United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0226/15/JOJ

 

 

EMPLOYMENT APPEAL TRIBUNAL

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

 

 

                                                                                                             At the Tribunal

                                                                                                             On 15 March 2016

 

 

 

Before

THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)

MR D G SMITH

MRS L S TINSLEY

 

 

 

 

 

MS J LAMB                                                                                                              APPELLANT

 

 

 

 

 

THE BUSINESS ACADEMY BEXLEY                                                            RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR ANDREW ALLEN (of Counsel) Bar Pro Bono Scheme
For the Respondent	MS SARAH BOWEN (of Counsel) Instructed by: DWF Solicitors 5 St Paul’s Square Old Hall Street Liverpool Merseyside L3 9AE

 

 

SUMMARY

DISABILITY DISCRIMINATION - Reasonable adjustments

 

The Employment Tribunal impermissibly recast the Claimant’s PCP in addressing her reasonable adjustment claim.  This error vitiated its decision.  The claim would be remitted to a fresh Tribunal.

 

THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)

 

Introduction

1.                  This is an appeal by the Claimant, Ms Joanne Lamb, against a Decision of an Employment Tribunal chaired by Employment Judge Wallis sitting with members, Mr Sheath and Mr Walsh, with Reasons sent to the parties on 21 April 2015.  We refer to the parties as they were below.  The Claimant appears by Mr Andrew Allen of counsel, who assists her through the Bar Pro Bono Unit but did not appear below.  The Respondent resists the appeal and appears by Ms Bowen of counsel, who did appear below.  We have been assisted by careful submissions on both sides.

 

2.                  The appeal was permitted to proceed to a Full Hearing by Langstaff J on a single ground only: that the Employment Tribunal erred in law in relation to the claim that there was a failure to make reasonable adjustments by requiring the Claimant to return to work in September 2012 without a proper and fair investigation of her grievance.  The remaining grounds of appeal were dismissed as not raising reasonably arguable points of law.  Langstaff J directed that the appeal be heard by a Judge sitting with lay members because of their experience of industrial practice, which might help to put the employer’s approach to the grievance and the fact that it was in effect “done again” into proper focus.  Accordingly, I sat with lay members on this appeal, and, as Langstaff J anticipated, their assistance has proved valuable.  This is the unanimous Judgment of us all.

 

The Facts

3.                  Given the narrow compass of this appeal, it is unnecessary to deal with the facts in detail.  Anyone reading the summary that follows should bear in mind that it is just that.

4.                  The Tribunal found that the Claimant was employed for some years by the Respondent as a primary school level Teacher.  She had a period of sickness absence that began in February 2012 and on 29 February 2012 made a complaint of bullying.  Her GP certificate recorded reactive depression from bullying at work.  At a meeting on 19 March 2012 she explained her grievance about bullying to Mr Nicholas and Ms Haylett, and this was an opportunity for them to explain to her the complaint they had received from a parent of a child in her class.  An investigation by Ms Haylett followed, and both the Claimant and others were interviewed.  The Claimant returned to work on 9 July 2012, and the Tribunal described (paragraph 35) a supportive meeting in which she was welcomed back by Mr Nicholas and Ms Haylett.  There was a “clear the air” meeting on 10 July between the Claimant, Mrs Michalski (against whom she made her bullying and other complaints) and Ms Haylett herself.  Notes of the meeting showed the Claimant as able to explain to Mrs Michalski why she had been concerned about issues and Mrs Michalski was able to reassure the Claimant.  It was a positive meeting, and the Claimant’s own evidence was that her first week back was very positive, although things deteriorated towards the end of term.

 

5.                  The investigation report, referred to as a grievance report by the Tribunal (paragraph 36) prepared by Ms Haylett, was presented to Mrs Moon (the Executive Principal) and Mrs Elms (the Chief Executive) of the Respondent.  The Tribunal referred to it as a relatively brief report and described its main findings at paragraph 36.  Significantly, Ms Haylett reported that there were a number of justified concerns about the Claimant’s performance but that Mrs Michalski and to some extent Mr Nicholas had not handled the matter well.  Ms Haylett considered the Respondent was in a “vulnerable position in relation to their legal obligations” under the Equality Act 2010 (“EqA”), and noted that “there was no deliberate intention to cause the Claimant distress”, but Mrs Michalski should be given an informal verbal warning because of the way in which she had approached the “justified concerns regarding performance”.

 

6.                  The Tribunal found neither Mrs Moon nor Mrs Elms understood why Ms Haylett came to that view on reading the report.  They asked her to prepare a supplementary report to explain those conclusions, but though produced, it failed to achieve the clarity they had hoped for, and they concluded that the report had not been fair to the Claimant or other individuals.  For what the Tribunal found to be entirely unconnected reasons, Ms Haylett’s employment came to an end that same day.  She had been due to meet the Claimant the following day, on 18 July, but Mrs Elms met the Claimant instead, and explained that Ms Haylett had left and that she, Mrs Elms, was concerned Ms Haylett had not fully investigated or fully understood the Claimant’s grievance.  The Tribunal found that the Claimant also expressed a concern to Mrs Elms that Ms Haylett did not have a clear understanding of the grievance and Mrs Elms therefore invited the Claimant to write down her grievance, which had not been done up to that point, so that it could  be fully investigated.  The Tribunal found that it was not unreasonable for the Respondent to conclude that a more detailed investigation and report was necessary, particularly as the Claimant herself had indicated that the grievance had not been fully understood.

 

7.                  Thereafter, the Tribunal accepted that there was a misunderstanding by the Claimant as to what was likely or would follow.  The Claimant understood that she would be responding in writing to Ms Haylett’s report, and as a consequence did not produce the written document the Respondent was expecting to receive because she expected to receive the grievance outcome report from Ms Haylett first.  There was correspondence between her and the Respondent about the need for the Claimant to put her grievance in writing so that the Respondent could investigate it.  The Claimant maintained that she did not wish to relive her concerns by writing them out, and invited the Respondent to look at the notes of the meeting taken by Ms Haylett on 19 March.  The Employment Tribunal referred to the Claimant’s letter of 2 September (paragraph 40) to the Tribunal but not to the passage in the letter where she expressed her concern as follows:

“… after nearly 6 months of co-operating with [the Respondent’s] wishes in taking my grievance forward, put my grievance in writing and accept that a further delay was necessary.  This in fact contradicts [the Respondent’s] own grievance policy. …

As a result I formally request that I am advised of your decision in writing as initially promised, as a matter of urgency.  Any further delay will force me to consider if my position at [the Respondent] has become untenable …”

 

8.                  On 3 September the Claimant was signed off sick with depression.  In her ET1 (paragraph 53) she said she was informed that there would be a new second investigation instead of the outcome she had anticipated and this caused a health relapse and she was unable to return to work due to anxiety and panic attacks.  The Tribunal made no finding as to that, however.

 

9.                  On 4 September 2012 - that is to say, the first day of the new academic year - the Claimant did not attend work.  She was signed off work by her GP and remained absent from then onwards on account of ill health until her dismissal, which the Tribunal found took effect on 31 March 2014.  Medical certificates throughout that period referred to both reactive depression and post-traumatic stress disorder (“PTSD”).  In a letter dated 11 September 2012 Mr Atkinson - who had by then been appointed Director of the Respondent and HR Manager - explained that he had been asked to investigate the Claimant’s grievance, and he sent her a copy of the notes of the meeting on 19 March 2012, enclosing a list of the matters he had drawn from the notes.  He asked her to confirm these as representative of her grievance.  He also sent her copies of the notes of meetings with Mr Nicholas on 9 July and Mrs Michalski on 10 July.

 

10.              The Claimant submitted a written grievance by letter dated 26 October 2012, in which she complained of severe bullying.  The letter begins with the following paragraph:

“… I must stress that I am extremely disappointed and upset that still no decision has been made regarding my grievance.  As I am sure you can imagine this is also not conducive to my health, well-being and eventual return to work.”

 

The letter ended with the Claimant expressing the hope that now that the Respondent had a written account of her grievance:

“… which I am sure has been clear to all from 19 March, a decision will finally be made without any further delay, and I will be informed of the decision …”

 

Further, although the Tribunal recorded part of the final sentence, it omitted the following passage in the letter:

“… I have tried since March to move forward using [the Respondent’s] grievance procedure.  I engaged constructively in a phased return at the end of last term and I completed the paperwork for a referral to Occupational Health in early July and again in late September yet no appointment has been received.  I feel that you have just left me to rot hoping it will all go away.  It won’t.”

 

11.              The Tribunal dealt with the process that followed at paragraphs 44 to 66, identifying the steps taken by the Respondent to investigate the grievance and produce an outcome.  The Claimant failed to respond to Mr Atkinson’s letter of 5 November 2012, setting out a comprehensive schedule of events.  By letter dated 20 December Mr Atkinson explained that he would proceed in the absence of a response.  In the meanwhile, the Claimant was seen by Occupational Health, and a report dated 21 November 2012 (paragraph 49 of the Reasons) referred to the fact that there had been an initial investigation with a further investigation still to be conducted, causing the Claimant to feel dismayed.  She was diagnosed as suffering from resolving reactive depression and a recommendation was made that:

“[The Claimant] needs to resolve the outstanding issues relating to her complaint which was raised in March 2012.  She thought that this had been resolved and she has been quite upset by the thought of further pending investigation. …”

 

12.              The grievance hearing took place on 18 January 2013, Mr Nichols having been appointed as decision maker.  The Claimant attended by telephone.  Mr Nichols concluded, by letter dated 11 February 2013 that the grievance was not upheld in a detailed letter setting out his decision on each of the complaints identified and regretting the time it had taken to reach a conclusion.  He said that the conclusions he had reached demonstrated that the Respondent was not perfect and work was required on policies and procedures in relation to matters such as informal complaints raised by parents and any overlap with safeguarding and disciplinary issues.  He also referred to the need to consider further how the Respondent could avoid a culture developing that promoted an unhealthy long-hours work ethic, noted that there was evidence to support legitimate concerns about the Claimant’s performance in lessons, particularly in relation to behaviour management, and concluded that was the principal motivation for Mrs Michalski’s conduct rather than any bullying or discrimination (paragraph 57).

 

13.              The Claimant appealed the grievance outcome.  She considered, as the Tribunal recorded, that all the evidence had not been adequately considered.  Mr Garnham was appointed to hear the appeal as early as 6 March 2013.  The Claimant’s sick pay came to an end on 24 April 2013, although she remained signed off with anxiety and depression.  Mr Atkinson once again investigated the matters raised by her on appeal and prepared a detailed supplementary report, but the appeal was not dealt with by Mr Garnham until 21 May 2013, when it was rejected.  In making findings about the process and the chronology the Tribunal did not at any stage address the question of delay, although it undoubtedly identified a chronology in respect of the process that was adopted.

 

14.              In her ET1 (paragraphs 59 to 66) the Claimant explains that following the grievance appeal outcome she submitted an equality questionnaire to support her return to work as her grievances had not been upheld and she considered this to be evidence of a systematic cover up.  She said she could not be expected to return to an environment where she had been accused of serious child protection issues when the matters had not been adequately dealt with or resolved.  The Tribunal referred to the Claimant’s 25-page equality questionnaire and said that she could not talk about a return to work until she had answers to the questions set out in that questionnaire.

 

15.              At paragraphs 73 and 74 of the Reasons the Tribunal referred to an Occupational Health report dated 5 September 2013 saying the Claimant’s condition was likely to be a disability under the EqA: she was suffering from a mental impairment that had a substantial and long-term adverse effect on her normal day to day activities, and he could not say how long the effect might last.  The Occupational Health doctor said she did not want to return to the same work environment and was unhappy with the outcome of the grievance investigation.  Ultimately, by letter dated 6 November 2013, following a meeting on 5 November, the Claimant was dismissed.  There was an appeal, and her employment terminated, as the Tribunal found, on 31 March 2014.

 

The Appeal

16.              The reasonable adjustment claim advanced by the Claimant was reduced to writing at a case management hearing, in terms subsequently adopted by the Tribunal as follows:

(i)      “The Claimant was required to return to work from her sickness absence during the period September 2012 to December 2013 without a proper and fair investigation into her grievances”.  This was the PCP she relied on.

(ii)     As to substantial disadvantage, this was described as “The effect of this failure on the Claimant was exacerbated because of her disability”.

(iii)    The reasonable adjustment sought was “Investigate the grievances properly and provide an outcome to enable the Claimant to return to a safe and discrimination free environment at work”.

 

17.              The Tribunal dealt with the question whether the Claimant was suffering from a disability at paragraph 94.  It referred to the absence of any formal diagnosis of PTSD and to the fact that the Claimant became defensive when asked about the effect on her ability to carry out normal day to day activities so that it was difficult to glean much evidence from her about that.  Nevertheless, the Claimant clearly suffered from some form of mental impairment that may have on occasions had an impact on her normal day to day activities.  Without medication and counselling it was likely that there would have been a substantial adverse impact on normal day to day activities.  In the circumstances and in the absence of medical evidence, the Tribunal said that it would give the benefit of the doubt to the Claimant and examine the claims on the basis that she was a disabled person at the material time, which was identified as at the date of the dismissal.

 

18.              This paragraph is reasonably criticised by the Claimant.  Mr Allen submits that it was an unfortunate feature of this Tribunal’s approach that from time to time it avoided making positive decisions on issues of importance and proceeded on the basis of assumptions.  We agree that is unhelpful.  It was adopted again at paragraph 105 in the context of the section 15 EqA complaint, where the Tribunal held “for the sake of argument” that the Respondent was aware at the time of dismissal that the Claimant was a disabled person. 

 

19.              At paragraphs 107 to 109 the Tribunal set out its conclusions on the reasonable adjustments claim in the following terms:

“107. Lastly, in respect of disability discrimination, the Tribunal looked at the claim under section 20.  The provision, criterion or practice [“PCP”] that the Claimant relied upon was a requirement that she return to work in September 2012 without a proper and fair investigation of her grievance.  Firstly, the Tribunal had noted that there was no requirement as such that the Claimant return to work in September 2012.  She had submitted a medical certificate and the Respondent had accepted that.  They offered to put in place a return to work programme as soon as she was well enough to return.  The Tribunal had some difficulty in describing that as a provision, criterion or practice.  However, it [sic] that was a provision, criterion or practice, the next question would be whether or not the requirement was to return without a proper and fair investigation into the Claimant’s grievance.  The Tribunal was satisfied that there was a proper and fair investigation into her grievance.  The Tribunal had found that it was not unreasonable for the Respondent to consider that Ms Haylett’s report was not sufficient and not fair to either the Claimant or the other individuals and that it should be done again in a more detailed fashion.  That was done and the Claimant had every opportunity to take part in that.  She did not take advantage of those opportunities, but they were there.

108. If that was a provision, criterion or practice, it was difficult for the Tribunal to see that it would place the Claimant at a substantial disadvantage compared to people who were not disabled.  If indeed a person was required to return to work without their grievance being looked at properly or fairly, that would place anyone, disabled or not, at a substantial disadvantage.  This claim does not easily fit into the statutory test.

109. However, if it could be said that the Claimant was correct about those matters and if it could be said that the Respondent was aware that the Claimant was a disabled person at the material time, then the reasonable adjustment that the Claimant suggested was to investigate the grievance properly and provide an outcome to enable to her to return to a safe and discrimination-free environment at work.  The Tribunal was satisfied that that is precisely what the Respondent did.  Mr Atkinson undertook a detailed investigation as shown by his report.  There was a hearing to consider matters at which the Claimant was able to put her comments.  There was a detailed letter setting out the outcome and she was also able to put forward her points on appeal.  Those points were carefully considered before a decision was made.”

 

20.              In support of this appeal Mr Allen accepts that the PCP advanced by the Claimant may not have been particularly well phrased.  Nevertheless, it was clear that she was complaining about the absence of an outcome following her initial complaint on 29 February 2012 (articulated in detail on 19 March 2012) and a new report being commissioned that did not produce any outcome until 11 February 2013, with an appeal outcome as late as 21 May 2013, which remained unsatisfactory in her view.  The PCP extended beyond 21 May 2013 to December 2013 because the Claimant continued to raise questions, principally by reference to the EqA questionnaire, to obtain information that would enable her to understand the internal process.  Her ET1 and submissions claimed that the effect of setting aside Ms Haylett’s report and the ensuing delay was exacerbated because of her disability; that amounted to a substantial disadvantage; and the reasonable adjustment was a prompt investigation with a proper, timely outcome that would have enabled her to return to work much earlier, free of bullying and discrimination.  This was not addressed.  The Tribunal limited itself to September 2012 when the PCP relied on related to a period extending until December 2013.  He submits that when dealing with a mentally impaired person suffering from reactive depression, the delay in the grievance process, whether in the context of the first or second investigation should have been avoided, but this was not addressed by the Tribunal.

 

21.              Mr Allen criticises the Tribunal’s failure to make an unambiguous determination as to the Respondent’s knowledge, whether actual or constructive, of the Claimant’s disability.  He submits, if the Tribunal had addressed the question of knowledge of her disability and whether she was at a substantial disadvantage it would inevitably have concluded that the Respondent had the requisite knowledge by reference to the many medical certificates citing reactive depression and the Occupational Health report to which we have already referred.  The Tribunal failed to consider the question of substantial disadvantage in light of the mental impairment that the Tribunal had found.  It was insufficient, he argues, to ask the question: would anyone, whether disabled or not, have been substantially disadvantaged?  That does not satisfy the duty imposed, and he relies on the recent decision of the Court of Appeal in Griffiths v Secretary of State for Work & Pensions [2016] IRLR 216 at paragraph 63.  The correct question, he submits, is whether in comparison with people who are not disabled someone with the Claimant’s disability would have been substantially disadvantaged.

 

22.              For the Respondent Ms Bowen contends primarily that the Claimant was not complaining about delay.  The crux of her complaint centred on whether the Respondent concealed Ms Haylett’s investigation outcome and on dissatisfaction with the content of the investigations and outcomes that followed.  In any event, the Employment Tribunal’s reference to the PCP at paragraph 107 is shorthand for the PCP the Claimant was actually advancing.  This was accurately set out at the beginning of the Judgment, and the Employment Tribunal would not have forgotten the full terms of the PCP.  The limited reference to the month of September 2012 was a typographical error.  It is clear from the rest of the paragraph and from paragraph 109 that the Tribunal had in mind the full chronology of the grievance process right the way through to May 2013, and referred to the opportunities the Claimant had to take part in that process.  The Tribunal’s conclusion at paragraph 107 that no PCP was in fact applied is fatal to this appeal.  In any event substantial disadvantage was not established, as is clear from paragraph 108, and this too is fatal to the appeal.  Moreover, she contends that the decision not to rely on Ms Haylett’s report and the consequent delay formed no part of any pleaded claim, so the Claimant was not entitled to rely on it: Chapman v Simon [1994] IRLR 124.  Further, the Tribunal did not accept that the Respondent had requisite knowledge of the Claimant’s disability at the material time.  Finally, although the Employment Tribunal did not deal with time limits in relation to this claim, had the Tribunal addressed time limits in the context of the reasonable adjustments complaint, it would have found that any alleged failure to make reasonable adjustments in the context of the grievance outcome cannot have occurred after 21 May 2013 at the latest, so that the ET1 should have been lodged by 20 August 2013 at the latest.  The Employment Tribunal made other findings that it was not just and equitable to extend time.  Accordingly this too is fatal to the claim and appeal.

 

Our Conclusions

23.              Sections 20 and 21 EqA set out the framework of the duty to make reasonable adjustments.  So far as relevant, they provide as follows:

 

 

“20. Duty to make adjustments

(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements.

(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.

…

21. Failure to comply with duty

(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.

(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

(3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.”

 

24.              The duty applies as between employer and employee by virtue of section 39(5) of the EqA and Schedule 8 contains further provisions applicable to the duty under section 39.  Paragraph 20 of Schedule 8 provides, relevantly, as follows:

“(1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know -

(a) in the case of an applicant or potential applicant, that an interested disabled person is or may be an applicant for the work in question;

(b) in any case referred to in Part 2 of this Schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.”

 

25.              As has been emphasised, most recently in Griffiths, it is critical to identify the relevant PCP and the precise nature of the disadvantage it creates in relation to a disabled individual by comparison with its effect on non-disabled people.  The nature of the comparison required in a given case will depend on the disadvantage caused by the relevant arrangements.  Where the disadvantage is the risk of dismissal for lack of capability, the comparator is likely to be an able-bodied person not at risk of dismissal because capable of performing the job (as for example in Archibald v Fife Council [2004] UKHL 32).  In a case where the complaint concerns the requirement to maintain a certain level of attendance at work to avoid disciplinary sanction and possibly dismissal, although both able-bodied and disabled employees will suffer stress and anxiety when ill and unable to attend work, the risk of this is likely to be greater for disabled employees whose disability results in more frequent or longer absences, making it harder for them to comply with the requirement to attend work on a regular basis.  In Griffiths that was recognised as a more than minor or trivial disadvantage: paragraph 47.  The Court of Appeal made clear that the fact that an able-bodied and a disabled employee are treated equally and are subject to the same disadvantage when absent for the same period of time does not mean that there can be no disadvantage if the PCP bites harder on the disabled employee than it does on the able-bodied: paragraph 58.

 

26.              The phrase “PCP” is not defined in the legislation, but is to be construed broadly, having regard to the statute’s purpose of eliminating discrimination against those who suffer disadvantage from a disability.  It includes formal and informal practices, policies and arrangements and may in certain cases include one-off decisions.  In Nottingham City Transport Ltd v Harvey UKEAT/0032/12 Langstaff J said it had:

“18. … something of the element of repetition about it.  It is, if it relates to a procedure, something that is applicable to others than the person suffering the disability.  Indeed, if that were not the case, it would be difficult to see where the disadvantage comes in, because disadvantage has to be by reference to a comparator, and the comparator must be someone to whom either in reality or in theory the alleged practice would also apply.  These points are to be emphasised by the wording of the 1995 Act itself in its original form, where certain steps had been identified as falling within the scope to make reasonable adjustments, all of which, so far as practice might be concerned, would relate to matters of more general application than simply to the individual person concerned.”

 

27.              In considering the arguments addressed to us we bear in mind that in pleading and relying on a PCP the Claimant is a layperson arguing a complicated case about reasonable adjustments.  Despite that her pleaded case was that there was a requirement to return to work over a lengthy period, from September 2012 through to December 2013, in the absence of a proper, fair investigation of her grievance.  Although her ET1 and submissions contain a narrative account of what happened, in our judgment there are sufficient references in those documents and in contemporaneous correspondence and witness statements to her concern about Ms Haylett’s report being set aside and to the delay in the grievance process to demonstrate that those were live issues in the proceedings for the Claimant.  Moreover, the words “fair” and “proper” in this context are capable of encompassing both the setting aside of Ms Haylett’s report and the question of delay.  We are satisfied, having regard to the documents, in particular the ET1 and the contemporaneous correspondence, that those concerns were encompassed within the “fair and proper investigation” that the Claimant referred to in her PCP. 

 

28.              In reaching that conclusion, we have considered with particular care Ms Bowen’s submission that the fact that the Claimant did not return in May 2013 when her appeal was refused and by which time she had an outcome demonstrates that delay was not the concern for her but rather it was the content of the outcome about which she was concerned.  We accept that part of the Claimant’s concern was about the content of the outcome, but the reasonable adjustment she sought was a “proper investigation” which includes the question of delay, as repeatedly stated in the documents to which we have referred.  Although after May 2013 she was still pursuing information that would enable her to come to terms with what had happened in the internal investigation, by May 2013 the Claimant had waited some 15 months, and we consider that by then it may have been too late.  Had a prompt investigation and a prompt outcome been delivered in July 2012, on the Tribunal’s findings there is strong evidence that she would have returned to work at this stage.  This is demonstrated by the fact that she did return to work and there was a productive meeting between her, Ms Haylett and Mrs Michalski.  We also bear in mind the Occupational Health reports and the evidence about the effect the delay and the grievance process itself were having on the Claimant in reaching the conclusion that by May 2013 it may well have been too late for her to return, notwithstanding the fact that she had by then received an outcome.

 

29.              The practice relied on by the Claimant was an asserted practice that was in fact repeated.  Just by reference to the investigation in the Claimant’s own case, there was repeated delay: first in the process adopted by Ms Haylett that took some four months from complaint to a potential outcome, and then again in relation to the investigation conducted by Mr Atkinson where a similar delay ensued both at the investigation stage and again at the appeal stage.  Even if the Claimant had some responsibility for part of that delay, it seems to us that the Respondent was in charge and responsible for the grievance process and for the extent of the delay.  The Respondent’s practice of delay in delivering a timely grievance outcome was capable of being a PCP for these purposes.  The Claimant was not contending that she was physically forced to return to work during September 2012 or in the period that followed.  It is apparent, and no doubt an inference as a matter of common sense, that she felt pressure to return, perhaps because she was on reduced pay, and in circumstances where her sick pay would come to an end in April 2013.

 

30.              In light of those conclusions, we turn to consider the question whether the Tribunal impermissibly changed the PCP to a narrower PCP as reflected at paragraph 107, or whether there was not in substance any change in the PCP and the reference to September 2012 was simply a typographical error.  Ultimately, we prefer the Claimant’s submissions on this point for the following reasons.  We do not accept the Tribunal’s reference to September 2012 is a typographical error.  That reference is repeated in paragraph 107, which undermines the suggestion that it is a typographical error.  Moreover, as expressed at paragraph 107, it is apparent that the Tribunal understood the PCP to involve a one-off decision requiring the Claimant to return to work in September 2012.  That probably explains the conceptual difficulty the Tribunal had in describing what it interpreted as a one-off decision by the Respondent as not being reasonably capable of being regarded as a PCP.  Had the Tribunal been addressing the PCP actually contended for, which involved a relatively long period over which it was said that the grievance investigation was not fairly completed with no outcome provided, the same conceptual difficulty would not have arisen.

 

31.              Moreover, in changing the PCP in this way, the Tribunal had no regard for the lengthy delay and the extent to which delay could be said to be a feature of a fair and proper investigation.  That is apparent from paragraphs 107 and 109 in particular.  Since it is impossible to decide whether the PCP alleged by the Claimant placed her at a substantial disadvantage without first recognising and addressing precisely what the PCP was, the Tribunal’s error in addressing the PCP alleged by the Claimant meant it failed to address the extent to which the PCP placed the Claimant at a substantial disadvantage as a disabled person compared to people who are not disabled.  If the PCP operated more harshly on the Claimant as a result of her mental health disability, by exacerbating her condition and/or making it harder for her to return to work, the section 20 duty would be engaged.  That was not addressed and in our judgment the Tribunal impermissibly recast the PCP and made findings on the issue as recast.  That was an error of law.

 

32.              For that reason alone, subject to the time point made by Ms Bowen, we have concluded that this appeal should be allowed and the matter remitted for consideration by the Tribunal.  When the Tribunal comes to reconsider the matter, it is bound by the pleadings, unless there is an application to amend and depending on whether that is granted.  It is not bound in quite the same way by the definition of an issue.  As cases develop, sometimes issues derived from the pleadings can or should be put slightly differently.  This should be raised with the parties, and the issue can be redefined, so long as that can be done without injustice to either side.  Whether that is appropriate here in relation to the PCP in light of the way the case has developed, is for the Employment Tribunal to consider with the parties, subject to it being confined by the case pleaded in the ET1.

 

33.              As a consequence of the Tribunal’s error in relation to the identification of the PCP and its application, the Tribunal’s conclusions at paragraph 108 also cannot stand.  It is important when undertaking the required analysis to consider the nature and extent of the substantial disadvantage relied on, to make positive findings as to the state of the Respondent’s knowledge of the nature and extent of the substantial disadvantage, and to assess the reasonableness of the adjustment claimed in that context.  As Laws LJ observed in Newham Sixth Form College v Sanders [2004] EWCA Civ 734, 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 make an objective assessment of the reasonableness of proposed adjustments unless he appreciates the nature and extent of the substantial disadvantage imposed on the employee by the PCP; and 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. 

 

34.              Finally, we reject Ms Bowen’s submission that there is no point remitting this matter because it is inevitable that the Tribunal would have considered the complaint out of time and would not have extended time.  Although not challenged, paragraph 100 does not reflect a proper consideration of the just and equitable discretion available to the Tribunal.  If the Tribunal had addressed this question in the context of the reasonable adjustment claim and properly approached the question of the just and equitable extension, the question of prejudice and the balance of hardship together with the reasons for the delay would require consideration.  The outcome is not inevitable, particularly as the Claimant had a mental health disability and was endeavouring to resolve outstanding issues with her employer to enable a return to work, and her employer knew that the only impediment to her returning to work was her ongoing grievance (see paragraph 29 of Mr Atkinson’s statement for the Tribunal).

 

35.              The case, accordingly, will be remitted for reconsideration of the Claimant’s section 20 reasonable adjustments claim.  The Claimant contends that the case should be remitted to a fresh Tribunal, and the Respondent contends that proportionality and the overriding objective mean that it should be remitted to the same Tribunal, who will have the benefit of the background and a full understanding of the facts.  We have considered the guidance given in Sinclair Roche & Temperley v Heard and Anor [2004] IRLR 763.  We bear in mind proportionality and the time and inconvenience together with the cost involved in remitting to a fresh Tribunal.  We have concluded, notwithstanding the additional time and cost, that this is a case where the Tribunal has reached very strong conclusions against the Claimant on every issue raised, and we are concerned that it would be difficult for the Tribunal to adopt a fresh approach to the evidence and the issues in this case.  In those circumstances, and notwithstanding the regrettable additional cost and inconvenience, we have concluded that the overriding objective is best served by remitting this case to a fresh Tribunal to deal with the question of reasonable adjustments.  It will be for the Tribunal to determine the best way of approaching that question.  It may well assist both the Tribunal and the parties for there to be a short case management hearing to address the way in which that will be done but that is a matter for the Employment Tribunal to decide.  We conclude by thanking both counsel for the assistance they have given us in dealing with this case.