismissal including substantial
other reason
The decision of the Employment Tribunal that the Claimant had not
been dismissed by reason of his disability (dyslexia) was not perverse and was
supported by evidence properly accepted by the Employment Tribunal.
HIS HONOUR JUDGE SEROTA
QC
Introduction
1.
This is the full hearing of an appeal from a decision of the Employment
Tribunal at Reading presented to the parties on 18 September 2010.
The hearing was presided over by Employment Judge Lewis and lasted
some five days. The Employment Tribunal dismissed the Claimant’s claims for
unfair dismissal, breach of contract in relation to pension contributions and
disability discrimination. It upheld the Claimant’s claim in respect of notice
pay and awarded the Claimant compensation in the sum of £6,705.
2.
It is important to note that although the Claimant was represented by
solicitors until shortly before the hearing before the Employment Tribunal, at
the hearing he represented himself. The Respondent was represented by Mrs Winstone
of counsel, who has appeared before us. The fact that the Claimant was
unrepresented makes it difficult for him (he admits to having a poor
recollection) and his counsel, Mr Mahmood, to advance a case as to what
evidence was or was not given before the Employment Tribunal. This is
important in a fact‑sensitive case. We have been referred to Mrs Winstone’s
notes with the agreement of the Claimant.
3.
The Employment Tribunal was moved to complain about the excessive volume
of material with which it had been provided which it considered to be unhelpful
and lengthening the hearing as well as causing time to be spent on irrelevant
or peripheral matters.
4.
On 9 November 2010 HHJ McMullen QC referred
grounds 1 and 2 to a full hearing but made an order in relation
to ground 3 under rule 3(7) of the Employment Appeal Tribunal’s Rules
of Procedure. The essential issue raised by the grounds of appeal is one of
perversity and is based on a minute of a meeting of 25 March 2009
which the Claimant maintained was not given sufficient weight by the Employment
Tribunal and its decision in relation to direct disability discrimination which
is characterised as being perverse.
Factual background
5.
We take this largely from the decision of the Employment Tribunal.
6.
There is no issue that the Claimant, now aged 35, is disabled within the
meaning of the Disability Discrimination Act 1995. He
suffers from dyslexia. Nonetheless he is an experienced and successful
salesman. His dyslexia was diagnosed when he was a student at University. The
University made various adjustments to support him; in particular, he was given
an additional ten per cent of the time allotted for examinations. It is of
relevance that at no time at University had the Claimant complained of a lack
of voice recognition software (text to speech software), and so far as the
Respondent was concerned issues as to his dyslexia only came to the fore after
complaints were made about his performance.
7.
The Respondent is the UK subsidiary of a well‑known French
champagne house. The Claimant began his employment with the Respondent in
October 2004. He took the post of National Account Executive and reported
to a Mr Cleary. Mr Cleary reported to the Sales Director,
Mr Brandwood who himself reported to the Managing Director,
Mr Hesketh.
8.
There is no issue that the Respondent learned of the Claimant’s dyslexia
at some point after he had been in post for over a year. The Claimant made no
request for support or assistance and Mr Cleary did not consider any
action was necessary.
9.
The Respondent had approximately 20 employees and was not office based.
Its accounts executives (salesmen) worked from home. The Respondent set
considerable store on the need for its employees to produce and submit standard
reports including contact reports to be completed after meeting customers,
weekly and monthly reports and expense claims. All these documents were
expected to be lodged promptly while events were fresh in the minds of the
writer. This documentation was regarded as “the currency” of the Respondent’s
business, the “lifeblood” of the sales organisation. A prompt receipt of these
reports would enable the Respondent to take prompt action. We have seen a copy
of a monthly report. It contains a day‑by‑day brief description of
the writer’s activities. It is the approximate size of an A4 sheet. The
Claimant’s daily contact reports were approximately one half‑sheet of A4
and took very little time to produce; see counsel’s note of the Claimant’s
cross‑examination at page 278 of our bundle. When the Claimant was
shown a copy of his monthly report on an Excel spreadsheet and was asked how
long it took him to produce, he answered, “one half of an hour.” He was shown
a note approximately half a page long which was said to be an average contact
report. He was then referred to a monthly report, also in Excel format. One
page was the average size. The Claimant’s evidence was that he could produce
such a report within a day and correct it within three days of the month’s
end. He was shown Mrs Winstone’s note of his cross‑examination and
he accepted that he had kept an iPhone diary and only needed to insert
information after visiting a client and this would take no more than 30
minutes.
10.
The Claimant was supplied with a high‑specification laptop
computer. He had considerable personal autonomy in his work and trust was
confided in him as he worked from home. There were concerns about his
administration management and in 2006 he had been given a verbal warning for
failure to adhere to the Respondent’s administrative procedures in relation to
the prompt lodging of reports and expense claims. Improvements were noted but
there was still an issue about these matters in the Claimant’s performance
reviews or assessments of 2007 and 2008.
11.
In February 2007 the Claimant was promoted with Mr Cleary’s
support to the post of National Account Manager. In February 2008 he was
given a further warning in relation to his failure to complete administrative
tasks within the timescale allotted. In November 2008 he was given a
further written warning in relation to the same issues. He was advised of his
right of appeal but chose not to appeal.
12.
In meetings with Mr Cleary the Claimant agreed that he would cover
and clear all outstanding administrative issues and compile monthly reports
that were outstanding for August to October 2008 as well as submitting his
expense claims going back to July 2008.
13.
The position at the close of the calendar year 2008 was summarised by
the Employment Tribunal at paragraph 9:14 of its decision:
“The Claimant had completed over four years’ service. Aspects
of his work, and in particular his sales work, has proved successful and he had
gained promotion. He had however been alerted, both in appraisals and by three
warnings, including a final written warning, to the necessity to improve the
quality of his administrative work, including report writing and time
management. He had been instructed to submit a backlog of reports, but had
failed to do so. There was no dispute that these were requirements of the
Claimant’s job, and that the tasks required of him were well within his
capability. Following receipt of the final written warning, he had
specifically been instructed to submit a number of reports and expenses
claims. Although it was known to Mr Cleary and, by that stage, to
Mr Hesketh, that the Claimant was dyslexic, there had not at that stage
been any occasion when the Claimant had raised with the Respondent any
possibility that dyslexia might be a serious consideration in his performance.”
14.
Nevertheless the Claimant failed to produce reports that he had promised
to provide to Mr Cleary before 25 November 2008. The French parent
company imposed a deadline on the Respondent of 23 January 2009 for
the submission of planning figures for the next financial year. It was the
Claimant’s responsibility to produce these figures but he had booked a diving
holiday for himself in Egypt commencing on 11 January 2009.
15.
The Claimant then informed Mr Cleary that he was ill and during a
number of telephone conversations informed Mr Cleary that he was too
unwell to prepare reports and further his laptop was malfunctioning. However
he maintained that his GP said he was well enough to travel and he went off to Egypt on 11 January 2009. He spoke to Mr Cleary on 12 January and
informed Mr Cleary he had taken his laptop with him. The Employment
Tribunal observed that Mr Cleary was entitled to be sceptical, and the
Claimant’s statement that his computer had malfunctioned but that nonetheless he
took it with him and recovered after several days’ illness to enable him to go
on his diving holiday would not inspire Mr Cleary with confidence.
16.
On the Claimant’s return from Egypt he met Mr Cleary on
19 and 22 January 2009 and promised outstanding contact
reports would be produced within the next few days. They were not.
Mr Cleary, therefore, himself undertook the work required by the French
parent company. Mr Cleary continued to chase the Claimant and on
4 February left him a voicemail and told him that he had better complete
his reports if he wished to stay with the Respondent.
17.
On 5 February 2009 the Claimant emailed some reports to
Mr Cleary but they were incomplete; he had not lodged his expenses claims
for October 2008 to January 2009, and such information as was
revealed in his documentation showed an unacceptably low level of
productivity. Mr Cleary reported these matters to Mr Brandwood with
regret because he liked the Claimant, but he maintained that the Claimant’s
performance level was unacceptable and he did not think that the Respondent
could continue to justify such an unsatisfactory level of performance. This
led Mr Cleary on 6 February 2009 to instruct the Claimant to
attend a disciplinary hearing on 10 February 2009 and put him on
notice of the risk of dismissal. The Employment Tribunal noted that this was
over six months before his eventual dismissal.
18.
On 8 February 2009 the Claimant emailed Mr Hesketh and
asserted he had been subject to harassment and bullying and he wanted his
disciplinary meeting with Mr Hesketh to be treated as a grievance against
Mr Cleary. The disciplinary meeting was postponed and in due course
Mr Hesketh dismissed the grievance although he did consider
Mr Cleary’s message on the answer‑phone to be inappropriate. The
Claimant, thereupon, raised a grievance against Mr Hesketh.
19.
At the meeting with Mr Hesketh and the Financial Controller,
Mr Smith, on 11 February 2009 held in Marlow the Claimant dealt
with the pressures he faced, the tasks he had to complete and concerns about
Mr Cleary’s management, and said that his dyslexia had not been taken into
account when comments were made on the quality of his reporting. The
Employment Tribunal accepted this was the first occasion when Mr Hesketh had
been made aware that the Claimant considered that dyslexia was a significant
issue in his working life. Mr Hesketh agreed to look into the matter
further and together with the Claimant’s employment consultants, Bluefin, met
with the Claimant on 27 February 2009. On 3 March 2009 he
wrote a detailed letter setting out his findings on the grievance to the
Claimant; see page 188. We have already mentioned that although he
accepted Mr Cleary’s voicemail was inappropriate he considered that
Mr Cleary’s comments otherwise were within the range of acceptable
pressure it was permitted a manager to exert. So far as the Claimant’s
dyslexia was concerned Mr Hesketh noted that the Claimant worked from
home, controlled his own workload and had the freedom to give extra time to
complete administrative work and deadlines; the Employment Tribunal considered
that Mr Hesketh’s letter was a long and thoughtful discussion of the
working interaction between the Claimant and Mr Cleary.
20.
It appears that Mr Hesketh’s letter may have been sent to the
Claimant on 10 March 2009 and it drew a detailed response from the
Claimant of 12 March (page 195 of our bundle). He complained that he
felt he was being set up to fail with a view to pushing him out of the company
and that his need for more time was persistently questioned despite the
Respondent’s knowledge of his dyslexia. It is worth noting the length and
detail of this letter and the speed with which it was produced.
21.
Mr Hesketh considered reports that the Claimant had filed in
February 2009 and was concerned at the Claimant’s time management. He met
the Claimant on 16 March 2009 to discuss workload issues; the
Employment Tribunal (paragraph 9:36) concluded:
“We are confident that in doing so, Mr Hesketh had taken it
upon himself to come to grips with the managerial and organisational issues
affecting the Claimant, and we are confident that he did so in good faith and
with a view to assisting the Claimant to perform on behalf of the company to
the best of his ability.”
22.
That evening the Claimant sent Mr Hesketh a list of outstanding
work commitments running to some 38 items. Mr Hesketh replied on
18 March 2009. The Employment Tribunal continued at
paragraph 9:38:
“Mr Hesketh’s email of 18 March bears some
consideration: as Managing Director, Mr Hesketh was three layers of
management above the Claimant. He was perfectly entitled to decline to become
involved in his management, or to delegate that task to another person. What
he did instead was to analyse the Claimant’s list of outstanding tasks, and
break them down into categories, and, having regard to his fresh understanding
that the Claimant found it easier to work from colour coded documents, colour
coded them on screen, expressing in plain, constructive language how the Claimant
might proceed. Mr Hesketh’s actions were generous in time as well as
spirit.”
23.
The Claimant’s appeal against the way his grievance had been dealt with
was considered by a non‑executive director, Mr Malcolm Kimmins,
who wrote on 24 March 2009 to the Claimant with his determinations.
In the event he upheld three of the seven complaints made against
Mr Hesketh and recommended that the Respondent should secure an assessment
of the Claimant’s dyslexia which in due course was undertaken by Professor McLoughlin.
24.
A meeting took place on 25 March 2009. The minutes of this
meeting are at page 160 of our bundle. This was a management meeting and
attended inter alia by Mr Brandwood and Mr Hesketh. These minutes
were supplied anonymously to the Claimant after his dismissal and formed the
centrepiece of his perversity claim and ground 1 of his Notice of Appeal.
The relevant section was quoted by the Employment Tribunal as follows:
“In terms of SH, there are three possible options: (1) Carry on
with the disciplinary process... which could then lead to dismissal resulting
in possible tribunal. (2) Give SH one last chance and ask him how we can
support him to do his job. SH would need to be very closely monitored – this
could be very time consuming... (3) A without prejudice conversation could
take place stating that trust has broken down. An offer would be made to SH of
at least 3 months’ notice – his legal fees would also need to be covered.
Negotiation likely. SH has now bought (sic) the dyslexia issue into play which
could have implications as to how this matter is dealt with. The general
consensus is in the wider business interests that SH leaves LP.”
25.
The Claimant submitted to the Employment Tribunal that this minute was
indication that his dismissal had been decided upon at that meeting and on that
day. The Employment Tribunal disagreed. It continued:
“In our judgement, the meeting included an honest assessment of
the management options open to the Respondent. The options included offering
the Claimant more time and opportunity to remedy matters, which would occur in
the context of a relatively small business structure. It recorded the strain
on management of dealing at length with the Claimant and the saving of
management resource which might be achieved if the Claimant were to leave his
employment. We regard the reference to the wider company interests as
recognition that Respondent’s interests would be better served if managers
could give their time to operational duties rather than to managing the
Claimant. We do not regard the minutes as an indication that the Claimant’s
dismissal was decided upon that day, or shortly thereafter.”
26.
Mr Hesketh met the Claimant on 31 March 2009 and the
Claimant was given a relatively short time scale to complete tasks on the
basis, so found the Employment Tribunal, that Mr Hesketh thought the tasks
were or should be close to completion. Support was offered to the Claimant by
Mr Hesketh and Mr Brandwood and the disciplinary meeting would continue
to be held in abeyance. The Respondent’s position on the Claimant’s dyslexia
would be reconsidered after the assessment booked for May 2009. There was
also a without prejudice meeting held on 31 March 2009 when it was
evident to the Employment Tribunal that the principal and possible terms of
agreed severance were discussed. Following the meeting the Claimant consulted
solicitors. The Claimant asserted that at the meeting he was invited to resign
in return for receipt of severance pay. The Employment Tribunal has made no
finding in this regard. On 29 April 2009 the Claimant’s solicitors
wrote to the Chairman of the Respondent’s parent company in France in which it characterised the treatment of the Claimant as having been “appalling,
inexcusable and wholly unlawful”:
“Kindly be advised that following our retention it would be
foolhardy of you to assume that any such forbearance will continue. It shall
now cease with immediate effect.”
27.
The Employment Tribunal found it difficult to understand what this
language was intended to achieve. The Claimant raised further grievances.
28.
At the end of April 2009 Mr Hesketh produced a long list of
outstanding tasks; works that had not been completed, some dating back to
August 2008. A number of these tasks had been referred to in letters to
the Claimant dating from February 2009. Having taken advice from Bluefin,
Mr Hesketh invited the Claimant to a further performance review meeting to
discuss progress.
29.
On 10 May 2009 the Claimant wrote at length to Mr Hesketh
a letter which the Employment Tribunal characterised as showing a total lack of
insight. Although the letter conceded in rather casual terms, “that there
[were] some outstanding pieces of administration that [were] owing,” there was
nothing in the letter that recognised the Claimant was on a final written
warning, had been told of the risk of dismissal three months earlier, that
Mr Hesketh had devoted substantial time and effort to supporting him, or
that there were very many outstanding items that the Claimant had not provided,
some of them outstanding for many months.
30.
On 20 May 2009 Mr Hesketh met the Claimant and confirmed
by letter a list of tasks to be completed.
31.
Between 11 and 15 May 2009 it would seem that
Mr Cleary contacted some of the Claimant’s clients to check on his
activity with them. The Claimant maintains this shows that the Respondent was
looking for an opportunity to dismiss him. It is more likely, however, that
the Respondent needed to find out what was happening with clients in the
absence of appropriate reports being received from the Claimant.
32.
On 15 May 2009 the Respondent received a report from Professor
McLoughlin. This reported that the Claimant had areas of difficulty in
processing information in his working memory, silent reading and rate of
writing, although he had a high attainment in vocabulary and verbal reasoning.
His auditory and verbal information processing was at a modest level. He made
a number of recommendations including coping strategies for the Claimant, in
relation to systems of work, that the Respondent might provide.
33.
Between 22 and 26 May 2009 there was an exchange of
emails involving Mr Cleary and Mr Hesketh.
Professor McLoughlin’s was circulated.
34.
Mr Hesketh observed that before any performance review could be
resumed all agreed adjustments needed to be in place:
“Basically we are wiping the slate clean and therefore previous
warnings are ineffective. [...] With regard to last week’s incidences (Steve
was not doing what he said he was going to do and failing to turn up for a
meeting), the lawyer says it is difficult to take further at the moment as it
is behaviour consistent with Steve’s dyslexia. It would be very risky.
(3) We are looking at a new 3‑4 month period of
performance review.
[...] I realise the outcome of the report is not ideal. My
priority is to try to resolve this situation as speedily as possible so as not
to add too much to your workload and to protect our reputation with customers.
I am being guided by our lawyer [...].”
35.
He refers to a recommended course of action which provided for the
obtaining of a follow‑up medical report and the putting in place of
working practices to help the Claimant, for his latest grievances to be
determined and to re-open a dialogue concerning a without prejudice offer: “I
am appreciative of your forbearance and support in resolving this in the best
way possible.” This email is relied upon by the Claimant as showing that the
Respondent had decided to dismiss him and was simply going through the motions
of considering adjustments and assisting him; we do not consider that this
email bears out that contention, rather the contrary. The fact that the
Respondent was willing to agree the severance package does not mean it had
decided to dismiss the Claimant.
36.
On 22 May 2009 the Claimant met Mr Hesketh.
Professor McLoughlin’s report was discussed. Mr Hesketh went through
the details and focussed discussion on what the Respondent might do to
implement Professor McLoughlin’s recommendations. He sought the Claimant’s
views and commitment to engage in a process. He suggested that the Claimant
should make use of a Lotus notes calendar into which all staff could input
notes of meetings and tasks so there would be an immediate visual record of his
colleagues’ activities available to everyone. The Employment Tribunal observed
it would also provide the Respondent with knowledge of what the Claimant was
doing with his time, a useful management tool. On 3 June 2009
Mr Hesketh wrote to the Claimant stating he wished to meet him on
4 June 2009 to discuss the effect of his dyslexia and how to
alleviate that impact. The Claimant’s case was that this was simply a
charade. The letter, however, suggests that the Respondent had made a serious
and wholly appropriate effort to deal with the issues and we are quite unable
to understand how the Employment Tribunal was in effect bound to find that this
letter was designed to create a wholly false impression. By
16 June 2009 Lotus notes were used, but the Claimant did not make
use of the facility to the extent that was hoped for.
37.
On 16 June 2009, having discussed the matter with other
managers, Mr Hesketh wrote to the Claimant to arrange a further meeting of
22 June 2009 to outline a programme of support. He stated he would
welcome the Claimant’s input. The Employment Tribunal observed that this
showed the extent to which the Respondent reacted promptly to
Professor McLoughlin’s recommendations and did so in a constructive and
incisive manner.
38.
On 22 June 2009 the Claimant met Mr Hesketh and
Mr Brandwood to discuss arrangements for implementing
Professor McLoughlin’s report. The Claimant said he had no current issues
affecting his IT use. He was asked to identify the outstanding backlog and
Mr Hesketh offered to excuse the Claimant from providing his
August 2008 reports which were still outstanding. The Claimant said he
had done the work and would produce the reports. The Claimant had not yet
looked at Lotus notes. Mr Hesketh and Mr Brandwood believed that
progress had been made, but the Claimant sent a letter later that day in which
the Claimant asserted that he felt he was back at square one and was again left
with a feeling of isolation within the company. Mr Hesketh and
Mr Brandwood felt that progress had been made, but that view was dashed by
this letter. The Employment Tribunal concluded at paragraph 9:54:
“We could see no reasonable basis upon which the Claimant could
form that view. His reaction demonstrated again his lack of insight into the
reality of his own working circumstances.”
39.
Mr Hesketh replied and made clear suggestions of how new ways of
working could be put in place for a trial period to the end of July 2009
followed by a further review in early August 2009. The Claimant’s input
and observations were welcome.
40.
A management meeting took place in 1 July 2009; see
page 177. It was reported that the Claimant wanted a 12‑month
severance payment, but Mr Hesketh was only prepared to recommend
6 months. There was a management discussion about replacement of the
Claimant, the terms of a severance package, whether a replacement would be
authorised or whether there should be a team restructure.
41.
On 3 July 2009 in the absence of Mr Hesketh, the Claimant
met Mr Brandwood. The Claimant gave assurances that his outstanding work
and tasks were complete and the reports from March to June 2009 and
August 2008 would shortly be submitted. He also gave assurances as to his
work in relation to contacts and their development. The Claimant, however,
failed to deliver on these assurances despite giving further assurances to
Mr Brandwood. Mr Brandwood accordingly came to the conclusion that
formal disciplinary proceedings were now called for and he invited the Claimant
to a formal disciplinary meeting taking matters back to how they had been on 6 February 2009.
42.
It appears from a draft that Mr Brandwood considered the Claimant’s
actions to amount to misconduct and that his actions were due to poor
performance rather than for reasons associated with his dyslexia. In the final
draft of the letter Mr Brandwood wrote:
“In the light of the fact you do not appear to have completed
any substantive written work in recent weeks at all your recent behaviour
appears to constitute misconduct [my emphasis] rather than being
connected with your dyslexia.”
43.
The disciplinary charges related to the failure to produce monthly
reports for August 2008 and from March to June 2009 and contact
reports from March to June 2009. Complaint was also made about failure to
answer an email and failure to report a road traffic accident which had damaged
his car several months earlier. The Claimant had a good answer to this matter.
44.
The meeting took place on 12 August 2009 having been delayed;
the Claimant, however, had not completed any reports in recent weeks and
Mr Brandwood wrote the letter to which we have referred. The meeting was
conducted by Mr Hesketh. Mr Hesketh raised the issues as to the
Claimant’s explanations for long delays in completing reports and failure to
meet deadlines and additionally what work the Claimant had in fact undertaken
in the absence of any reports as to how he had spent his time.
45.
The Employment Tribunal found as follows, at paragraph 9:62:
“The Claimant gave no satisfactory explanation and appeared
unaware, as he had done before and indeed remained at this hearing, that there
might be a distinction between short term and long term failure in this
respect. We mean by this that while there might always be an explanation for a
failure to meet a short term deadline, that would be a different quality of
explanation from for example that given in mid‑August for failure to
complete a report relating to the previous March.”
46.
Mr Hesketh pressed for completion of outstanding work and for an
explanation as to why it had not been completed, and an explanation of what
other work had been done by the Claimant instead. The Claimant was unable to
reply immediately because of the absence of his laptop but stated that he would
reply in part immediately and in part the next day (13 August 2009).
The meeting was adjourned. The Claimant was unable to respond the next day
because he had a migraine and Mr Hesketh extended his time. The Claimant
responded in relation to other matters, although he had addressed the issue of
the road accident and details of the process which he felt had passed between
himself and the company. He did not address what the Employment Tribunal
considered to be “the overriding issue.” Mr Hesketh reflected and again
consulted Bluefin. Between 13 and 18 August, the Employment
Tribunal found, he decided the Claimant should be dismissed. On 19 August
he wrote to the Claimant summarily dismissing him for misconduct. His work had
not been completed and in the absence of reports the Respondent was unable to
discern what work the Claimant had undertaken;
paragraphs 9:65:3 and 9:65:4. He concluded:
“I find that you failed to complete the work required of you,
despite support, regular reminders and various extensions to each item’s
deadline for completion. I also find that you have failed to substantiate what
work you have in fact completed during the last few months. Your failure to
communicate (effectively or, at times, at all) with management with regard to
work and client meetings has been extremely frustrating.”
He then moved on to express his conclusion that the history of
dealing with the Claimant led him to the view that the Claimant had no
intention of addressing the problems, had demonstrated persistent failure to
complete the work asked of him, and that the matter was one of misconduct and
in fact gross misconduct.
47.
The Claimant appealed. His appeal was heard by a non‑executive
director, Mr Gordon. The Employment Tribunal noted his “visible outrage”
when it was put to him by the Claimant in cross‑examination that he had
not decided the appeal himself but had merely been a “front” for a decision
made by Bluefin. The Employment Tribunal considered this was a clear
indication he approached the task as one which reflected upon his personal
independence and integrity. The Employment Tribunal (see 9:67) considered that
he reached a conclusion that was his, “independent conclusion, and accurately
and truthfully summarised in his letter dismissing the appeal.” This is a
matter of importance because in our opinion were there to have been any defects
in the manner of dismissal by Mr Hesketh they would have been cured by the
appeal.
48.
The Claimant had given various explanations for not providing the work
he was required to produce or for missing deadlines or meetings, and showed no
insight into the problem of credibility that this caused him.
49.
The Claimant’s main excuse was IT, but also recurrent short‑term
in ill health, much of which was self‑certified; the breakdown of his
company BMW which in an echo of his curious IT problems (see paragraph 9:66)
could not be replicated or found by the BMW dealer; he also claimed to have
arranged to borrow a friend’s car but had mislaid the key; leaving a laptop
logged in the wrong car; his car being blocked in so he was unable to attend a
meeting; heavy snowfall at the start of 2009; and swine flu. The Employment
Tribunal found it was neither surprising nor unreasonable for the Respondent to
become sceptical as to the Claimant’s excuses for non‑delivery. The
Claimant went so far as to allege (see paragraph 9:71) that he was
repeatedly unable to extract information from crashed or inadequate laptops,
that he was unable to connect remotely to the Respondent’s offices, and that
the IT system had been deliberately sabotaged by or on behalf of the Respondent
in order to prevent him from carrying out his duties. The Employment Tribunal
accepted the evidence of Mr Smith, the financial controller (see 9:72)
that no‑one else suffered the same difficulties, that it was not in the
Respondent’s interests to sabotage the system and on examination of the
Claimant’s laptop after his dismissal it was not possible to replicate the problems
that the Claimant asserted he had encountered. There was little saved work on
his laptop, and the Claimant had other methods of working when his laptop was
out of action. There was no cogent evidence to support the Claimant’s case
that his laptop was continually unusable for some nine months. The Employment
Tribunal was “absolutely confident” that the Respondent would not have allowed such
a situation to continue as it would have endangered the well‑being of its
business. The Employment Tribunal specifically rejected as inherently absurd and
unsupported by any evidence the suggestion that the Respondent may have
sabotaged its own IT system. Accordingly the Respondent was entitled to
disregard IT issues as an explanation for the pattern of delay and non‑delivery
of work.
50.
The Employment Tribunal went on to note that disclosure had taken place
and the Respondent had produced various documents including redacted minutes of
the meeting of 25 March 2009 (page 160). It had insisted in
correspondence that it had disclosed all relevant matters, and was not seeking
to conceal evidence. Before the hearing, as the Employment Tribunal has
recorded, the minutes at page 160 were sent anonymously to the Claimant.
The Respondent had argued that litigation/commercial sensitivity and without
prejudice considerations had limited disclosure. After the document had been
sent anonymously to the Claimant, he sought full disclosure of all minutes.
The Employment Tribunal saw these and ordered disclosure, and a number of
without prejudice documents came to be disclosed and relied upon by the
Claimant. Neither counsel was able to assist the Employment Appeal Tribunal as
to what explanation was given at the Employment Tribunal for the failure to
disclose page 160 in unredacted form.
The conclusions of the Employment Tribunal
51.
The Employment Tribunal were satisfied that the Claimant’s dismissal was
for wilful failure to communicate (understood by the Employment Tribunal as
encompassing preparation and submission of documents). That was the “sole
operative reason for his dismissal” (see paragraph 12). When we use the
phrase “failure to communicate” or similar phrases in this Judgment, that is
the meaning to be assigned. The Employment Tribunal correctly directed itself
to British Home Stores v Burchell [1978] IRLR 379 and the importance of not substituting its views for that of the Respondent
and to consider whether the Respondent had acted within the reasonable range of
responses throughout the dismissal process; see Sainsbury’s Supermarkets Ltd v Hitt
[2003] IRLR 23. The Employment Tribunal asked whether there was a reasonable
basis for the conclusion that there was both failure and wilful failure to
communicate:
“The first matter was absolutely straightforward. The Claimant
continued to promise even in August 2009 that he was about to produce his
report for August 2008, and he seemed at this hearing unaware of the
impact of the Respondent, and on his own credibility, of his 12‑month
history of delay, non production, and a stream of sometimes flimsy excuses. In
so saying, we remind ourselves that we have looked at the format of these
reports, that they are relatively simple documents which were well within the
Claimant’s capability to produce – as indeed he had done for a number of
years. We remind ourselves that they were critical documents to the well being
of the Respondent, as the Claimant, with a sales background, must have
understood.”
52.
The Employment Tribunal then gave anxious consideration over
Mr Hesketh’s finding that the failure was wilful, and concluded he had a
reasonable basis upon which to form that view; see paragraph 19. The
Employment Tribunal considered that Mr Hesketh could equally have dealt
with the matter on capability grounds. The dismissal was accordingly within
the reasonable range of responses:
“In the circumstances, there is no hesitation or doubt in saying
that dismissal was within the range of reasonable responses. The Claimant had
been given generous extensions of time within which to complete relatively
straightforward and fundamental tasks, had failed to do so, and had shown no
understanding of the importance of doing so and given no indication of being
likely to do so within the foreseeable future. He had been told of the risk of
dismissal, and the possible reasons, over six months before his actual
dismissal for the same reasons.”
53.
We note that the Claimant had some six months further employment from
the first intimation of disciplinary proceedings that were to be commenced in
February 2009. His performance appears to have deteriorated rather than
improved over that period.
54.
The Employment Tribunal considered it need not deal with the Claimant’s
breach of contract claims. We note that at paragraph 28 the Employment
Tribunal noted that although the Respondent was entitled to form a reasonable
belief the Claimant had committed misconduct, it failed to prove that he had
committed gross misconduct.
55.
So far as disability discrimination was concerned the Employment
Tribunal firstly found that the Claimant had not been dismissed because of his
disability; see paragraph 29:1. He was dismissed because of his failure
to communicate or comply with requests to do so. Neither was the Claimant
dismissed for a reason connected with his disability but because a Malcolm
comparator (see London Borough of Lewisham v Malcolm
[2008] IRLR 700) of another employee failing to communicate not by reason of
disability would have been treated in the same way.
56.
The Employment Tribunal rejected claims of harassment; there was no
evidence the Claimant’s performance shortcomings were the result of dyslexia.
The voicemail message to which we have referred from Mr Cleary was
inappropriate but did not amount to harassment for a reason connected with the
Claimant’s disability. The Employment Tribunal was not satisfied that any
aspect of the Respondent’s management of the Claimant was related to his
disability. It noted the Claimant’s tendency to argue both sides of the case
simultaneously thereby creating a difficulty for his manager. For example, the
Claimant wanted telephone prompts to remind him of deadlines, but when he
received these telephone prompts he complained he was being harassed by too
frequent calls.
57.
The disciplinary process was proper and was only initiated after all
else had failed; see paragraph 29:10. The Employment Tribunal then went
on to consider the question of reasonable adjustments and directed itself by
reference to Rowan v Environment Agency [2008] IRLR 20. The Employment Tribunal expressed concern that the list of reasonable
adjustments propounded had never been properly clarified. Some were not
pleaded; others were not suggested by Professor McLoughlin. The
“Provision Criterion Practice [PCP]” found by the Employment Tribunal was the
requirement to submit standard reports of work activity on a timely basis.
There was no actual comparator. The Employment Tribunal noted that the
Claimant was able to work from home and was responsible for his own time
management. Professor McLoughlin’s recommendations were largely already in
place or were made reasonably promptly. Of particular materiality was his
recommendation that expectations with regard to the times at which the Claimant
achieved targets in performance appraisals, especially where written language
activities were involved should be modified. The Employment Tribunal noted
what it had considered to be the Respondent’s “extraordinary forbearance” in
repeatedly extending deadlines. It accepted that text to speech software and
voice recognition software had not been provided, but there was no evidence
that this was material. The Employment Tribunal noted that throughout his career
the Claimant did submit reports to the Respondent and it was never suggested
that report writing was not an essential part of his job or beyond his skill.
Further, he did not attribute to his dyslexia any of the breakdowns in report
writing which led to his dismissal.
58.
Drawing all matters together, the Employment Tribunal was satisfied that
the PCP did not place the Claimant at a substantial disadvantage; accordingly
the claim in relation to reasonable adjustments could go no further.
Notice of Appeal and Claimant’s submissions
59.
Two grounds of appeal were permitted to go forward to a full hearing:
(1) The
decision that the Claimant had not been unfairly dismissed was perverse, or the
Employment Tribunal failed to attach sufficient weight to the evidence.
(2) The
Employment Tribunal’s decision that there had been no direct discrimination was
perverse, failed to reflect the evidence and failed to consider the possibility
of subconscious discrimination.
60.
Both grounds involved perversity and in effect on the evidence an
assertion that the Employment Tribunal could not properly have found either
that the Claimant was not unfairly dismissed or that he had not been subject to
discrimination on the grounds of his disability. In order to try to make good
his points Mr Mahmood has taken us through snippets of various documents
and, we say so here and now, invited us to do exactly what the Court of Appeal
in Yeboah v Crofton [2002] IRLR 634 said we must not
do; that is, to attempt to retry a case that lasted some five days in the
Employment Tribunal with approximately 500 pages of documents. We have not
heard the witnesses, we do not have a transcript of their evidence, and we have
not been referred to most of the documents. Mr Mahmood submitted that his
client had an “overwhelming” case, but he recognised the difficulty of his task
in persuading us that this was so.
61.
In relation to ground (1), he submitted that the Employment
Tribunal at paragraph 9:40 had failed to give adequate weight to the
evidence, especially to the minutes of the meeting of 25 March 2009,
which he submitted, showed unequivocally that a decision to dismiss had been
made on that date. He submitted that the wording of the minutes supported the
Claimant and there was no explanation from the Employment Tribunal why it
concluded as it did, in its interpretation of the minute. He reminded us that
this minute was not disclosed by the Respondent and had been sent anonymously
“shortly before the hearing.” He submitted the Employment Tribunal did not
have regard to this, which pointed to the conclusion that the document had been
concealed because it bore out the Claimant’s case that his dismissal had been
decided upon on that date. It was submitted the Employment Tribunal had failed
to recognise the significance of the timing of the meeting of
25 March 2009. The Claimant had lodged his grievance on
11 February 2009 against Mr Cleary and on 3 March 2009
against Mr Hesketh. He partly upheld the grievance against Mr Cleary
but he rejected the balance of the grievance leading to the Claimant taking out
a grievance against Mr Hesketh, and to an appeal, where Mr Kimmins
found two of the complaints against Mr Cleary had been substantiated as opposed
to the one Mr Hesketh had accepted. This decision was communicated to the
parties on 24 March 2009. It also showed that the Respondent was
aware that the Claimant had difficulties with his dyslexia. The Employment
Tribunal should have found, therefore, that there were at least two incidents
of harassment as well as the recommendation to take immediate steps to provide
the Claimant with support. Mr Mahmood submitted that the conclusion of
the Employment Tribunal at paragraph 9:41 that the minutes did not
indicate that a dismissal had been decided on 25 March 2009 or
shortly thereafter was perverse as it failed to reflect the evidence or the
subsequent chronology, or in particular the wording that the Claimant “should
leave.” Mr Mahmood’s case was that the minute reflected a decision taken
irrevocably on 25 March to get rid of the Claimant preferably by agreement
but if no agreement could be reached then by dismissal.
62.
Mr Mahmood was effectively bound to argue, as he did, that much of
what the Respondent did thereafter was a charade not to be taken at face value and
all the documents to which he referred had to be construed so as to fit in with
what might be described as his conspiracy theory. I put this myself to
Mr Mahmood, who agreed that this in fact was his case.
63.
Mr Mahmood submitted it was important to look at all the evidence
cumulatively and the Claimant was entitled to know why he had lost; there was
no reference to part of the minute or to its non‑disclosure in the
decision. No reasons were given by the Employment Tribunal for rejecting the
literal language of the minute. There was no reference to the relevant part of
the minute about bringing dyslexia into play. This showed there was a clear
link between the Claimant’s dyslexia and the Respondent’s conduct. No weight
appeared to have been attached to the non‑disclosure of the minute; no
weight appeared to have been given to the minutes of the without prejudice
meeting of 31 March 2009, nor had weight been attached to the emails
of 17‑22 May 2009, nor to the minutes of the meeting of
1 July 2009.
64.
We were taken to the minutes of a management meeting of 1 July 2009
at page 177. It was submitted to us that the fact that the Respondent
attempted to negotiate a severance package before adjustments had been
considered showed that at the meeting of 25 March 2009 it had been
decided that retaining the Claimant was not an option. The fact that the
Claimant was recorded as saying he wanted 12 months’ severance (Mr Hesketh
recommended only 6) had more relevance than attached to it by the Employment Tribunal.
The fact that it was Mr Hesketh who dismissed the Claimant showed that
Mr Hesketh wanted the Claimant out.
65.
Further, no weight was attached to complaints by the Claimant about the
Respondent bringing up the disciplinary matter into the question of his road traffic
accident some four months after it occurred. The Employment Tribunal had not
referred to the “secret investigations” by Mr Cleary. No weight had been
given to the timing of the decision of 25 March 2009, the day
following Mr Kimmins’ report; reference to dyslexia had to be a reference
to that report. It was no coincidence (although it was conceded the meeting
had been fixed in advance) that the decision the Claimant should go was as the
result of the dyslexia. The Employment Tribunal should have attached greater
weight to the references to dyslexia in Mr Kimmins’ letter of
24 March 2009 partly upholding the Claimant’s grievance on appeal.
Further, the Employment Tribunal should have had regard to the fact that on
31 March 2009 the Claimant was subjected to a critical performance
review. It was submitted that this critical performance review was without
warning and was on the same day as the Claimant was invited to resign in return
for a severance package. The reference in the minutes of the meeting of
31 March 2009 to this supports the contention that a decision to
dismiss had already been taken; it showed that the Respondent was determined to
dismiss the Claimant.
66.
Mr Hesketh’s email of 22 May 2009 (page 235) to
discuss the medical evidence implied that the Respondent was looking for the
opportunity to dismiss the Claimant. The Claimant’s complaints about
Mr Cleary checking on him, again, it was submitted, showed that the
Respondent was looking for evidence to justify dismissal of the Claimant. This
was something the Employment Tribunal had not dealt with. The Employment
Tribunal should have placed greater weight on the fact that the Claimant’s
grievance against his line manager Mr Cleary had been partly upheld on
appeal and that against Mr Hesketh, although initially dismissed, again
subsequently partly upheld on appeal. Within “a few months” the Claimant was
subjected to a disciplinary hearing without investigation and chaired by
Mr Hesketh, who should not have chaired the dismissal meeting. Pausing
there for one moment, both of my colleagues, Mr Edwards and Mr Smith,
pointed out that any defects in the dismissal procedure conducted by
Mr Hesketh were cured by the appeal to Mr Gordon who impressed the
Employment Tribunal. Mr Mahmood responded that the Employment Tribunal’s error
in relation to the minutes of 25 March 2009 infected the rest of the
process. The appeal could not cure any earlier defect because the decision to
dismiss had already been taken and tainted the rest of the dismissal process.
67.
In relation to the Claimant’s assertion of constant difficulties with
his printer Mr Mahmood submitted there was some support (albeit modest)
for his complaints and referred us to a document at page 232 (notes of
performance review meeting of 14 May 2009), where it was noted that
there was a problem with hibernation. We are satisfied, and say so now, that
the Claimant’s complaints of long‑standing and continued failures are
nowhere near borne out. In any event the Claimant himself asserted that when
dismissed he had produced all outstanding reports (see his email at
page 260).
68.
In relation to ground (2), Mr Mahmood again referred to the minutes
of 25 March 2009 referring to dyslexia being brought into play. It
therefore was part of the Respondent’s reasoning in considering it was in its
interest to part company with the Claimant. Mr Mahmood repeated that on
21 March 2009 the Claimant was subjected to a critical performance
review without warning and on the same day invited to resign for a monetary
sum. He again referred to the minutes of the meeting of
31 March 2009 which, he said, supported the decision to dismiss him.
The minutes of the meeting of 31 March 2009 (page 203) note that
the third of the options referred to on 25 March 2009 was being
pursued; that is, an agreed termination. Mr Mahmood again was forced to
concede that everything that took place thereafter should be regarded as window‑dressing.
Mr Edwards pointed out it was common practice for employers to negotiate a
severance package but that did not necessarily mean that a decision had been
taken to dismiss the employee in question if there was no agreement as to a
severance package.
69.
Mr Mahmood again referred to the tight deadlines to which the
Claimant was subjected; this suggested he was being set up to fail and it was
intimidating. We bear in mind that the Claimant when he was given tight
deadlines had asserted that the work on the documentation had been done and it
was on his computer.
70.
The report from Professor McLoughlin, it was submitted, showed both
the Claimant’s deficits and reasonable adjustments. The main adjustments were
not put into effect as recommended by Professor McLoughlin, including
planning software, speech software and speech recognition software. This was
relevant in considering the Respondent’s approach to adjustments.
71.
There was evidence that the Claimant’s disability did affect the
Respondent’s mind and again reference was made to the minute of
25 March 2009 referring to dyslexia being brought into play. The
email exchange between Mr Hesketh and Mr Cleary (26‑27 May 2009)
showed that they were not amenable to making adjustments.
72.
Finally, the Employment Tribunal had failed to consider the possibility
of unconscious discrimination in so far as the Claimant’s disability had
infected the minds of decision takers.
The Respondent’s response and submissions
73.
In relation to ground (1) Mrs Winstone complained that the Claimant
had effectively used snapshots from various documents to describe the events of
a five‑day hearing including some 500 pages of documents. There was
nothing to suggest that the Employment Tribunal had failed to give weight to
the minutes of 25 March 2009 or to support the Claimant’s claim that
after 25 March 2009 his dismissal was already effectively “a done
deal.” She pointed to the fact that existing disciplinary proceedings were put
on hold, despite the fact that when Mr Hesketh wrote to the Claimant about
outstanding tasks and invited him to a further performance review meeting, the
Claimant immediately responded with a lengthy letter of complaint; at the same
time he was apparently incapable of producing short reports on client visits,
whether oral or otherwise. The Employment Tribunal had commented on
Mr Hesketh devoting substantial time and effort to supervising the
Claimant. The Claimant was not dismissed until 19 August 2009, five
months after the management meeting at which it had been agreed by the
management that the Claimant had effectively made himself unmanageable.
74.
After the Claimant had rejected the severance package he was given every
opportunity to improve his performance up to a final meeting when he claimed
all outstanding work was on his laptop, which he was unable to bring to the
Respondent as his car had been “blocked in,” but it would be sent to
Mr Hesketh the following day. The outstanding work was not sent and the
Claimant was only dismissed the following week when his promises remained
unfulfilled. The Claimant’s reasons for not providing reports were never related
by him to his dyslexia but to deliberate sabotage of computers and unforeseen
events and illnesses. Mrs Winstone stressed the importance of the
provision of reports so far as the Respondent was concerned; it was a small
company with only 20 employees and the reports were the currency of its
business, which needed to be produced while they were fresh in the mind of the
writer so they could be acted upon quickly. The Claimant had taken no issue
that the reports were straightforward and admitted this in cross‑examination,
and that they would take a short time to produce. The Employment Tribunal had
satisfied itself by looking at example reports before reaching its conclusions.
75.
Mrs Winstone reminded us that the Claimant in cross‑examination
had accepted that he kept an iPhone diary and only needed to insert information
after a client visit which could take approximately 30 minutes; she drew our
attention to her note of this cross‑examination, which as we have said
was not objected to on behalf of the Claimant. The Claimant worked from home,
was able to organise his own time and allow appropriate time for this sort of
administration. The Respondent had no control over the Claimant’s method of
working, yet there was work outstanding for more than a year; in particular,
the August 2008 report, despite repeated claims that the work on this
report had been done or that it was ready. This report did not appear until
after the Claimant had been dismissed.
76.
The Claimant had made no complaint about any failure to supply him with
speech or voice recognition software or that this in any way had contributed to
his difficulties.
77.
She drew our attention to the detailed efforts made by Mr Brandwood
as well as Mr Hesketh to assist the Claimant in his communications both
before and after the meeting of 25 March; in this regard she specifically
drew our attention to paragraphs 9:35‑38 of the decision of the
Employment Tribunal. The meeting of 4 June 2008 was regarded as
significant by the Employment Tribunal because the meeting went through the
recommendations of Professor McLoughlin and focussed attention on what
could be done to assist the Claimant. The Claimant’s diary had been shown to
the Employment Tribunal with days blocked out for his administration, but even
this produced no result because the Claimant never used Lotus notes.
Mr Hesketh in the letter of 16 June 2009 (referred to at
Employment Tribunal paragraph 9:52) indicated the extent to which the
Respondent reacted promptly to Professor McLoughlin’s proposals. When at
the meeting of 22 June 2009 (Employment Tribunal 9:53) when
Mr Hesketh offered to draw a line under the August 2008 report the
Claimant insisted this had been done and would be produced by Friday; in the
circumstances this was not an unreasonably short timescale imposed by the
Respondent, and was another example of the false promises made by the
Claimant. In so far as the complaint was made that Mr Hesketh should not
have conducted the dismissal procedures there was no other senior manager who
might have conducted these proceedings against whom the Claimant had not
brought a grievance. The Employment Tribunal was entitled to conclude as it
did that the Claimant’s failure to communicate was the sole and operative
reason for his dismissal.
78.
Mrs Winstone stressed the finding of the Employment Tribunal that
Mr Hesketh had a reasonable basis on which to form the view that the
Claimant’s conduct was wilful in the sense of being capable of immediate remedy
but the Claimant had chosen not to comply with the Respondent’s requirements.
It had applied the principles in Burchell correctly.
79.
Mrs Winstone drew our attention to well‑known authorities such as Yeboah,
Stewart v Cleveland Guest Engineering Ltd
[1994] IRLR 440 and Meek v City of Birmingham DC [1987] IRLR 250.
80.
She then turned to deal with ground (2); direct discrimination.
81.
The comment in the minutes of 25 March 2009 to the effect that
the Claimant had brought the dyslexia issue into play was in the context of the
Claimant having given a constant string of excuses for non‑performance of
his obligations to communicate with his managers over a significant period. He
never blamed his failure on his dyslexia even before the Employment Tribunal.
The issue of dyslexia only arose when he was being disciplined. The Employment
Tribunal referred at paragraph 15 to his stream of sometimes flimsy
excuses; paragraph 9:67 referred to various explanations given by the
Claimant for not providing work or missing deadlines without any insight as to
the effect that this had on his credibility. There was no evidence before the
Employment Tribunal, it was submitted, that the Claimant’s performance
shortcomings were the result of dyslexia. The Employment Tribunal was
satisfied (9:52) that the Respondent had responded to
Professor McLoughlin’s report in a constructive and inclusive manner. It
was confident (29:1) in finding that the Claimant was not dismissed by reason
of his disability. It rejected the suggestion that disability affected the
minds of decision makers and apparently questioned Mr Hesketh closely (see
paragraphs 11 and 12). At paragraph 29:6 the Employment
Tribunal had noted that there was no evidence the Claimant’s performance
shortcomings were the result of dyslexia, nor were the actions of the management
in response. The Employment Tribunal noted five matters including “the long
history of guidance and support given to him both by Mr Cleary and by
Mr Hesketh in dealing with issues which he found challenging [...],” and
the “increasing degree of support provided thereafter,” together with “the
repeated and generous extension of already generous deadlines [...].” There
was simply no evidence to support the suggestion that any aspect of the
Claimant’s management by the Respondent related to his disability. Also,
accordingly, it was submitted, the Employment Tribunal had clearly and
comprehensively set out its conclusions that there was no discrimination
whether conscious or unconscious.
The law
82.
As this is a perversity appeal we start by reminding ourselves of the
well‑known passage in the Judgment of Mummery LJ in Yeboah:
“Such an appeal ought only to succeed where an overwhelming case
is made out that the Employment Tribunal reached a decision which no reasonable
tribunal, on a proper appreciation of the evidence and the law, would have
reached. Even in cases where the Appeal Tribunal has ‘grave doubts’ about the
decision of the Employment Tribunal, it must proceed with ‘great care’, British Telecommunications PLC v Sheridan [1990] IRLR 27 at para 34.”
83.
The Reasons of an Employment Tribunal should also be sufficiently clear
as to enable the parties to know why they have won or lost. The principles are
well known and not controversial, but we remind ourselves of the oft‑repeated
guidance as to the approach to be taken by the
Employment Appeal Tribunal and higher courts of decisions of
Employment Tribunals. It is inappropriate to scrutinise decisions with a fine
tooth comb; it is necessary to look at the decision as a whole and record the Employment
Tribunal saw the witnesses and availed to more documents than the Employment
Appeal Tribunal. There is no need for an Employment Tribunal to refer to all
the evidence or submissions, and if a correct self‑direction as to law
has been given it should be assumed that the Employment Tribunal followed that
self‑direction in accordance with its terms. By way of example we refer
to the decision of the Employment Appeal Tribunal in Royal Society for the Protection of Birds v Croucher
[1984] IRLR 425 when Waite J noted:
“We have to remind ourselves also of the important principle
that decisions are not to be scrutinised closely word for word, line by line,
and that for clarity’s and brevity’s sake Industrial Tribunals are not to be
expected to set out every factor and every piece of evidence that has weighed
with them before reaching their decision. So it is for us to recall that what
is out of sight in the language of a decision is not to be presumed necessarily
to have been out of mind. It is our duty to assume in an Industrial Tribunal’s
favour that all the relevant evidence and all the relevant factors were in
their minds, whether express reference to that appears in their final decision
or not; and that has been well established by the decisions of the Court of
Appeal in Retarded Children’s Aid Society v Day
[1978] IRLR 128.”
84.
It is probably helpful if we also remind ourselves of what Elias J
had to say in ASLEF v Brady [2006] IRLR 576 at
paragraph 55:
“The EAT must respect the factual findings of the employment
tribunal and should not strain to identify an error merely because it is
unhappy with any factual conclusions; it should not ‘use a fine tooth comb’ to
subject the reasons of the employment tribunal to unrealistically detailed
scrutiny so as to find artificial defects; it is not necessary for the tribunal
to make findings on all matters of dispute before them nor to recount all the
evidence, so it cannot be assumed that the EAT sees all the evidence; and
infelicities or even legal inaccuracies in particular sentences in the decision
will not render the decision itself defective if the tribunal has essentially
properly directed itself on the relevant law.”
85.
We also have in mind the helpful guidance of Dyson LJ in MA (Somalia) v Home Secretary [2010] UKSC 49 at paragraphs 43‑46.
We also remind ourselves of the well‑known decision in Meek
to the effect that a decision of an employment tribunal is not required to be:
“[...] an elaborate formalistic product of refined legal
draftmanship [but rather] the parties are entitled to be told why they have won
or lost. There should be sufficient account of the facts and of the reasoning
to enable the EAT or, on further appeal, this court to see whether any question
of law arises [...].”
Conclusion
86.
However attractively Mr Mahmood seeks to put the perversity
argument – and he did put it most persuasively – the fact remains that the
Employment Tribunal heard the evidence, saw the witnesses, and it had evidence
before it that entitled it to come to the conclusions that it did. We broadly
accept the Respondent’s submissions in preference to those of the Claimant.
87.
It is important to bear in mind the importance of the reports the
Claimant was required to produce to the Respondent, which, it will be
remembered, was a small company with only 20 employees and which regarded the
communications as being the “currency” of its business and the business’
lifeblood. These communications needed to be prepared while events were fresh
in the writer’s mind so they could be acted upon quickly. We have seen examples
of the weekly and monthly reports; they are short. The Claimant conceded they
could be produced quickly, particularly by reference to his iPhone diary.
88.
The Claimant’s failure was over a period of months; he made numerous excuses
but never raised dyslexia as an excuse. He claimed on occasions that the
reports were ready, that they had been done; they were still not supplied.
Some of his excuses, such as computer sabotage, were patently untrue. When his
computer was returned after his dismissal the alleged faults could not be
traced; a similar finding was made in relation to his allegedly defective BMW.
The Employment Tribunal was well aware that the minute of
25 March 2009 at page 160 was only provided initially in redacted
form on disclosure, and was then sent anonymously to the Claimant. This is
expressly referred to at paragraph 9:39, but the Employment Tribunal
concluded, as it was entitled to conclude at paragraph 9:41, that it did
not regard the minutes as an indication the Claimant’s dismissal was decided
upon that day or shortly thereafter. That finding in the light of all the
evidence, including the minutes themselves, is far from perverse. The meeting
occurred shortly after the meeting between Mr Hesketh and the Claimant on
18 March 2009 and the Employment Tribunal had commented (9:38) that
Mr Hesketh’s subsequent email of 8 March 2009 was both generous
in time and spirit.
89.
We also bear in mind that the disciplinary proceedings commenced against
the Claimant in February 2009 were placed on hold; this is surely not an
indication that the Respondent had decided on the Claimant’s dismissal. The
suggestion that everything that occurred after the meeting of
25 March 2009 was a charade or window‑dressing is unsustainable
in the light of the evidence accepted by the Employment Tribunal, including the
attempts to engage with the Claimant despite his continued non‑performance,
the report commissioned from Professor McLoughlin, and the detailed
meeting of 4 June 2009 to discuss this report.
90.
It must be borne in mind that the Employment Tribunal was not bound to
refer to every factual allegation and submission, but in our opinion its
decision was careful, thorough and detailed. Also, the documentation such as
that to which we have referred at pages 177, 197, 235, 237
and 240 simply does not bear out the thesis that the decision to dismiss
was taken on 25 March 2009. The fact that the Respondent was faced
with a decision as to what needed to be done with an unmanageable employee, and
was considering a number of options including dismissal, the preferred option
being agreed severance, did not mean that the Respondent never intended to try
and work with the Claimant. The Employment Tribunal was entitled to conclude
that the Respondent did make a genuine effort to accommodate the Claimant in
the five months between the meeting of 25 March 2009 and his
dismissal. The Employment Tribunal did not just look at the documents. It
heard from witnesses and accepted the evidence of Messrs Brandwood,
Hesketh, Gordon and Smith to the effect that no final decision to dismiss the
Claimant was made on or shortly after 25 March 2009. We simply fail
to see how the decision of the Employment Tribunal on the credibility of these
witnesses can be impugned.
91.
The Employment Tribunal was also entitled on the evidence to find that
the Respondent was justified in concluding that the Claimant’s failure repeated
and constant to provide the various reports was not due to his dyslexia and
reject the excuses about capital IT failures, sabotage of the computer and what
have you.
92.
We ourselves saw the size and simplicity of the reports the Claimant had
failed to produce in months, and the comparatively long and detailed letters he
was able to produce overnight, computer failures and sabotage of the computer
system notwithstanding. The Employment Tribunal was also entitled on the
evidence to conclude as it did in paragraphs 12 and 29:1 that it was
confident in finding the Claimant was not dismissed by reason of his disability
but by reason of his failure to communicate.
93.
The conclusion of the Employment Tribunal that the Claimant was not
discriminated against by reason of his dyslexia is firmly rooted in the facts
that the Employment Tribunal found and was entitled to find that the Claimant
suffered no discrimination by reason of his dyslexia. It is important in this
regard to bear in mind that at no time did the Claimant raise his dyslexia as a
reason for his failure to communicate, so in our opinion the Employment
Tribunal was entitled to reject the suggestion that the Claimant’s disability
affected the minds of the decision makers in any event.
94.
In the circumstances, therefore, the appeal will be dismissed.
95.
We would conclude by thanking both counsel for their great persistence
both in relation to their skeleton arguments and their submissions.
