United Kingdom Employment Appeal Tribunal
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URL: http://www.bailii.org/uk/cases/UKEAT/2016/0239_15_2106.html
Cite as: [2016] UKEAT 239_15_2106, [2016] UKEAT 0239_15_2106
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EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
Before
THE HONOURABLE MRS JUSTICE SLADE DBE
LOWMOORE NURSING HOME LIMITED APPELLANT
MISS C SMITH (DEBARRED) RESPONDENT
Transcript of Proceedings
JUDGMENT
APPEARANCES
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(Representative) Peninsula Business Services Ltd The Peninsula Victoria Place Manchester M4 4FB
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SUMMARY
UNFAIR DISMISSAL - Constructive dismissal
DISABILITY DISCRIMINATION - Reasonable adjustments
The Employment Tribunal did not err in determining the claim for failing to make reasonable adjustments. They did not reach their decision on a different basis from that which the Claimant raised with her employer and set out in her Particulars of Claim. She had complained that “heavy lifting” exacerbated her medical condition. This is the basis on which the Tribunal reached their decision on failure to make reasonable adjustments. The Judgment did not show, as was contended by the Respondent, that they based their decision on “general physical exertion”. Appeal from the decision under section 20 Equality Act 2010 and the related constructive dismissal claim dismissed.
THE HONOURABLE MRS JUSTICE SLADE DBE
Introduction
1. Lowmoore Nursing Home, the Respondent, appeals from the Judgment of an Employment Tribunal, Employment Judge Calladine sitting with members, Mr Missett and Ms Rawlins, sent to the parties on 8 April 2015. The Employment Tribunal held that the Respondent had failed in its duty under the Equality Act 2010 (“EqA”) to make reasonable adjustments for the Claimant, who was at the material time a disabled person within the meaning of that Act. The Employment Tribunal also held that the Claimant had been unfairly constructively dismissed by the Respondent and that there had been discrimination under section 15 EqA.
2. Following a Preliminary Hearing Langstaff J permitted the appeals against the section 20 claim and the claim of unfair constructive dismissal to proceed to a Full Hearing. The appeal from the claim of discrimination arising from disability was dismissed. The Respondent is represented by Ms Reece of Peninsula Business Services Ltd. The Claimant did not file a Respondent’s Answer in the Employment Appeal Tribunal and is debarred from participating in the appeal. She was represented before the Employment Tribunal.
3. The Respondent relies on two grounds of appeal. Ms Reece rightly says that they are closely related. By the grounds of appeal it is contended that the Claimant asserted to her employer that her problem caused by her disability was with heavy lifting, and that was the basis of her complaint in the ET1 and in the Further and Better Particulars supplied by her. It is said that the Employment Tribunal wrongly dealt with the complaint as if it were one of “general physical exertion” or “heavy work”. Moreover, it said that the Claimant did not assert to her employer that the real issue was general physical exertion. Accordingly, it is said that the Employment Tribunal erred in their determination that the claim under the reasonable adjustment provisions of section 20 EqA succeeded. Further, since that determination was an essential element of the determination that the Respondent had been guilty of a fundamental breach of contract and a breach of the obligation of trust and confidence that the finding of constructive dismissal should also be set aside.
Outline Relevant Facts
4. The Claimant was employed by the Respondent from 21 February 2006 until her resignation on 20 January 2014, latterly as a careworker. At all material times the Claimant was a disabled person within the meaning of the EqA. Her disability was paroxysmal tachycardia. There were three units in the care home in which the Claimant worked: Oak, Cedar and Silverbirch. The Employment Tribunal found that Oak was the smallest unit in terms of patients with the highest staff-to-patient ratio. The Employment Tribunal appear to have accepted the evidence of the Claimant that the patients on Oak had challenging behavioural issues and can act unpredictably but were more mobile and independent than those on Silverbirch or Cedar, who needed physical intervention.
5. In the past the Claimant had worked on Cedar. When working on Cedar the Claimant had a sickness record that resulted in her being given points on what was called the Bradford scale. This is a sickness absence monitoring mechanism. An escalating number of points on the scale put the employee at risk of escalating disciplinary action. When the Claimant was transferred to Oak, her sickness record improved.
6. On 17 July 2013, when the Claimant was on annual leave, her manager, Ms Taft, decided that some staff would be moved to different units. The Claimant was to move to Silverbirch. The Employment Tribunal found at paragraph 9.5 that staff were moved between units for administrative convenience in drawing the rota. The Employment Tribunal was satisfied (paragraph 9.6) that at the time of drawing up the rota the Respondent was not aware of the Claimant’s pleaded disability. On being advised by a colleague that she was to be rotaed to work on Silverbirch, the Claimant contacted Ms Taft. A meeting between them took place on 1 August 2013. The Employment Tribunal held (paragraph 9.8):
“9.8. … The Claimant cited her heart condition as preventing her from doing the “lifting” required at Silverbirch. Ms Taft denied any knowledge of a heart condition, contended that no “lifting” was required either at Silverbirch or elsewhere in the care home and that Silverbirch had been assessed as the lowest risk Unit. The Claimant threatened to “go off sick” if rotaed to work on Silverbirch. …”
7. The Claimant did not accept the decision of Ms Taft that she move to Silverbirch and sought a further meeting with her. The Claimant obtained a letter from her doctor, Dr Barish, and in that letter the doctor wrote:
“I write to confirm that [the Claimant] suffers from exertional breathlessness and paroxysmal tachycardia. These conditions could be exacerbated by heavy lifting. It would not be advisable for [the Claimant] to be moved to a Department where duties included heavy lifting.”
8. The Employment Tribunal continued in paragraph 9.9:
“9.9. … It is unfortunate that both at the meeting on 01 August and in approaching her doctor at the time of the preparation of the report the Claimant stressed the “lifting” aspect of the work in Silverbirch. As the Respondents [sic] properly asserted the physical “lifting” of patients by carers is prohibited by their Manual Handling Rules and equipment is provided to obviate the need for “lifting”. In fact the gravamen of the Claimant’s concerns was the general physical exertion involved in moving and operating the equipment and in supporting and taking the “dead weight” of patients and physically turning them.”
9. The Employment Tribunal held at paragraph 9.10:
“9.10. It may therefore be understandable if Ms Taft took the view at the meeting on 01 August that the Claimant could, and should, have been able to work whether on Silverbirch or elsewhere in the care home without having to lift patients. However matters did not end there because at that meeting she could, and indeed in cross-examination she accepted, that, with hindsight, she should have asked more questions about the “heart condition”.”
10. After receiving the doctor’s letter, Ms Taft did not think that the Claimant might have a disability, nor did she consider it necessary to accede to the Claimant’s request for a meeting so that she, Ms Taft, might obtain some further information from the Claimant about her condition and how she feared that work on Silverbirch might impact on her condition. Instead, Ms Taft carried out an informal risk assessment. The Tribunal held that this was not a risk assessment specific to the Claimant’s medical condition, medication and respective working conditions on Silverbirch and Oak. It might be described, and was so described at the hearing, as a “generic risk assessment”.
11. The Employment Tribunal held at paragraph 9.12 that it had no independent assessment or evaluation of the demands placed on carers by the patients of, respectively, Silverbirch and Oak. They were, they said, thrown back onto the assessment of the parties’ witnesses. The Employment Tribunal preferred the account of the Claimant to that of the Respondent. The Tribunal recorded at paragraph 9.12 that:
“9.12. … On Silverbirch it was, she asserted, “all go”. She accepted that mechanical aids were provided for lifting and moving patients but said that these were always in use, needed moving regularly, were sometimes not available due to competing requirements from patients. Overall on Silverbirch she contended it was a concentrated physical exertion for carers throughout the 8 hour shift. …”
12. So far as the evidence given by Ms Taft is concerned, the Tribunal held:
“9.12. … She agreed that patients on Silverbirch were less mobile than those on Oak and more reliant for regular help on the caring staff but her case was that the physical demands which this might otherwise have made on the caring staff [were] substantially mitigated by the provision of aids and the staffing numbers which ensured that generally there were several staff to deal with every intervention.”
13. At paragraph 9.13 the Employment Tribunal concluded that the Claimant’s concerns about the proposed move to Silverbirch were not groundless and that she was not “making a fuss over nothing”. The Employment Tribunal found that the Claimant’s descriptions of each of the units “more telling than that of Ms Taft”.
14. By a letter dated 13 August 2013 the Claimant was told that she had to move to Silverbirch. On 15 August the Claimant went off sick and did not return until 8 January 2014. The Claimant lodged a grievance on 29 August 2013 against the decision to deploy her to Silverbirch. The grievance was not upheld. The Employment Tribunal made the observations referred to earlier in this Judgment as to the failure of Ms Briddon to make enquiries into the grievance so that she failed, it was said, to properly investigate with the Claimant her medical condition, the concerns about the workload on Silverbirch and the likely effects on the Claimant of implementing the move. The grievance was dismissed.
15. Five weeks after the grievance hearing, on 15 October 2013 the Respondent asked the Claimant’s consent for a medical report. The Claimant consented but failed to supply a correct address. She provided a fit note. That was due to expire on 3 January 2014. On 23 December 2013 the Claimant met Ms Taft and another member of staff, a Ms Smalley, who was in attendance as a note taker. The Claimant was told that she would have to return to work at Silverbirch. Ms Smalley said that the Claimant did not have to return to work if she did not wish to do so. The Employment Tribunal held that they were satisfied that this statement was intended to convey to the Claimant the sentiment that she must return or resign.
16. On 8 January the Claimant was telephoned and asked why she had not attended for work. Later that day she was called to a “return to work interview”. At the conclusion of the interview Ms Taft told the Claimant that upon her return to work the Bradford absence monitoring procedure had been implemented and she had 141 points under the procedure. A first written warning would be issued when she reached 201 points. The Employment Tribunal held that:
“9.23. To be told that she was “on the Bradford factor” with 141 points came as a shock to the Claimant. …”
17. The Claimant thought that this was unfair and considered resigning there and then but decided to give working on Silverbirch a go. The Employment Tribunal held that the Claimant was rotaed to work on that unit on 8, 9 and 19 January and attended. She found the work too difficult and too strenuous, dealing with largely immobile patients. On 19 January she saw the rota for the next month and that she was due to work at Silverbirch. She felt that she had no option but to resign. On 20 January 2014 the Claimant wrote a brief letter of resignation, in which she said (all verbatim):
“I here by give you one weeks notice … due to the Unit I moved to as it is to [sic] physical where my health condition lays [sic].”
18. The resignation was accepted, and the Claimant’s employment came to an end. The Claimant made a claim in the Employment Tribunal.
19. A Preliminary Hearing was held by Employment Judge C Camp on 11 July 2014. Whilst the claim of indirect discrimination was withdrawn, two discrimination claims remained: that under section 15 and that of reasonable adjustments under section 20 EqA. The Claimant was represented at the Preliminary Hearing. The section 15 claim was referred to in paragraphs 4 and 5 of the Reasons, and the reasonable adjustment claim, that under section 20, in paragraph 5. Because he considered that there appeared to be some uncertainty as to how the reasonable adjustment claim under section 20 was being pursued, the Employment Judge made an order for Further and Better Particulars. Those Further and Better Particulars were provided. These read as follows, in material part:
“The Claimant claims that, by reason of the acts or omissions described below, she was put at a substantial disadvantage by the Respondent’s failure to make reasonable adjustments contrary to sections 20 and 21 [EqA]. In accordance with the order of Employment Judge Camp dated 11th July 2014, the Claimant hereby provides further and better particulars of that claim.
1. Requiring the Claimant to move from the Oaks Unit to the Silverbirch Unit
… The Claimant was aware that, on the Silverbirch Unit, she would be required to do a great deal of heavy lifting, which she was unable to do because she suffered from Paroxysmal Tachycardia and that such work could exacerbate her condition. …
…
B. Substantial Disadvantage: …
The Claimant contends that the work on the Silverbirch Unit required carers to do a great deal of heavy lifting, which she was unable to do. By moving her to Silverbirch, therefore, she would be put at a substantial disadvantage in that she would not be able to do the work or would struggle to do the work and or her condition would be exacerbated.
…
2. The Decision to put the Claimant on the Bradford Scale on her return to work
…
B. Substantial Disadvantage: The Bradford Scale is usually used to monitor frequent, short term absenteeism. As the Claimant is and was disabled, and in view of the concerns already raised by the Claimant about her ability or inability to do the work on the Silverbirch Unit and the risk that it would exacerbate her condition, she was more likely than other non-disabled employees to be absent from work and, as a result, score badly on the Bradford Scale.
…”
20. When the matter came on for a Full Hearing before the Employment Tribunal, there were two disability claims before them. In their Judgment they held that the Claimant’s claim for disability discrimination succeeded. In the Judgment section, not the Reasons section, they appear not to have distinguished between the section 15 claim and the section 20 claim. However, referring to the section 20 claim, the Employment Tribunal held in paragraph 11.1:
“11.1. … According to the further and better particulars the Claimant alleges that by reason of two specific acts or omissions that the Respondents failed to comply with the duty imposed on them by Section 20 and accordingly by reason of Section 21(2) that they have discriminated against her. Those acts/omissions were a requirement to move from the Oak Unit to Silverbirch and secondly the decision, on her return to work, to put the Claimant on “the Bradford scale”. …”
21. The Employment Tribunal held that by 12 August 2013 Ms Taft had a precise definition of the Claimant’s condition and was in a position to obtain further information about it. By then the Respondent knew that the Claimant was saying that the working arrangements were disadvantageous and were unfavourable treatment. The Employment Tribunal held that the Respondent could review the rotas and accede to the Claimant’s request to move to the Oak unit but neither then nor thereafter did Ms Taft consider this adjustment. They held that the grievance process was conducted ineptly and was unfair to the Claimant. The conduct of the grievance hearing was not in itself, it was said, the cause of the Claimant’s resignation. However, looking at the way in which events unfolded, the Employment Tribunal considered that it could not be ignored in the assessment of the deteriorating relations between the Claimant and Ms Taft. The Employment Tribunal held that Ms Taft could have acceded to the Claimant’s request to remain on the Oak unit; alternatively, that Ms Taft as a reasonable adjustment could have offered a trial period to the Claimant on Silverbirch. By putting the Claimant on the Bradford scale, the Claimant was disadvantaged, and the Employment Tribunal held that “Bradford Scale could have been shelved”. Putting the Claimant on the Bradford scale was a result of long-term absence, which in turn was a consequence of the Claimant’s disability. Having found that the claim had been made out under section 20, the Employment Tribunal also held that there was no justification for the failure to make the reasonable adjustments which the Tribunal considered could have been made in the circumstances.
22. As for the claim of constructive dismissal, the Employment Tribunal held that there was a fundamental breach of contract by the Respondent. They referred to the importance of the Bradford point score given to the Claimant, which she contended disadvantaged her by reason of her disability. Reference is also to be made to paragraphs 9.9, 9.12 and 9.13 mentioned earlier in this Judgment as to the reasoning of the Employment Tribunal.
The Relevant Statutory Provisions
23. EqA section 20(1), (2) and (3) provides as follows:
“(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.”
24. Section 21(1) provides as follows:
“(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.”
The Submissions of Ms Reece
25. At the heart of the submissions of Ms Reece is that the Employment Tribunal erred by considering the claim under section 20 as being one of failure to make reasonable adjustments for heavy physical work generally, which is not the same as “heavy lifting”. Ms Reece contends that the complaint made by the Claimant to the Respondent was of heavy lifting and not of doing heavy physical work more generally, which, it is said, is a general requirement for careworkers. The adjustment that is reasonable to make must be judged in the light of the knowledge of the employer at the time. Ms Reece rightly relies upon the Further and Better Particulars to which reference has been made earlier in this Judgment. Ms Reece contends that it is clear from those Further and Better Particulars that the complaint being made by the Claimant was that she was required to do a great deal of heavy lifting which she was unable to do because she suffered from paroxysmal tachycardia. Ms Reece places considerable reliance on the Judgment of Langstaff J at the Preliminary Hearing of this appeal. In particular, Ms Reece refers to paragraph 10 of the Judgment, in which the learned Judge sets out Ms Reece’s contentions before him. The contention Ms Reece advanced at the Preliminary Hearing was:
“10. … At the hearing itself, the Tribunal appeared to accept that there was a difference between lifting on the one hand and general physical activity on the other. It went on to determine the case not upon the basis that there was any greater need for lifting at Silver Birch than there was at Oak, because it rejected that, says Ms Reece. It did so by noting (paragraph 9.9 in the penultimate sentence) that equipment was provided to obviate any need for manual lifting. When it came to dealing with the way in which life worked in practice (at paragraphs 9.12 and 9.13), it had claimed that her case had shifted from that which was pleaded to being one where she was talking about the general physical demands. The Tribunal found that her description of each of the Units was “more telling” than that of Ms Taft. It is not clear, says Ms Reece, from those words what precisely the Tribunal was finding. She argues that given the acceptance by the Claimant that mechanical aids were provided for lifting and moving patients and given what the Tribunal said at paragraph 9.9, the Claimant’s case was not one of general physical effort but one of heavy lifting. The Tribunal did not come to any clear finding on that, or, if it did, it came to a finding that accepted there was no such demand made at Silver Birch by comparison with the Oak Unit.”
26. Langstaff J recorded that this point not only has a repercussion in respect of the way in which the claim was put and whether the Tribunal should have required the Claimant to amend her pleading if she was to assert general physical heavy work, which, after all, would generally be involved in work as a care assistant, but also affects the conclusion that the Tribunal reached as to reasonable adjustment. The learned Judge commented that it will be rare that circumstances will arise where it will be reasonable for an employer to have to make an adjustment when the employer does not know the reason for it. Langstaff J continued at paragraph 11:
“11. … If, as this history might suggest, the Claimant at all material times was saying to the employer that the problem was heavy lifting and was not saying that it was the general heaviness of the physical work involved, then the employer could not be blamed in law for failing in its duty, because it did not or would not understand the need to make an adjustment. Ms Reece makes the point that so far as the employer was concerned it had made the necessary adjustments to cope with heavy lifting at the Silver Birch Unit and therefore rejected the Claimant’s complaints. That is at the heart of its case. The Tribunal did not appreciate that it had to judge the behaviour of the Respondent by that which it was given to understand at the time was the problem.”
27. Accordingly, in her submissions before me today Ms Reece contended, as she had before Langstaff J, that the Claimant’s case shifted from that pleaded case that heavy lifting was her concern expressed to the Respondent in the ET1 and the Further and Better Particulars, to that of general physical demands. Ms Reece contended that the Employment Tribunal determined the case on the basis that the Claimant’s complaint was of having to carry out general physical heavy work. This was work that any care assistant would have to carry out, but at the time the Claimant had said that the problem was with heavy lifting. Ms Reece adopted the argument, which was accepted and repeated by Langstaff J, that the requirement for adjustment must be determined having regard to the substantial disadvantage expressed by a Claimant to a Respondent during the course of their employment. In this case, it is said, the Employment Tribunal determined the case on a different basis from that which the Claimant brought to the attention of the Respondent at the time and that which was pleaded. In that regard, Ms Reece relies in particular on paragraphs 9.9, 9.12 and 9.13 to seek to establish that the Employment Tribunal based their decision on the substantial disadvantage being “general physical exertion”.
28. It is said by Ms Reece that the observation in paragraph 9.13 that the Claimant’s concerns about the proposed move to Silverbirch were not groundless showed that they, the Tribunal, accepted the propositions advanced by the Claimant. The propositions set out at paragraphs 9.9 and 9.12 indicated that the basis upon which the Employment Tribunal decided the case was that the substantial disadvantage was general physical exertion not the heavy lifting which was mentioned to the Respondent at the time by the Claimant. It is contended by Ms Reece that if the Tribunal erred in this regard their decision under section 20 that the claim succeeds cannot stand. Since the failure to make reasonable adjustments formed an important plank of the finding that the Respondent had been guilty of a repudiatory breach of contract, the determination that there had been an unfair constructive dismissal would also fall.
Discussion and Conclusion
29. The issue in this appeal is whether the Employment Tribunal determined the claim under section 20 on the basis of a different “substantial disadvantage” from that of which the Claimant complained to the Respondent during her employment and made in her ET1 and Further and Better Particulars. In their findings of fact the Tribunal held that at the 1 August 2013 meeting the Claimant had with Ms Taft:
“9.8. … The Claimant cited her heart condition as preventing her from doing the “lifting” required at Silverbirch. Ms Taft denied any knowledge of a heart condition, contended that no “lifting” was required either at Silverbirch or elsewhere in the care home and that Silverbirch had been assessed as the lowest risk Unit. …”
30. The doctor’s letter that the Claimant obtained after the meeting which the Tribunal found Ms Taft saw on 12 August 2013 referred to heavy lifting, which was to be avoided because of the Claimant’s medical condition.
31. In seeking to support her submission that the Employment Tribunal determined the claim on a basis other than that which was advanced by the Claimant to the Respondent and that which was in her Further and Better Particulars, Ms Reece lifts three words, “general physical exertion”, from a sentence in paragraph 9.9 to contend that the Employment Tribunal did not decide the section 20 claim on heavy lifting, which was the substantial disadvantage mentioned to the Respondent and pleaded. It is quite wrong to lift three words out of context and out of the sentence in which they stand. The immediately preceding sentences in paragraph 9.9 reads as follows:
“9.9. … As the Respondents [sic] properly asserted the physical “lifting” of patients by carers is prohibited by their Manual Handling Rules and equipment is provided to obviate the need for “lifting”. In fact the gravamen of the Claimant’s concerns was the general physical exertion involved in moving and operating the equipment and in supporting and taking the “dead weight” of patients and physically turning them.”
32. The reference to “equipment” in the sentence from which the three words are taken follows immediately after a sentence that refers to “equipment to obviate the need for lifting”. It is clear that the equipment referred to in the sentence containing the three words relied upon is lifting equipment, and on an ordinary let alone a fair reading of paragraph 9.9 the sentence from which the words are taken by Ms Reece deals with concerns about moving and operating lifting equipment and lifting patients, which is plainly involved in taking their “dead weight” and physically turning them. Accordingly, paragraph 9.9 and the words taken out of context and taken from the sentence in which they appear that are relied upon in the grounds of appeal do not support the contention of Ms Reece that the Tribunal decided the case on a different basis from that which was pleaded by the Claimant, nor does paragraph 9.12 of the Judgment form a basis for contending that the Employment Tribunal decided the case on a different basis other than heavy lifting. In paragraph 9.12 the passage referred to by Ms Reece states that mechanical aids were provided for lifting and moving patients but that the Claimant said:
“9.12. … these were always in use, needed moving regularly, were sometimes not available due to competing requirements from patients. Overall on Silverbirch she contended it was a concentrated physical exertion for carers throughout the 8 hour shift. …”
33. In my judgment, on a proper reading of this passage, the burden of the complaint recorded here was in regard to lifting patients and moving the equipment that was needed for lifting them. There is not, in my judgment, a difference or a departure from the allegations upon which the section 20 claim in the Further and Better Particulars are based.
34. Ms Reece puts the blame on the Claimant for not specifying at the time why she said to the Respondent that heavy lifting was involved in working at Silverbirch but not at Oak. There was clearly a difference of view between the Claimant and the Respondent as to whether heavy lifting was involved in working on Silverbirch. The Claimant said that there was heavy lifting. The Respondent said no, because of the lifting equipment. The Claimant cannot be blamed for not countering that assertion of the Respondent when, first, Ms Taft refused a meeting with the Claimant to discuss her concerns and, secondly, Ms Briddon did not make enquiries in or after the grievance hearing as to how the lifting equipment operated in practice. In any event, the Employment Tribunal found, as they were entitled to do, that they preferred the evidence of the Claimant to that of the Respondent as to how work was performed in Silverbirch.
35. When it came to their decision, the Employment Tribunal at paragraph 11 referred themselves to the Further and Better Particulars. In my judgment, there is no basis for suggesting that having referred to the pleaded basis of the claim, the Tribunal then went on a frolic of their own and decided the claim on a different basis. Accordingly, the matters relied upon by Ms Reece as showing that the Employment Tribunal decided the Claimant’s claim on a different basis from that asserted to the Respondent during her employment or in the Further and Better Particulars is not supported by the passages in the Judgment relied upon. The Judgment does not show that the Employment Tribunal based their decision on “general physical exertion”, those words having been taken out of context in the submissions and in the grounds of appeal advanced on behalf of the Respondent. It is clear that it is the physical demands of and relating to lifting that were the concern of the Claimant, and were stated to the Respondent and in the complaint to the Employment Tribunal. Accordingly, the Employment Tribunal did not err in the basis of their decision under section 20. The substantial disadvantage they considered was that pleaded. The appeal from the decision under section 20 EqA is dismissed. It follows, because of the importance of that decision on the constructive dismissal claim, that the appeal from the finding that the Claimant was constructively dismissed is also dismissed.
36. In the course of Ms Reece’s submissions, it became apparent that a basis on which this Employment Tribunal’s Judgment could have been challenged was a failure or alleged failure to give adequate reasons for their decision. However, a Meek v City of Birmingham District Council [1987] IRLR 250 CA point was not taken in the grounds of appeal. The grounds of appeal were amended, the Meek point is not in those grounds, and the Meek point was not advanced in submissions before me. Curiously, it was said by Ms Reece that Langstaff J had agreed and somehow participated in the drafting of the amended grounds of appeal. It is for the party to submit a draft and for the Judge to give consent or refuse consent to the amendment. In any event it appears that the amended grounds were not submitted on the day of the Preliminary Hearing but after it.