United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0134/15/LA

 

 

EMPLOYMENT APPEAL TRIBUNAL

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

 

 

                                                                                                             At the Tribunal

                                                                                                             On 15 January 2016

 

 

 

Before

HER HONOUR JUDGE EADY QC

(SITTING ALONE)

 

 

 

 

 

 

PRIVATE MEDICINE INTERMEDIARIES LIMITED                                       APPELLANT

 

 

 

(1) MISS C HODKINSON

(2) MR I GREEN

(3) MR R MUNRO                                                                                              RESPONDENTS

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MS JOANNE CONNOLLY (of Counsel) Instructed by: Chandler Harris LLP 25 Byrom Street Manchester M3 4PF
For the First Respondent	MR STEFAN BROCHWICZ-LEWINSKI (of Counsel) Instructed by: Slater & Gordon (UK) LLP 58 Mosley Street Manchester M2 3HZ
For the Second and Third Respondents	No appearance or representation by or on behalf of the Second and Third Respondents

 

 

SUMMARY

DISABILITY DISCRIMINATION - Section 15

HARRASSMENT

UNFAIR DISMISSAL - Constructive dismissal

 

Equality Act 2010 (“EqA”) sections 15 (unfavourable treatment because of something arising in consequence of disability) and 26 (harassment)

Employment Rights Act 1996 sections 95(1)(c) (constructive dismissal) and 98 (unfair dismissal)

On the Claimant’s claims of discrimination under sections 15 and 26 EqA and of constructive unfair dismissal, the ET had found:

(1)          That the First Respondent’s failing to better inform itself and/or to formally review the Claimant’s position during her period of rehabilitation into work amounted to discrimination for section 15 EqA purposes.

(2)          Separately, that the First Respondent’s letter to the Claimant of 8 November 2013 amounted to an act of harassment.

(3)          And further, that the letter of 8 November 2013 amounted to conduct in breach of the implied obligation to maintain trust and confidence and the Claimant had thereby been constructively unfairly dismissed.

Upon the First Respondent’s appeal, allowing the appeal in respect of the discrimination findings but rejecting the appeal against the finding of constructive unfair dismissal:

(1)          Given that the ET had rejected the Claimant’s claim that the First Respondent had acted in breach of any obligation to make reasonable adjustments (sections 20 and 21 EqA), the basis of the conclusion that the Claimant had suffered unfavourable treatment for the purposes of section 15 (i.e. posing some form of disadvantage, applying Trustees of Swansea University Pension Scheme and Anor v Williams [2015] ICR 1197) was unclear.  Further, the ET’s conclusion that the treatment had been because of something arising in consequence of the Claimant’s disability was inconsistent with its finding (again on the reasonable adjustments claim) that the First Respondent’s reason was because it believed that an informal process was sufficient.  The ET’s conclusion on the section 15 claim could not stand and would be substituted by a finding that this claim was dismissed.

(2)          On the harassment claim, the ET had found that the letter of 8 November 2013 “related to” the Claimant’s debilitating illness, which it referred to as the relevant protected characteristic but had made no finding that her illness at that time was related to her disability (thyroid dysfunction and cardiac arrhythmia); rather it had found that her illness in November 2013 was due to her own misperception of issues properly raised with her.  The conclusion could not stand and would, given the ET’s findings, be substituted by a ruling that the claim under section 26 EqA was dismissed.

(3)          As for the finding on the constructive unfair dismissal claim, taken as a whole, it was apparent that the ET was influenced by its finding that the letter of 8 November 2013, written to an employee known to be very ill, raised a number of concerns that were not serious and did not need to be dealt with at that stage (some of which had been dealt with and were closed).  The ET had not lost sight of its earlier finding as to the genuine nature of the First Respondent’s concerns or the right of management to raise those issues with the Claimant, nor did it fail to take account of its own findings as to the Claimant’s misperceptions of the situation.  The ET was entitled to conclude that its findings in respect of the letter meant that any reasonable and proper cause on the part of the First Respondent had been undermined.  Further, given the evidence before it, the ET was entitled to conclude that the letter of 8 November had been a causative factor in the Claimant’s resignation.  The appeal against the finding on constructive unfair dismissal would be dismissed.

HER HONOUR JUDGE EADY QC

 

Introduction

1.                  I refer to the parties as the Claimant and First Respondent, as below.  The appeal is that of the First Respondent against a Judgment of the Liverpool Employment Tribunal (Employment Judge T V Ryan, sitting with members over eight days in 2014 and an additional day on 9 February 2015 in chambers; “the ET”), sent to the parties on 5 March 2015.  Representation before the ET was as before me.  There were then two additionally named individual Respondents, but the claims against them were dismissed, and they take no issue with the First Respondent’s appeal and thus do not appear before me.

 

2.                  The ET held that the First Respondent discriminated against the Claimant because of something arising in consequence of her disability, harassed her by unwanted conduct related to her disability and constructively unfairly dismissed her.  The appeal was permitted to proceed after an Appellant-only Preliminary Hearing before HHJ Richardson.

 

The Background Facts and the ET’s Findings

3.                  The First Respondent is an insurance intermediary.  From 1 September 2006 it employed the Claimant, latterly as Director of Sales for Managed Care and Occupational Health.  The Claimant was a disabled person by reason of a thyroid dysfunction and cardiac arrhythmia.  After a period of absence from work due to that condition in the summer of 2013, she had returned on 19 September 2013 on reduced hours with other adjustments being made to assist her return (see the ET’s findings at paragraphs 2.14 and 2.15).

 

4.                  In making those adjustments the First Respondent was largely following advice obtained from Occupational Health on 12 September 2013.  The ET rejected the majority of the Claimant’s complaints about the measures taken by the First Respondent in respect of her return to work (paragraph 2.19).  It found the First Respondent took appropriate and reasonable steps save that it did not, as it had been advised to do, carry out any formal review after a GP review on 2 October 2013, and there were no formal weekly meetings between the Claimant and her line manager - that is, the First Respondent’s Sales Director, Mr Green - to review and consider her progress and no risk assessment (all recommendations made by Occupational Health).

 

5.                  The ET concluded that the First Respondent’s failings in these latter respects amounted to unfavourable treatment, not shown to be a proportionate means of achieving a legitimate aim and thus discrimination because of something arising in consequence of the Claimant’s disability.  The ET otherwise rejected allegations as to how the Claimant was treated during her periods of absence and on her return to work in September 2013 (paragraph 2.20).

 

6.                  About a month or so later, from 22 October 2013 the Claimant commenced a second period of absence; due to work related depression and anxiety, which she attributed to bullying and intimidation by Mr Green and his manager, Mr Munro (Managing Director).  Messrs Green and Munro had been the individually named Second and Third Respondents before the ET.

 

7.                  In general terms the ET rejected the Claimant’s various complaints of bullying and intimidation.  As recorded at an early stage in its Written Reasons, the ET did not find the Claimant to be a credible witness.  It found she was overly sensitive to the point that on occasions this affected her credibility (see paragraph 2.4 in particular).  Aside from finding that the First Respondent’s witnesses tended to be cautious in their dealings with the Claimant because they felt she had a propensity to be over sensitive and exaggerate, where there was a direct conflict their evidence was to be preferred to that of the Claimant (paragraph 2.5).  By way of example, the Claimant complained she was bullied and intimidated by Messrs Green and Munro at a meeting on 14 October 2013 but the ET found the meeting was a reasonable and proper opportunity by the First Respondent’s Directors to clear the air with the Claimant and that they had genuine and appropriate management concerns (paragraph 2.20.13).

 

8.                  On her second period of absence relevant to this appeal the Claimant had sent in a fit note via a Mr McCance, who had added his own observation that the Claimant was feeling:

“2.24. … very, very vulnerable having been subjected to what [I] can only describe as bullying and intimidation by senior members of PMI management …”

 

9.                  On 24 October 2013, the First Respondent’s Chief Executive, Mr Baldwin, wrote to the Claimant asking if she wished to raise a grievance and offering a meeting to discuss her concerns.  The Claimant responded that she was in no fit state to communicate without breaking down; she felt genuinely distraught about the treatment she had received since her last absence and felt devastated and unable to sleep, concentrate or function properly.  The ET found the Claimant was accurately describing how she felt at that time:

“2.26. … based on her perception of the issues that had been raised with her and the manner in which they had been raised, albeit we find that they were genuine issues properly raised to that point.”

 

10.              Mr Baldwin took HR and legal advice before replying to the Claimant on 8 November 2013.  He proposed meeting before the end of that month, albeit he was flexible as regards location.  He also confirmed he had spoken to Messrs Green and Munro about the background, (that being a genuine attempt to find out what had gone so badly wrong).  The letter continued, however, to say that there were six areas of concern that Mr Baldwin wanted to discuss with the Claimant.  As the ET found, Mr Baldwin did not consider any of the concerns to be serious.  Further, Mr Munro’s evidence was that for his part the issues he had previously raised were by then closed but Mr Baldwin had included those matters in an unselective way, notwithstanding he could have put off doing so.  The ET rejected Mr Baldwin’s evidence that he did not realise the letter could cause the Claimant significant distress; that was contradicted by Mr McCance’s note and the earlier communications: Mr Baldwin knew or ought reasonably to have known the letter was likely to cause the Claimant to be so upset that she could not return to work but he was prepared to take that risk (see, generally, paragraph 2.29).

 

11.              On 15 November 2013, the Claimant responded giving notice of resignation due to a breakdown in trust and confidence, referencing the 8 November letter, observing:

“… Notwithstanding my absence due to anxiety and depression, and the issues that I have raised, you make six further allegations relating to my performance and commitment, the timing and nature of which can only be intended by you to elicit my resignation. …”

 

12.              The Claimant further confirmed in her oral evidence before the ET that she considered that the letter of 8 November was (as per the agreed note of her cross-examination before the ET) “enough on its own to destroy trust and confidence”.  Although the ET had found that the First Respondent’s concerns were genuinely held, had previously been brought appropriately to the Claimant’s attention (paragraph 2.22) and the letter was not, as the Claimant contended, the culmination of a campaign to drive her out of employment, it was still an act of disability related harassment and a fundamental breach of contract so as to justify her resigning, which it found she did in response (see the ET’s Judgment, paragraphs 4.1.3 and 4.4.2).

 

The Grounds of Appeal and the First Respondent’s Submissions

13.              The first challenge related to the finding that the First Respondent had discriminated against the Claimant because of something arising in consequence of her disability.  Specifically, the ET erred in its approach (1) to unfavourable treatment, and (2) to causation. 

14.              On the question of unfavourable treatment, it was impossible to see how the ET had engaged with the requirement that the treatment was unfavourable, as that term should be understood, as posing some form of disadvantage (see per Langstaff P in Trustees of Swansea University Pension Scheme and Anor v Williams [2015] ICR 1197). 

 

15.              As for causation, the ET had needed to carry out a two-stage test, asking whether the something arising was (i) caused by the disability and (ii) whether it in turn caused the unfavourable treatment (see per Langstaff P in Basildon & Thurrock NHS Foundation Trust v Weerasinghe UKEAT/0397/14, 29 July 2015, unreported).  Having found the First Respondent failed to conduct a formal review and risk assessment because it believed the informal discussions, together with the content of the OH report, were sufficient (see the ET’s Judgment at paragraph 4.2.3), the failure in question was not because of something arising in consequence of the Claimant’s disability; it was because of the First Respondent’s view that a less formal process was sufficient.  As to the finding that the letter of 8 November amounted to an act of harassment, the ET failed to properly apply the requirement under section 26(1)(a) Equality Act 2010 (“EqA”) that the unwanted conduct be related to the Claimant’s disability.  The highest this was put was at paragraph 4.1.3, that the letter was:

“4.1.3. … unwanted conduct in circumstances of her debilitating illness, a relevant protected characteristic, that had the effect of violating her dignity and creating an intimidating and hostile environment. …”

 

Yet, the ET’s conclusion relevant to the harassment claim (paragraph 4.3.3) made no reference to any interrelationship between the letter and the Claimant’s disability.  Further, the ET expressly found the matters raised in the letter were genuine concerns (see paragraph 2.22).  The findings adverse to the First Respondent (paragraph 2.29) related to timing, but the mere fact the letter was sent at a time when the Claimant satisfied the definition of a disabled person and was absent by reason of illness was insufficient to establish this related to her disability; the ET assumed relationship from context but that was not enough.  Nor had this been put to Mr Baldwin in terms.  The ET had rejected the Claimant’s case on ulterior motive and the First Respondent had not faced a more general case that this was related to the Claimant’s disability.

 

16.              Further, insofar as the ET was relying on the Claimant’s absence for ill-health at the time as being sufficient, this was an error: that absence was not for a reason arising from her disability but was by reason of work related anxiety and depression, which arose from her false and erroneous perception of issues properly raised with her (as the ET had found, see paragraph 2.26).  The ET had asserted that her debilitating illness was a relevant protected characteristic, but had nowhere made any finding that her illness on the second period of absence related to/arose from her underlying thyroid dysfunction and cardiac arrhythmia.

 

17.              The ET also failed to properly apply the requirement that the conduct had the proscribed effect.  It had rejected the Claimant’s primary contention that Mr Baldwin had intended the letter to have the proscribed effect but then failed to adequately identify what it was about the letter that had the effect of creating the proscribed environment. 

 

18.              The First Respondent’s points in this respect overlapped with its final ground of objection, namely to the ET’s finding on the constructive unfair dismissal claim.  On this, the ET had, first, failed to properly apply the requirement that the employer’s conduct be sufficiently serious to entitle the Claimant to treat the contract as at an end; the Reasons failed to disclose what it was about the letter of 8 November that amounted to such serious conduct.  Second, it had failed to consider whether Mr Baldwin had reasonable and proper cause to act as he did (see Malik v BCCI [1997] ICR 606 HL).  Third, the ET failed to identify a breach of contract that was causative of the Claimant’s resignation or in response to which she resigned.  The question was what was the Claimant’s subjective reason for resigning?  The difficulty was that the breach of which she complained was different to the breach found by the ET.  Having rejected her various allegations, it effectively substituted its view in this regard. 

 

The Claimant’s Case

19.              First, in relation to the appeal against the finding on the section 15 claim, the ET had been entitled to find that the Claimant had been treated unfavourably for section 15 purposes.  No comparator was required; it was sufficient to identify the steps that had not been taken, which were or would have been to the Claimant’s benefit.  On the ET’s finding at paragraph 4.1.2, the First Respondent would have better informed itself and the Claimant would have been better treated during her recuperation and rehabilitation into work.  It was common sense: if not afforded a benefit, that was unfavourable treatment.  On causation, the need for those steps arose as a consequence of the Claimant’s disability, as was apparent from the OH report.

 

20.              Turning to the challenges to the harassment finding, the letter of 8 November was written in circumstances (see paragraph 2.29), in which Mr Baldwin knew/could reasonably have been expected to know the Claimant was likely to be so upset she could not return to work.  Those circumstances came about by reason of her disability and were intrinsically and unavoidably linked to it; it was over technical and false to separate out the second period of absence.  Moreover, it was the Claimant’s disability that caused her to take the initial sickness absence, and led to the difficulties she subsequently experienced or perceived upon her return.

 

21.              As for the First Respondent’s objection to the ET’s finding on effect for the purposes of section 26, whatever Mr Baldwin’s purpose it was sufficient if it created the requisite effect, as the ET had found (see paragraph 4.1.3).  This overlapped with the final ground of challenge, to the finding on constructive dismissal.  The ET had adopted the correct approach.  Specifically, its findings at paragraph 2.29 made clear it did not accept Mr Baldwin had reasonable and proper cause.  Further, as to whether the Claimant resigned because of the repudiatory breach found by the ET, this had been a permissible finding of fact.  It was entitled to find the letter of resignation relied on the timing and context of the raising of the concerns in the letter of 8 November, that being supported by the Claimant’s evidence before the ET that she considered that the letter of 8 November was enough on its own to destroy trust and confidence.

 

The First Respondent in Reply

22.              On the Claimant’s response to the objection to the finding of unfavourable treatment for section 15 purposes, a failure to give a benefit or advantage came very close to the approach disapproved of in Williams.  As for the letter of 8 November, it had to be borne in mind that the Claimant was absent from work due to her wholly erroneous perception of how she was being treated.  That was relevant in assessing effect for a harassment claim and/or applying the objective test for the purposes of a constructive dismissal.  The ET placed too much weight on the Claimant’s perception; she suffered from her own misplaced, subjective understanding.

 

The Relevant Legal Principles

(1) The Disability Discrimination Claims

23.              The appeal concerns the ET’s findings on the Claimant’s claims brought under the EqA 2010 section 15 (“discrimination arising from disability”), and section 26 (“harassment”).  These sections, relevantly, provide as follows:

“15. Discrimination arising from disability

(1) A person (A) discriminates against a disabled person (B) if -

(a) A treats B unfavourably because of something arising in consequence of B’s disability, and

(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

…

26. Harassment

(1) A person (A) harasses another (B) if -

(a) A engages in unwanted conduct related to a relevant protected characteristic, and

(b) the conduct has the purpose or effect of -

(i) violating B’s dignity, or

(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

…

(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account -

(a) the perception of B;

(b) the other circumstances of the case;

(c) whether it is reasonable for the conduct to have that effect.

(5) The relevant protected characteristics are -

…

disability

…”

 

24.              The protection afforded by section 15 applies where the employee is treated “unfavourably”.  It does not necessitate the kind of comparison required by the use of the term “less favourable treatment” as in other forms of direct discrimination protection; neither is it to be understood as being the same as “detriment”.  “Unfavourable treatment” suggests the placing of a hurdle in front of, or creating a particular difficulty or disadvantage for, a person because of something arising in consequence of their disability.  It will be for an ET to assess, but treatment that is advantageous will not be unfavourable merely because it might have been more advantageous (see the Judgment of Langstaff P in Williams, in particular at paragraphs 27 to 29; see also paragraph 5.7 of the Equality and Human Rights Commission (“EHRC”) Code of Practice, which speaks of the complainant having been “put at a disadvantage”).

 

25.              As for causation for section 15 purposes, the use of the term “because of” is to be approached in the same way as elsewhere in the statute (see per Langstaff P in Weerasinghe).  In this context, there remains a need to distinguish between mere context and actual cause or consequence (Weerasinghe at paragraph 43).   That said, the Claimant’s disability need not be the main or sole cause of the unfavourable treatment.  As was observed by the EAT, (per Laing J) in Hall v Chief Constable of West Yorkshire Police [2015] IRLR 893, where the complaint is of discrimination arising in consequence of disability it may be enough if the disability was a significant influence on the treatment or a cause that was not the main or sole cause but that was an effective cause (in particular, see paragraph 42 of that Judgment).

 

26.              In assessing whether there is discrimination for section 15 purposes, an ET should stick to the wording of the section.  To paraphrase it and look merely for a link between the disability and the treatment would be wrong in law, because the section requires the ET to isolate the “something” in question - the “something arising in consequence of” the Claimant’s disability - and to establish whether (1) it was caused by the disability and (2) it caused the unfavourable treatment; a two-stage test (Weerasinghe paragraph 34).

 

27.              As for the approach to a complaint of harassment under section 26, here, again, there is no requirement for the complainant to put forward a comparator (whether hypothetical or real), although the conduct must be related to a relevant protected characteristic.  That, however, stands in contrast to the use of “because of” elsewhere in the Act.  That is deliberate.  The introduction of “related to” expressly marked a change from the earlier language of “on the grounds of” the prohibited ground, which had been successfully challenged in R (Equal Opportunities Commission) v Secretary of State for Trade & Industry [2007] ICR 1234 QBD as importing a requirement of a causative link whereas EU law simply required a connection or association with the prohibited ground.

 

28.              The other aspect of section 26 in issue in this appeal is the requirement of purpose or effect; specifically, in this case, effect (the ET having rejected the Claimant’s case that the First Respondent or Mr Baldwin had any ulterior purpose).  Section 26(4) thus comes into play in setting out what has to be taken into account; expressly, the perception of the complainant but also the other circumstances and the question whether it was reasonable, applying an objective standard, for the conduct to have that effect (see the guidance laid down by the EAT in Richmond Pharmacology v Dhaliwal [2009] ICR 724).

 

(2) Constructive Dismissal

29.              For an employee’s resignation to amount to a constructive dismissal, it is well established that four conditions have to be met: (1) there must be a breach of contract by the employer, actual or anticipatory; (2) that breach must be sufficiently important to justify the employee resigning, or must be the last in a series of incidents that justify her resigning; (3) she must leave in response to the breach and not for some other unconnected reason; and (4) she must not delay too long in terminating the contract in response to the breach, otherwise she may be deemed to have waived it and agreed a variation.  This contractual approach was laid down by the Court of Appeal in Western Excavating (ECC) Ltd v Sharp [1978] ICR 221.  It means the question whether the employer has acted in breach imports an objective test. 

 

30.              Where the breach of contract relied on is a breach of the implied term to maintain trust and confidence, regard should further be had to how that term was defined by the House of Lords in Malik; that is that an employer will not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.  Simply acting in an unreasonable manner will not be sufficient (see BG plc v O’Brien [2001] IRLR 496 at paragraph 27).  Furthermore, it is significant that the House of Lords qualified “damage” by the description “seriously” (see per Langstaff P in Frenkel Topping Ltd v King UKEAT/0106/15 at paragraphs 12 to 14).  That is all the more important given that a finding of such a breach is inevitably a finding of a repudiatory breach (see per Cox J in Morrow v Safeway Stores [2002] IRLR 9 EAT).

 

Discussion and Conclusions

31.              The First Respondent’s first objection under section 15 is to the ET’s finding that the failure to formally review the Claimant’s medical situation and/or carry out a risk assessment upon her return pursuant to Occupational Health advice amounted to unfavourable treatment.  The ET’s finding in this regard is expressed at its highest at paragraph 4.1.2, where it recorded that, although the First Respondent knew of the Occupational Health recommendation, it “preferred to deal with the claimant informally”:

“4.1.2. … It therefore did not take the opportunity to better inform itself and better to treat the claimant during the period of her recuperation and rehabilitation into work.  This was unfavourable treatment. …”

 

32.              That said, the ET equally recognised that carrying out such a review or risk assessment would not, of itself, remove any disadvantage experienced by the Claimant (see the rejection of the reasonable adjustments claim at paragraph 4.2.3).  More than that, by its rejection of the Claimant’s reasonable adjustments claim in its entirety, it can be inferred the ET did not conclude that the carrying out of a formal review or risk assessment would actually have resulted in any relevantly better treatment.  Even if that were an inference too far, its rejection of the reasonable adjustments case certainly raises the question as to what the ET actually had in mind as the disadvantage (the unfavourable treatment) suffered by the Claimant.

33.              For the Claimant, it is argued that, even if mere absence of process would not be sufficient to amount to unfavourable treatment, loss of an opportunity to be better treated was a loss of a benefit and was sufficient.  I find that difficult to see.  The ET was satisfied that the First Respondent had met its obligation to make reasonable adjustments.  Its finding in respect of the formal review and risk assessment does seem to come down to one relating to process not substance.  This may explain why it wrongly characterised this as treating the Claimant “unfairly” in consequence of something arising from her disability (see paragraph 4.3.2), suggesting a confusion between what might be relevant to an unfair dismissal claim and the wording of the statutory protection under section 15 EqA.  Looking for what it was that the ET found placed a hurdle before the Claimant or created a particular difficulty or disadvantage for her because of something arising in consequence of her disability (applying Williams and the EHRC Code), I am unable to understand the basis for the conclusion reached.

 

34.              I do not, however, consider that the difficulty with the ET’s conclusion on the section 15 claim ends there.  I am equally unable to understand the reasoning in terms of the finding on causation.  The “something arising” was, on the ET’s finding, the Claimant’s need for a risk assessment and/or review, which, it is common ground, arose in consequence of her disability.  The unfavourable treatment was that the First Respondent failed to conduct a formal review and risk assessment.  The question was whether the First Respondent meted out this treatment because of the something arising.  The answer is again provided by the ET’s rejection of the Claimant’s claim on reasonable adjustments and its finding that the First Respondent:

“4.2.3. … failed to hold formal reviews and to undertake a formal risk assessment believing that the informal discussions … together with reference to the OH report sufficed. …”

 

35.              Having found the reason for the First Respondent’s failure to be because of its belief in the adequacy of an informal approach, it is hard to see how it would be other than inconsistent to find it was because of something arising in consequence of the Claimant’s disability.  There is certainly no explanation of that alternative analysis in the reasoning, and, given the ET’s findings, that is fatal to the Claimant’s claim under section 15 in this respect.

 

36.              I turn next to the section 26 claim and the ET’s finding that the letter of 8 November 2013 amounted to an act of harassment.  The first question raised is whether the ET failed to properly address the requirement under section 26(1)(a) EqA that the unwanted conduct be related to the Claimant’s disability.  The ET’s reasoning would seem to be limited to a finding that this was (paragraph 4.1.3) “unwanted conduct in circumstances of …”.  I think the Respondent is probably right that this might not of itself be sufficient: “in the circumstances of” refers to the context; it is not necessarily the same as “related to.”  That said, if there were no other difficulties with the reasoning on the harassment claim, I might have been persuaded that the decision, taken as a whole, did sufficient to explain the finding in this regard.  “Related to” is, after all, not a test of causation; the circumstances might, given the findings of fact taken as a whole in any case, provide sufficient explanation as to the interrelationship required.

 

37.              Here, however, there are further difficulties.  First, the relationship apparently relied on by the ET (or, at least, the context it considered to be relevant) was the Claimant’s debilitating illness, which it then described as a relevant protected characteristic.  The difficulty is that the ET had made no finding that the Claimant’s debilitating illness in October and November 2013 was related to her disability.  Indeed, on its findings it was related to her misperception of the issues properly raised with her by the First Respondent (see paragraph 2.26). 

 

38.              For the Claimant, it is said that the second period of absence due to ill-health was inextricably linked to the first and to her underlying disability; thus the unwanted treatment in the form of the 8 November letter related to her disability.  That might well have been the Claimant’s case, but I am unable to see it is an arguable link given the ET’s findings or, more specifically, the absence of any finding of such a relationship and the positive finding that the Claimant’s erroneous feelings that she was being bullied and intimidated were such as to cause her illness (see paragraphs 2.24 and 2.26).  That, it seems to me, renders the ET’s conclusion on the harassment claim unsafe and, again, is fatal to the Claimant’s claim in this regard.

 

39.              For completeness, I also deal with the First Respondent’s contention that the ET further failed to properly apply the requirement that the conduct had the proscribed effect, having failed, it argued, to adequately identify what it was about the letter of 8 November that had the effect of creating the proscribed environment.  Although strictly obiter, on this point I would not have found for the First Respondent.  I do not consider the criticism in this regard to be fair; it arises from an erroneous reading of paragraph 4.1.3 in isolation from the ET’s earlier findings.  If regard is also had to the findings at paragraph 2.29, it is apparent the ET was looking at all of the relevant circumstances, as it was bound to do under section 26(4), which included the timing and context of the letter, and it was satisfied that the Claimant’s response - the effect upon her - was reasonable in that broader context.

 

40.              That leads me on to the challenge to the finding on the constructive unfair dismissal claim.  First, the First Respondent contends the ET failed to properly apply the requirement that the employer’s conduct be sufficiently serious to entitle the Claimant to treat the contract as at an end.  That seems to me to again ignore the findings at paragraph 2.29, specifically that Mr Baldwin’s letter raised a number of concerns that were not serious and did not need to be dealt with at that stage (some of which Mr Munro felt had been dealt with and were closed), in the context of writing to a very ill employee who was apparently not fit to deal with those matters.

41.              The same can be said in response to the First Respondent’s objection, in the alternative, that the ET failed to consider whether Mr Baldwin had reasonable and proper cause to act as he did.  I do not read the ET as losing sight of its earlier finding as to the genuine nature of the First Respondent’s concerns or the right of management to raise those issues with the Claimant, nor do I consider it failed to take account of its own findings as to the Claimant’s misperceptions of the situation.  At paragraph 2.29, the ET made permissible findings of fact as to the way in which Mr Baldwin chose to raise issues in his letter of 8 November.  It was entitled to conclude that those findings undermined any reasonable and proper cause, the necessary implication of the ET’s conclusions in that paragraph.

 

42.              Finally, under this head, the First Respondent objects that the ET failed to identify a breach of contract causative of the Claimant’s resignation.  Again, I disagree.  The ET referenced the Claimant’s letter of resignation and reached the permissible conclusion that Mr Baldwin’s letter of 8 November was causative of it.  I have been referred to the letter of resignation and to the agreed note of the Claimant’s oral evidence in cross-examination before the ET.  It is apparent to me that that was a finding open to the ET on the material before it, and therefore I dismiss the appeal against the finding on constructive unfair dismissal.

 

43.              For those reasons, I dismiss the appeal against the finding on constructive unfair dismissal but allow the appeals on the section 15 and harassment findings.  It is the implication of my Judgment that the ET’s findings on both those claims will be set aside substituted by a ruling to the effect that the Claimant’s claims under sections 15 and 26 EqA will be dismissed.

 

 

 

Costs

44.              Having given my Judgment in this matter, the First Respondent has made an application under Rule 34A(2)(a) of the Employment Appeal Tribunal Rules 1993 (as amended) for its costs, in terms of the fees it had to incur to pursue this appeal; that is, the lodgement fee and the hearing fee, totalling £1,600.  That application is resisted by the Claimant on the basis that the First Respondent has not been wholly successful and had it indicated that it was limiting its appeal to the points on which it has succeeded the Claimant might have taken a different course.  Counsel are unaware of any prior correspondence between the parties relating to this issue specifically as to whether any aspect of the appeal might have been avoided by agreement.

 

45.              Following the introduction of fees and the power afforded by Rule 34A(2A), a successful Appellant might reasonably expect that any Respondent actively resisting the appeal will be at risk of having to reimburse fees paid to pursue the appeal to hearing.  That being so, I approach this on the basis that there is some ground for the First Respondent to make its application albeit that it has not been wholly successful, notably on its appeal against the constructive unfair dismissal finding.  No other relevant circumstances have been drawn to my attention (e.g. that the Claimant did not have the means to meet an Order for fees against her).  In the circumstances, I grant the application in part and award 50% of the costs incurred by way of fees.  The Claimant will therefore pay costs in the sum of £800 to the First Respondent.