United Kingdom Employment Appeal Tribunal
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URL: http://www.bailii.org/uk/cases/UKEAT/2015/0353_14_1311.html
Cite as: [2015] UKEAT 0353_14_1311, [2015] UKEAT 353_14_1311
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EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 29 June and 28 September 2015
Judgment handed down on 13 November 2015
Before
COMMISSIONERS FOR HM REVENUE & CUSTOMS RESPONDENT
Transcript of Proceedings
JUDGMENT
APPEARANCES
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(of Counsel) Bar Pro Bono Scheme |
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(of Counsel) Instructed by: Government Legal Department E5 Employment Law Group 9th Floor One Kemble Street London WC2B 4TS
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SUMMARY
DISABILITY DISCRIMINATION
DISABILITY DISCRIMINATION - Reasonable adjustments
DISABILITY DISCRIMINATION - Justification
PRACTICE AND PROCEDURE - Costs
Disability Discrimination - Indirect Discrimination (section 19 Equality Act 2010) - Discrimination by Reasons of a Failure to Make Reasonable Adjustments (sections 20 and 21)
The Claimant made complaints of indirect disability discrimination and discrimination by reason of a failure to make reasonable adjustments, in respect of two PCPs: (1) his placement within the Respondent’s redeployment pool, and (2) the requirement that he take an online test as part of the selection process in respect of higher grade vacancies in July 2012. His claims having been rejected by the ET and an award of costs made against him, the Claimant appealed. The Respondent also pursued a cross-appeal against the finding of disadvantage for the purposes of section 19.
Held:
Allowing the appeal in part; dismissing the cross-appeal.
On the issues relating to the PCP of membership of the redeployment pool:
(1) The ET had reached a permissible conclusion (given the way the Claimant’s case had been pursued below) that the Claimant suffered no disadvantage by reason of his membership of the redeployment pool.
(2) In any event, on this aspect of the “reasonable adjustments” claim, there was no basis for concluding that the disadvantage relied on would have been addressed by counselling and (save for the test point; dealt with when considering the online test PCP, below) his other arguments on appeal (payment for counselling; delaying entry into the redeployment pool) did not reflect the Claimant’s case before the ET and/or were answered by the ET’s findings of fact.
As for the issues relating to the PCP of the online test:
(1) On the claim of indirect discrimination (section 19):
a. The ET’s reasoning on disadvantage on this point, taken as a whole, made clear that it had applied the correct test; the cross-appeal would be dismissed.
b. No issue was taken with the ET’s findings as to the Respondent’s legitimate aims: the need to have a fair and objective method of ensuring candidates met basic competency requirements and of filtering nearly 5,000 candidates. When considering the question of justification, the ET properly had regard to the Respondent’s reasons for using an online test but its reasoning did not disclose that it carried out the requisite balancing exercise, taking account of the discriminatory impact of the PCP. The appeal would be allowed on this point.
(2) On the reasonable adjustments claim (sections 20 and 21):
a. The ET’s reasoning did not properly explain its conclusion that the Claimant was not put at a substantial disadvantage and/or suggested it applied too high a test. This point of appeal would be allowed.
b. To the extent that the Claimant’s case was put on the basis of adjustments that would have required some alternative form of test, these arguments could go nowhere: the ET’s findings made clear that he would not have taken any test (paragraph 5.18).
c. Furthermore, the obtaining of further information/the carrying out of an assessment were not “reasonable adjustments”, merely the process by which the reasonableness of possible adjustments might have been evaluated. A failure to carry out an assessment did not constitute a breach of section 20 (Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664 applied).
d. As for the reasonable adjustments of permitting the Claimant to proceed in the recruitment process without taking the online test or slotting him into a higher grade vacancy, to the extent that the ET’s reasoning referred back to its decision on the question of justification in respect of the section 19 claim, that was not adequate to the task. Further, the reasoning did not disclose the necessary level of scrutiny required in respect of the reasonable adjustments in the Claimant’s individual case. The appeal on this point would also be allowed.
On disposal, the parties would be allowed to make further written representations in the light of this Judgment.
On the on the award of costs, the ET’s reasoning was reliant on its view as to the merits of the Claimant’s claims and thus could not stand in the light of the Judgment on the appeal against the liability findings (as summarised above). The appeal on this point was therefore also allowed.
HER HONOUR JUDGE EADY QC
Introduction
1. I refer to the parties as the Claimant and the Respondent, as below. This is the hearing of the Claimant’s appeal, and the Respondent’s cross-appeal, against a Judgment of the Bristol Employment Tribunal (Employment Judge Livesey, sitting with members on 4-6 November 2013; “the ET”), sent to the parties on 27 November 2013. The ET dismissed the Claimant’s disability discrimination claims and made an award of costs against him. He appeared before the ET in person but before the EAT has had the benefit of pro bono representation by Mr Lewis of counsel. The Respondent was represented at all times by Miss Trotter of counsel.
2. The Claimant appeals. The proposed grounds of appeal were initially considered on the papers by HHJ David Richardson, who took the view that they disclosed no reasonable basis for the appeal to proceed. At a subsequent hearing under Rule 3(10) of the Employment Appeal Tribunal Rules 1993, before HHJ Peter Clark, the appeal was permitted to proceed on the basis of amended grounds. Subsequently, after consideration on the papers by HHJ Serota QC, the Respondent’s cross-appeal was also permitted to proceed.
3. Since then the Claimant has applied to re-amend and to re-re-amend his grounds of appeal. For convenience and with the parties’ agreement, I have considered those applications at the same time as hearing arguments on the merits of all points taken by the Claimant.
The Background Facts
4. In September 2004, the Claimant commenced employment with the Respondent as a Grade AA employee. Subsequent events (the ET found) would have fixed the Respondent with knowledge of the fact that the Claimant suffered depression and was a disabled person for the purposes of the Equality Act 2010 (“EqA”), thus giving rise to an obligation to make reasonable adjustments.
5. In 2010 the Claimant started a course as part of the Respondent’s Business Driven Development Programme (“BDDP”). As such he was temporarily promoted to Grade Band O and moved to a team in Bristol while he undertook training over two years for possible promotion - if he successfully completed the BDDP - to Grade HO. Unfortunately, the Claimant was unable to pass the second BDDP module and, from 28 November 2011, he reverted to Grade AA, but there was very little available work for that grade in Bristol.
6. Shortly before the reversion to Grade AA took effect, the Claimant commenced a long period of sickness absence, which lasted from 14 November 2011 to 22 April 2012. He was certified as suffering from stress and depression. There was evidence before the ET that the Claimant had found it hard to accept his failure on the BDDP course.
7. As the Claimant had reverted to Grade AA and did not have a substantive post, efforts began to find him a position but he was informed that promotion opportunities could only arise through open competition. Although not initially identified as a problem by the Claimant, this later became an issue and was one of the main planks of his case before the ET, specifically in relation to what I shall call the July 2012 recruitment process referred to below.
8. After some four months, the Claimant was notified that he would be placed within the Respondent’s redeployment pool. This was shortly before he returned to work from his period of ill-health absence. As the ET found (paragraphs 4.17 and 5.6), this was designed to retain employees and find them permanent roles. After six months in the pool, if a permanent job had still not been found, the employee would be deemed surplus. That might ultimately mean they were to be made redundant, but that was not something of which there were any examples, and there was no suggestion that the Claimant was considered redundant, although, as the Claimant observes, the Respondent had not expressly told him he would not face redundancy.
9. In April 2012, the Claimant raised for the first time what he referred to as a phobia of the job application process. He contended that to go through the job application procedure was very stressful for him and put him at a disadvantage because of his disability. There was a meeting with the Claimant about this but the Respondent re-stated its policy that allocation of a higher-graded job could only be through open competition. At the same time, a risk assessment was completed recording that the Claimant wanted assistance with the job application process but not that he could not complete it. Later, in July 2012, the Claimant applied for promotion to a Grade O vacancy. He did so with the support of his manager, Mr Stanford, who confirmed he considered the Claimant was ready for promotion to a Band O or even a Band HO position based on his BDDP experience. Having made his application, the Claimant then said he could not undertake the online test part of the selection process as he was too stressed due to his disabilities, which he described as his frame of mind and phobias.
10. An offer was made that Mr Stanford could sit with the Claimant and talk him through the questions. He was also offered a private room and computer on which he could take the test and was told of how he could complete a form to ask for more time. All of these options were, however, declined; the Claimant refused to complete the test as he did not want to expose himself to any “psychological ‘triggers’” (paragraph 4.33). The ET found that the possible alternative of doing a paper test was discussed between but also discounted by the Claimant, his position being that he was not prepared to do a test in any form or circumstance (paragraph 4.34). He argued that the test was not essential and a way round should be found but did not put forward any positive suggestions as to what (paragraph 4.35).
11. The Claimant’s application was kept open pending further reports from his psychological therapist but those forwarded did not state that he would not be able to undertake the kind of tests required, although it was allowed that a psychological assessment might be required if further information were necessary. A later letter from the Claimant’s GP did address this issue, as did the Claimant’s own letter sent along with the GP’s opinion. These were considered by the Respondent, but it took the view that exception from the online recruitment process was not a reasonable adjustment, not least as so many people were applying for the posts, many of whom needed reasonable adjustments for medical reasons. The Claimant submitted his evidence in this respect was corroborated by the subsequent medical report obtained as part of the ET proceedings, which recorded his suggestion that he might be tested by means of an oral examination with someone who could write down his answers in his presence. As for the Respondent’s position, the ET noted (paragraph 4.41):
“4.41. … there were 4,468 internal applicants for the grade O role recruitment process in 2012. The online test was deemed to be an essential element of the filter process by the Respondent. 3,588 people passed that test.”
The ET Conclusions and Reasoning
12. There were two claims before the ET: one of indirect disability discrimination, pursuant to section 19 of the EqA 2010; and one of disability discrimination due to a failure to make reasonable adjustments, pursuant to sections 20 and 21.
13. In his indirect disability discrimination claim the Claimant complained of two provisions criterions or practices (“PCPs”): (1) placing employees into a redeployment pool if they did not have a substantive role, and (2) requiring applicants in the July 2012 recruitment exercise to take an online test. The Claimant claimed he suffered disadvantages as a result of these PCPs because of his disability: he was less able to actively participate in the redeployment process and could not take the online test. The Respondent contended he had suffered no disadvantage. In any event, these were proportionate means of achieving legitimate aims.
14. On the reasonable adjustments claim, the Claimant relied on the same PCPs, arguing that adjustments would have removed the disadvantage. The Respondent contended it did not have sufficient knowledge of the Claimant’s disability to make it liable to make these adjustments, but in any event they were not reasonable.
15. It was common ground there was a PCP that people without a substantive role would be placed within the redeployment pool. There was also no dispute that the requirement of taking the online test in the July 2012 recruitment exercise was a PCP. As to whether there had been a disadvantage for section 19(2)(b) purposes, on the redeployment pool PCP, the ET found:
“5.6. … we were not satisfied that people with the Claimant’s disability, namely depression and stress, would necessarily been [sic] disadvantaged by being placed into the pool, neither were we satisfied that he was himself disadvantaged. We reached that conclusion because the redeployment process enabled a range options [sic] to be deployed by the Respondent to help jobless employees. They were not disadvantaged by the process. …
5.7. This issue was effectively put to rest during the course of the Claimant’s evidence in cross-examination; he accepted, in answer to a question from Miss Trotter, that he was treated more favourably when he was in the redeployment pool than he might have been when not in the pool.”
16. As for the online test PCP, the ET found:
“5.8. … We were able to accept that people with stress or depression, especially those with dyslexia which might have been exacerbated by anxiety, might have been caused a disadvantage by being required to take an online test. …”
17. The ET considered whether this had caused the Claimant a particular disadvantage. Reminding itself of the relatively low threshold, it concluded the Claimant was exposed to a disadvantage because he would have preferred not to have taken an online test (paragraph 5.9).
18. Having so found, the ET considered the question of justification. It accepted that the Respondent had made out a legitimate aim, namely:
“5.11. … the need to have had a fair and objective method of ensuring that candidates met basic competency requirements and the need to filter nearly 5,000 applicants …”
19. It further accepted that the PCP was a proportionate means of achieving this aim:
“5.12. … the online test was necessary because of the large number of candidates and because some fair and objective manner was needed to assess them in the initial stages. The use of an online test was also appropriate because, in our experience, online psychometric testing of this sort was in widespread use in a broad range of workplace recruitment processes, particularly at the initial stages of such processes. …”
20. That disposed of the indirect discrimination claim.
21. The ET then returned to the reasonable adjustments claims. On the redeployment pool the ET had already found there was no disadvantage. In the alternative, however, it considered whether there was (in any event) a breach of any reasonable adjustments obligation. The Claimant had relied on two adjustments: (1) counselling, and (2) being slotted into a job.
22. Although the Claimant contended that counselling would have alleviated his stress, he had never requested it, despite having numerous opportunities to do so. He had, however, twice been referred to the Respondent’s counselling services and to the employee assistance programme, as he entered the redeployment process. Neither Occupational Health reports recommended counselling, and the ET did not think that the Respondent’s failure to organise and/or pay for other counselling was capable of being criticised (paragraph 5.15).
23. The ET considered the Claimant’s real complaint was that he should have been slotted into another job, the other reasonable adjustment he contended for. The only such vacancy identified was part of the July 2012 recruitment process (paragraph 5.16), of which the Claimant had made separate complaint.
24. Turning then to the Claimant’s complaints arising from the requirements of the July 2012 recruitment process, the ET noted that the test under section 20 was differently worded. It required that the Claimant had suffered substantial, not merely particular, disadvantage. The ET was not satisfied that the Claimant had suffered substantial disadvantage:
“5.17. … He had done tests before on line. He took one in 2010 before admission to the BDDP programme. That was after a significant period of absence as a result of depression. There was nothing in the Occupational Health Report to suggest he could not actually do online tests and much of the correspondence from him at that time indicated a lack of confidence in the process and a lack of desire to take the test because of his frame of mind. It did not indicate that he was incapable or unable to undertake it as a result of a particular disability.”
25. In the further alternative, the ET went on to consider the particular adjustments contended for by the Claimant. First, that the test should have been provided in a different format. The ET found that had been discussed and declined by the Claimant:
“5.18. …He would not have wanted to take the test in any form at that time …” [ET’s emphasis]
26. Specifically, there was no evidence that the provision of a paper test was some form of solution to the Claimant’s difficulties.
27. Second, the Claimant argued he should simply have been exempted from the online test. The ET did not accept that was a reasonable adjustment; it would have been neither appropriate nor justified (paragraph 5.19). The ET was not satisfied that the Claimant was qualified for a Grade O job at the relevant time, albeit that he might have been in the future.
28. After the end of the hearing but before the ET had reached its decision - it having reserved its Judgment - an email was received from the Claimant making various allegations against the Respondent and its witnesses of falsifying documents and/or of lying to the ET. The ET investigated those allegations and found none were made out (paragraphs 6.1 to 6.6).
29. Finally the ET considered the Respondent’s application for costs, limited to £10,000 (albeit that was less than 50 per cent of the costs it had actually incurred). It had regard to a deposit order made by Employment Judge Gill on 15 November 2012 and to Rule 39(5) and (6) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“ET Rules 2013”). The ET had regard to the Claimant’s means (he remained in employment with the Respondent) also to the Respondent’s warnings of a possible costs application (paragraph 7.6). It asked itself whether its costs jurisdiction was engaged under Rule 76. It considered that as a result of the way in which Rule 39(5) operated the Claimant must be treated as having behaved unreasonably. The ET then asked whether it should in fact make a costs award, reminding itself it retained discretion as to whether it was appropriate to do so even if its jurisdiction was engaged. Given the deposit order, the Respondent’s warnings and the Claimant’s blinkered and intransigent approach, it considered it was appropriate. Taking into account the Claimant’s means, the ET considered an award of £5,000 was appropriate.
Submissions on Appeal
The Claimant’s Case
30. The Claimant pursued various specific points of challenge. First, as to disadvantage in respect of the redeployment policy PCP, the ET erred in asking whether the Claimant was disadvantaged by comparison to the position if he had not been included in the redeployment pool rather than whether he was disadvantaged by comparison to those who did not have his disability. It might have been better to be part of the redeployment scheme, but that did not mean the Claimant did not suffer more gravely or find it harder to access the benefits. He suffered simply by being part of the redeployment pool, particularly as the Respondent had not expressly stated he would not face redundancy. The ET’s erroneous conclusion on this point impacted upon its approach to reasonable adjustments.
31. On the reasonable adjustments claim, there was no obligation on the Claimant to have raised the adjustments with his employer, albeit he had an obligation to do so in broad terms before the ET (Project Management Institute v Latif [2007] IRLR 579). Once he had done so, the legal burden shifted to the Respondent. The ET erred in assessing the reasonable adjustments on the evidence before the Respondent (see the last sentence of paragraph 5.19), not on the basis of the evidence that it might reasonably have obtained, for example a fuller psychological assessment (raised as a possibility by the Claimant’s psychological therapist).
32. On the July 2012 online test PCP, the ET had further erred in its approach to substantial disadvantage; it had applied too high a test. It was sufficient that the Claimant faced difficulties that did not apply (to the same degree) as to others without his disability. It was apparent that the ET did not apply the correct test, and, given the medical evidence, it was incontrovertible that the Claimant suffered substantial disadvantage in terms of the online test.
33. On the ET’s alternative findings on the Claimant’s specific arguments on reasonable adjustments, the Claimant’s submissions raised the following points of challenge. On the redeployment pool PCP, the ET failed to address or gave inadequate reasons regarding the Claimant’s case that a reasonable adjustment was for his placement in the redeployment pool to be delayed or for the process to be adjusted. It had, further, failed adequately to assess the Claimant’s case on counselling: a reasonable adjustment would have been for the Respondent to provide him with counselling or to have paid for his private counselling, a matter raised by the Claimant in evidence before the ET and which he now sought to pursue by way of an additional ground of appeal, which should be permitted by way of re-re-amendment.
34. Separately, the ET ought to have found that the failure to carry out an adequate medical assessment was itself a breach of the obligation to make reasonable adjustments. On this point the decision of the EAT in Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566 was to be preferred to the line of authority following Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664. It could not be right to say that even if a medical assessment was an essential part of deciding upon a reasonable adjustment that medical assessment was not a reasonable adjustment itself. If it was a step on the way to avoiding the disadvantage, then it could itself be a reasonable adjustment.
35. The ET had, further, failed to adequately explain its reasoning as to the Claimant’s case that a reasonable adjustment would have been to have slotted him into a role in respect of vacancies in July 2012 or to have exempted him from online testing. It considered the issue only in terms of a general need and failed to engage with the Claimant’s individual case. To the extent that the answer was that there were so many applicants who required reasonable adjustments, the ET needed to enquire into the size of the Respondent’s undertaking and form a view as to whether that meant the adjustment would not be reasonable. A similar point could be made on the question of justification for the purposes of the section 19 indirect discrimination claim: the ET had failed to assess proportionality of the PCP against the legitimate aim, assessing the possibility of alternatives in the light of the disadvantage.
36. Returning to the specific reasonable adjustments postulated by the Claimant, the ET failed to address his case as to alternatives to online testing such as delaying the requirement until after there had been an adequate health and risk assessment (albeit this had not been specifically raised before the ET), taking into account other evidence as to the Claimant’s competence as an alternative to online testing, or assessing his competence at a later stage. The ET also failed to explain its conclusion that it was not satisfied that the Claimant was qualified for the Grade O job; alternatively, it erroneously placed the burden on the Claimant to show he was qualified for the role or might be if provided further training. Specifically, it failed to engage with the manager’s endorsement that the Claimant was ready for promotion to Grades O and HO and had relevant experience. More generally, the ET failed to make findings regarding the Claimant’s case that other employees were exempted from the online tests.
37. On the cross-appeal against the finding of group disadvantage for the purposes of section 19(2)(b), in respect of the requirement to take the online test, this was based on an over-reading of the ET’s reasoning. All the ET was saying was that it was unnecessary for everyone to suffer from the Claimant’s disadvantage: it did not have to impact upon everyone in the pool; it was sufficient it would disproportionately have that impact on others sharing that disability.
38. On the appeal against the award of costs, the ET had wrongly proceeded on the basis that, if the claims failed for the same reasons as they had been found likely to do in the deposit order, the Claimant had acted unreasonably. To the extent the Respondent relied on the Claimant’s conduct post-dating the hearing, the ET had not identified that as the basis for its award and would have needed to set out what costs related to that conduct (Yerrakalva v Barnsley MBC [2012] ICR 420, CA, per Mummery LJ, at paragraph 41).
The Respondent’s Case
39. This was a perversity appeal, which did not meet the high test required by Yeboah v Crofton [2002] IRLR 634 CA and included matters not advanced before the ET, which could not be pursued on appeal. In particular, it was not open to the Claimant to now rely on specific reasonable adjustments that he had not raised before the ET (Latif).
40. Turning to the PCP of the Respondent’s redeployment policy and the question of disadvantage, the ET’s Reasons made clear that the proper statutory tests under the EqA were applied and it had reached conclusions open to it on the evidence. It plainly had in mind the Claimant’s particular stress and depression. The Claimant had accepted that by being placed in the redeployment pool he was treated more favourably than if outside it (ET paragraph 5.7). It was thus open to the ET to conclude he was not thereby disadvantaged. The Claimant now objected there was no reassurance that he would not be made redundant, but that was not the focus of his case below, which had been on the July recruitment exercise.
41. As for disadvantage in respect of the online test PCP, the ET expressly considered substantial disadvantage (paragraphs 5.7 and 5.18); this was a perversity challenge which did not meet the high hurdle laid down in Yeboah.
42. On the cross-appeal, here the Respondent took issue with the ET’s finding of particular disadvantage for the purposes of section 19(2)(b) EqA in respect of the requirement to take the online test (paragraph 5.8). Specifically, the ET failed to apply the correct statutory test. Under section 19, a finding was required that the PCP “puts, or would put, [those who shared] the characteristic at a disadvantage”. That required a positive finding to be made: were those employees disadvantaged as alleged or not? A finding that such an employee might be disadvantaged - which was all the ET found - was insufficient; it left open to debate the question of what the effect actually was. The authorities made plain (see Royal Bank of Scotland v Ashton [2011] ICR 632) that the ET must consider what disadvantage has actually been established rather than theoretical constructions of disadvantages which might have been.
43. Returning to the appeal and the reasonable adjustments claim, taking each of the Claimant’s complaints in turn. On the redeployment pool, as the Employment Judge’s notes made clear, the Claimant’s case below had not been advanced on the basis that delay would have been a reasonable adjustment and it was thus not a point that could be taken on appeal. In any event, as for the suggestion that the Respondent needed to delay putting the Claimant in the redeployment pool until after an adequate medical assessment, it was clear the Claimant considered the Respondent was in possession of all reports and did not require anything further.
44. On the question of counselling, the Claimant’s counselling had begun in 2002, before his employment with the Respondent had commenced. The medical evidence suggested the trigger for his depression was the failure to pass the BDDP exams and continuing psychotherapy was recommended even after he had left the redeployment pool (having found a permanent job). The need for counselling was not caused by the Claimant’s admission to the redeployment pool. If there was any disadvantage, it would not have been removed by the provision of counselling; that was not a reasonable adjustment (Conway v Community Options Ltd [2012] All ER (D) 302). On the question of payment for counselling, that was not a case advanced by the Claimant below. In any event, he had failed to identify the disadvantage he contended the Respondent paying for his counselling would remove.
45. As for the argument that the ET ought to have found the failure to obtain further medical evidence was itself a breach of the obligation to make reasonable adjustments, the line of authority following Tarbuck made clear this was not so. In Scottish & Southern Energy plc v Mackay UKEATS/0075/06, Elias J (as he then was) specifically stated Tarbuck was to be preferred to Cambridge, until the Court of Appeal ruled otherwise. Even if not bound by authority, the relevant statutory duty was concerned with practical effect: if the employer failed to make reasonable adjustments, no amount of consultation or assessment could rectify that mistake. Conversely, if the employer had not consulted or assessed fully but still made the reasonable adjustment, the route by which it had got there was immaterial.
46. Turning to the suggestion that a reasonable adjustment would have been to have slotted the Claimant into a role in the July 2012 recruitment process or to have exempted him from online testing, there were no roles in which the Claimant could have been slotted (paragraph 5.16), and the Claimant had rejected testing in all formats (paragraphs 5.18 to 5.19). As it was not possible for these adjustments to be made, the Claimant could not establish they were reasonable. To the extent he now argued that a reasonable adjustment would have been to delay the requirement of an online test until a fuller assessment was carried out, that was not the case he had put below. Generally, the ET addressed the specific circumstances giving rise to the Respondent’s requirement for the online test, and by extension it rejected the alternative methods of assessment now being relied on but not raised at the time by the Claimant.
47. As for the alternative of requiring no test but relying on managerial endorsement, this was a different and additional part of the assessment and not a substitute for online testing. The ET had regard to Mr Stanford’s support for the Claimant, but the Claimant had not been able to pass the second stage of BDDP and could not therefore be assumed to be suitable for a higher-graded post. Related to this was the Claimant’s contention that the ET had failed to properly address the question of further training (albeit this had not been advanced as a separate case by the Claimant before the ET). As for the Claimant’s case that other employees had been exempted from the online tests, he failed to advance evidence to support this claim save in respect of a temporary exemption for candidates who were blind who were unable to take the test because of a failure by the Respondent to provide online tests in Braille. This had not related to any unwillingness on the part of those candidates to take the test.
48. These matters also went to the Claimant’s challenge to the ET’s finding on proportionality for the purposes of the section 19 claim. The ET had expressly adopted the Claimant’s argument as to the legal approach and had carried out the requisite assessment given the case before it (as to which, see above).
49. On the award of costs, it was necessary to read the last four pages of the ET’s Judgment as a whole. The Claimant had made extremely serious allegations of document falsification and perjury on the part of the Respondent and its witnesses, and the ET had rejected those allegations. At an earlier preliminary hearing, Employment Judge Gill had taken the view that the Claimant’s claims had little prospect of success. At the end of the final hearing the ET was entitled to rely on that. The Respondent had warned the Claimant of the risk of costs on more than one occasion. The Claimant had been given the opportunity to make submissions responding to the application. Meek v City of Birmingham District Council [1987] IRLR 250 did not require an ET decision to be the product of refined legal draughtsmanship but merely that it must contain a statement of reasons as to why a party had won or lost. The ET took all relevant aspects into account and properly explained the basis for its costs award.
The Applicable Legal Principles
50. The relevant provisions of the EqA 2010 are at sections 19, 20 and 21. Section 19 relevantly provides:
“(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if -
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.”
51. By section 20 it is provided that there is a duty to make adjustments, relevantly:
“(3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”
52. Section 21 then provides that a failure to comply with the duty to make adjustments for the purposes of section 20 can itself constitute an act of discrimination.
53. The obligation to make reasonable adjustments recognises the particular nature of disability discrimination. Equal treatment in this context may not be provided by being treated in the same way. Reasonable adjustments may be required to cater for the special needs of disabled persons, even if that entails such persons being afforded more favourable treatment (see Archibald v Fife Council [2004] UKHL 32 per Baroness Hale at paragraph 47).
54. In terms of the approach that ETs are to adopt when assessing whether a claim of breach of a section 20 obligation has been made out for the purposes of section 21, in Ashton the EAT, Langstaff J presiding, laid down the following guidance:
16. The fact that this requires in particular the identification of the provision, criterion or practice concerned and the precise nature of the disadvantage which it creates by comparison with those who are non-disabled, was set out clearly by this tribunal in Environment Agency v Rowan [2008] ICR 218, para 27. That guidance is worth restating:
“an employment tribunal considering a claim that an employer has discriminated against an employee … by failing to comply with the … duty must identify: (a) the provision, criterion or practice applied by or on behalf of an employer, or (b) the physical feature of premises occupied by the employer” - that, of course, is not relevant to the present case - “(c) the identity of non-disabled comparators (where appropriate) and (d) the nature and extent of the substantial disadvantage suffered by the claimant.”
Later in the same paragraph the tribunal continues to say:
“In our opinion an employment tribunal cannot properly make findings of a failure to make reasonable adjustments … without going through that process. Unless the employment tribunal has identified the four matters we have set out above.”
We interpose to say that of course it is not in every case that all four matters need to be identified but certainly what must be identified is (a) and (d). For the purpose of the comparison the tribunal must be able to identify the persons by reference to whom the provision, criterion or practice, either in its presence or its application, is said to place the disabled person concerned at a substantial disadvantage. Disadvantage is necessarily relative.
“it cannot go on to judge if any proposed adjustment is reasonable. It is simply unable to say what adjustments were reasonable to prevent the provision, criterion or practice, or feature, placing the disabled person concerned at a substantial disadvantage.” ”
55. Specifically, on the question of reasonable adjustment, the EAT continued:
“24. … so far as reasonable adjustment is concerned, the focus of the tribunal is … an objective one. The focus is upon the practical result of the measures which can be taken. It is not - and it is an error - for the focus to be upon the process of reasoning by which a possible adjustment was considered. As the cases indicate, and as a careful reading of the statute would show, it is irrelevant to consider the employer’s thought processes or other processes leading to the making or failure to make a reasonable adjustment. It is an adjustment which objectively is reasonable, not one for the making of which, or the failure to make which, the employer had (or did not have) good reasons.”
56. That guidance was cited with approval by the Court of Appeal in Newham Sixth Form College v Sanders [2014] EWCA 734, where Laws LJ further opined:
“14. In my judgment these three aspects of the case - nature and extent of the disadvantage, the employer’s knowledge of it and the reasonableness of the proposed adjustments - necessarily run together. An employer cannot, as it seems to me, make an objective assessment of the reasonableness of proposed adjustments unless he appreciates the nature and the extent of the substantial disadvantage imposed upon the employee by the PCP. Thus an adjustment to a working practice can only be categorised as reasonable or unreasonable in the light of a clear understanding as to the nature and extent of the disadvantage. Implicit in this is the proposition, perhaps obvious, that an adjustment will only be reasonable if it is, so to speak, tailored to the disadvantage in question; and the extent of the disadvantage is important since an adjustment which is either excessive or inadequate will not be reasonable.”
57. The reasonableness of a potential adjustment need not require that it would wholly remove the disadvantage in question. An adjustment may be reasonable if it is likely to ameliorate the disadvantage (see Noor v Foreign & Commonwealth Office [2011] ICR 695 EAT, per HHJ Richardson at paragraph 33).
58. It was common ground before me that a Claimant would need to raise before the ET those matters on which s/he relied as being reasonable adjustments (Latif). As the test is an objective one, however, the Claimant’s case in this regard cannot be limited by what he or she did or did not raise with their employer, although, as Laws LJ emphasised in the Sanders case, the employer’s contemporaneous understanding of the nature and extent of the disadvantage will be a very relevant factor. That does not mean that a failure in the process followed by the employer - as to the degree of assessment or consultation engaged in, or whether further information was or could be obtained - might itself amount to a breach of the obligation to make reasonable adjustments (see per Elias J, as he then was, in Tarbuck and in Mackay). To the extent that the Claimant seeks to depart from the reasoning in that line of authority and to place reliance on the earlier Judgment of a different division of the EAT in Cambridge, I do not accept his argument. The ET’s task is to assess what would have been reasonable in the circumstances of the case. In so doing, it will have regard to all the evidence before it, which may include evidence of the information obtained by the employer, its assessment of that material and any consultation with the employee. If, however, the employer has failed to carry out any proper consultation or has failed to follow up all possible sources of evidence in order to fully assess the position, that does not mean that it has not met its obligations in terms of the making of reasonable adjustments; just as the fact that it did seek more information or carried out adequate consultation will not be sufficient to demonstrate that it had discharged its obligations. That, it seems to me, is precisely the point made by Langstaff J at paragraph 24 of the Ashton case (see above), which was cited with approval by the Court of Appeal in Sanders. It is, in my judgment, the necessary consequence of the objective nature of the test.
59. A similar point can be made in respect of the justification defence to a claim of indirect discrimination under section 19 of the EqA. The test is well known. It requires an objective balance between the discriminatory effect of the PCP and the reasonable needs of the party who applies that PCP (see per Balcombe LJ in Hampson v Department of Education & Science [1989] ICR 179 at page 191, as approved by the House of Lords in Webb v EMO Air Cargo (UK) Ltd [1993] ICR 175). The PCP does not have to be the only possible way of achieving the legitimate aim. Proportionality requires, however, that it is to be assessed as against the legitimate aim, assessing the possibility of alternatives in the light of the disadvantage (see Hardys & Hansons plc v Lax [2005] IRLR 726 CA per Pill LJ at paragraphs 32 to 34).
60. On the question of costs, a deposit order having been made at an earlier stage, Rule 39(5) of the ET Rules 2013 provides:
“(5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order -
(a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown …”
61. Where it is considered that a party has so acted unreasonably, Rule 76(1) provides that an ET “may make a costs order … and shall consider whether to do so”. The question as to whether or not it is appropriate to make a costs award in any particular case is a matter of discretion for the ET. In exercising that discretion (per Mummery LJ in Yerrakalva):
“41. The vital point … is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. …”
Discussion and Conclusions
62. In considering this appeal, I have sought to keep in mind the case as presented below: an ET does not err in law by addressing the case before it and not some other.
63. I start with the complaints in respect of the redeployment pool. The Claimant challenges the conclusion that he was placed at no disadvantage by the PCP that those without a substantive role would be placed into the redeployment pool. He says the wrong test was applied. I disagree. The comparative exercise in which the ET engaged logically followed from the way in which the Claimant put his case. He was objecting to being a member of the redeployment pool; the ET thus considered his position as a member of the pool as compared to the position if he were not. It did not thereby err in law. For posts at the Claimant’s own grade level, on anyone’s case, he suffered no particular disadvantage by being placed within the redeployment pool. The ET’s conclusion was entirely permissible.
64. As for the requirements then placed upon him in terms of a higher-graded position, there was, again, nothing to suggest that there was any greater obligation upon him in terms of his being placed in the redeployment pool. Ultimately the real complaint in this respect fell to be considered as part of the complaint regarding the PCP of the online test (see below).
65. Mr Lewis sought to add nuance to the Claimant’s case, relying on the particular stress he, as someone suffering a mental-health disability, would have suffered by being put into the redeployment pool; specifically because he was not reassured he would not face redundancy after six months. I am not satisfied that this properly reflects the Claimant’s case below. The PCP he was complaining of was putting him in the pool, not how he was treated once he was there. In any event, there was evidence that the stress the Claimant suffered was in being taken off BDDP, not in being placed into the redeployment pool.
66. Ultimately, the assessment of the evidence relevant to this point is not for me; the question is whether the ET reached a permissible conclusion. Having regard to the disability suffered by the Claimant (depression and stress), the ET was satisfied being placed into the redeployment pool gave rise to no disadvantage. That was a conclusion it was entitled to reach.
67. The ET’s conclusion on disadvantage also provided an answer to the reasonable adjustments case in respect of the Claimant’s membership of the redeployment pool. On this claim, however, the ET went on to consider (in the alternative) the adjustments contended for by the Claimant as steps that would have been reasonable for the Respondent to take to avoid the disadvantage he suffered. Although it is not strictly necessary for me to deal with this part of the appeal (given my dismissal of the first point of challenge), I adopt the same course as the ET and consider the Claimant’s appeal on the adjustments question in the alternative. The reasonable adjustments the Claimant contended for in this regard were: (1) simply slotting him into a job, a case that overlaps with the July 2012 application and the PCP of requiring him to undertake a test as part of that recruitment process (see below); and (2) providing him with counselling to overcome the additional stress he suffered as a result of being in the pool.
68. On the question of counselling the first difficulty for the Claimant’s case on appeal is that it is hard to see what disadvantage this would have addressed. The Claimant had been the recipient of counselling for some time before his admission into the redeployment pool. He continued to receive counselling during his time within the pool and thereafter. To the extent that he says he suffered disadvantage by being placed within the pool (on which point the ET disagreed), it remains unclear as to how he contends that would have been ameliorated by the provision of counselling other than that which he was already receiving.
69. As for payment for counselling, that was a matter that apparently emerged in evidence before the ET rather than having been identified as a separate adjustment in the list of issues. As such, I do not accept that the ET was obliged to expressly engage with it as a standalone issue. In any event, the ET found that the Respondent offered various forms of counselling services to the Claimant without any suggestion that he should meet the cost himself (paragraph 5.15). If there was any duty to make a reasonable adjustment in this regard, the ET plainly found that the Respondent had complied with such obligation as was upon it. I can see no merit in allowing the late amendment of the Notice of Appeal on this point. I am satisfied that the challenge to the ET’s finding on the counselling issue could not succeed whether taken on the more limited basis as originally put or by allowing this wider argument.
70. On appeal - but not before the ET - the Claimant has argued it would have been a reasonable adjustment to have delayed his entry into the redeployment pool and/or his subsequent categorisation as surplus. The point is a bad one. First, because it was not made before the ET, so the necessary findings of fact are not present. Second, because the ET’s finding on disadvantage is a complete answer. Third, because it is really a complaint that the Respondent ought to have undertaken further assessment, and that does not itself amount to an adjustment that could be required (see the discussion of the Tarbuck line of authorities above).
71. I turn then to the Claimant’s case that he should have been slotted into an alternative higher-graded position rather than continue in the redeployment pool. Given that the ET found that there were no relevant vacancies other than those that arose as part of the July 2012 recruitment process (paragraph 5.16), there is overlap between this point and those arising in respect of the online test PCP, and it is convenient to consider those matters together.
72. Before descending into the detail, however, I should first address the appeal and cross-appeal relating to the ET’s findings on disadvantage in respect of the online test PCP. By its cross-appeal the Respondent takes issue with the finding that the requirement to undertake an online test gave rise to a group disadvantage for the purposes of section 19(2)(b) of the EqA.
73. It is right to say that section 19(2)(b) is worded in terms of what “puts, or would put” such persons at a disadvantage, and there is plainly a risk that an ET using the terminology “might” could be applying a lesser test. I bear in mind, however, the need not to focus solely on one word but to adopt a more holistic approach to an ET’s reasoning. Doing so and reading the paragraph as a whole - whilst it would have been preferable if it had simply used the terminology of the section - it is tolerably clear that what the ET had in mind was the hypothetical nature of the exercise in which it was engaged, as allowed by the “would put” of section 19(2)(b). I duly dismiss the cross-appeal.
74. As for the Claimant’s challenge to the finding that the online test requirement did not put him at a “substantial disadvantage” for the purpose of section 20(3) EqA 2010 (paragraph 5.17), I am troubled by the ET’s reasoning. I do not say it would be impossible for different conclusions to be reached for the purposes of sections 19(2)(c) and 20(3), but the distinction being drawn would need to be made clear. Here, the ET refers at paragraph 5.17 to the Claimant’s lack of confidence and lack of desire to take the test because of his frame of mind. It then goes on, however, to state that the evidence “did not indicate that he was incapable or unable to undertake it as a result of a particular disability”. I am unsure why that was not so indicated. There was certainly evidence in the form of the emails and the GP’s letter - which the ET accepted as demonstrating particular disadvantage - to suggest the Claimant’s frame of mind and lack of confidence was related to his disability. I therefore agree with the Claimant: the ET’s reasoning here is inadequate to the task and suggests that it applied too high a test.
75. I return to this point below, but, as the ET in any event went on to consider the merits of the specific reasonable adjustments relied on by the Claimant (assuming disadvantage to have been made out), I have done likewise. There is, as Mr Lewis has observed, a potential difficulty in adopting this course, as the assessment of a potential reasonable adjustment will depend upon the particular disadvantage. The Claimant has, however, not resisted the ET’s characterisation of the disadvantage, merely its conclusion in that respect. That being so, I have proceeded to consider the merits of the appeal on the specific reasonable adjustments on the assumption that the Claimant was put to a substantial disadvantage by the PCP of being required to undertake an online test because he had:
“5.17. … a lack of confidence in the process and a lack of desire to take the test because of his frame of mind. …”
76. In thus approaching the specific matters relied on by the Claimant in respect of the requirement to take the online test, I agree with the Respondent that this point is effectively answered by the ET’s finding that “He would not have wanted to take the test in any form at that time” (paragraph 5.18). Thus, whether the Claimant’s case is argued as a need to allow him the alternative of a paper (rather than online) test or adjusting the process to permit him to provide his answers orally to someone else, the ET’s finding of fact is clear: he would not have accepted any form of test. The various alternatives identified by the Claimant after the event would not have been reasonable, because they would have done nothing to ameliorate the disadvantage that he suffered as a result of being required to undertake a test of any nature.
77. Similarly, to the extent that the Claimant seeks to argue that the Respondent should have delayed the requirement to take an online test and/or obtained further medical evidence or carried out a further assessment of his needs, I consider the ET’s findings provide a complete answer. Even if these matters could themselves amount to reasonable adjustments - and, for the reasons I have already given, I do not agree that they could - the findings are clear: the Claimant’s position was that he would not have wanted to undertake any form of test.
78. That leaves the contention that the Claimant should simply have been slotted into a vacancy in the July 2012 recruitment exercise and/or have been permitted to proceed in that exercise without having to take the online test. Two separate questions arose in this respect: (1) could the Respondent show that requiring the Claimant to continue in the redeployment pool and take the online test for higher-graded positions in July 2012 was a proportionate means of achieving a legitimate aim? and, separately, (2) were the adjustments proposed by the Claimant - that he should have been slotted into a vacancy and/or permitted to proceed in the recruitment exercise without having to take a test - reasonable for the Respondent to make?
79. Addressing the first of those questions, the Respondent’s legitimate aim was held to be twofold: first, the need to have a fair and objective method of ensuring that candidates met basic competency requirements; and secondly, the need to filter nearly 5,000 candidates. The Claimant does not take issue with the ET’s finding that these were indeed legitimate aims but argues that it erred in failing to take into account the less discriminatory alternatives open to the Respondent, such as making an exception for the Claimant (as had been done for blind candidates when the Respondent had been unable to offer a Braille version of the test), or proceeding on the basis of management recommendation (and the Claimant’s past experience on the BDDP) and allowing for the possibility of training on the job.
80. These were, of course, the reasonable adjustments the Claimant was seeking, to avoid the disadvantage of remaining in the redeployment pool or of being required to take an online test. There was, therefore, some degree of overlap in matters relevant to the consideration of these questions. That said, the focus for the indirect discrimination complaint was bound to be on the justification of the PCP more generally, whereas the reasonable adjustments case required the ET to specifically consider the Claimant’s individual case and circumstances.
81. On the question of justification under section 19(2), the ET accepted that the sheer number of candidates meant it was necessary to require applicants to undertake the online test; this provided a fair and objective means of carrying out the initial sift. That approach (rightly) looks at the reasons why the Respondent might wish to use such a test. It does not, however, disclose any balancing of the discriminatory impact of it doing so. Having accepted that, at least hypothetically, there would be a disadvantage for candidates suffering stress or depression by requiring them to take this kind of test, the ET fails then to demonstrate that it put that into the balance when determining whether it was necessary and appropriate to continue to make this a general requirement. To observe, as the ET went on to do, that “online psychometric testing of this sort was in widespread use” (paragraph 5.12), does not engage with the balancing exercise it had to undertake.
82. That is not to say an ET would not be entitled to conclude the requirement was justified. There was evidence that the Respondent had to respond to a number of different requests for reasonable adjustments (see the letter cited at paragraph 4.39) and it may be that it would not have been proportionate for the Respondent to allow for exemptions, given the number of candidates and the various demands it had to balance. That assessment was, however, for the ET, and I am not satisfied that it carried out the task required of it in this respect.
83. As for the reasonable adjustments claim, save for observing that the Claimant had not made good his contention that he was qualified for a Grade O job at that stage (paragraph 5.20), the ET simply refers back to its earlier conclusion on the question of justification. As explained above, I am not satisfied that the reasoning in that regard was sufficient. In addition to that difficulty, however, the focus of the ET’s reasoning for the purpose of the section 19(2) “defence” was bound to be different to its focus in terms of the reasonable adjustments claim. In the former case the focus was on the justification of the policy. That still left open, however, the question whether, in the Claimant’s individual case, the Respondent was bound to make a reasonable adjustment for section 20 purposes. On this question it was potentially relevant that the Claimant’s manager considered the Claimant was “capable of ultimately achieving an O or HO grade” (paragraph 5.16). The ET was entitled to conclude that this did not mean that the Claimant had established that he was qualified at that time, but the question remained whether he had demonstrated sufficient potential in terms of his past experience (albeit he had not been able to progress past the second assessment in BDDP) along with his manager’s recommendation and the potential provision of training (a point that was run below as part of the Claimant’s overall case in this respect rather than a standalone matter), to mean that a reasonable adjustment would have been to permit him to proceed past the initial sift stage in this recruitment process. In carrying out that assessment, the ET would be entitled to consider the difficulties the Respondent might face in allowing exceptions for individual cases, but that would all be part of the determination of what would be reasonable. On the reasons provided, I am not satisfied the ET carried out the level of scrutiny required in respect of the potential reasonable adjustments in the Claimant’s individual case in this regard.
84. It may also have been relevant that the Respondent had made an exception in the past for blind candidates when it was unable to provide the test in Braille. The Respondent seeks to distinguish those earlier cases by pointing out that the candidates in question were willing to take the test, it was just that the Respondent could not provide it in the form that would overcome the disadvantage they suffered as a result of their disability. I agree with Mr Lewis, however: those are not necessarily points of distinction. If the Claimant’s ‘unwillingness’ to take a test arose from his disability and he was thus unable to proceed because the Respondent had not provided an alternative means for him to participate, the point of distinction seems to disappear. I do not say that the Respondent was thus bound to make an exception for the Claimant; the difficulty here is that the ET simply does not address the point.
85. Given the view I have formed on the question of disadvantage in respect of the Claimant’s membership of the redeployment pool, my concerns on the questions of justification (section 19(2)) and reasonable adjustments (sections 20 and 21) cannot assist the Claimant so far as that PCP is concerned.
86. As for the PCP of the online test, in so far as this formed part of the indirect discrimination complaint, whilst I am satisfied that the ET’s conclusion on disadvantage should be upheld and the cross-appeal dismissed, I cannot be confident that it carried out the requisite balancing exercise, and so I allow the appeal in respect of the section 19 claim in this regard.
87. Turning to how the ET dealt with this issue as part of the reasonable adjustments claim, I do not consider the reasoning provided adequately explains its finding that there was no substantial disadvantage, and I allow the appeal on this point. To the extent that the Claimant seeks to challenge the ET’s rejection of the reasonable adjustment of a different form of test, I consider that case met by the finding that the Claimant would not undertake any form of test; it was thus not a reasonable adjustment to avoid the disadvantage. The appeal on that point is accordingly rejected. On the other hand, the alternative adjustment - exempting the Claimant from any test - was something I am satisfied warranted more consideration than is disclosed by the ET’s reasoning, and I therefore allow the appeal on that point.
88. The question remains as to the proper disposal of the appeal in the light of this Judgment, and I shall consider further representations from the parties on this question.
89. I then turn to the appeal on the award of costs. It seems to me that the ET’s reasoning in this regard is bound up with its view as to the merits of the Claimant’s claims, in particular given the earlier deposit order and the fact that he had subsequently lost on substantially the same basis as identified at that earlier stage. I do not consider the ET was thereby approaching this as meaning that there was an irrefutable presumption that it must make an award of costs; indeed, it expressly went on to see this as a matter of discretion under section 76 (paragraph 7.8). Given I have decided that the ET’s conclusions on aspects of the Claimant’s claims cannot stand, however, it seems to me inevitable that the costs award must also fall away.
90. I have considered whether the basis for the award might instead be said to relate to the Claimant’s post-hearing conduct, but I cannot read the ET’s reasoning in that way. At most, that seems to have been seen as corroboration of his apparently blinkered and intransigent approach (paragraph 7.8). Had that been the main reason for the award, it would, in any event, have required greater specification as to the relationship between the conduct and the award made. The award of costs cannot stand, and I therefore also allow the appeal in this regard.