United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0198/15/JOJ

 

 

EMPLOYMENT APPEAL TRIBUNAL

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

 

 

                                                                                                             At the Tribunal

                                                                                                             On 27 January 2016

 

 

 

Before

HER HONOUR JUDGE EADY QC

MR P GAMMON MBE

MS P TATLOW

 

 

 

R                                                                                                                                APPELLANT

 

 

 

 

 

W                                                                                                                            RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR ALLAN ROBERTS (of Counsel) Instructed by: Jackson Osborne Solicitor Merlin House 1 Langstone Business Park Priory Drive Newport NP18 2HJ
For the Respondent	MS HILARY WINSTONE (of Counsel) Instructed by: Hugh James Solicitors Hodge House 114-116 St Mary Street Cardiff CF10 1DY

 

 

SUMMARY

PRACTICE AND PROCEDURE - Appellate jurisdiction/reasons/Burns-Barke

PRACTICE AND PROCEDURE - Perversity

PRACTICE AND PROCEDURE - Disposal of appeal including remission

UNFAIR DISMISSAL - Constructive dismissal

DISABILITY DISCRIMINATION - Reasonable adjustments

 

Bias - perversity - inadequacy of reasons

Incorrect approach to disability discrimination/reasonable adjustments claim under sections 20 and 21 Equality Act 2010 and in approach to constructive unfair dismissal for purposes of section 95 Employment Rights Act 1996

The focus of the appeal was on the Claimant’s detailed attack on the ET’s findings of fact adverse to her; she complained that these were perverse and thus evidenced bias.  In the alternative, she complained that they were inadequately reasoned.

 

The Claimant also complained that the ET had incorrectly approached her claims under the Equality Act 2010 and under the Employment Rights Act 1996.

 

Held: dismissing the appeal on all grounds.

 

Having gone through each of the Claimant’s objections to the ET’s findings of fact/complaints of inadequate reasoning, the EAT was satisfied that the conclusions reached were not perverse: they amounted to permissible conclusions given the evidence before the ET.  They were, further, adequately explained.  There was no evidence of bias.

 

Having thus concluded that the ET’s findings of fact were not susceptible to challenge, the remaining grounds of appeal really fell away.  In particular, on the disability discrimination complaint, nothing had been identified as amounting to an arguable PCP given the ET’s findings of fact.  The ET had, in any event, found that the Claimant was not placed at a substantial disadvantage (against which there was no challenge).  That being so, the reasonable adjustments claim necessarily fell away.  As for the ET’s rejection of the Claimant’s complaint of constructive dismissal, the primary finding in this regard was that no breaches of contract had occurred.  There being no challenge to that finding, there could be nothing in this ground of appeal.

 

HER HONOUR JUDGE EADY QC

 

Introduction

1.                  This is the unanimous of Judgment of this court to which all members, appointed by statute for their diverse specialist experience, have contributed.  In giving our Judgment we refer to the parties as the Claimant and the Respondent, as below.  The appeal is that of the Claimant, against a Judgment of the Cardiff Employment Tribunal (Employment Judge Harper, sitting with members on 9 to 13 March 2015; “the ET”), sent to the parties on 31 March 2015, comprising some 112 paragraphs, 22 pages.  Representation below was as before us.

 

2.                  The ET dismissed the Claimant’s claims of disability discrimination by reason of failure to make reasonable adjustments, discrimination arising from disability, harassment, victimisation and unfair dismissal.  She appeals.  Her appeal was considered by the Honourable Mr Justice Langstaff at an Appellant-Only Preliminary Hearing on 28 October 2015, when it was permitted to proceed on the basis of amended grounds.

 

The Background Facts

3.                  The Claimant was employed by the Respondent from 22 September 2008 as a solicitor.  It was accepted before the ET that the Claimant was a disabled person for the purposes of the Equality Act 2010 (“the EqA”).  Although the ET simply refers to the Claimant as suffering from a mental impairment, it seems her disability arose from her condition of anxiety and depression, coupled with an element of obsessive compulsive disorder.  In order to accommodate her disability, the Claimant had been permitted to work at home one day a week, come in late and/or leave early and take ad hoc leave; reasonable adjustments, as the ET found.

 

4.                  In July and August 2013, the Claimant had raised concerns and complaints about other members of staff.  The latter was a complaint of bullying against two colleagues which the ET found placed the Respondent in a difficult position because the Claimant also made clear she did not wish either colleague to be made aware of the allegations she had made.  The ET considered that the Claimant was rightly to be described as “manipulative” in this instance and observed that a similar approach was adopted by her in respect of other complaints or concerns. 

 

5.                  In the period from November 2012 to November 2013, the Claimant had a number of absences from the workplace and on 24 October 2013 she had emailed Mr Jamieson - the Senior Manager - indicating she had some personal issues and proposed to work from home that day.  Although the request was granted, Mr Jamieson was concerned that the Claimant needed to complete her CPD hours by 31 October 2013, something he had responsibility for overseeing and responded indicating he needed to “fully understand any difficulties which may impact on our delivery of legal services”, evidencing a wider intention to undertake a review of working arrangements including potential reasonable adjustments in his department.

 

6.                  For her part, the Claimant was concerned about Mr Jamieson’s communications as she saw this as requiring information from her that was deeply personal, which she did not wish to give to him.  Although she was prepared to meet with Ms Davies (her immediate line manager) on 28 October 2013, she required to be accompanied by her trade union representative, something the Respondent permitted but which would not normally be considered necessary at such a meeting.  The ET found that Mr Jamieson’s requests of the Claimant were made in what it described as a “positive and supportive” manner and the Claimant’s description of the situation as “escalating” was incorrect: “There was in fact no escalation except in the claimant’s mind”.  It further found that her record of her meeting with Ms Davies was embellished.

7.                  On 9 November 2013, the Claimant went off work on sick leave and did not return.  Occupational Health advice was sought and a report of 23 November identified issues with the Claimant’s work colleagues and with what the Claimant considered to be her frustrated attempts trying to communicate with Mr Jamieson.  The Respondent considered these matters would need to be investigated.  Meanwhile, a contact meeting took place with the Claimant, again accompanied by her trade union representative, on 17 December.  Towards the end of that meeting the Claimant handed in a document setting out her detailed concerns, albeit Ms Davies disposed of it at the time because she felt that the Claimant had been able to articulate her views regarding the contact issues the meeting had been arranged to discuss.

 

8.                  In taking forward the investigation into the Claimant’s complaint, Mr Jamieson was informed that the Claimant wanted him to apologise, which he found difficult as he did not see he had done anything wrong.  It was agreed, however, that an appropriate first step would be a meeting between him and the Claimant under the informal stage of the Respondent’s grievance procedure, which took place on 26 February 2014.  The ET rejected the suggestion that Mr Jamieson then made an attempt to remove existing reasonable adjustments; he did not feel he had sufficient information to do so.  The Claimant had been upset during the meeting and had embellished her own recollection of it.  In any event, she was advised that if she continued to have concerns as to the communications from the Respondent or Mr Jamieson, she should progress her complaint to stage one of the grievance process.  Although the Claimant was reminded of this in subsequent correspondence, nothing was heard from her.  On 9 April 2014, Mr Jamieson wrote to say that, as nothing further had been received, he considered the matter had been resolved at the informal stage.

 

9.                  On 14 April 2014, the Claimant’s husband emailed Mr Jamieson indicating that “her grievance remains unresolved”.  Meanwhile, on 17 April 2014, the Claimant’s solicitors wrote requesting that consideration be given to reinstating the Claimant on full pay, which the Respondent did not consider it could do given her continuing absence.  As for the further investigation into the Claimant’s complaints, although an Occupational Health report of 2 April did not expressly state she might not be fit to participate in the meeting, the Claimant considered she was not well enough to attend.  An impasse was thus reached: the Claimant could not return to work whilst matters remained unresolved, but she did not feel able to attend a meeting so that an investigation could be pursued that might achieve that resolution.

 

10.              These issues continued to be the subject of correspondence between the Claimant’s solicitors and Mr Jamieson, with a follow-up appointment with Occupational Health arranged for 12 August, but by letter of 4 August 2014 the Claimant wrote to the Respondent resigning her employment with immediate effect.

 

The ET’s Conclusions

11.              The Claimant brought two sets of ET proceedings.  The first on 9 June 2014, while she was still employed; the second on 24 September 2014, after she had resigned.  In respect of the earlier matters, an issue arose as to whether the claims were made in time.  The ET considered these constituted acts extending over a period but in any event, given the Claimant’s disability, would have ruled it was just and equitable to extend time.

 

12.              At the outset of its Written Reasons the ET made some observations as to its assessment of the witnesses.  In respect of the Claimant, the ET found that her “interpretation of some of the documents and events was … on occasions bizarre”.  Noting that paragraph 29 of the Respondent’s Reasonable Adjustments Policy allowed it would be for an employee to decide what level of detail they might wish to share about their disability, the ET observed that was:

“8. … subject to the rider that “It may be appropriate for the employee to consider sharing some information with managers or colleagues who may have a legitimate interest to ensure they understand and comply with the implementation with any agreed reasonable adjustments.” …”

 

13.              The ET agreed further with the Respondent that the Claimant’s:

“10. … “… insistence on keeping information about her disability to herself created a huge problem for managers trying to manage her in the work place not least Mr Jamieson who had been tasked to look at all working practices including of those people working from home and taking (as in the claimant’s case) ad hoc leave.  With her reluctance to discuss the effects of her disability it is difficult to see how and in what way the [PCPs] cited in the particulars of claim can trigger any duty to make reasonable adjustments.  It was simply impossible for the respondent to fathom what effect they had on the claimant and whether they caused her a substantial disadvantage.” ”

 

14.              After setting out its findings of fact, broadly as set out above (see Reasons at paragraphs 14 to 57), and having earlier recorded a brief self-direction as to the law, the ET then set out its conclusions on the issues before it.  Pursuant to an earlier direction of the ET, the parties had compiled a Scott Schedule of allegations and responses.  Some 23 separate allegations were thus identified and the ET went through each complaint, stating its conclusions in each instance.  In each case it found against the Claimant. 

 

15.              The ET then went on to consider the claim of constructive unfair dismissal but, again, rejected the Claimant’s case, finding that the Respondent had not acted in breach of contract.  In the alternative, the ET found the Claimant had delayed such as to mean that she could not complain of constructive dismissal in any event.

 

The Appeal

16.              As permitted to proceed to this hearing, the grounds of appeal can be summarised under the following heads: (1) bias, procedural impropriety and unfairness; (2) misdirection as to the correct approach under the EqA; (3) misdirection as to the correct approach to the question of constructive dismissal under section 95(1)(c) Employment Rights Act 1996 (“the ERA”); and (4) inadequate reasons.

 

17.              In permitting this matter to proceed, Langstaff J had discussed with Mr Roberts the proposed directions for listing and it was agreed the appeal could be best determined by a three-person panel, not least as such a Tribunal at the appellate stage is best placed to stand in the shoes of the impartial, informed observer on a bias appeal.  It was further agreed that a one-day time estimate would be sufficient, allowing two hours for the Claimant’s submissions and something less for the Respondent.  In the event, Mr Roberts took longer than that, albeit restricting his oral submissions to grounds 1 and 4 and not further addressing grounds 2 and 3 of the appeal.  In the circumstances, we had to impose time limits on further submissions during the afternoon of the hearing. 

 

The Relevant Legal Principles

18.              It is common ground that when approaching the question of apparent bias, the test is that laid down by the House of Lords in Porter v Magill [2002] 2 AC 357 at page 452, that is:

“Whether on an objective evaluation the circumstances would lead a fair-minded and informed observer reasonably to apprehend that there was a real possibility that the Tribunal would unfairly consider the case of one party with favour or disfavour.”

 

19.              As for the adequacy of reasons, the requirement upon an ET is stated at Rule 62 of the ET Rules 2013.  Guidance in this regard was famously set out by Bingham LJ in Meek v City of Birmingham District Council [1987] IRLR 250 CA, observing that the reasons should:

“8. … contain an outline of the story which has given rise to the complaint and a summary of the Tribunal’s basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts.  The parties are entitled to be told why they have won or lost.  There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an [Employment] Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted.”

20.              Turning to the specific statutory provisions underlying the Claimant’s claims before the ET under section 15 of the EqA (discrimination arising from the consequences of disability) there is no requirement that a complainant identify a comparator.  The question is whether there has been unfavourable treatment: the placing of a hurdle in front of, or creating a particular difficulty for, or disadvantaging a person; per Langstaff J in Trustees of Swansea University Pension & Assurance Scheme & Anor v Williams UKEAT/0415/14 at paragraph 28.  As the EAT continued in that case (see paragraph 29 of the Judgment), the determination of what is unfavourable will generally be a matter for the ET. 

 

21.              The starting point for an ET in a section 15 claim has been said to require it to first identify the individuals said to be responsible and ask whether the matter complained of was motivated by a consequence of the Claimant’s disability; see IPC Media Ltd v Millar [2013] IRLR 707: was it because of such a consequence?

 

22.              The statute allows, however, that there will be no discrimination where an employer shows the treatment in question is a proportionate means of achieving a legitimate aim or that it did not know/could not reasonably have known the Claimant had that disability. 

 

23.              Under sections 20 and 21 of the EqA (discrimination by reason of a failure to comply with an obligation to make reasonable adjustments) the parties are agreed that the approach to be adopted by the ET was as laid down in Environment Agency v Rowan [2008] ICR 218, where it was indicated that an ET must identify the provision, criterion or practice (“PCP”) applied by or on behalf of the employer and also the non-disabled comparator/s where appropriate, and must then go on to identify the nature and extent of the substantial disadvantage suffered by the complainant.  Only then would it be in a position to know if any proposed adjustment would be reasonable.

 

24.              Under section 26 of the EqA - dealing with harassment - it is allowed that it will be for each individual to determine what conduct is unwanted (Reed v Stedman [1999] IRLR 299 at paragraph 28); the test is whether a reasonable person would have understood the conduct to have been unwanted (Stedman at paragraph 30).  But, as to the effect of the treatment, an objective test is required: the effect has to be reasonable, taking into account all the circumstances, specifically the complainant’s perception but also all the other circumstances (see paragraph 15 of Richmond Pharmacology v Dhaliwal [2009] ICR 724 EAT).

 

25.              Turning to section 27 of the EqA - which defines victimisation - there is, again, no need to identify a comparator.  As to whether an act or omission might constitute a detriment, the test will be whether a reasonable worker might regard it as such (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, at paragraph 37) and any distress caused would have to be objectively reasonable in all the circumstances (St Helens MBC v Derbyshire [2007] ICR 841 at paragraph 68).

 

26.              Lastly, on the question of justification, while certain acts of discrimination might be objectively justified, it is plain that this does not permit the application of a range of reasonable responses test (see Hardys & Hansons plc v Lax [2005] IRLR 726 CA at paragraph 32).

 

Submissions, Discussion and Conclusions

27.              By way of general observation, the Claimant contends the ET did not give this case the care that it warranted.  The Respondent says the contrary is true: this fully constituted ET heard evidence from the Claimant and six others over five days, had a bundle of over 300 pages, plus a supplementary file of policies; this was a fact intensive case and the ET had to reach conclusions based on the evidence which inevitably included the nuances arising from oral testimony.  From all this, the ET formed a picture of the evidence, on which it based its findings of fact.  The EAT needed to exercise caution in respect of any attempt to interfere with those findings (per Mummery LJ at paragraph 12 Yeboah v Crofton [2002] EWCA Civ 794).

 

28.              On any view, the main issue raised by this appeal is as to whether the ET’s reasoning discloses a perverse view of the facts such as to evidence a bias against the Claimant’s case that meant she was deprived of a fair hearing and the ET’s decision could not safely stand.

 

29.              In addressing the specific grounds of appeal, the parties adopted the course of taking the first and fourth grounds together.  We do likewise and summarise the parties’ arguments and our conclusions under each of the specific allegations itemised in the Scott Schedule prepared for the purposes of this appeal.

 

30.              The Claimant’s case on bias is put both as an allegation of actual or apparent bias; specifically, that the ET was actively hostile towards the Claimant, sought unfairly to assist the Respondent, made findings irrespective of the evidence, including strong findings adverse to the Claimant that were unwarranted by the material before it. 

 

31.              The first and second matters of which the Claimant specifically complains relate to the ET’s reference to the Respondent’s reasonable adjustments policy at paragraphs 8 and 9 of its Written Reasons (and see the reference made to that policy, above).  The Claimant complains, first, by itself raising the policy with Mr Jamieson the ET sought to lead him to an exculpatory reason for his conduct, not raised by him, or the Respondent more generally, in the written or oral evidence (that is that Mr Jamieson had applied a caveat within the Respondent’s reasonable adjustment policy).  Second, the Claimant contends that, when that course was not adopted by Mr Jamieson, the ET nonetheless concluded that part of the policy was relevant and an exculpatory reason was present.  Further, the ET failed to record how this matter had arisen; stating it had been raised by the Respondent late in the day but that was not the case.

 

32.              For its part, the Respondent says it put the policy in evidence through the means of its HR witnesses and Mr Jamieson, who were questioned about the policy when giving evidence.  The ET specifically asked Mr Jamieson if he had considered the policy (or at least a particular part of the relevant paragraph) when dealing with the Claimant’s case.  Mr Jamieson had effectively responded that he had not considered the situation had gone that far, so the policy was not in his mind; he did not know until he spoke to the Claimant what the issues were. 

 

33.              In considering the arguments on this point, we observe that the Claimant’s complaint can go nowhere in terms of the ET’s substantive conclusions: the ET makes no reference to the reasonable adjustments policy in its actual conclusions on the specific allegations raised by the claims; it forms no part of the ET’s reasoning on any particular allegation.  We accept, however, that is not how Mr Roberts seeks to make good this ground of appeal: he relies on this as evidence of bias.  The question for us is thus whether the ET’s reference to this extract of the reasonable adjustments policy suggests bias, either actual or apparent?

 

34.              Adopting - as it is accepted we are well placed to do - the position of the fair minded but informed observer, we consider the ET was entitled to clarify with Mr Jamieson whether he had been relying on the reasonable adjustments policy or a particular part of that policy; that is an entirely appropriate intervention by a first instance Tribunal.  Given his response, on which the parties are largely agreed, the ET correctly did not find that he was saying he had been acting in accordance with the policy and did not see this part of the policy as answering a specific allegation on the facts of the case.  Did the ET, nonetheless, cross the line in seeing this as relevant to the more general question of the credibility of the witnesses and the parties’ respective cases?  We do not consider it could be said that it did.  The ET was entitled to test the generality of the parties’ cases by reference to the Respondent’s internal policies.  We do not consider it can be sensibly said this suggests any possibility of bias, actual or apparent.

 

35.              We are satisfied the ET appropriately referred to this aspect of the reasonable adjustments policy not as something relied on by Mr Jamieson as justifying a specific action on his part, but as answering the implication of the Claimant’s case; that is, that she was not required to give detail about her disability and was wrongly being asked for details in a way that was not justified.  Another way of understanding the reference is as the ET drawing the natural inference that the way in which the Respondent generally viewed the situation was consistent with the reasonable adjustments policy regardless whether it was specifically placing reliance on that policy.  That is why the ET refers to this part of the policy when making its preliminary observations as to witness credibility.  We are entirely satisfied no impartial observer could conclude that a possible bias was thereby shown.

 

36.              The Claimant further complains of a number of the ET’s findings that were, explicitly or implicitly, critical of her: her complaints were ill founded, she was “quick to complain about members of staff”, had an “uneasy relationship with many of her colleagues”, and that:

“Regrettably it is easy to see how the expression “walking on eggshells” has been used by some of the Respondent’s witnesses who were anxious not to be on the wrong end of complaints by the claimant.”

 

37.              The Respondent says inevitably evidence of this nature was adduced before the ET: the case centred on the Claimant’s complaints not just about Mr Jamieson but also about other colleagues and managers.  The Claimant argues, however, that no witness said that it was like “walking on eggshells”; these were not matters put to her in cross-examination.  On the contrary, the Respondent says Mr Jamieson gave that evidence and these matters were appropriately put.  The Claimant also says the ET wrongly concluded her complaints were “unjustified”.  The Respondent objects: this was not the ET’s finding; it found she was quick to complain, it reached no conclusion as to whether her complaints had underlying justification.

 

38.              Again, we bear in mind that here the Claimant is relying on these matters as supporting her complaints of bias; she is not saying they underpin any particular conclusion on the matters before the ET but contends the findings in question were absent any proper evidential basis (i.e. were perverse) and this evidences bias.  Have taken time to read through the witness statements and the agreed note of evidence, however, we disagree.  The finding that some of the Respondent’s witnesses suggested that there was a need to “walk on eggshells” in relation to the Claimant was - to the extent it was not expressly referred to in the evidence (paragraph 17 of Mr Jamieson’s statement) - the obvious implication of the evidence given (see, for example, Mr Jamieson’s statement, paragraphs 10 to 12 and 15 to 18).  It was also the obvious inference of the questions put to the Claimant (albeit there was a limit to what she could add, as this was a description of the perception of others in dealing with her, not her own perception).  We also agree that the Claimant’s case attacks a finding the ET never made.  The ET concluded the Claimant was quick to complain and had an uneasy relationship with her colleagues; permissible conclusions given the wealth of material before the ET on these points.  It did not state that the complaints were without justification. 

 

39.              The Claimant next turns to the ET’s finding in respect of the complaint she made in August 2013 (that she had not wanted either colleague complained of to be aware of the allegations); she complains that was presented as an agreed fact (which it was not) and the ET failed to have regard to her evidence or explain why it was rejected.  The Respondent says, on the contrary, this was a finding of fact, which the ET had been entitled to make given the contemporaneous evidence, specifically the emails from the Claimant complaining but asking for confidentiality; the Claimant had argued this simply meant she wanted the content of the email to be kept confidential, but the ET had rejected that contention. 

 

40.              Again, we have been taken to the documentary evidence relevant to this issue.  Mr Roberts appeared to recognise this might not be his best point, observing that it was not something he would have relied on as a stand-alone point.  We think he was right to so acknowledge the weakness of the point: the ET reached a permissible conclusion on the material before it, as it reasoning in this regard makes plain.

 

41.              A similar objection is taken to a further finding by the ET that the Claimant sought confidentiality, albeit she was making complaints about her colleagues.  The Respondent accepts that the Claimant did not specifically seek confidentiality in respect of a complaint against one particular colleague but also observes that the ET’s finding need not be taken to go so far in that instance; otherwise its more general finding was justified by the evidence.

 

42.              Again, having considered the underlying documentation, we find we have to agree with the Respondent.  The Claimant is de-constructing a paragraph in the ET’s Reasons that is dealing with a number of matters.  The significant finding in respect of the request for confidentiality relates to the Claimant’s email to Mr Jamieson.  On that - having seen the document in question - we consider the ET reached a permissible conclusion that the Claimant was again raising criticisms of colleagues whilst insisting on confidentiality. 

 

43.              The Claimant next objects to the ET’s finding (at paragraph 23 of its Reasons) that this was “one of several examples where the claimant is rightly described as being manipulative”.  She contends no witness made that assertion and there was no evidence before the ET to justify the finding, which was, in any event, illogical.  The Respondent says, on the contrary, its witnesses use that description: the evidence was to the effect that the request to keep matters confidential whilst at the same time bringing forward complaints was, as a matter of observation, “manipulative”.  That was an entirely logical conclusion. 

 

44.              We have again been taken to the evidence before the ET.  Having carefully considered those references it seems to us that this was, again, an entirely permissible conclusion for the ET given the material before it.  Its reasoning is adequately explained and it is not open to us to interfere or second-guess the conclusion we might have reached.

 

45.              The Claimant then objects to the ET’s characterisation of her attendance note of her meeting with Ms Davies as having been embellished (ET Reasons, paragraph 29): there was no evidence that she had embellished the document and this was not put to her in cross-examination.  She similarly complains of the finding that she had embellished her note of the meeting in another exchange with Ms Davies (see the ET’s finding at paragraph 35) and, again, as to the finding that she embellished her recollection in relation to her note of a meeting with Mr Jamieson on 26 February 2014 and that she had a “vested interest” in doing so (see paragraph 48 of the ET’s Reasons and generally see paragraph 79 in the conclusion section).  In each instance the Claimant says the evidence did not support a finding of deliberate embellishment (which is what Mr Roberts says the ET must have been finding) and, moreover, this was not put to the Claimant: at most the Respondent was alleging that the Claimant had a skewed account, possibly due to her ill health or underlying condition. 

 

46.              For its part, the Respondent says the evidence of embellishment was provided by the contrary accounts of the meetings in question and it was put to the Claimant in cross-examination that she had included matters in her notes that were not true or were an exaggeration in her favour (see, for example, the reference to Ms Davies having a smirk on her face).  Ms Winstone further observes that the definition “to embellish” is “to make a statement or story more interesting by adding extra details that are often untrue”.  Mr Roberts responds that another way of putting that definition would include a requirement that it is intentional.

 

47.              As we see it, embellishment by adding extra details which are untrue may be done in order to deliberately mislead or it may be something a person does because it represents their exaggerated or skewed perception of events.  In oral argument, Mr Roberts accepted that it may be possible that an “embellished” account does not carry the more pejorative implication, but he contends that is not the case if the finding is of “embellishing”.  As a matter of fact, the ET uses both terms - “embellishing” and “embellished” - but, in any event, we think Mr Roberts’ distinction is overly technical and treats the ET’s Reasons as if they were susceptible to the kind of scrutiny that might be required of a point of statutory construction. 

 

48.              Having read the agreed notes of evidence, we are satisfied that the incorrect, skewed and/or exaggerated nature of the Claimant’s record was plainly and extensively put.  Whilst Ms Winstone did not persist in using the word “deliberate”, the force of what she was putting to the Claimant made it plain that the Respondent was putting the case that the notes she had made were for her own benefit, were “skewed”, “cherry picked” and “added to”, and further evidenced an attempt to manipulate on the Claimant’s part

 

49.              Given, (i) the differences between the Claimant’s notes/recollections and those of others; (ii) the ET’s permissible view of the witness evidence before it; (iii) its equally permissible conclusion as to what had actually been said at the meetings/in the communications in issue; and, (iv) the way in which the case was put to the Claimant, we consider the ET was entitled to use the term “embellished” or “embellishing”.  The Claimant had, on the ET’s permissible findings, added extra details that were not true.  Whether she did so with intent to mislead or because she had a skewed perception of events which led to such untrue (as the ET found), additions, the ET was entitled to characterise this as “embellishment”.

 

50.              As for the references to the Claimant having a “vested interest” (a reference made in respect of the February note of the meeting with Mr Jamieson), we note the more nuanced way in which the ET in fact expressed itself:

“48. … The claimant on the other hand had been upset during part of the meeting which may have impacted on her recollections and she had a vested interest in embellishing the minutes that she kept of the meetings which she attended.”

 

51.              That does not necessarily imply the entirely pejorative reading the Claimant gives this remark.  Mr Roberts says the Claimant had no interest in embellishing the particular remark cited by the ET, but we know that the differences between the Claimant’s notes and recollection of this meeting and the notes and recollections of others were extensive - far wider than simply a difference as to what Mr Jamieson had said in terms of a personal matter relating to a member of his family.  As the ET expressly stated, this was an example of an addition which it found had not been said at the time and was thus untrue.  It was one example of a number of matters on which the Claimant’s note and recollection were simply at odds with the other evidence.  Those other matters included points which could not be construed in the Respondent’s favour and the ET was entitled to see the note, as a whole, as written in a way that served the Claimant’s interests, which included her apparent acceptance that she had considered bringing a claim as early as February 2014.  There was thus plenty of evidence from which the ET could permissibly conclude the Claimant had “embellished” and one reason for that might have been her own perception of events, which would include her own interests as she would have seen them.  This was, again, an entirely permissible conclusion.

 

52.              The Claimant further contends the ET reached a finding contrary to the email evidence, that Mr Jamieson had not wanted her to tell him sensitive medical information or about the cause of her personal circumstances, but merely to understand the consequences of her disability (ET Reasons, paragraphs 12, 32 and 61) and similarly erred in concluding Mr Jamieson dealt with the matter professionally and sensitively.  On these points both parties urge that the emails speak for themselves; we have, therefore, spent some time considering them.

 

53.              Having done so, we note Mr Jamieson’s explanation to the Claimant of his:

“… need to fully understand any difficulties which may impact on our delivery of legal services and wherever they exist I am committed to spending time to discuss and rectify those difficulties.”

 

54.              We also note his observation:

“In respect of anyone having a protected characteristic, it appears to me that if such protected characteristic requires adjustments then I need to know and understand that characteristic if I am to be able to make appropriate decisions as to whether those adjustments are capable of being accommodated (and if so what are the appropriate accommodations in the context of the changed legal department and service).”

 

55.              Having thus done as we were charged, we conclude the ET was entirely correct in its interpretation of these communications, although, of course, we do not need to go so far: it was certainly a permissible interpretation of these emails on their face.  For completeness, we also observe that, to the extent we have been taken to other aspects of the evidence before the ET (including the notes of the oral evidence), that simply buttresses our conclusion that the ET reached a finding that was entirely open to it on the material before it.

 

56.              Objection is next taken to the ET’s finding that the Claimant’s interpretation of a comment by another member of staff, Ms Weale, was “another example of an unjustified conclusion”.  The Claimant contended this was another example of the ET thinking that anything she did needed to be criticised.  The Respondent counters that the conclusion reached by the Claimant was indeed unjustified - it related to the comment reported as having been said by Ms Weale that people needed to walk on eggshells around the Claimant, but that did not mean that Ms Weale herself was against the Claimant; the ET was entitled to find the Claimant reached an unjustified conclusion to the contrary. 

 

57.              Again, we agree with the Respondent and can only observe that the Claimant reads too much into the remark made by the ET in this regard.

 

58.              The Claimant further objects to the ET’s conclusion that the Respondent had not attempted to remove existing reasonable adjustments, specifically relying on a passage in Mr Jamieson’s statement to the effect:

“I did not at any time threaten to remove Rebecca’s adjustments.  I simply made it clear that I had the right to review them and indeed Rebecca accepted this.”

 

59.              The Respondent counters the existing adjustments had not been moved and no attempt was made to do so; discussions were merely ongoing and the ET accepted Mr Jamieson’s evidence, he had not felt he had “anything like sufficient information to make such proposals”. 

 

60.              Having again looked with some care at all the documentation put before us on this issue, we are unable to see that the ET was not entitled to conclude that, (i) the Respondent made no attempt to remove existing reasonable adjustments - that was consistent with the evidence before it, both oral (see Mr Jamieson’s evidence, for example) and documentary (the emails we have been taken to), and (ii) that the Respondent’s review would permit it to see if further adjustment was required.

 

61.              The Claimant then objects to the ET’s finding that the Occupational Health report, “did not state [that the Claimant] might be unfit to take part in the investigation of her bullying allegations”.  This related to the Respondent’s contention that the report confirmed the Claimant was well enough to participate in the investigation, whereas the Claimant argued that it did not justify that conclusion, particularly if account was taken of the purpose of the report and the preceding medical evidence.  The Respondent responds that the finding was factually correct: the Occupational Health report made no express statement of the Claimant’s ability to participate in the investigation. 

 

62.              As Mr Roberts accepted in oral argument, that observation is plainly right: it is correct that, on the face of the Occupational Health report in question, there is no express statement as to the Claimant’s inability to participate in the investigation.  He draws our attention, however, to a further report which soon followed, which contained different advice, and relies on the more general context, including the references to the Claimant’s ill health in that report and earlier reports from Occupational Health.

 

63.              We note that the situation facing the Respondent here gave rise to what is not an uncommon problem for employers.  On the one hand it needed to resolve work place issues and such resolution was potentially beneficial for the Claimant.  On the other hand, there may also be medical advice that the employee is unfit to return to work.  If that is the extent of the advice, however, we can see that it can be entirely appropriate for an employer to invite an employee to attend a meeting designed to investigate the underlying matters of concern.  That may, after all, be the best way of actually resolving the issues which has led to the period of absence through ill health.  Ultimately, the question for the ET here was whether the Respondent acted improperly in requesting that the Claimant attend the investigatory meeting (a matter on which the Claimant also takes objection to the ET’s conclusion and which we now incorporate and consider at this stage): she objects to the ET’s apparent finding, as she sees it, that she was well enough to engage in the investigation process when that was (on her case) contrary to the medical evidence. 

 

64.              In oral argument, however, Mr Roberts accepted that the ET’s finding in issue does not specifically say that to which the Claimant objects.  Rather, it refers to the fact that the Claimant had been able to give instructions to her solicitor and commence litigation at this time.  The implication, as we read that paragraph, was that she could simply have indicated her position through her solicitors at an earlier stage; an entirely permissible conclusion.  More particularly, the ET found (see paragraph 86) that sending the Claimant a simple invitation to participate in an investigation could not amount to an act of unfavourable treatment or victimisation.  In our judgment (and looking ahead to some of the later points on the appeal), that was a proper assessment on the question of unfavourable treatment (consistent with the approach adopted in Trustees of Swansea University Pension & Assurance Scheme) and was, ultimately, a matter for the ET.  No error of law is disclosed either in the application of the relevant legal principles or in the conclusion reached by the ET.

 

65.              We turn next to the Claimant’s contention that the ET was wrong to find for the Respondent on its argument that she had been building a case against it for some time (ET Reasons, paragraph 63); specifically it failed to have regard to the note taking of others and failed to give adequate weight to the Claimant’s disability, which included OCD.  The Respondent observes that none of the Respondent’s witnesses kept attendance notes simply because they were solicitors, but solely for good personnel management reasons (they had management responsibilities which the Claimant did not).  Further, the Claimant had not claimed she kept her notes because of her medical condition but merely because she was a solicitor.  Given the case before it, the ET had been entitled to reach the conclusions it did. 

 

66.              We agree.  This is a clear attempt to reargue the case.  The ET was entitled to draw the inference it did: this is not a perverse conclusion, nor is it evidence of bias against the Claimant.

 

67.              We then take two points together.  The Claimant’s case had been that Ms Thomas had contacted the Occupational Health Nurse - Anthony Matthews - by ‘phone and Mr Matthews had then related this orally to the Claimant.  The ET’s conclusion (see paragraphs 73 to 74) had wrongly characterised this as arising out of a letter when in fact it related to an oral conversation.  Further, the ET had given no/inadequate weight to the Claimant’s uncontested evidence that this conversation was relayed to her. 

 

68.              The Respondent disagrees: paragraph 74 correctly addressed the telephone conversation the Claimant alleged she had been told about; the other witnesses had denied this and the ET had concluded the Claimant was wrong. 

 

69.              We again consider the Claimant makes an unfair criticism of the ET’s reasoning.  The reason why it refers to a letter is because the allegation being made by the Claimant was that she had been told Ms Thomas spoke to Mr Matthews and orally conveyed that she was seeking to manipulate the OH advice in the referral letter (we paraphrase); hence the ET referred to the letter.  It was entitled to do so; it did not thereby misunderstand the Claimant’s case.  Further, it reached a conclusion open to it on the evidence.  The Claimant complains that the ET gave inadequate weight to her evidence, but that exposes the flaw in this criticism: it was for the ET to decide what weight to give to particular parts of the evidence; it was entitled to look at the documentary evidence more broadly and to the evidence of the other witnesses.  Doing so, in the round, it reached a permissible conclusion.  No criticism can be made.

 

70.              We turn then to the Claimant’s objection to the ET’s statement (paragraph 93) that she did not allege what adjustments should have been made; the Claimant contends she pleaded each and every adjustment upon which she relied.  The Respondent makes the point that the ET made specific reference to the pleadings at paragraph 92.  At paragraph 93, it was referencing the more general allegation regarding the refusal or failure to make reasonable adjustments.  It was entitled to make the points it did on this basis.

 

71.              At paragraphs 92 and 93 of its Reasons, the ET is critical of how the Claimant’s case was presented; proper particulars had not been provided in the Scott Schedule.  Having considered the Scott Schedule, we can understand why that observation was made. 

 

72.              The ET did not, however, stop there but continued:

“92. … The allegations in paragraphs 22 of the first claim and paragraph 11.1 of the second claim do not constitute [PCPs] which put the claimant at a substantial disadvantage compared to others without a disability thereby triggering a duty on the respondent to make reasonable adjustments.”

We note, no specific attack is made on that conclusion.  It brings us to the second ground of appeal: the contention that the ET misdirected itself as to the correct approach under the EqA. 

 

73.              On this point, it is right to say that the ET did not fully set out the legal principles derived from the case law as we have attempted to do (in summary form) above.  Of itself, however, that does not amount to an error of law.  The question is how the ET approached its task in applying the relevant legal principles given its findings of fact. 

 

74.              The focus of the Claimant’s attack on the appeal has been on the ET’s findings of fact, thus her submissions have been almost wholly directed at the Scott Schedule provided to support ground 1.  The problem for her is that once it is held that the ET’s findings are not open to challenge (as we have concluded), then the issues raised by the second ground - to the extent that they are particularised at all - simply fall away.  Given the ET’s findings, it is hard to see what PCPs could be relied on by the Claimant; certainly nothing has been identified on the appeal.  In any event, the ET found the Claimant was not placed at a substantial disadvantage.  That being so, the reasonable adjustments claim necessarily falls away.

 

75.              As for the criticism made in the grounds of appeal that the ET directed itself that it would adopt a range of reasonable responses test on the question of justification, we are unable to see that was how it approached its task.  We have summarised what we understand to be common ground as to the correct the legal tests the ET had to apply.  Given the findings of fact made, we are unable to see that any application of these principles would assist the Claimant.  We conclude that the ET correctly applied those principles, which it kept in mind in reaching its conclusions, based on its permissible findings of fact.

 

76.              By the third ground of appeal, the Claimant complains of misdirections to the correct approach to the question of constructive dismissal under section 95(1)(c) of the ERA.  Here the Claimant objects to what she says was the ET’s acceptance that mere delay meant she had waived her right to leave and claim constructive dismissal.  The difficulty with that point is that the primary reason for the ET’s rejection of this complaint was its finding that there were no breaches of contract.  We are unable to see that the argument on the appeal engages with that fatal conclusion in any respect.  This ground must, therefore, also fall away.

 

77.              For good measure, we return to ground 4 and the question of the adequacy of the reasons.  In reading the ET’s Decision in the round - as we are obliged to do - it seems to us that the reasoning is entirely adequate to the task.  The conclusions and the reasons for those conclusions are made plain.  They disclose no error of law.  The findings of fact - made at the end of a lengthy hearing - adequately reference the documents, with which the parties were familiar, and properly explain how the ET arrived at its nuanced, balanced conclusions.

 

78.              We understand the Claimant’s strong disagreement with the ET’s dismissal of her claims but that does not establish a case of bias.  Applying the correct test, we are satisfied the Claimant was not denied her right to a fair hearing, the ET reached permissible conclusions that are not susceptible to challenge and we therefore dismiss this appeal.