United Kingdom Employment Appeal Tribunal

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URL: http://www.bailii.org/uk/cases/UKEAT/2013/0056_12_0502.html
Cite as: [2012] UKEAT 0056_12_0502, [2012] UKEAT 56_12_502

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Appeal No. UKEAT/0056/12/DM

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

At the Tribunal

On 15 May 2012 & 3 August 2012

Judgment handed down on 5 February 2013

Before

HIS HONOUR JUDGE HAND QC

MR I EZEKIEL

MR A HARRIS

MR F JENNINGS APPELLANT

BARTS AND THE LONDON NHS TRUST RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant

MS CLAIRE PALMER

(of Counsel)

Instructed by:

TMP Solicitors LLP

29^th Floor

One Canada Square

London

E14 5DY

For the Respondent

MS HILARY WINSTONE

(of Counsel)

Instructed by:

Capsticks Solicitors LLP

1 St George’s Road

Wimbledon

London

SW19 4DR

SUMMARY

DISABILITY DISCRIMINATION – Disability related discrimination

If a wrong label is attached to a mental impairment a later re-labelling of that condition is not diagnosing a mental impairment for the first time using the benefit of hindsight, it is giving the same mental impairment a different name and, given that whether or not an employer knows or should have known there is a disability is essentially a question of fact (see Wilcox and Birmingham CAB Services Ltd [2011] Eq LR 810), the Employment Tribunal was entitled to find that the Cross Appellant employer had actual or constructive knowledge of the disability.

Although the Employment Tribunal overstated the effect of the judgment in Project Management Institute v Latif [2007] IRLR 579 (contrary to what the Employment Tribunal tended to suggest, it does not place any evidential burden on a Claimant to do more than identify alleged reasonable adjustments) and whilst it is always better for an Employment Tribunal to deal specifically with each suggested adjustment that has been identified by a Claimant, particularly where a CMD has confirmed that those matters are in issue, the Employment Tribunal’s judgment addressed the issue of reasonable adjustments to a sufficient extent and the Appeal must be dismissed.

UNFAIR DISMISSAL – Reasonableness of dismissal

The Employment Tribunal had reached a tenable conclusion on the factual material and the judgment was not perverse.

HIS HONOUR JUDGE HAND QC

Introduction

1. This is an appeal by the Claimant, Mr Jennings, who was the Claimant below and who we will call the Claimant in this judgment, from the judgment of an Employment Tribunal comprising employment Judge Prichard, Mrs McPake and Ms J Owen sitting at East London Hearing Centre on 1 to 3 June and 6 and 7 June 2011. The reserved judgment, which was sent to the parties on 4 October 2011, dismissed claims of unfair dismissal and disability discrimination. There is a cross appeal by the Respondent employer, who we will call the Respondent, against the finding by the Employment Tribunal that the Respondent had, as the Employment Tribunal described it, “imputed knowledge” that the Claimant was disabled, as required by section 4A(3) of the Disability Discrimination Act 1995 (“DDA”).

2. The appeal was heard on 15 May 2012 but there was no time then to hear the cross appeal. One course, which was suggested to us, was to decide the appeal and then, if we dismissed it, there would be no need to hear the cross appeal. Paradoxically, if the cross appeal succeeded, then it might be said that there was no need to decide the issues raised by the appeal. In the end we thought it better to attempt no short cuts and the hearing of the cross appeal was adjourned to 3 August 2012, which was the first date convenient to the parties and the Tribunal. After hearing the submissions on the cross appeal, the Tribunal wished to reflect on the lengthy arguments and accordingly judgment was reserved. We are conscious of the time it has taken to prepare this judgment; this results entirely from other judicial commitments of HHJ Hand QC and he apologises to the parties for the delay.

3. The Claimant has been represented by Ms Palmer of counsel and the Respondent by Ms Winstone of counsel. The issues on the cross appeal are whether the Employment Tribunal erred in concluding that the Respondent “could … reasonably be expected to know” that the Claimant suffered from a disability within the meaning of the DDA and the issues on the appeal are whether the Employment Tribunal misdirected itself as to unfair dismissal, disability discrimination both as to disability related discrimination and as to reasonable adjustments.

The factual background

4. There is an extensive historical narrative in the Employment Tribunal’s judgment, which runs from paragraphs 1 to 137 at pages 2-29 of the hearing bundle. In order to understand the arguments (and, in particular, the argument on the cross appeal) it is necessary to consider it in some detail. So, although what follows is only a summary, it is of some length.

5. The Claimant had worked for the Respondent for nearly nine years when he was dismissed by reason of his poor attendance record from his job as a senior PCIT support engineer. He was 51 at the date of his dismissal and was one of a team of ten people in the Trust, providing support services in respect of the personal computer equipment used by other employees. The team worked against targets. The Claimant’s daily target was eight call closures per day.

6. Throughout his employment, the Claimant was intermittently absent due to recurrent short-term illness, some of which in earlier years related to back problems, but much of which in the last two to three years of his employment related to other matters. The Employment Tribunal mentions at paragraph 10 of the judgment a reference to the Occupational Health Department as far back as the year 2000, so this was a long standing problem. The Respondent applied its absence procedure in a rigorous way and by July 2004 the Claimant had started to complain about the way in which his absences were being addressed. Relations between the Claimant and the Respondent worsened over the next eighteen months to two years. This owed much to an accident in February 2006 involving the Claimant’s motorcycle and a Trust vehicle. The Claimant was later absent for forty-nine days with back pain (see paragraph 38 of the judgment), although the Employment Tribunal was of the view that:

“There does not seem to be any connection between it and the February … incident…”

7. In early 2007, the Claimant was diagnosed with angina and was absent from work for forty-four more days (see paragraph 40 of the judgment). Although medical advice suggested that he was fit to work, the Claimant started to form the view that he should retire through ill health and on 16 April 2007, when he was back at work three days a week the Claimant presented a request for ill health retirement to Dr Baxendine of the Occupational Health Department (see paragraph 43 of the judgment). The latter thought that the Claimant would make a full recovery and told him so; he did not consider him to be “permanently disabled from carrying out his normal duties”. Within a few weeks, on 4 May 2007, that conclusion appeared to have been justified because there was a further report from Dr Baxendine indicating that the ECG result on which the diagnosis of angina had been based was “a false positive” and concluding that there was no medical reason as to why he should not return to work (see paragraph 44 of the judgment at page 9 of the hearing bundle).

8. In July 2007, the Claimant complained that he had been abused by a fellow employee and he was off work for four days with stress. He had a further five days off work in August 2007, also due to stress. Although he recognised that he would not be retired because of his angina, he now wished to pursue the possibility of retiring due to ill health caused by stress at work. The Respondent had treated his back problem as a long-term illness, but would not regard the absence due to stress in the same way. Disciplinary proceedings were instituted against him in respect of his absences, the Claimant asserted that this imposed further “stress” upon him.

9. The Employment Tribunal was told by the Claimant’s line manager, Mr Vernall, that he regarded the Claimant as a hypochondriac (see paragraph 52 of the judgment). At this stage it was clear that Mr Vernall did not regard the stress as a yet further symptom of a unitary or single condition, but as a manifestation of “yet another illness” (see paragraph 51 of the judgment at page 11 of the appeal bundle). On 23October 2007, he sent an email to the Claimant’s immediate manager, a Mr Wilkinson, in these terms (see paragraph 56 of the judgment):-

“The good news…

Frank is sick with his back again. I think I have broken him by asking him to work on the SD [the service desk].”

So far as the Claimant was concerned this simply confirmed his belief that Mr Vernall was (see paragraph 57 of the judgment):-

“… motivated by a desire to dismiss him at all costs and a desire to ‘break him’ by deliberately getting him to do things which would cause him the sort of injury that would mean he could no longer work for the Respondent.”

10. This was denied by Mr Vernall and the Employment Tribunal rejected the Claimant’s case. The Employment Tribunal said, at paragraph 58:-

“The Tribunal accepts Mr Vernall’s explanation. The phrase ‘the good news’ was a favourite phrase of the claimant and a regular refrain when he telephoned in to give what was invariably bad news, that he had to take a day off sick. We accept Mr Vernall’s explanation that it had become a standing joke between him and Mr Wilkinson. The email was sent to Mr Andrew Wilkinson and the claimant himself. Mr Vernall is quite clear that it was not sent to the claimant in error. He was not proud of the email in retrospect. The Tribunal therefore accept there is nothing underhand about this. The phrasing is odd because the phrase: ‘I think I have broken him by asking him to work on the SD’ which refers to the claimant in the third person is an odd thing to say when the person referred to is not merely a CC but actually an addressee. Circumstantially we cannot accept the interpretation that the claimant puts on it that Mr Vernall was minded to sabotage his recovery and make him ill. All his efforts were totally in the other direction. The Tribunal considers Mr Vernall would have given anything to see the improvement in the claimant’s attendance. If he had wanted to bring about the claimant’s demise he could have done so much, much earlier. Also, the history shows that the claimant appeared to need no extra help in developing symptoms of illness, and taking time off for such illness.”

11. A meeting between the Claimant and Mr Vernall took place, according to the Claimant, on 13September 2007; according to the Respondent it took place on 12September 2007 and the Employment Tribunal accepted the Respondent’s evidence on this issue. The Claimant was off sick due to alleged stress; he complained of having “a large painful lump deep in the side of my neck” (see paragraph 77 of the judgment at page 16 of the bundle). He was also still suffering from “stress”, which manifested itself in the form of “panic attacks and palpitations” (see paragraph 78 of the judgment at page 16 of the bundle). Consequently, he did not attend the disciplinary hearing, which had been due to take place on 20 September 2007. It was rescheduled for 1October 2007.

12. On 28 September 2007 he was seen again by the Occupational Health Department and an occupational health advisor called Mr Houssein Perally recorded that the Claimant had reported to him “that he has been experiencing stress, anxiety attacks, palpitations, difficulty sleeping and nightmares since February/March 2007” In his report, which is quoted at paragraph 81 of the judgment at page 17 of the hearing bundle, Mr Perally noted that the Claimant had seen “a psychiatrist on 05/09/2007 who formulated that he has been experiencing post-traumatic stress symptoms”. This Post-Traumatic Stress Disorder (“PTSD”) related to his road traffic accident in February 2006.

13. The Claimant himself gave that diagnosis in an email that he wrote on 27 September 2007 indicating that it was impossible for him to attend a disciplinary hearing because of the “stress and strain” it would impose. Notwithstanding this new diagnosis, the Claimant, as a result of the examination by the Respondent’s occupational health advisor, was pronounced fit to attend a hearing. The Employment Tribunal commented, at paragraph 82, that it was “sceptical of this analysis” (i.e. the PTSD).

14. As a result of the Claimant’s stance, the hearing scheduled for 1October 2007 was postponed until 10October 2007. The Claimant did not attend alleging that he was absent through stress-induced illness; a “sick note” was submitted to the Respondent with “the diagnosis of “stress”” (see paragraph 86 of the judgment at page 18 of the bundle). But the meeting went ahead in his absence. The Employment Tribunal found that the hearing had been convened under the short-term absence policy, but in fact the panel had gone on also to consider the long-term absence policy (see paragraph 87 of the judgment). The outcome was a first written warning under the short-term absence policy and the commencement of the long-term absence procedure. The Claimant did not attend the subsequent meeting on 7November 2007, which had been arranged under the long-term absence procedure. He asked for the meeting to be rearranged until after he had had a further occupational health assessment. This was due on 15 November 2007 and the disciplinary meeting was rescheduled for 16 November 2007.

15. Mr Andrew Moore, the Head of the Occupational Health Department, saw the Claimant on 15November 2007. He indicated that he was suffering from PTSD. The Employment Tribunal quoted Mr Moore’s report at paragraph 102:-

“From my assessment it is clear that Frank is still suffering from some residual symptoms of post-trauma relating to the accident he had in February 2006. He is also suffering from what I would term as generalised or free floating and specific anxiety symptoms which appear to result in a cluster of symptoms which include panic attacks. In order to get further clarification I have today written to his psychologist for a further updated report, and would hope to be in a better position to advise on fitness to you on receipt of this report.

It is my opinion at present that he currently remains unfit to return to the workplace however. I have today discussed with him aiming for a return to work within the next four to six weeks. In relation to his return I would also recommend that he re-commences work with a gradual return to work programme over a period of three weeks. I would recommend the following step-up programme:

· Week 1 and 2 – 50% of his hours

· Week 3 – 75% of his hours

· Week 4 – returning to normal hours.”

16. Mr Moore also noted (see paragraph 105 of the judgment) that the Appellant reported himself as suffering from:-

“… some ‘perceived’ work-related stress. I have today discussed a Stress/Pressure at work Questionnaire and have emailed a copy of this to him to complete. This questionnaire is based on the Health and Safety Executive’s (HSE) standards for managing stress in the workplace. Frank needs to articulate what he perceives as the stressors in his work and then needs to meet with yourself to discuss what (if any) reasonable adjustments can be made. I have attached a copy of this questionnaire and if you want to discuss this further please do not hesitate to call me to discuss.”

17. The psychologist referred to in the extract of the report quoted at paragraph 15 above must be Dr Melinda Rees, a clinical psychologist, who was treating the Appellant. It seems that Mr Moore had a report from her because at paragraph 105 of the judgment the Employment Tribunal make specific reference to her report of September 2007. According to Mr Moore she had described the Claimant as “experiencing anxiety symptoms” and indicated that a course of cognitive behavioural therapy had been recommended.

18. The Claimant attended the meeting on 16November 2007, but by then Mr Moore’s report of his consultation of the previous day was not available. It was agreed at that meeting the Claimant did not wish to pursue ill health retirement at that stage. The outcome was a decision by the Respondent to take the Claimant’s long-term absence to the next stage of that procedure. This took place on 7 December 2007, but nothing came of it because there was an imminent further occupational health examination a week later on 14 December 2007 and further consideration of the matters was postponed until after that examination. By then the Claimant had been off work since September 2007.

19. On 14 December 2007 Melinda Rees wrote to Mr Moore (see pages 11 and 12 of the supplementary appeal bundle). She described treatment through cognitive behavioural therapy “for anxiety and depression including some symptoms of Post-traumatic stress reaction which is ongoing”. She also said that she was “addressing the panic attacks” and that the Claimant’s “difficulties were rooted in a complex history”.

20. In an email on 15 December 2007 the Claimant wrote (see paragraph 121 of the judgment at page 25 of the appeal bundle) in the following terms:

“To be sure that one is recovered when one has a broken leg or flu is quite easy. However, my condition is variable depending on many indeterminable factors which are just impossible to predict reliably how they may affect me or how I will be able to deal with their influences.”

He went on to express disappointment that, as he put it, he was not able to have “tested the water” by returning to work to see how he could cope.

21. The response of the Employment Tribunal to this is set out in paragraph 122 of the judgment in these terms:

“This argument has been a major issue for the tribunal at this Hearing. It arises naturally when someone presents with multiple diagnoses, possibly alternative diagnoses of the same condition and sometimes clearly not unrelated diagnoses.”

This is somewhat cryptic and the double negative in the last part of the second sentence does not greatly assist comprehension but we would take it to amount to an acceptance by the Employment Tribunal of the Claimant’s proposition that he suffered from a variable condition which had resulted in a variety of diagnoses, some of which were related.

22. On 10 January 2008 Dr Baxendine from the Occupational Health Department examined the Appellant. He quoted the report of Dr Melinda Rees, which is in these terms (see paragraph 126 of the judgment):

“… He is progressing but the specialist still thinks it will take some weeks of treatment to help him resolve the problems and deal with his anxiety. One has to see this incident against a background of longer term personality and anxiety problems and I think that these have not been appropriately addressed in the past.”

Dr Baxendine appears, however, to have had his own views about the road traffic accident. These are recorded at paragraph 129 of the judgment at page 27 of the appeal bundle, in these terms:

“Given that he never mentioned it as an issue when I saw him in 2007 regarding his circulatory problem I am not quite clear why it should now have flared up into such a big issue and be causing him so many problems with regard to attending work.”

He took the view that the Claimant should be ready for a phased return to work some time in March.

23. There was a final meeting under the long-term absence procedure on 23 January 2008. By the time of that meeting, the Claimant had not completed the stress at work questionnaire, something he had been asked to do more than once. Mr Vernall took the view the Claimant might not return in March 2008; no date had been set. His department was under pressure and his colleagues felt that the continued absence was unfair to them. In the result, the Claimant was dismissed with immediate effect (see paragraph 131):-

“The panel’s decision was therefore to terminate employment as from 23 January. The claimant was given three months’ notice and he was paid in lieu. This seems to us to mean that he was dismissed with effect from 23^rd January 2008 but was given a payment in lieu of three months’ notice.”

24. An appeal was heard on 21 February 2008 and the dismissal decision was upheld.

The Employment Tribunal’s analysis

25. What follows from paragraph 138 onwards is a combination of self directions as to law, further fact finding and conclusions. Paragraphs 138 to 140 and 142 are largely devoted to legal analysis in relation to the issue of “imputed knowledge”; paragraph 141, however, refers to authorities relating to unfair dismissal.

26. The Respondent accepted that the Claimant suffered from a mental impairment, personality disorder and major depression and, taken together, these constituted a disability for the purposes of the DDA. What was not conceded, however, was that the Respondent had a duty to make reasonable adjustments. That was because the Respondent did not know nor reasonably ought it to have known that the Claimant had a disability and that he was likely to be substantially disadvantaged in comparison to persons not disabled by the application of a provision, criterion or practice (see section 4A of the DDA (set out below at paragraph 47)). In this context at paragraph 140 of the judgment the Employment Tribunal refers to DWP v Hall UKEAT 0012/05 and DWP v Alam [201] I.C.R. 665 and at paragraph 142 reference is made to paragraph 5.15 of the DRC Code of Practice 2004.

27. The Employment Tribunal then turned to the question of unfair dismissal at paragraph 143. It concluded that:-

“… Strict adherence at each of four phases was, to the Tribunal’s mind, unnecessary and unwarranted.”

As we understand it, the Employment Tribunal meant by that it had not been unreasonable for the Respondent not to comply with the time limits laid down in its own procedures.

28. In relation to the long-term absence the Employment Tribunal say this, at paragraph 144, page 31 of the hearing bundle:-

“The claimant was dismissed not for short-term absences but for long-term absence. The claimant had been absent for sixteen weeks. In this case we have to bear in mind the case of Westminster City Council v Cabaj. Not every departure from an employer’s own written policy will mandate a finding of unfair dismissal. That is an unwarranted gloss upon section 98(4) of the Employment Rights Act. The policies are there for broad guidance and to promote consistency and predictability.”

29. A little later in the same paragraph the following appears:-

“We have no doubt overall, as a matter of substance and procedure, the dismissal, as and when it occurred, was amply within the range of reasonable responses. An over-technical interpretation of the policy and the way the Respondent worked through it in this case is absolutely to be avoided in this and all cases. Looked at overall, this was not a borderline case. The claimant’s record was severely poor. The management problems he caused and the amount of management time he took were disproportionate.”

30. The Employment Tribunal’s reasoning appears to be that procedural failures did not matter because the Claimant had ample time to pursue the aspects of phase 1 of the procedure, which he had missed because of the way the matter had been raised (see paragraph 146 of the judgment). Moreover, the Employment Tribunal laid emphasis on his failure to complete the health questionnaire.

31. The Employment Tribunal identified some specific points. Paragraph 149 deals more specifically with the shortcomings in respect of phase 1 and reads as follows:-

“The first point of criticism is the way in which the whole process entered phase 1 as already remarked. At a meeting convened by letter of 2 October and taking place on 10 October, phase 1 of the long-term absent policy was dealt with, although there was no mention in the letter of 2 October of any long-term absence being dealt with. A meeting was solely and specifically convened to deal with short-term absence which means that something was taken without notice to the claimant. This cannot be a reasonable procedure and is a basic breach of natural justice. However, the question is, in terms of a four-phase procedure, does that flaw render everything that happened thereafter unreasonable? In our view it did not. The claimant had ample and fair opportunity to catch up with the process, but ultimately failed to make any case.”

So those last three sentences amount to a conclusion that procedural shortcomings did not vitiate the decision to dismiss.

32. At paragraphs 150 to 160 the Employment Tribunal investigates the failure to hold a case conference. The real focus, however, of this series of paragraphs is a criticism of the Claimant for not taking positive steps to articulate his needs and in particular for not completing the stress questionnaire. At page 35 of the hearing bundle, paragraph 162 poses another question in these terms:-

“Was Mr Vernall unreasonable in terms of the policy and in terms of section 98(4) in insisting if he was to come back that he came back on a planned phased return or else be subjected to disciplinary measures for short-term absence?”

33. At paragraph 165, on page 36 of the judgment, the Employment Tribunal refers to the question of a case conference and quotes again Dr Baxendine’s letter. Paragraph 166 opens with an acknowledgement that at first sight Dr Baxendine’s report had been favourable to the Claimant.

34. The Employment Tribunal says:-

“Read superficially that sounds quite upbeat and optimistic and one might think that the employer will be unreasonable in deciding to dismiss at the meeting when this was the last report. In a telling piece of evidence it appears that Ms Chopra, who seems to have had the claimant’s best interests at heart again had telephoned Dr Baxendine and asked him to clarify his report. Dr Baxendine then wrote a letter stating:

‘In the report I said I would expect Mr Jennings to be ready for a phased return to work in March 2008. This was of course subject to his continued good process with his psychotherapist and this is what I propose to review at my next appointment with him on the 4^th March 2008. As return to work was subject to his progress with therapy I cannot of course guarantee that he will be fit to return then… From a point of view of future prognosis I would consider Mr Jennings remains with underlying problems and would certainly not be able to guarantee that he will give regular and effective performance in the future. Indeed on the balance of his past sickness record, I would have to anticipate that he will have further sickness absence in the future.’ ”

35. At paragraphs 167, 168, 169, 170 and 171 of the judgment, the Employment Tribunal puts the letter into the following context:-

“167. It is not clear whether that letter was received before or after the dismissal outcome confirmation letter was sent on 24 January 2008. We had to remind ourselves that the actual decision date was taken on 23 January 2008, which was the effective date of termination and on that date it was announced to the claimant orally at the meeting. It rather looked as if HR was seeking justification after the event for a decision that was being made the day before. That of course could potentially render the final dismissal decision unfair. So what was the evidence available on the 23 January? Was the claimant stating that the management should look towards a return to work in March just as Dr Baxendine had predicted? No, quite the contrary. The claimant himself was introducing the note of pessimism.

168. It seems that the occupational health doctor, Dr Baxendine, would have written this first report in the way he did. Occupational health doctors are frequently positive and optimistic. It can be particularly appropriate if someone is suffering from stress or depression. He knows that if he says there is no return to work date and no prospect of it that he will virtually be rendering dismissal inevitable and he did not want to do that for the claimant. For instance when a doctor issues a sick certificate for four weeks that does not mean that the person in question will be fit to return in four weeks. The four week date is a review date. So when he is talking about return to work in March he is really saying there will be a review in March. He could not say more than that, particularly when there is some ongoing therapy that may or may not produce some improvement.

169. In the Tribunal’s view management was not unreasonable in not taking an optimistic view from the report. Carefully read, as the important prognosis passage must have been, it does not of itself provide an issue of return to work date as Mr Vernall noted in his management case to the meeting chaired by Doug Howe and Patricia Tracy. Such optimism there might have been [sic] was completely destroyed by the Claimant’s stance. He said as follows:

FJ: “I’m getting there and would like some more patience and forbearance so I can get back to full time.

DH: When do you think that could be?

FJ: Dr Baxendine says March, but I think it’s more likely to be April. My psychiatrist says I am halfway through. Dr Baxendale ways [sic] well I want to tell you something that I don’t want to go outside these walls etc.”

And then he says:

“ … I don’t want to return to work too early because if I burst into tears it’s a rough environment and I don’t think I can cope and I’ll never hear the end of it.”

170. In our view management was acting well within the reasonable bounds by forming a considered view that there was no return to work date as at 23 January and that it was the final phase of long term absence process in which the claimant had overall been invited to make suggestions, had made none, and had not filled out the stress questionnaire and had not suggested redeployment jobs. Given that the claimant had engaged promptly and articulately in correspondence stating his point of view, it appears to the Tribunal that if the claimant had turned his mind to the stress questionnaire he could easily have filled it in.

171. The claimant wanted a unique procedure tailored to his own particular disorder. He required carte blanche and a total exemption from the short-term sickness policy. If that had been allowed we can easily see what the Respondent apprehended happening, i.e. operational problems and resentment from other team members which already existed anyway. Furthermore, the Respondent was entitled to take into account the past history and to conclude that the past was the best predictor of the future, for instance the stop-start return after the so-called ‘angina’ absence through March to July 2007 and the subsequent change of diagnosis. In all those circumstances the Tribunal considers that the claimant was fairly dismissed.”

Disability discrimination

36. The Employment Tribunal then turned to disability discrimination. The approach of the Tribunal was to divide the topic into “imputed knowledge” and “reasonable adjustments.”

37. Direct discrimination was disposed of by the Tribunal at paragraph 172 in these terms:-

“We turn now to the question of disability discrimination. The complaints of disability discrimination consisted of complaints of failures to make reasonable adjustments. The complaint of disability related discrimination is not legally viable since the judgment in London Borough of Lewisham v Malcolm. There are two major determinations the Tribunal has to make. First, was the Respondent aware that, by reason of disability, the claimant was at a substantial disadvantage because of a provision criterion or practice, in comparison with non-disabled individuals?”

The second “major determination” is not articulated.

38. At paragraph 173, under the heading “Imputed Knowledge”, the Employment Tribunal say this in the first sentence and at page 38 of the hearing bundle:-

“It is quite clear having reviewed the evidence and the focus of the claimant’s argument that the PCP in question was the short-term sickness policy and the fact that it did not permit unplanned intermittent absences without sanctions leading to dismissal.”

The paragraph goes on to discuss the characteristics of a short-term absence policy and ends by emphasising the importance of discretion and the individual nature of particular cases.

39. The Tribunal then goes on to deal with redeployment, at paragraph 174, in these terms:-

“The claimant only really discussed the question of redeployment in these Tribunal proceedings. The Tribunal was not impressed with his confident assumption that he could simply transfer to a relatively unskilled job like the post room. With respect to that view, lesser skilled jobs nonetheless have their skills and need experience. It would be unsuitable on a temporary basis and it would be a fantasy to think that such a job would be free from stress. The claimant discussed this only in general outline. The minutes of 23 January, phase 4 meeting, recording the claimant as saying:

‘I can see that it is not possible to modify my job but would like to be put in another environment, maybe the technical team or software development. But I do understand there are no jobs available. No posts are available as you either need a degree or it’s a road sweeper job there is nothing else suitable.’”

40. At paragraph 175 of the judgment the Tribunal accepted that the short-term absence policy was a “PCP” and then turned to the question as to whether the Respondent knew about the disability. At paragraph 175 the Tribunal says this:-

“This is a finely balanced question. It must have been obvious to the Respondent for some time that the claimant’s behaviour was odd. The evidence in this case is a testament to that such that with hindsight Dr Baxendine is able to say that the diagnosis given for the report for these proceedings by Melinda Reece is a very credible one, makes sense of behaviour he had observed from the claimant [sic]. He had himself been witness to the claimant breaking down in tears shortly after the angiogram had proved normal and he was given the all clear for coronary heart disease on 29 April 2007.”

41. At paragraph 176 the Employment Tribunal discuss the fact that there were what they call “two distinct potential disorders”. The Employment Tribunal identified one as “major depression” and the other as “paranoid personality disorder”. The latter diagnosis came from the report of Dr Melinda Rees dated 11 October 2010 (see pages 187 to 193 of the appeal bundle). The Employment Tribunal found it significant that her diagnosis of “major depression” had been made in 2007 but noted that the medical records reveal no prescription for anti-depressant medication at this time.

42. At paragraph 178 of the judgment, the Employment Tribunal reached this conclusion:-

“The Tribunal on balance concluded that the employer did have imputed knowledge of what has turned out ultimately to be the diagnosis. It is noted and indeed counsel noted with a little surprise that her instructing solicitor admitted personality disorder and major depression as the disabilities for the purposes of the 1995 Act and that the claimant had suffered from both these mental impairments at all material times. The Tribunal cannot but find accordingly, and in any event even if we had found that the employer had no imputed knowledge, it would only be right as the matter is finely balanced to deal with the other aspects of the claim of complaint of failure to make reasonable adjustments in the workplace.”

This is not easy to follow. What is it that the Employment Tribunal “cannot but find accordingly”? It can only be that the Claimant had suffered longstanding mental impairments, which amounted to a disability for the purposes of the DDA; this was admitted by the Respondent and the Employment Tribunal were bound to accept it. Perhaps the phrase “cannot but find accordingly” expresses reluctance to reach that conclusion? On the other hand the syntax of the paragraph suggests that it is “imputed knowledge”, which the Employment Tribunal “cannot but find accordingly” and that presents a problem because the admission does not lead necessarily to the conclusion that there is “imputed knowledge”.

43. The Employment Tribunal then turned to reasonable adjustments. At paragraph 179 the Employment Tribunal reiterated the theme of the Claimant not having pursued the case conference or completed the stress questionnaire or having discussed a meaningful phased return to work. Nevertheless, at paragraph 180, the Employment Tribunal goes on to find that the Claimant raised a prima facie case of failure to make reasonable adjustments. The adjustment itself had been identified at paragraph 179 in the following terms:-

“… The claimant seemed to be asking for nothing less than a unique absence policy which was neither short-term nor long-term but peculiar to him. It is possible in principle to comply with a duty to make reasonable adjustments by modifying existing [sic]. That is the sort of adjustment that the DDA envisages but, because the claimant had not completed stress questionnaire or engaged in redeployment or in any meaningful discussion about return to work, or planned phased return (and we emphasise planned), that a case conference was not possible. In the Tribunal’s view it would not be reasonable for the Respondent to make modifications when the claimant himself simply remained unfit for work, and away from work. More importantly he did not engage in meaningful constructive practical steps to facilitate any future return to the workplace. It would not be reasonable for the Respondent to second-guess what would be of benefit to the claimant when he was not participating in the process either with them or with occupational health, in terms of what he needed.”

44. At paragraph 180 the Employment Tribunal directed itself as to the proper approach. The Tribunal noted that it is for the employer to identify the precise reasonable adjustments that need to be made. But the Tribunal qualifies the matter in this way:-

“However, the case of Project Management Institute v Latif [2007] IRLR 579, the EAT states that there is a duty on a claimant employee to specify the reasonable adjustments in the Tribunal proceedings, as opposed to the workplace. The employee needs to raise at least a prima facie case as to show the Respondent has failed to comply with some identified reasonable adjustment. In this case the claimant has not.”

45. But the Employment Tribunal go on to find, at paragraph 182, that the Respondent had not failed to make reasonable adjustments:-

“For much the same reasons as we find it is a substantially fair dismissal, we find that it would not be reasonable to have expected the Respondent in the context of this particularly busy IT service to follow the claimant’s suggestions as to the most appropriate absence policy for his particular case. They were not unreasonable in finding no other adjustments which could have made any difference and resulted in the claimant’s return to work. It would have produced clear operational problems to the extent the situation would have continued to be unworkable for any more than a short finite amount of time, especially as the department was moving into further period of intense activity surrounding the implementation of CRS [sic]. There was existing resentment which the Tribunal found easy to believe and accept, given the long and bad history of attendance in this case. It could only have got worse as the workload increased.”

This adverse impact on the working environment was further emphasised by paragraph 183 where Mr Vernall’s description of the impact of the frequent and persistence absences of the Claimant on colleagues as “enormous” was said by the Employment Tribunal to be an accurate and not exaggerated statement.

Submissions – the cross appeal

46. Ms Winstone submitted that in paragraphs 173 to 178 of the judgment, the Employment Tribunal had misdirected itself by applying the test of “hindsight”. Moreover, she submitted knowledge of a major personality disorder cannot reasonably be ascribed to an employer layman simply as a result of witnessing a random collection of symptoms and diagnoses.

47. She relied upon the judgment of this Tribunal in Wilcox and Birmingham CAB Services Ltd [2011] Eq LR 810. There, as in the instant case, the Respondent had conceded disability (see paragraph 18) and the issue was whether the Respondent had constructive knowledge of the disability and of its comparative disadvantageous effect. This is the combined effect of section 4A (1) and (3), which read:

“1(1) Where –

(a) a provision, criterion or practice supplied 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.

[….]

(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).”

The combined effect of the subsections is not to offer alternatives but two cumulative stages; constructive knowledge of the disability and constructive knowledge of the comparative disadvantageous effect must both be shown (see paragraph 37 of the judgment in Wilcox). Here, even if the Employment Tribunal could be said to have addressed constructive knowledge of the disability, it had not given any consideration at all to whether the employee ought to have known of the comparatively disadvantageous effect.

48. Ms Palmer in her submissions on the cross appeal also referred to the words of s.4A. The issue she submitted was what the employer could reasonably have been expected to know at the time. She further submitted that the statutory rubric ‘likely’ did not mean on a balance of probabilities. It only meant a real possibility.

49. The Wilcox case was of no assistance to the Respondent on the cross-appeal; it was a different factual matrix and importantly the Appellant in that case had refused to see the Occupational Health Department. That this issue is all a question of fact is made clear in the last sentence of paragraph 34 of the judgment in Wilcox:

“… 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.”

50. She accepted that the Employment Tribunal’s judgment might not be pellucid, but rejected the proposition that it had made a decision based on hindsight. She pointed to paragraphs 139 and 140 of the judgment, where she submitted the Employment Tribunal had directed itself in perfectly conventional terms:

“139. For the purposes of a Disability Discrimination Act claim the disability in question is paranoid personality disorder and major depression as diagnosed from the treating psychologist, Melinda Rees, dated 11 October 2010. The tribunal set this down for a PHR to be heard on 17 December 2010, but by letter of 9 December 2010 the respondent’s solicitor, Capsticks, conceded that the claimant suffered from a mental impairment and personality disorder and major depression and that it was a disability for the purposes of the Act. The respondent accepts that the claimant suffered with these impairments at all relevant times. Notwithstanding this concession the respondent has contended before the tribunal for the purposes of section 4A(3) of the Disability Discrimination Act 1995, subsection:

… [the Tribunal quotes the subsection]…

[i.e. knows that the employee is at a substantial disadvantage in comparison with persons who are not disabled in respect of the provision, criteria or practice].”

140… The tribunal has been referred to the following case law:

Department of Work and Pensions v Hall [unreported] UK EAT0012/05.

This is in respect of the power of the tribunal to impute constructive knowledge to an employer of a disability [sic] under that subsection. We have also been referred to the Secretary of State for Work and Pensions v Alam [2010] ICR 665 EAT. It confirms the knowledge required for 4A(3)(b) is not just knowledge of the disability but the fact that the disability places the claimant at a specific disadvantage compared to other non-disabled employees.”

Ms Palmer submitted that is a perfectly correct self direction and that when paragraphs 173 to 175 of the judgment are considered in the light of that self-direction, it can be seen that paragraph 175 is simply drawing on the report for a definition of the diagnosis. The Employment Tribunal was not attributing knowledge to the Respondent in 2007 and 2008, by reference to what Dr Rees only articulated in 2010. What the Employment Tribunal had done was examine what the Respondent did know then, as reported by the Claimant, by the doctors/advisors in the Occupational Health Department and by Melinda Rees and concluded that the Respondent therefore reasonably ought to have known that amounted to an impairment within the statutory concept of disability and that, in terms of returning to work and staying at work, the Claimant was at a disadvantage. The subsection requires concentration on what a Respondent should have been aware of and also on the statutory definition of disability. This is all simply a question of fact and it could not be suggested the decision was perverse.

51. As to disposal, Ms Palmer submitted that because the Employment Tribunal had plainly given itself a correct self-direction, if they had failed to consider the question of comparative disadvantage then the matter should be remitted to the Employment Tribunal on the issue of disability.

Submissions – the appeal

52. Ms Palmer’s general proposition was that this judgment was not very clearly structured and, thus, lacked coherence. She did not, however, submit that it was inadequately reasoned.

53. Her first specific submission in support of the appeal was that the Employment Tribunal had failed to consider the whole of the Claimant’s case on reasonable adjustments. There had been a case management discussion on 9July 2010 before Employment Judge Warren at East London Hearing Centre and as a result a number of issues had been defined. Those relating to reasonable adjustments were set out at paragraph 6 (see page 124-125 of the hearing bundle).

54. There, the issues relating to reasonable adjustments had been identified as follows:-

“(i) Sickness absence policy;

(ii) Attendance criterion;

(iii) Dismissal policy/practice; and/or

(iv) The performance, assessment and target-setting policy and/or practice.”

55. Paragraph 6.3 of the CMD (“Discussion Summary”) identified the reasonable adjustments themselves as follows:-

“(i) Reducing the claimant’s work or hours of work;

(ii) Allowing for disability-related absence;

(iii) Amending the attendance criterion and sickness absence policies of target setting;

(iv) Lowering performance targets;

(v) Removing the threat of disciplinary action for a period of time;

(vi) Facilitating a phased return to work;

(vii) Changing the department within which the claimant worked; or

(viii) Allowing for an enabling non-direct contact while on sick leave.”

This presented the Employment Tribunal with a template. To a similar effect was the list of reasonable adjustments set out at paragraph 161 of the Claimant’s witness statement (see page 52 of the supplementary appeal bundle) as follows:

“161.1 Reducing my hours of work.

161.2 Allowing my disability related absence so that I can complete my CBT treatment

161.3 Amending the attendance criterion and sickness absence policies of target setting as I could not comply with the requirement of 100% attendance

161.4 Lowering or removing (temp or firm) performance targets as this made me stressed and caused sickness absence

161.5 Removing the threat of disciplinary action for a period of time as this made me stressed in caused or prolong sickness absence

161.6 Facilitating a phased return to work from March/April 2008 as advised by Dr Baxendine

161.7 Transferring me to another Department such as Barts of the Tech Team

161.8 Offering mediation/conflict resolution to resolve the “personality clashes” between me and my managers or work colleagues”.

Ms Palmer said that all these matters had been raised orally at the hearing. This turned out to be a controversial proposition.

56. Ms Palmer submitted that the Employment Tribunal failed properly to follow the approach of the Employment Appeal Tribunal (“EAT”) as set out in paragraph 27 of its judgment in Environment Agency v Rowan [2008] ICR 218. It should have identified the “provision, criteria or practice” (“PCP”) relied on and then asked whether the disabled person was substantially disadvantaged and whether the Respondent knew or should have known that the disabled person was substantially disadvantaged. That is how the question of ‘imputed knowledge’ should have been approached. Then the Employment Tribunal would have been in a position to answer correctly the question as to whether the duty imposed on an employer under s.4A(1) of the Disability Discrimination Act had been discharged?

57. Ms Palmer accepted that the focus at the hearing had been on the issue of the Claimant’s return to work. This was quite natural because the above list of adjustments is essentially sequential, the return to work being the first and most vital step. But the result, namely that only the short-term absence procedure had been dealt with, was an unacceptable compression and truncation of her case by the Employment Tribunal and no reason had been given for not dealing with the other identified PCPs. The resulting error was that the Employment Tribunal concentrated only on the Claimant’s point of view as to his return to work and failed to look objectively at the other proposed adjustments. Thus the case had degenerated into an analysis of whether or not it was reasonable for the Claimant to be exempted from the short term absence policy. This narrowed the horizon of what should have been a much broader enquiry and the net effect was that the Employment Tribunal only ever considered one adjustment.

58. Thus, the Employment Tribunal never considered the following, which we understood to be her distillation of the various matters identified above at paragraphs 54 and 55) :-

1. The proposal that there should be a six-week period when the intermittent absences did not trigger the short-term absence procedure.

2. An adjustment target.

3. An adjustment trigger point.

4. The postponing of further disciplinary hearings.

5. An alteration to the timetable that allowed for consideration of the awaited further medical reports.

59. Even in the context of what it did consider the Employment Tribunal failed to recognise that an adjustment needs to be bespoke and tailored to the individual. On the contrary, the Employment Tribunal regarded the fact that there was a need for an individual adjustment as making it unreasonable to have to make any adjustment at all. That raised two questions.

60. Firstly whether the Employment Tribunal had conflated the “band of reasonable responses” approach to unfair dismissal with the consideration of the needs of the individual, which is what section 4A requires? Ms Palmer submitted that here the Employment Tribunal, despite dividing its judgment into sections dealing with discrete topics, had mixed the concepts together with the result that it was asking whether the employer had acted reasonably as opposed to deciding whether an adjustment was reasonable; the two may not always be the same thing.

61. This conflation is illustrated by the first sentence of paragraph 182 of the judgment:

“For much the same reasons as we find it is a substantially unfair dismissal, we find that it would not be reasonable to have expected the respondent in the context of this particular busy IT service to follow the claimant’s suggestions as to the most appropriate absence policy for his particular case. They were not unreasonable in finding no other adjustments which could have made any difference and resulted in the claimant’s return to work.”

62. Secondly, the Employment Tribunal had wrongly derived from the case of Project Management Institute v Latif [2007] IRLR 579 the proposition, which appears at paragraph 180 of the judgment (see page 40 of the appeal bundle):

“The tribunal has considered the legal principle that, in the workplace, the duty is not upon the employee but upon the employer to identify the precise reasonable adjustments that the employee needs. … However, the case of Project Management Institute v Latif 2007 IRLR 579 the EAT states that there is a duty on the claimant employee to specify the reasonable adjustments in the tribunal proceedings, as opposed to the workplace. The employee needs to raise at least a prime facie case as to how the respondent has failed to comply with some identified reasonable adjustment. In this case the claimant has not.”

63. This must have its origin in paragraphs 53 to 55 of the judgment in Latif. But its accuracy as a proposition is best judged by contrasting it with what the EAT actually said there:

“53. We agree with Ms Clement. It seems to us that by the time the case is heard before a tribunal, there must be some indication as to what adjustments it is alleged should have been made. It would be an impossible burden to place on a respondent to prove a negative; that is what would be required if a respondent had to show that there is no adjustment that could reasonably be made. Mr Epstein is right to say that the respondent is in the best position to say whether any apparently reasonable adjustment is in fact reasonable given his own particular circumstances. That is why the burden is reversed once a potentially reasonable adjustment has been identified.

54. In our opinion the paragraph in the code is correct. The key point identified therein is that the claimant must not only establish that the duty has arisen, but that there are facts from which it could reasonably be inferred, absent an explanation, that it has been breached. Demonstrating that there is an arrangement causing a substantial disadvantage engages the duty, but it provides no basis on which it could properly be inferred that there is a breach of that duty. There must be evidence of some apparently reasonable adjustment which could be made.

55. We do not suggest that in every case the claimant would have had to provide the detailed adjustment that would need to be made before the burden would shift. However, we do think that it would be necessary for the respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage with the question of whether it could reasonably be achieved or not.”

64. The facts of Latif were that a blind member of a professional body wished to take an examination which required adjustments to be made. The Institute had made two of them, but did not allow the member to use her own computer or to have screen reading equipment installed on any computer supplied to her for the purpose of taking the examination. The Employment Tribunal found in her favour. On appeal it was objected that the Employment Tribunal decision was in error because the conclusion rested on the erroneous proposition that a failure to consider an adjustment amounted to a failure to make a reasonable adjustment. The parties accepted that this was an error, but nevertheless the EAT dismissed the appeal.

65. Ms Palmer submits that paragraphs 53 to 55 of the judgment in Latif do not support the proposition, which the Employment Tribunal has distilled from it at paragraph 180 of the judgment. Latif only shows that a Respondent does not have to raise and negative all possible adjustments but only to respond to a case put forward by the Claimant. It is true that at paragraph 45 of the judgment the EAT says:

“We observe in passing that we very much doubt whether the burden shifts at all in respect of establishing the provision, criterion or practice, or demonstrating the substantial disadvantage. These are simply questions of fact for the tribunal decide after hearing all the evidence, with the onus of proof resting throughout on the claimant. These are not issues where the employer has information or beliefs within his own knowledge which the claimant cannot be expected to prove. To talk of the burden shifting in such cases is in our view confusing and inaccurate.”

No doubt the burden is on the Claimant but that is not the same thing as saying that there is a specific burden on the Claimant to do more than raise an adjustment for consideration. Once raised for consideration the Claimant does not need to prove anything as to “how the respondent has failed to comply”. Moreover, paragraph 181 is also presents an incorrect analysis. There is no true approximation between justification on the one hand and reasonableness on the other.

66. Paragraph 17 of the judgment in Leeds Teaching Hospital NHS Trust v Foster [2011] EqLR 1075 provides an illustration of how much a Claimant needs to show:

“17. In fact, there was no need for the Tribunal to go as far as to find that there would have been a good or real prospect of Mr Foster being redeployed if he had been on the redeployment register between January and June 2008. It would have been sufficient for the Tribunal to find that there would have been just a prospect of that. That is the effect of what the Employment Appeal Tribunal (Judge McMullen QC presiding) held in Cumbria Probation Board v Collingwood (UKEAT/0079/08/JOJ) at [50]. That is not inconsistent with what the Employment Appeal Tribunal (Judge Peter Clark presiding) had previously said in Romec Ltd v Rudham (UKEAT/0069/07/DA) at [39]. The Employment Appeal Tribunal was saying that if there was a real prospect of an adjustment removing the disabled employee's disadvantage, that would be sufficient to make the adjustment a reasonable one, but the Employment Appeal Tribunal was not saying that a prospect less than a real prospect would not be sufficient to make the adjustment a reasonable one. When those propositions were put to Mr Boyd, he did not disagree with them.”

67. Ms Palmer submitted that much of the criticism of the difficulty, which the Employment Tribunal perceived the Claimant to have created by his behaviour, ignored the very thing, which lay at the heart of the case, namely his disability. Although the Employment Tribunal acknowledged that he had developed a personality disorder, the Employment Tribunal proceeded on the basis that he was completely rational. Paragraphs 52, 71, 73, 77, 82, 129 and 146 are all illustrations of that approach. Also, Mr Brady’s attitude as recorded at paragraphs 123 and 125, which is embraced by the Employment Tribunal in their deprecation of the Claimant’s criticism of the employer, fails to recognise the nature of the Claimant’s disability.

68. By concentrating on the Claimant’s conduct and in particular his failure to complete a stress assessment, the Employment Tribunal had failed to recognise that the proper relevance of the Claimant’s conduct was its impact upon the need for adjustments. Throughout the judgment there is a thread of criticism of the Claimant’s behaviour and attitudes, which appears not to take account of his disability and focuses too much on what appears to have been a strong dislike of the Claimant formed by the Employment Tribunal which has interfered with any objective analysis.

69. What was lacking on the part of the Employment Tribunal was the degree of objectivity referred to by the EAT at paragraph 12 of the judgment in Royal Bank of Scotland v Ashton [2011] ICR 632 as follows:

“12. Mr Linden QC, who appears for the employer, submits that these provisions show clearly that the steps which are required of an employer are practical steps. They are intended to help the disabled person concerned to overcome the adverse effects of the relevant disabilities, at least to the greatest extent possible, so that he or she may fulfil a useful role as an employee. We accept that, as both he and Mr Morton for the claimant submit, the focus of the provisions as to adjustment requires a tribunal to have a view of the potential effect of the adjustment contended for. The approach is an objective one.”

The focus should have been on the reasonable adjustments and not on the Claimant’s behaviour.

70. Paragraph 183 of the judgment in the instant case suggests that the question of reasonable adjustments need only be considered as at the date of dismissal. Ms Palmer submitted that this was an erroneous analysis; the duty is a continuing one and also one that may arise specifically at a particular point in the history of the case. Therefore, the Employment Tribunal should have considered the question of reasonable adjustments to allow a return to work in December 2007 and not simply consider the matter as at the date of dismissal.

71. The Employment Tribunal failed to consider the judgment of the House of Lords in London Borough of Lewisham v Malcolm in terms of a comparison between the way the Claimant was treated and the way a non-disabled employee would have been treated in the circumstances. This is still open in terms of disability related discrimination and the Employment Tribunal appear to have completely ignored this facet of the case. Ms Palmer submitted that at paragraphs 165 to 168 of the Claimant’s witness statement there was evidence that in relation to a physical disability the Claimant had been differently treated and that evidence should have been taken into account in this context. The Employment Tribunal erred by not considering any comparator with a different disability in this context.

72. As to unfair dismissal the Employment Tribunal directed itself that not every departure from procedure renders a dismissal unfair (see paragraph 144 of the judgment). This self direction was based on the judgment of the Court of Appeal in Westminster City Council v Cabaj [1996] ICR 960. There the Employment Tribunal held the dismissal to be fair; the EAT had concluded that the Employment Tribunal had erred and substituted a finding of unfair dismissal. The Court of Appeal rejected the appeal against the EAT’s finding that the Employment Tribunal had erred but allowed the appeal against the substituted finding and remitted the case to the Employment Tribunal for the case to be reheard. The case involved a procedural error on the part of the employer and the Court of Appeal decided that such an error did not render a finding of unfair dismissal inevitable. To that limited extent it might be said that the case supports the proposition that “[n]ot every departure from an employer’s written policy will mandate a finding of unfair dismissal” (see paragraph 144).

73. But, submits Ms Palmer, the Claimant’s complaint was never confined to alleged procedural error. It is true that there were a number of procedural errors but the Claimant’s case was also one of substantive unfairness and the Employment Tribunal failed to address it.

74. Moreover, if there were significant errors of procedure the Employment Tribunal should have concluded that the dismissal was unfair and then gone on to consider whether Polkey meant that there should be no compensation because a fair dismissal was inevitable if a fair procedure had been followed. This was never the approach of the Employment Tribunal but it should have been.

75. Also, if there had been a finding of disability discrimination that should have affected unfair dismissal. In Fareham College Corporation v Walters [2009] IRLR 991 the EAT had made clear in the following passages that the two may be linked:

“68. The question that arises however is whether it is necessary for the matter to be remitted in this case. The answer to that point in the present appeal lies, in our view, in the tribunal's observation at paragraph 43 that: 'This is a case where it is difficult to disentangle the failure to make reasonable adjustments from the decision to dismiss'. Indeed, we would say that it is impossible to dis-entangle them. This claimant was dismissed, as the tribunal point out, because Mr Groves considered that the alternatives to dismissal involved making adjustments which he considered were unacceptable.

69. We accept Mr Dyal's submission that the tribunal's finding on this issue therefore adds nothing in this case. The dismissal was itself an unlawful act of disability discrimination by reason of the failure to make reasonable adjustments.

70. Under the previous legislation s.6 was couched in far more restrictive terms, as the Court of Appeal recognised in Clark v Novocold Ltd, see pp.322 and 324, and it did not extend to dismissal. That changed in 2004 with the arrival of the new s.4A where the duty to make reasonable adjustments is now unqualified. This is also reflected in para. 5.5 of the DRC Code of Practice. A dismissal can therefore itself be an unlawful act of discrimination by reason of a failure to make reasonable adjustments.

71. In this case therefore we accept Mr Dyal's submission that this claimant's dismissal was tainted by the failure to make reasonable adjustments, and was itself an unlawful act. Instead of making those adjustments the respondent chose to dismiss her. It is the recognition of this inevitable state of affairs on the facts of this case that led the tribunal to regard it as self-evident that the claimant was treated less favourably than others.”

76. Ms Winstone did not accept that all aspects of paragraph 161 of the Claimant’s witness statement had been developed at the Employment Tribunal hearing. Nor was the discussion of reasonable adjustments as broad as the list of issues and list of reasonable adjustments, which emerged from Employment Judge Warren’s CMD. The Employment Tribunal can and should only deal with matters that are actively raised before it.

77. Ms Winstone did accept that the judgment could not be described as well structured but she submitted it was, nevertheless, based on a sound and correct self direction as to the law. She invited us to step back and seek out the kernel of this case, which she submitted was to be found in the last two sentences of paragraph 64 of the judgment. These read:

“One perspective if one looks at the period August 06 to March 2007 in a period of eight months he had 100 days off sick. So the claimant had a total of 100 days off in eight months. Considering that there are only approximately 220 working days in the entire year, that is obviously a serious problem in any workplace.”

78. This is reflected again in paragraphs 143 and 144 of the judgment. The Employment Tribunal focused there on the basic facts about the Claimant’s absence as justifying as reasonable departures from established procedure. The Claimant, who had a history of regular intermittent absences, had been absent for some weeks in October when the Respondent invoked the long term absence procedure without notice and in his absence (see paragraph 143). Overall he had been absent for 16 weeks at the time of his dismissal and taken together with his record of absence, Ms Winstone submitted that, irrespective of non-adherence to policy and procedure and with no certainty as to the future, the conclusion reached by the Employment Tribunal at paragraph 144 and, in essence, repeated at paragraph 171, that dismissal in those circumstances was within the band of reasonable responses was unimpeachable. Essentially it was a factual conclusion and could only be challenged as perverse if it was itself manifestly outside the range of permissible conclusions that could arise from the factual matrix, which it was not. There is a balanced discussion, which includes further factual exploration, in the succeeding paragraphs 147 to 170; what the Employment Tribunal refers to as “significant criticism” of the Respondent is developed and analysed. The whole of this passage of the judgment is then summarised at paragraph 171 in what is a repeat of the conclusion already stated at paragraph 144. It was one which the Employment Tribunal was entitled to reach.

79. As to Polkey, the Employment Tribunal did not address it because it was not necessary to do so. It had not found the dismissal to be unfair because of procedural irregularities. It had found it to be fair, notwithstanding any procedural irregularities, and consequently consideration of Polkey did not arise.

80. Ms Winstone’s submissions on disability discrimination accepted that the Employment Tribunal’s judgment was not well structured and a search for the necessary ingredients had to be undertaken. The decision was easier to understand if one linked parts of the section of the judgment dealing with unfair dismissal with that dealing with disability discrimination. Indeed paragraph 182 of the judgment requires reading back to the unfair dismissal section. Moreover the fact that the judgment ends at paragraph 184 with a balancing exercise, which might more naturally occur as part of the discussion rather than as the ultimate conclusion, also obscures the real simplicity of the Employment Tribunal’s decision.

81. The reason that the judgment focuses on an adjustment to the return to work policy, submitted Ms Winstone, is because that is what the case is really about. Redeployment was neither actively pursued by the Claimant during his employment nor was it discussed in anything more than general outline at the hearing. Working in the post room was rightly discounted by the Employment Tribunal. The case was about his inability to return to work. Put at its simplest the Employment Tribunal had concluded that the Claimant was dismissed because of his long term absence and that it was not reasonable to adjust the long term absence policy to accommodate him and enable him to remain employed for longer whilst his absence from work continued.

82. This was his real case (see in particular paragraphs 84, 107, 121, 154 and 157 to 160 of the judgment); the absence policy and, in particular the return to work policy and subsequent monitoring provisions and sanctions should have been altered to suit the Claimant’s individual circumstances. In specific terms the Claimant was seeking the removal or alteration of attendance targets so that any relapse would not be attended by the prescribed sanctions. It came to this; he would only be able to return to work if the standard policy did not apply to him and the Employment Tribunal concluded that was not a reasonable adjustment to make. It was costly disruptive and potentially divisive as the Employment Tribunal concluded at paragraphs 182 and 184 of the judgment. Once liberated from the obscuring structure of the judgment and thrown into sharp relief this was a cogent and entirely correct decision.

83. As to disability related discrimination Ms Winstone accepted that paragraph 172 of the judgment overstated the adverse impact of the judgment of the House of Lords in LB Lewisham v Malcom [2008] 1 AC 1399. The reality, however, was that no sensible comparison could be made or, indeed, was made as between the Claimant’s treatment in relation to his physical disability and his mental impairment. No other real or hypothetical comparator, either with a different disability or no disability, was advanced at the hearing and the criticism that not all the permutations are dealt with by the Employment Tribunal is of no practical relevance to the case actually argued at the Employment Tribunal.

Discussion and conclusion

The cross appeal

84. If Ms Winstone’s submissions on the cross appeal are upheld then that disposes of the whole matter and even though we would still wish to state our views on the appeal, in our view it is logical to consider the cross appeal first. At paragraph 142 of the judgment the Employment Tribunal sets out part of Ms Palmer’s submissions as follows:

“As far as imputed knowledge goes, the claimant helpfully cites paragraph 5.15 of the DRC Code of Practice 2004:

“If an employer’s agent or an employee such as an occupational health adviser, personnel officer or line manager or recruitment agent knows in that capacity of an employee’s disability the employer will not usually be able to claim that it does not know the disability and that it therefore has no obligation to make a reasonable adjustment. The same applies in respect of actual or potential applicants for employment. Employers therefore need to ensure that where information about disabled people may come through different channels there is a means which are suitably confidential for bringing the information together to make it easier for the employer to fulfil its duty under the act.” [1]

In this specifically the claimant’s counsel cites the occasion when the claimant broke down in tears in consultation with Dr Baxendine shortly after he received a favourable angiogram test. This they say but Dr Baxendine on notice that the claimant was emotionally unstable therefore it was very consistent with his having a personality disorder or mental impairment of some sort and indeed Dr Baxendine accepts in the benefit of hindsight that the diagnoses now put forward by Melinda Rees, the psychologist, made a lot of sense of the events he witnessed over his several consultations with the claimant and his erratic career with the respondent.”

85. Ms Winstone dismissed the above as mere recitation of Ms Palmer’s submission. But it is worth observing that part of the above passage (i.e. the reference to Dr Baxedine’s acceptance that the 2010 diagnosis [2] made sense of his own experience) is not simple recitation of the submission but refers to the evidence heard by the Employment Tribunal. It seems to us, however, that the conclusion reached on “imputed knowledge” by the Employment Tribunal makes it probable that the Employment Tribunal must have accepted this submission, as appears to be confirmed by the terms of paragraph 175 of the judgment. The question is whether they were right to do so? Was that applying “hindsight”, as Ms Winstone submits?

86. Historically there had been a number of causes of the Claimant’s absence. Some absences were caused by his having a bad back, which is primarily a physical condition, although it is often accompanied by a psychological component. Another, the diagnosis of angina, was the result of a false test result. The reaction to the good news that he was not suffering that condition was said by Ms Palmer to be a clue to his fragile personality. On the other hand it may have been the natural relief of being told that he was not, after all, subject to that potentially restricting condition. The layman’s view of his line manager was that the Claimant was a hypochondriac but as the Code of Practice emphasises where there is a resource like an Occupational Health Department that is the most natural repository of actual or constructive knowledge of any medical condition. In turn the Occupational Health Department had access to the expertise of Melinda Rees and obtained information from her. This referred to anxiety and depression, symptoms of PTSD and panic attacks (see pages 11 and 12 of the supplementary appeal bundle). The Claimant had also relayed the “PTSD” diagnosis to his line manager in September 2007 (see page 1 of the supplementary appeal bundle).

87. It is true that Dr Baxendine seems to have been sceptical about the diagnosis of PTSD and the Occupational Health Department may well have got the date of the road traffic accident wrong. But this was a well-known incident, so far as the Respondent was concerned, and a moment’s reflection should have led to the conclusion that if the Claimant was still suffering symptoms of PTSD towards the end of 2007 and the origin of that PTSD had been a road traffic accident in February 2006, then he had been suffering that condition for over 12 months, which condition was, at least in part, responsible for his absences from work. Mr Moore’s report (quoted by the Employment Tribunal at paragraph 102 of the judgment, the relevant extract being set out above a paragraph 15 of this judgment) gave credence to both PTSD and a generalised psychiatric problem manifested in different symptoms. Also the Claimant’s own description in his email referred to at paragraph 121 of the judgment (the relevant extract being set out above a paragraph 20 of this judgment) a condition with multiple symptoms is consistent with that.

88. We accept, of course, that PTSD was another erroneous diagnosis but it seems to us beyond doubt that it is a species of mental impairment. If a wrong label is attached to a mental impairment a later re-labelling of that condition is not diagnosing a mental impairment for the first time using the benefit of hindsight, it is giving the same mental impairment a different name. Consequently, it seems to us that the Employment Tribunal did not fall into the error asserted by Ms Winstone of taking an ex post facto diagnosis of a collection of symptoms as being the result of “mental impairment” and concluding that because the Respondent knew of the symptoms it must be taken to have known of the nature of the cause of the symptoms as being “mental impairment”. In our judgment what happened here was not the abuse of hindsight but an analysis by the Employment Tribunal that there was sufficient information available to the Respondent at the end of 2007 and the beginning of 2008 that the Claimant was suffering from a “mental impairment”, which was of sufficient long-standing and sufficiently interfered with his day-to-day activities to amount to a “disability” within the meaning of the DDA.

89. Our task has not been made any easier by the essentially cryptic way in which the matter is dealt with at paragraphs 173 to 178 of the judgment and, in particular, the apparent non-sequitur “cannot but find accordingly” in paragraph 178. We accept Ms Palmer’s submission that whether an employer “could not reasonably be expected to know” of a person’s disability is a question of fact. The issue for us, therefore, is whether there was sufficient factual material from which the Employment Tribunal could reach that conclusion? Left to ourselves we might well have reached a different conclusion but we think there was sufficient factual material for the Employment Tribunal to conclude that the Respondent, through its Occupational Health Department, ought to have known that the Claimant was suffering from a mental impairment that amounted to a disability.

The Appeal

90. We deal first with disability discrimination. It is more or less common ground that paragraph 172 of the judgment claims too much for the adverse effect of LB Lewisham v Malcolm on disability related discrimination. Such a claim may still be “legally viable”, the judgment of the House of Lords notwithstanding, so long as an appropriate comparator can be identified and less favourable treatment established. But in the instant case, although Ms Palmer strove hard to construct a comparison between the Claimant’s physical condition and the reaction of the Respondent to it as opposed to his mental condition and the reaction of the Respondent to it, apart from paragraph 19 of her closing written submissions (see pages 63 and 64 of the supplementary appeal bundle) we can find no trace of any such argument at the hearing. Moreover, paragraph 19 does not specifically draw attention to the contrast between the Claimant’s physical and mental condition and the reaction to it. Nor are we at all persuaded that even if such a contrast was made to the Employment Tribunal, on the facts of the case there was any basis for thinking that the Claimant’s treatment was any different in respect of one as opposed to the other. Nor is there any evidence at all of a contrast having been made between the Claimant’s condition and the condition of a person not under any disability. Therefore, although in theory paragraph 172 does not accurately state the position that is immaterial because on the facts of this case no comparison was or could be made.

91. Turning then to the issue as to whether there was disability discrimination by a failure to make reasonable adjustments contrary to section 4 of the DDA, we regard it as unfortunate, to say the least, that the matrix so carefully set out by Employment Judge Warren at the CMD was neither clearly followed nor clearly dealt with. The same can be said of paragraph 161 of the witness statement of the Claimant. It seems to us that both of these documents did amount to the Claimant raising the issues for consideration. We doubt that the judgment of this tribunal in Project Management Institute v Latif gives rise to anything like the duty referred to at paragraph 180 of the judgment. What we think it amounts to is nothing more than that a Claimant must raise the reasonable adjustments that he or she suggests should have been made. No doubt these must be raised with a sufficient degree of specificity so as to enable the Respondent to address them evidentially and the Employment Tribunal to consider their reasonableness. Like the division of the EAT presided over by the then president Elias J in Project Management Institute v Latif we think that the concept of shifting burdens is an unnecessary complication in what is essentially a straightforward factual analysis of the evidence presented.

92. We have been troubled by the penultimate sentence of paragraph 180. It does not seem to us that any reading of the judgment of the EAT in Project Management Institute v Latif justifies the proposition that the Claimant “needs to raise at least a prime facie case as to how the respondent has failed to comply with some identified reasonable adjustment.” The Employment Tribunal was clearly right to say that the Claimant had not done this. We do not think that he was obliged to do so; what any Claimant has to do, in our judgment, is to raise the issue as to whether a specific adjustment should have been made; he or she can, if they wish to do so, given evidence as to its practicability, its economic impact or, even, as to its reasonableness. So, too, of course, can the Respondent. On that material the Employment Tribunal must then decide whether or not that was a reasonable adjustment.

93. Despite what we think to be, at best, a misleading statement, and, at worst, an erroneous one, at paragraph 180 of the judgment, having given very careful consideration to this extensive and not always easy to follow judgment, we have reached the conclusion that the Employment Tribunal did not decide the case on the basis stated in the last two sentences of paragraph 180. On the contrary, the Employment Tribunal thoroughly investigated all the aspects of what they considered to be the relevant PCP and what they considered to be the only relevant adjustment to it.

94. The two questions, therefore, that we must address are firstly, whether there is any error in relation to the adjustment, which was discussed, and secondly, whether there was any error in not discussing all the other suggestions as to adjustments raised by the Claimant?

95. One of the difficulties facing us has been the controversy as to what exactly was developed in terms of evidence and submissions at the Employment Tribunal hearing. Ms Palmer told us that the issues relating to reasonable adjustments and the identity of the adjustments both in the CMD (“Discussion Summary”) and in paragraph 161 of the witness statement of the Claimant had all been advocated by her and developed in the evidence heard by the Employment Tribunal. Ms Winstone disputed, at least to an extent, that this had been so. This matter had not been raised in the preparatory stages of this appeal and we have no means of resolving it. We have decided that the various were to proceed is on the basis that these matters were all articulated before the Employment Tribunal.

96. We have no doubt that the steps suggested at paragraph 27 of the judgment of this Tribunal in Environment Agency v Rowan represent a logical template for any Employment Tribunal to follow. The steps relevant to the instant case would be: