United Kingdom Employment Appeal Tribunal

You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> A v B (Disability Discrimination : no sub-topic) [2013] UKEAT 0383_11_2301 (23 January 2013)
URL: http://www.bailii.org/uk/cases/UKEAT/2013/0383_11_2301.html
Cite as: [2013] UKEAT 383_11_2301, [2013] UKEAT 0383_11_2301

[New search] [Printable RTF version] [Help]

		BAILII case number: [2013] UKEAT 0383_11_2301
		Appeal No. UKEAT/0383/11

EMPLOYMENT APPEAL TRIBUNAL

	At the Tribunal
	On 1 May 2012
	Judgment delivered on 23 January 2013

Before

HIS HONOUR JUDGE SEROTA QC
MR C EDWARDS
MR G LEWIS

A APPELLANT

B RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR DAVID CAMPION (of Counsel) Instructed by: Messrs EAD Solicitors LLP Prospect House Columbus Quay Liverpool L3 4DB
For the Respondent	MR JOHN LIVESEY (of Counsel) Instructed by: Birmingham City Council Legal Services Ingleby House 11-14 Cannon Street Birmingham B2 5EN

SUMMARY

DISABILITY DISCRIMINATION ACT

Findings by the Employment Tribunal that the dismissal of the Claimant was neither unfair, wrongful nor discriminatory were upheld. There had been no failure on the part of the Respondent to make reasonable adjustments. The Claimant, who was disabled, had failed to show that for a reason connected with his disability he had been treated less favourably than a colleague who was not disabled.

HIS HONOUR JUDGE SEROTA QC

Introduction

There is a restricted reporting order in this case made to protect the Claimant. The proceedings have, therefore, been anonymised as A (Claimant), B (Respondent). I shall refer to the parties as respectively the Claimant and Respondent.

This is an appeal by the Claimant from a decision of the Employment Tribunal at Birmingham, sent to the parties on 27 April 2011. The Employment Tribunal was presided over by Judge Warren who sat with lay members and lasted some five days.

The Employment Tribunal dismissed the claims by the Claimant in respect of, a) disability discrimination, b) unfair dismissal, c) breach of contract.

On 15 July Underhill J referred the Notice of Appeal (which he described as "grossly prolix") to a preliminary hearing. The preliminary hearing came before HHJ Birtles and lay members on 17 November 2011. It was referred to a full hearing but only on grounds 1, 2, 9, 10, 11 and 12. Grounds 3, 4, 5, 6, 7 and 8 were dismissed.

I say at the outset that this is essentially a perversity appeal and we remind ourselves at the outset as to the proper approach to appeals which appear to be based on questions of fact and perversity. ASLEF v Brady [2006] IRLR 576 Elias J at paragraph 55 stated:

"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 that 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."

To similar effect of a well known dicta from RSPB v Croucher in which Waite J said:

"We have to remind ourselves also of the important principle that decisions are not to be scrutinised closely word by word, line by line, and that for clarity's and brevity's sake Industrial Tribunals are not to be expected to set our 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 the Retarded Children's Aid Society v Day [1978 IRLR 128."

It is unnecessary for the Employment Tribunal to refer to all the arguments. It is an error to think that a Tribunal goes wrong just because it does not address every argument put to it even if those putting the arguments think that they are important.

What matters is the substance of the Tribunal's Judgment, looked at broadly and fairly to see if the reasons given for the judgment are sufficiently expressed when informing the parties why they won or lost the case. Also as we pointed out, during the course of submissions Lord Dyson in MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 noted at para. 46:

"It is often easy enough to find some ambiguity or obscurity in a judgment or determination, particularly in a field as difficult and complex as immigration, where the facts may be difficult to unravel and the law difficult to apply. If, as occurred in this case, a tribunal articulates a self-direction and does so correctly, the reviewing court should be slow to find that it has failed to apply the direction in accordance with its terms. All the more so where the effect of the failure to apply the direction is that the tribunal will be found to have done precisely the opposite of what it said it was going to do."

In case of appeals on the ground perversity the leading authority remains that of Yeboah v Crofton [2002] IRLR 634 in which Mummery LJ at paragraph 93 made clear.

"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."

The factual background

We take this largely from the decision of the Employment Tribunal.

The Claimant is a social worker and was employed by the Respondent, a large local authority, as a social worker from 18 February 1994. He rose to the position of Assistant Team Manager in 1997. During the course of this case the Claimant has sought to argue that he was not in fact a social worker; we consider, however, that the point is unarguable and his job description makes that clear. His official post was Assistant Manager in the Adult Services Division, Elderly Resources Section. The duties involved supervision of other staff, liaising with other social workers and staff from other departments to promote the wellbeing of individual users.

It is accepted that the Claimant was disabled within the meaning of the Disability Discrimination Act 1995.

At paragraph 3.40, the Employment Tribunal set out the Respondent's policy in misconduct cases. The public was entitled to demand conduct of the highest standard of all employees of the Respondent and public confidence in an employee's integrity would be taken were the least suspicion to arise that she/he could be in any way influenced by improper motives. The code of conduct continued that every employee:

"Must be honest in fact and also be beyond the reach of the suspicion of dishonesty."

Gross misconduct was defined as:

"Misconduct serious enough to destroy the employment contract between the employer and employee to make any further working relationship and trust impossible."

The code provided that where it was thought that a prima facie case of gross misconduct exists the employee would normally be suspended. If after the appropriate investigations and disciplinary procedures the Respondent was satisfied that gross misconduct had occurred:

"The result will normally be summary dismissal."

In June 2003, the Claimant was subject to a disciplinary investigation and was signed off for depression; he returned to work some 11 months later. There were concerns at this stage as to the Claimant's capability and he was provided with assistance. There were further occasions when he was signed off work by reason of depression in September and October 2005 where after he remained in work until his suspension on 17 June 2008 again for depression.

On 26 October 2004, the Respondent appreciated that there was an impending change in the law. Section 61 of the Care Standards Act 2000 required all social workers to register with the General Social Care Council (GSCC) and from April 2005 it would be a criminal offence for someone to describe themselves as a social worker with intent to deceive if not registered with the GSCC. A memorandum to that effect was sent to all employees including the Claimant. The respondent took the view that all qualified social workers must register (regardless of their position including those in leadership roles). It was made clear to all employees that they were required to register with the GSCC before the deadline on 1 April 2005.

The Claimant's evidence was that he had completed this form (a photocopy is available at page 139). There is no documentary evidence to show that the form in fact was put in the post. The Claimant also maintained that he telephoned the GSCC in February 2005 to chase his registration. He was told not to worry because there was a backlog. He admitted he took no further steps and was never in fact registered although he continued in the post until his suspension on or about 17 June 2008. It might be thought that when meeting social workers and others in the course of his duties as Assistant Team Manager of a social work team, it was leading them to believe by his presence and participation that he was duly registered as a social worker.

The evidence in the case was that social workers were required to register every three years and pay the appropriate fee.

At paragraph 3.9, the Employment Tribunal recorded the Claimant's admission that he knew he was guilty of misconduct in failing to register and accepted his responsibility to do so.

In the summer of 2007, the Claimant raised a complaint about a colleague who was alleged to have made a homophobic comment. The Claimant said that he feared that if he disclosed his non-registration or inability to chase up the GSCC, that coupled with earlier issues, would lead him to have serious problems with his superiors.

In January 2008, Mrs Mould, the Claimant's manager received a list of staff who had registered and those who needed to be registered. In April 2008 the task of assisting social workers who needed to re-register was delegated by Mrs Mould to the Claimant (although the Claimant maintained he did not believe this to be the case). In June 2008 Mrs Mould had occasion to study the list and noted the absence of the Claimant's name. She met the Claimant to discuss the matter on 16 June. The Claimant became upset, admitted he had not been registered and was suspended on 17 June. Mrs Mould reported that when she asked the Claimant about the matter he became upset and visibly shaken and sort of "collapsed in on himself".

The Claimant, thereafter, was sick with various ailments and from February 2009 with depression. An investigating officer, Mr Hallam, was appointed to investigate and commenced his investigation in August 2008.

The Claimant attempted to resign but not with immediate effect. He offered to do so on four occasions between January and October but his offer was not accepted because he wished his resignation to take effect several months in the future.

On 3 September 2008 Mr Hallam sought out the relevant documents and interviewed Mrs Mould and he recorded what she told him about the Claimant's explanation for failure to register:

"4. Did "the Claimant" offer an explanation as to why he wasn't registered?"

"The Claimant" explained that he had sent the forms in but hadn't got a response from the GSCC. "The Claimant" said that when he did eventually 'phone the GSCC he was told that they hadn't processed his application because there was a discrepancy between the information on the form and other information given to them by BCC. The registration form said there was no outstanding disciplinary action against "The Claimant" but the other information from BCC contradicted this. "The Claimant" didn't say when he had 'phoned the GSCC but I think it was probably 2005.

I asked "The Claimant" why he hadn't said anything about it. He said he didn't feel he could mention it to anyone. "The Claimant" had been the subject of a disciplinary investigation before he joined my team in 2003. He had been made very ill by it. He had had an acute mental health breakdown. "The Claimant" said that he couldn't mention the problem with the GSCC as it resurrected these mental health problems. The way I saw "The Claimant" react when I raised this with him supports this. "The Claimant" went off sick straight from this meeting.

I wasn't involved in the disciplinary action. When "The Claimant" transferred to my team in the 2003 reorganisation I was told by the Operations Manager involved, Graham Mountcastle, that the action had been dropped. I have never had anything in writing to say that it was still outstanding. Given the amount of time that has passed I'm sure it isn't."

Mr Hallam concluded on 20 January 2009 that there was a case to answer by reason of the Claimant's failing to register. At pages 231 and 232 one has Mr Hallam's notes of his interview with the Claimant. The Claimant told him that when Mrs Mould asked him why he had not told her he was not registered, he just stared at her and said something like:

"Because I knew you were going to take disciplinary action against me."

He was asked why he had not told Mrs Mould or another manager that his registration had not been confirmed. He said that he was scared about it but was aware of how important it was, he also said that it was his opinion that if he went to Mrs Mould about his registration she would either use it against him or ignore it. He refers to various written statements he had given to Mr Hallam and that:

"Looking back, you might think I had a persecution complex but everything that I thought would happen is just rolling out."

As Mr Livesey, who appeared for the Respondent, pointed out the Claimant did not make a clear link between his mental health issues and his failure to secure registration. At page 233 is a lengthy document prepared by the Claimant and handed to Mr Hallam; the document is undated. The Claimant again explained his concerns about bringing his inability, as he saw it, to pursue his GSCC application to the attention of his superiors, for fear of disciplinary action being taken against him. He also stated:

"I believe that my managers were right and that I was not good enough to be a manager. I also felt that I did not deserve to be registered if I was professionally incapable as they clearly all seem to be believe I was."

He also stated that he had always had low self esteem and a tendency to excessive introspection. His explanation is amplified at page 237:

"From the middle of 2007 onwards, I was terrified to do anything about progressing a resolution to my fears regarding my GSGC application. My initial fears about a probable third case of disciplinary action being taken against me in 2004/5, my worries in 2005/6 that the GSCC now knew of managements concerns about me, my fears about the harassment issue of 2006 coupled with the complete lack of any response to my 2007 written complaint, the apparent unwillingness to help me regarding my request for support with my 2007 NVQ 360 degree feedback and finally the fact that HR in 2007 had informed FM that my registration was not confirmed but that she had not attempted to clarify the situation with me; ALL combined to make me certain that I could not trust my managers to help me resolve the outstanding situation with the GSCC that was now terrifying me.

I still did not dare contact the GSCC directly for fear of what they would say. I was terrified that the reason that I had not heard from them was because they had received information that meant that I could not be registered yet, and they were probably waiting for my employers to resolve the issue directly with me, as I had not yet been the subject of an actual disciplinary charge."

He was clearly aware of the gravity of what he had done (or not done) because (page 243) he stated that having learned that the GSCC had never actually received his application, he now fully accepted he was completely wrong to have reached the conclusion he did as to why he did not hear from them regarding his application. He accepted that not only did he deserve to be disciplined but that he should have a "substantial disciplinary sanction" imposed upon him. He asked that the sanction should be a final written warning and that he should not be returned to his substantive post as Assistant Team Manager, not appointed to any other qualified social worker post and that he should be demoted to a post at a lower grade than he currently held and reassigned, preferably to an alternative directorate elsewhere within the Respondent.

Mr Hallam's conclusions were as follows; there was no reason to believe that had the Claimant's application been received the GSCC he would not have been routinely registered, there was no suggestion he had used the protected title, "Social Worker" while unregistered but:

"It is evident however that [the Claimant] knew that he was required by [the Respondent] to register with the GSCC and over a number of years did not do so. [The Claimant's] actions over a prolonged period of time represent a clear breach of the [Respondent's] code of conduct. On these grounds there is a disciplinary case to answer."

The Claimant drew attention to a memorandum circulated to staff on 22 January 2009 which stated that failure with the GSCC might result in disciplinary proceedings and could be viewed as gross misconduct. The Claimant maintains this was the first explicit reference to failure to register as being regarded possibly as gross misconduct.

On 25 January 2009 the Claimant raised a formal complaint about Mrs Mould. The matters of which he complained had all taken place between two and five years earlier and on his own admission (see Employment Tribunal 3.18) were raised by him now for the first time. They were revived in April 2009 and on 14 May 2009 he made a complaint about his current manager, Mr Parker.

On 6 February 2009 the Claimant threatened self harm and was referred to a consultant psychiatrist. He was also referred to the Respondent's occupational health advisers and concerns were raised as to his fitness to attend a disciplinary process. The disciplinary process had been postponed and in a letter of 13 March 2009 (page 247) a senior occupational health adviser advised that at that point in time she did not feel it would be in the Claimant's interest to engage in the disciplinary process, however, once he had commenced a suitable form of counselling to address his underlying issues he should be fit to engage in the hearing.

The Claimant saw a psychiatrist on 28 September when he began a course of counselling; the disciplinary hearing was re-fixed for 9 October 2009 and then at the Claimant's request brought back to 16 October.

On 1 October the Claimant requested that the disciplinary hearing should be deferred until the second half of November so that he might attend the first six weeks of his counselling. Were he to be unable to attend after that date he would agree to his Trade Union representing him in absence; something the Employment Tribunal considered to be an unprompted offer.

The hearing was rescheduled as we have said to 16 October and then on 12 October the Claimant's Trade Union asked for a further adjournment until mid or late November. This was agreed and the hearing was arranged for 19 November 2009.

On 12 November a further request was received to defer the hearing on the basis that the Claimant was not medically fit to attend but no medical evidence was supplied to support this contention. On the same date the Claimant sent a letter to the Respondent in which he admitted that from mid 2006 he had been too afraid to tell his manager that he had not heard about his application for registration. He indicated he was looking for a final written warning and redeployment.

The disciplinary officer, Mr Gowda, refused the application to adjourn the hearing again because the Claimant and his Trade Union had asked for the meeting to go ahead in mid November 2009 and had said that he was happy for it to proceed in his absence. The disciplinary process had been continuing from June 2008 and there needed to be an end to it.

The hearing took place on 19 November 2009. The Claimant was in fact present and represented by his Trade Union representative, Mr Harris. Mr Harris accepted the Claimant was guilty of misconduct but asked for a lenient outcome, namely a warning.

Mr Gowda concluded that the Claimant's failure to register with the GSCC since 2004 was a breach of the Respondent's code of conduct and that accordingly he had no alternative but to terminate the employment with immediate effect. The Claimant was notified of his right of appeal. The Claimant did appeal but his appeal was dismissed.

The Claimant's case before the Employment Tribunal was to the effect that his depression was such that he could neither chase up the GSCC nor even tell his superiors that he had not been registered for a period of about 3½ years. The Claimant made a number of significant admissions in cross examination. These are set out in the Judgment of the Employment Tribunal:

"3.41. In cross examination the claimant admitted that:-

He knew as an employee of the Respondent that he was bound by a Code of Conduct which required integrity and openness and which acted to preserve trust and confidence between employer and employee.

He knew that he was required to register from 1 April 2005.

He accepted that any employee was under a duty to inform their line manager if they were not registered and went so far as to say, 'you could raise it with Fiona (Mould) and trust her'

He understood that he knew at all times that he had to be registered after 1.4.2005 and that he would have to renew his registration every 3 years.

He knew this was a serious matter and was aware of how important it was.

He was aware of the consequences of non registration and became more and more afraid of disciplinary action the longer he remained unregistered without management knowing.

He accepted that in a meeting to discuss his grievances after his suspension, he expressed the view that he would be sacked.

He accepted he was an assistant team leader in social care and that people may have assumed that this implied he was a social worker and that such could be interpreted as breaking the terms of s.61.

He accepted he did not try to register after the phone call to chase his application in February 2005.

He accepted that he was at work between October 2004 and April 2005, but made the point that a further manager had been seconded to help him. He alleged that it was the first disciplinary process which started his depression, and that that disciplinary process had ended around the time he returned to work.

He accepted that his supervision notes with his line manager made little reference to ill health - and certainly made no mention of a paralysing condition preventing him from taking action.

He confirmed that in his view he had been unable to process or chase his registration because he was terrified of his managers saying he was unsuitable, and being told he could not be registered.

He confirmed that at the start of the disciplinary hearing there was no medical evidence that his condition had in any way deteriorated and that all Mr Gowda had was the view of his union representatives. He had not retracted his offer to allow the hearing to proceed in his absence.

The claimant did not say he could not give the tribunal any specifics of the then three comparators cited in his claim. These three subsequently became two as one was discounted by the claimant during the hearing."

The decision of the Employment Tribunal

The Employment Tribunal set out the facts as we have briefly summarised. The Employment Tribunal evidently had concerns about the Claimant's credibility in that it considered he might have seen things differently with hindsight, because incidents had occurred during his working life and about which he made nothing at the time, appeared to the Employment Tribunal to have swelled over the intervening years into incidents of dramatic and serious consequence to him.

The Employment Tribunal considered two comparators put forward, another team manager, Mr Mtize, and a Miss Cummings. The Employment Tribunal also constructed a hypothetical comparator described by the Claimant as a person who was not disabled but who had failed to register and who would have been allowed a period of grace and not immediately suspended, issued with no sanction and not dismissed or in the alternative given a recorded or written warning.

The law

The Employment Tribunal then went on to direct itself as to the law. It directed itself by reference to the Codes of Practice issued by the Disability Rights Commission; the duty of public authorities to eliminate discrimination and promote equality under section 49A of the Disability Discrimination Act 1995 and the relevant provisions of the Disability Discrimination Act 1995 including section 3A (meaning of discrimination) and the duty to make reasonable adjustments, section 4A (the obligation to make reasonable adjustments when any "provision, criterion or practice (PCP) applied by or on behalf of an employer places a disabled person at a substantial disadvantage in comparisons with persons who are not disabled"). It then set out in full section 18B which provides guidance on reasonable adjustments.

The Employment Tribunal then directed itself by reference to well known authorities including London Borough of Lewisham v Malcolm [2008] IRLR, Morse v Wiltshire County Council [1998] ICR, the reverse burden of proof set out in section 17A and the well known authorities of Igen v Wong [2005] EWCA Civ 142, Barton v Henderson Crosthwaite Securities Ltd [2003] IRLR 332. Having directed itself as to the law on disability discrimination, the Employment Tribunal directed itself to the law on unfair dismissal including section 98 of the Employment Rights Act 1996 and the well known guidance set out in British Home Stores v Burchell [1978] IRLR 379 and Iceland Frozen Foods v Jones [1982] IRLR 439 as well as Sainsbury's Supermarks v Hitt [2003] IRLR 3. It also referred to a number of other authorities but we do not need to record those because there is no issue in this appeal as to the accuracy of the self direction as opposed to the Employment Tribunal's compliance with it.

Unfair dismissal

The Employment Tribunal recorded that the Claimant and his Trade Union representative understood the gravity of what the Claimant had done. In the disciplinary proceedings they sought to use the disability as mitigation and as a reason for his failure to secure registration. Mr Gowda considered there to be insufficient evidence to make that link based on the material he had before him. Mr Gowda considered that for most of the relevant period the Claimant was at work, functioning and being paid as an Assistant Team Manager and this undermined his suggestion he was paralysed with fear of the management stance should his failure to register be noticed. The Employment Tribunal noted that the Claimant accepted he was required to register and knew the impact of section 61 of the Care Standards Act 2000. He understood and accepted the impact of his failure to register in the investigation and disciplinary hearing. He expected to be dismissed. He and his representative tried to persuade the Respondent to be lenient and not dismiss. At paragraph 5.5 the Employment Tribunal made clear that it considered:

"That the Respondent's actions within the disciplinary process fell within the band of reasonable responses we would expect from an employer the size of [the Respondent]."

Every justified request for a postponement was granted, the Claimant was represented by his Trade Union and had the chance to deal with the evidence and put his case. He had the bundle of evidence in advance. He was able to take part. No issue was raised in the Tribunal over the handling of the appeal. The last occupational health report prior to the disciplinary hearing had noted that the psychiatrist did not wish to see the Claimant for three months and there was no obvious reason for Mr Gowda to seek a further report. It was in any event open to the Claimant to seek a report from his GP or psychiatrist if he felt his condition has so swiftly deteriorated but that he did not do so. The request for a further postponement was based on his Trade Union officer's opinion about the state of his health and that did not match the prognoses of the medical experts available at the time. Mr Gowda considered this, and as the Employment Tribunal put it:

"Quite reasonably decided to carry on."

The Employment Tribunal was convinced on the evidence that the Claimant was able to participate in the disciplinary hearing and discounted his account of the hearing. It was clear that he conducted himself appropriately with the support of his Trade Union. Mr Gowda, an experienced social worker in mental health issues, saw no evidence to cause him concern. The Employment Tribunal was satisfied from the evidence that the time taken by Mr Gowda to reach his decision was appropriate and that his decision was reasoned and based on the facts before him.

At paragraph 5.9 the Employment Tribunal concluded that the Respondent genuinely believed the Claimant had kept from them the fact that he had failed to comply with their instruction to register with the GSCC for a period of 3½ years and that he had admitted as much. The Claimant and his representative had sought leniency in the form of a final written warning. It was clear that if that was what the Claimant's side deemed a lenient outcome, the Employment Tribunal considered that the normal outcome must therefore have been dismissal. The Employment Tribunal considered that to dismiss in the circumstances and with the knowledge that the Respondent had, based on Mr Gowda's findings, was within the range of reasonable responses and therefore fair; Mr Gowda's decision to dismiss was reasonable and the Claimant's comparators, Messrs Cummings and Mtize, were not truly comparable.

Disability discrimination claims

The Claimant sought to rely on two issues, (a) that his treatment in being suspended immediately and dismissed for gross misconduct was inconsistent with the treatment of others, (b) the refusal by Mr Gowda to postpone the disciplinary hearing. The Employment Tribunal explained in paragraph 5.11 why the comparators put forward by the Claimant were not true comparators. These are findings of fact which are far from perverse. The Employment Tribunal found that the Claimant had failed to satisfy it, that but for an adequate explanation it had committed an act of unlawful discrimination on the grounds of his disability.

"The inference from the fact is clear - that the failure to comply with management instruction, keeping that failure hidden for 3 ½ years and knowing just how seriously this would be considered, is viewed as an act of gross misconduct. The claimant was not treated less favourably than a hypothetical comparator; he failed to provide real comparators whose circumstances sufficiently matched his own. The claimant has failed to satisfy us that any other comparator would have been treated more favourably even if they had the same level of absence and other characteristics but not been disabled. The claimant has also failed to satisfy us that a non disabled person with his other characteristics would have been treated more favourably. In those circumstances the burden of proof did not shift to the Respondent."

Failure to make adjustments

The Employment Tribunal (5.14) followed the Rowan guidelines. The Employment Tribunal firstly considered the failure to adjourn the disciplinary hearing on 19 November 2009. The Employment Tribunal concluded that the PCP was the requirement for the Claimant to attend the disciplinary hearing. The Employment Tribunal found that potentially it did place the Claimant at a substantial disadvantage but there was in reality no obvious disadvantage. The Claimant attended with his Trade Union, he took part in the hearing and he admitted the misconduct. It was not suggested that he had had some other defence which he failed to articulate which may have changed the outcome. The case had been postponed over and over again to accommodate the Claimant and there was no objective medical evidence to suggest that he required a further postponement and no reason supported by evidence to suppose that an additional medical report was needed.

The Employment Tribunal then considered whether failure to register might be due to or associated with his disability. The Claimant alleged that the requirement to register with the GSCC was a PCP and placed him at a substantial disadvantage. The Employment Tribunal noted that although the Claimant had been ill in 2003, he had returned to work in early 2004 and with the exception of a short period of illness he remained at work until June 2008. He himself had admitted that he knew that if found out he could be sacked. He was frightened. There was no medical or other credible evidence available to the Respondent or the Employment Tribunal to suggest that his depression caused him to be unable to register or to be at a substantial disadvantage. The Claimant indeed accepted that he had completed the forms and documents and posted them, there was evidence he worked throughout the period and was paid. He had been offered Human Resources support to facilitate registration but he did not seek this. He had accepted, in cross examination, that he could have spoken to Mrs Mould whom he could trust but did not. There was, therefore, no reason for the Respondent to consider it an issue:

"The Tribunal does not consider this to amount to a failure to adjust which led to a substantial disadvantage for the claimant. It was not the requirement to register that caused the claimant the problem but his own failure to register and to hide the fact from the Respondent."

The Employment Tribunal rejected the suggestion that the failure to obtain further and up to date medical advice in relation to the Claimant's suspension, disciplinary proceedings and fitness amounted to a failure to make reasonable adjustments. The Employment Tribunal noted that it was difficult to establish the nature of the PCP which would apply to all staff.

So far as the failure to conduct a proper assessment of what might be required as reasonable adjustments in relation to the disciplinary hearing was concerned, the occupational health reports did not suggest any particular adjustment other than the postponement in mid November (which happened). The Claimant did not in the hearing suggest any other adjustments.

Breach of contract

The Claimant's failure to comply with a management instruction for a period of 3½ years and his linked failure to tell anyone about this may have placed the Respondent at risk of prosecution although the Employment Tribunal could not say whether it would or would not, nevertheless the mere fact that his admitted failure associated with that risk, however small, made his conduct potentially gross misconduct within the definition set out in the Respondent's disciplinary policy. Consequently the Employment Tribunal considered the Respondent had acted within the range of reasonable responses in deciding that the conducted amounted gross misconduct:

"In conclusion, the Tribunal finds that all of the claimant's claims are ill founded. The claimant was dismissed fairly for gross misconduct, he was not wrongfully dismissed and nor was he discriminated against as a disabled person."

Notice of Appeal and Claimant's submissions

(1) It was asserted that the Respondent's investigation was inadequate and the Employment Tribunal had failed to deal with this point. The Respondent was bound to make enquiries as to the effect on the Claimant's mental health of the investigation as a reasonable adjustment or as part of a fair investigation. The Respondent was aware of the Claimant's mental health difficulties and he relied upon those to explain his non-registration, (2) the Respondent failed to make reasonable adjustments including adjourning the disciplinary hearing, (3) so far as wrongful dismissal was concerned, there was no gross misconduct and the Claimant's dismissal was outside the range of reasonable responses.

Inadequate investigation

It was submitted that the Employment Tribunal gave insufficient reasons in relation to its findings that there was an appropriate investigation. It is said that the third part of the Burchell test was not considered, namely that at the time the Respondent concluded the Claimant was guilty of misconduct, it had carried out as much investigation into the matter as was reasonable in the circumstances. It was submitted that the investigation was outside the range of reasonable responses; the report by Mr Hallam displayed wholesale ignorance of the Claimant's disability and his explanation that his disability prevented him from completing the registration. There was no reference to disability or how it caused or contributed to his failure. The Employment Tribunal should have concentrated on why he had been unable to secure registration. The Employment Tribunal had fallen into error in failing to find he had been placed at a substantial disadvantage and had given insufficient reasons. The Respondent had failed to investigate whether the failure to register on the part of the Claimant may have been associated with mental health issues. The Claimant's evidence, as we have said was that his disability prevented him from registration.

It was perverse or an error of law for the Employment Tribunal to find that there was no medical evidence that his depression prevented him from registration.

The Employment Tribunal fell into error as it should have found that his failure to register was caused by the Respondent's failure to make a reasonable adjustment; we are not sure what adjustment the Claimant is suggesting should have been made.

It was then said that the Employment Tribunal was in error in its approach to the question of, "causation". It should rather have concentrated on the effect of the PCP (whether there was credible evidence that the Claimant's failure to register was caused by his disability and thus placed him at a substantial disadvantage). It was said that the Employment Tribunal was wrong to find that dismissal was within the range of reasonable responses; this was an error of law and perverse. Further there was no evidence that the Claimant ever held himself out as being a social worker.

Further, the letter of dismissal referred to matters such as, "integrity" which had nothing to do with a failure to register.

The weight of evidence showed that the Respondent disregarded the Claimant's disability when it knew he suffered from mental health issues. Its explanations were not Meek compliant.

Failure to make reasonable adjustments in relation to the investigation

It was submitted that the weight of evidence showed that the Respondent disregarded the Claimant's disability when knowing he suffered from mental health issues. The failure to adjourn the disciplinary hearing amounted to failure to make a reasonable adjustment, particularly as at the time the Claimant was signed off sick.

The fact that the Claimant admitted misconduct could not lead to the conclusion reached by the Employment Tribunal that he was not disadvantaged. The Employment Tribunal was in error in emphasising the fact that Mr Gowda was a social work manager with many years experience in mental health; he was not medically trained.

It was wrong for the Employment Tribunal at paragraph 5.1.6 to ask if the Claimant was placed at an "obvious" disadvantage. This placed a greater hurdle on the Claimant because a disadvantage could be hidden and the Employment Tribunal was thereby discouraged from considering the relevant surrounding circumstances.

The Employment Tribunal failed to make reasonable adjustments in relation to seeking up to date medical evidence and attendance at the disciplinary hearing.

Wrongful dismissal

The Claimant was not guilty of gross misconduct and it was perverse to suggest the Respondent was at risk of prosecution. The range of reasonable responses was irrelevant and the Respondent had to show that the Claimant was guilty of gross misconduct and consequently of a repudiatory breach of contract if his dismissal was to be justified.

The Respondent's submissions (Generally)

The Respondent submitted that this was simply a perversity appeal in a case determined on the facts. Attention was drawn to the concerns as to the Claimant's credibility; see Employment Tribunal decision at paragraph 2.1. In The Claimant's interview with Mr Hallam and in the 20 page document submitted after the interview or at the disciplinary hearing, although the Claimant complained that he was "terrified to do anything" he never said that he was wholly unable to effect registration or to tell the Respondent that he was "so paralysed" as to be unable to register.

The investigation

The Respondent drew attention to the significant admissions made by the Claimant which were bound to affect the nature and scope of the investigation, (a) he admitted that he had not registered, (b) he admitted he knew this was a serious matter, (c) he admitted he knew he would disciplined.

As to whether the Respondent acted within the range of reasonable responses in not investigating further, two matters needed to be considered; firstly what information did the Respondent have (b) what matters were not raised by the Claimant.

In relation to the material available to the Respondent it was noted that the Claimant had been working from 2004 to 2008 (although with some gaps and the benefit of an assistant for a short period) but he nonetheless was able to manage his team, conduct supervisions, etc. The Claimant knew he was required to register as a social worker and he was obliged to do; see the letter from the GSCC at page 203. It is apposite to note that the GSCC drew attention to the fact that:

"There are a range of job titles that do not have the title "social worker" in them but which describe roles that involve a substantial amount of social work. These include roles with titles such as "Practice Manager", "Senior Practitioner", "Team Manager" …"

During that time he had continued to work. In his interview with the Claimant, he never claimed to have been so "paralysed" that he could not complete his registration. Attention was drawn to his application in which at page 218 he was asked if he had a physical or mental health condition that may affect his ability to undertake his work in social care. The Claimant ticked the box, "No".

In his interview of 11 November 2008 with Mr Hallam (see page 231) the Claimant again does not complain about having been "paralysed" but refers to a possible grudge on the part of Mrs Mould and he accepted that he deserved to be disciplined and receive a "substantial disciplinary sanction". In the notes of the disciplinary hearing of 19 November 2009 at B273, there is again no reference to the Claimant maintaining that his mental health was a reason for non registration. At page B275 he did not rely upon mental health issues by way of mitigation.

There was some reference to mental health issues at B276 but he was not asked by his representative to give evidence in relation to his mental health issues.

The Employment Tribunal was entitled to reject the suggestion that the Claimant was incapable for three years of effecting his registration or informing the Respondent's management. As the Employment Tribunal noted, he had worked in a responsible post supervising others without complaints as to his mental health. The issue had not been raised by the Claimant to the Respondent's occupation health department. The Claimant knew what was required of him and it was absurd to suggest that his disability in the circumstances prevented him over such a long period from effecting his registration on the grounds he was "afraid" of his superior's reaction.

The Employment Tribunal at paragraph 5.5 had made clear that the Respondent's actions within the disciplinary process fell within the band of reasonable responses they would expect from an employer the size of the Respondent.

As Mr Lewis pointed out during the course of submissions, the Claimant put forward no evidence in relation to his mental health and Mr Edwards drew attention to the finding of the Employment Tribunal at 5.16 that there was no medical or other credible evidence available to the Respondent or to the Employment Tribunal to suggest that the Claimant's depression caused him to be unable to register or be at a substantial disadvantage.

It was then submitted that the alleged inadequacy of the Respondent's investigation was not raised as an issue in the agreed list of issues, nor in final submissions. The burden of proof was neutral and the Appeal Tribunal should not allow a new point to be taken on appeal save in exceptional circumstances.

It was submitted that the failure to adjourn or seek further medical reports were not capable of being reasonable adjustments. It was difficult also to identify what PCP could have placed the Claimant a substantial disadvantage. The Respondent pointed out the absence of medical or other similar evidence as to the Claimant's mental health covering the material period. The evidence that was put forward by the Claimant did not assist as it only dealt with the Claimant's health in 2009. The relevant documents date from 13 March 2009 and 8 October 2009. An act of gross misconduct could not be excused by disability and the excusal of an act of gross misconduct would not be a reasonable adjustment. The decisions of the Employment Tribunal were sufficient and Meek compliant.

The Respondent then dealt with the argument raised as to "causation". It will be recalled that at paragraph 5.16, the Employment Tribunal had concluded that there was no medical or other credible evidence available to the Respondent or to the Tribunal to suggest that the Claimant's depression "caused" him to be unable to register or be at a substantial disadvantage. The Claimant submitted that the Employment Tribunal should not have been concerned with whether any PCP caused the Claimant a substantial disadvantage but rather whether the effect of a PCP was a substantial disadvantage. The Respondent in effect suggested that this was nitpicking and it was absolutely clear what the Employment Tribunal meant.

Was the dismissal within the range of reasonable of responses?

It was submitted that the Employment Tribunal's reasons were adequate and clear. The Claimant was clearly working as a social worker in a managerial position when he knew he should not have been while not registered. The Claimant knew he was not registered and admitted at the outset that he was not. His own Union representative had accepted that he had been guilty of misconduct (albeit not gross misconduct). It was never the Claimant's case that he failed to register because an illness or condition prevented him from doing so. He did not say this when first challenged by Ms Mould; he did not say this at the disciplinary interview, he did not say this in the 30-page document produced at the time of the disciplinary hearing although he talked of his concerns and "fears". At the disciplinary hearing (see page 274) his Union representative made clear that the Claimant was not incapable of completing the form as he had completed it. The Claimant used disability as a mitigating factor at his disciplinary hearing rather than as an excuse.

Failure to make reasonable adjustments

The adjustments contended for by the Claimant (see ET1 at page 90) related to failure to adjourn the disciplinary hearing and obtain further medical evidence or an assessment of reasonable adjustments, were not capable in law of amounting to reasonable adjustments. It was submitted that the Claimant had failed to frame his adjustment claim properly. Some of the adjustments contended for failed to identify the necessary ingredients for the proper analysis to be taken by the Tribunal in accordance with section 4A and Environment Agency v Rowan [2008] IRLR 20; see paragraph 27. The Employment Tribunal was entitled to conclude in any event that the Claimant had not been placed at a substantial disadvantage; this finding was justified by the evidence including the Claimant's willingness to have the hearing dealt with in his absence. In the event, he attended the hearing. The last occupational health report available had advised that the hearing be adjourned to the middle/end of November and it was. The Employment Tribunal was entitled to have regard to Mr Gowda's mental health experience. On the day of the hearing neither the Claimant nor the representative sought an adjournment. There was nothing to suggest that had there been a further adjournment the result would have been different. The suggestion that the Respondent should have sought an up to date medical report and considered the Claimant's ability to attend the hearing was not capable of being a reasonable adjustment; in any event, the Claimant had attended the hearing.

Reference was again made to paragraph 5.16 of the decision of the Employment Tribunal; there was no medical or other credible evidence available either to the Respondent or the Employment Tribunal to suggest that the Claimant's depression caused him to be unable to register or be at a substantial disadvantage. It is not the requirement to register that caused the Claimant the problem, but his own failure to register and to conceal that fact from the Respondent.

Wrongful Dismissal

It will be recalled that at paragraph 5.20 the Employment Tribunal in relation to the claim related to breach of contract considered that the Respondent acted within the reasonable range of reasonable responses in deciding that the Claimant's failure to comply with a management instruction to register for 3½ years coupled with his failure to tell anyone about this, might have placed the Respondent at risk of prosecution and it considered that the Respondent acted within the range of reasonable responses in deciding that the conduct amounted to gross misconduct.

It is clear from Buckland v Bournemouth University [2010] EWCA Civ 121 that the repudiatory breach of a contract of employment is not to be judged by a "range of reasonable responses" but by the conventional contract test. However, if an employee commits gross misconduct he will inevitably be in repudiatory breach of his contract of employment. The fact that the Employment Tribunal in this case may have enunciated the wrong test does not avail the Claimant because had it applied the correct test the result would have been the same, because it is clear that it found the Claimant had been guilty of gross misconduct.

The Claimant may be right in that there was unlikely to have been a criminal sanction. Section 61 of the Care Standards Act did not create a criminal sanction for non registration per se but, failure to register especially in the case of someone who continued to work as a Social Worker, and in a leadership role, is nonetheless a most serious breach of duty so far as concerned the Respondent, which had made it clear on a number of occasions that the Claimant was required to register. His conduct in failing to do so for 3½ years whilst continuing to act as a Social Worker as an Assistant Team Leader would inevitably give rise to the belief in those with whom he dealt with he was in fact registered and thus qualified to work as a Social Worker.

The decision of the Employment Tribunal was not perverse and the Respondent was entitled to dismiss the Claimant for a repudiatory breach of contract as well as having acted within the range of reasonable responses so far as the claim for unfair dismissal was concerned.

The Respondent was entitled to rely upon its Code of Practice, the advice issued to the Claimant on 26 October 2011 (see pages 211 and 212) the nature and severity of the requirement imposed by law by section 61 of the Care Standards Act, the time-span of the Claimant's breach, some 3½ years of age, the Claimant's seniority, his admitted knowledge of his wrongdoing, his acceptance that a lenient sanction would have been a warning. When interviewed in relation to his grievance by Mrs Mould he said he believed he would be sacked; see page 253.

The essential questions

Was there a proper inquiry for the purposes of Burchell and a reasonable range of responses? Was there a PCP that placed the Claimant at a substantial disadvantage in respect of which the Respondent was obliged to make reasonable adjustments? Was the Respondent reasonably entitled to conclude that the Claimant had committed an act of gross misconduct, and whether in fact the Claimant's conduct did amount to gross misconduct.

The law

We have referred already to the Judgment of Lord Dyson in MA (Somalia) v Secretary of State [2010] UKSC 49 and to ASLEF v Brady [2006] IRLR 576, as well as to Yeboah v Crofton [2002] IRLR 634. We do not need to set out section 98 or the Burchell line of authorities; these as are adequately set out in the decision of the Employment Tribunal.

We now set out the relevant provisions of the Disability Discrimination Act 1995. The relevant part of section 3A is as follows. Section 4A deals with the employers' duty to make adjustments, guidance on when it is reasonable to make adjustments is to be found in section 18B:

"3A Meaning of 'discrimination'

(1) For the purposes of this Part, a person discriminates against a disabled person if –

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

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

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

4A Employers: duty to make adjustments

(1) Where –

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

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

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

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

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

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

(i) an application for the employment concerned, or

(ii) an employee of the employer concerned.

(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).

18B(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to—

(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

(b) the extent to which it is practicable for him to take the step;

(c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;

(d) the extent of his financial and other resources;

(e) the availability to him of financial or other assistance with respect to taking the step;

(f) the nature of his activities and the size of his undertaking;........"

This also gives examples of steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments. Section 18B(2) is in the following terms:

(2) The following are examples of steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments—

(a) making adjustments to premises;

(b) allocating some of the disabled person's duties to another person;

(c) transferring him to fill an existing vacancy;

(d) altering his hours of working or training;

(e) assigning him to a different place of work or training;

(f) allowing him to be absent during working or training hours for rehabilitation, assessment or treatment;

(g) giving, or arranging for, training or mentoring (whether for the disabled person or any other person);

(h) acquiring or modifying equipment;

(i) modifying instructions or reference manuals;

(j) modifying procedures for testing or assessment;

(k) providing a reader or interpreter;

(l) providing supervision or other support.

(3) For the purposes of a duty to make reasonable adjustments, where under any binding obligation a person is required to obtain the consent of another person to any alteration of the premises occupied by him—

(a) it is always reasonable for him to have to take steps to obtain that consent; and

(b) it is never reasonable for him to have to make that alteration before that consent is obtained.

(4) The steps referred to in subsection (3)(a) shall not be taken to include an application to a court or tribunal.

(5) In subsection (3), "binding obligation" means a legally binding obligation (not contained in a lease (within the meaning of section 18A(3)) in relation to the premises, whether arising from an agreement or otherwise.

(6) A provision of this Part imposing a duty to make reasonable adjustments applies only for the purpose of determining whether a person has discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such................"

We note that in a number of authorities such as Mid-Staffordshire General Hospital NHS Trust v Cambridge [2003] IRLR, Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664, HM Prison Service v Johnson [2007] IRLR 951, Environment Agency v Rowan [2008] ICR 218 and Smith v Salford NHS Primary Care Trust UKEAT050710 it has been held that adjustments that do not have the effect of alleviating the disabled person's substantial disadvantage are not reasonable adjustments within the meaning of the Act. Matters such as consultations and trials, exploratory investigations and the like do not qualify. So we express some doubts as to how the duty to make reasonable adjustments would apply in relation to the conduct of disciplinary proceedings. We do not need to decide that point.

Conclusion