SUMMARY
UNFAIR
DISMISSAL ; Reason for dismissal
POLKEY
DEDUCTION
EQUALITY ACT
2010 CLAIMS – SECTION 20 REASONABLE ADJUSTMENTS SECTION 13 DIRECT DISABILITY
DISCRIMINATION AND SECTION 15 DISCRIMINATION ARISING FROM DISABILITY
The claimant was employed for almost 37 years by the respondents, his
parents, who were partners in a joinery and funeral director enterprise. He was
dismissed at a time when a sale of the business was contemplated and competing
claims to purchase it had been made by the claimant and by his son who was also
an employee. At the time of dismissal the claimant had been absent from work
for a period of almost three years following a serious accident. The Tribunal
found that the claimant was unfairly dismissed but only in respect of the
respondents’ complete failure to undertake any proper procedure before
dismissal.
The Tribunals’ findings and conclusions on the reason for the dismissal
being the breakdown in the relationship between the claimant and his son, the
Polkey deduction and the Equality Act claims were all those it was entitled to
make on the evidence led. The arguments on appeal had illustrated that a
different view of the evidence could have been taken but no material errors of
law or approach had been identified.
Appeal dismissed.
THE HONOURABLE LADY WISE
1.
The claimant was employed for almost 37 years by the respondents, who
are his parents and who were formerly partners in the business Andrew Anderson
& Son. The partnership was dissolved in October 2014 and the couple
retired on 1 November 2014. The respondents’ business comprised a joinery
and funeral director enterprise. The respondents have four children of whom
the claimant is the eldest. Having commenced employment with his parents on
8 December 1977, the claimant was never provided with a contract of
employment or statement of employment particulars. The business was very much
a family concern with family members helping out from a young age as and when
required. The claimant was ultimately dismissed by the respondents in the
circumstances described below. He lodged a claim with the Employment Tribunal
in which he alleged that he had been unfairly dismissed and discriminated
against on the basis that he was disabled. He made particular complaints of
direct discrimination in terms of section 13 of the Equality
Act 2010, discrimination arising from disability in terms of section 15
of that Act and a complaint of failure to make reasonable adjustments in terms
of section 20. The Tribunal found that the claimant was unfairly
dismissed by the respondent (as a result of the absence of any dismissal
procedure) although found that his dismissal was not directly a result of his
disability but was for “some other substantial reason” namely the breakdown of
the parties’ relationship. Complaints of breach of contract in respect of
failure to pay notice and a failure to provide a written statement of
employment particulars were found to be well-founded. All of the complaints of
disability discrimination were dismissed. The claimant has appealed the
Tribunal’s decision.
2.
Before the Tribunal and appeal the claimant was represented by Mr M
Cameron Solicitor. The respondents were represented by Mr C Edward,
Advocate, both at the Tribunal and on appeal. I will continue to refer to the
parties as claimant and respondents as they were in the Tribunal below. The
Notice of Appeal in this case initially contained some 31 grounds. (They
were numbered 7.1 – 7.31 but I will refer to them by single numbers). Grounds
of Appeal 29 – 31 did not survive the sift and a review sought under the
Rule 3(10) procedure in relation to that was also refused. Some of the
Grounds of Appeal contain subparagraphs. The respondents do not insist on
Ground of Appeal 5(iii) or Ground 28. That apart, Grounds 1 – 27
were all argued although they can be conveniently divided into five main
chapters. These are:
1. A challenge to the
Tribunal’s finding that the claimant was dismissed for a potentially fair
reason.
2. A challenge to the
Tribunal’s decision regarding a Polkey deduction.
3. Arguments about the
Tribunal’s decision on the section 20 Equality Act discrimination through
failure to make reasonable adjustments claim.
4. Arguments against the
decision regarding the section 13 direct disability discrimination claim.
5. A challenge to the
decision dismissing the section 15 discrimination arising from disability
claim.
3.
The hearing in this case took place over eight days in the early part of
2016 and was followed by a members meeting of the full tribunal on 24 May
2016. Thereafter, the Tribunal, chaired by Employment Judge Wiseman, issued a
Judgment on 14 June 2016 running to some 99 pages. That Judgment
included detailed findings in relation to the credibility and reliability of
the various witnesses led at the hearing. These findings are contained at
paragraphs 148‑190. The claimant had initially sought to include in
the appeal challenges to the credibility and reliability findings made by the
Tribunal. It was those Grounds (29-31) that did not survive the sift and were
not allowed to proceed following the review sought under Rule 3(10). The
paperwork submitted in support of the appeal was particularly voluminous. I
was provided with some 12 bound folders of documentation by the claimant’s
side. In addition, I had ordered production of the judge’s notes of evidence and
these were also before me. The available material is so voluminous that it may
be helpful to summarise some of the uncontentious facts which form the
background to the dispute.
Findings in Fact
4.
The claimant carried out both joinery work and funeral directing during
the decades that he was employed by the respondents. In 2008/2009 the
claimant’s son Ross also commenced employment with the respondents. Ross was
not interested in joinery and was being trained up by Mr Anderson (senior)
on the funeral side of the business. Around that time Mr Anderson
(senior) suffered from ill health and was unable to work for about two years.
When he returned he wanted to reduce his involvement in the business and there
was a change to the way in which it was run. Mr Anderson (senior) focused
only on the funeral directing side of the business where he was actively
involved in training Ross Anderson in that work. The claimant thereafter
focused more on the joinery side of the business although he did some work on
the funeral side when required and also undertook the majority of work for the
contract with Police Scotland that the respondents had.
5.
On 7 December 2011 the claimant was involved in a serious accident
when on a quad bike. He fell backwards over a low garden wall some 10 feet
onto hard ground and the quad bike landed on his head. In hospital, initial
scans of his head and face revealed extensive and complex fractures of the
front part of the skull, left eye socket and facial skeleton as well as some
bleeding and bruising within the frontal lobes of the brain. The claimant’s
treatment, including neurosurgical treatment culminating in a very successful
operation in June 2013 to address the shape of his skull, left eye socket
and face, are detailed in the Tribunal’s Judgment at paragraphs 37 to 49.
Importantly for the purposes of this appeal those findings include the
following paragraphs in relation to the claimant’s GP:
“47. The claimant throughout the
period from his accident until October 2014, was regularly seen by his GP. The
claimant’s GP was very supportive and spent many hours talking to the
claimant. The GP was in receipt of reports and correspondence from the
hospital and various outpatient clinics regarding the claimant’s treatment.
48. The claimant was certified by
his GP as being unfit for work from the time of the accident until October
2014.
49. The Fit Notes were produced at C52-92.
The Fit Notes were all in the same terms: the claimant was not fit for work
and the reason for this was because of a Head Injury. The GP, at no time,
advised the claimant may be fit for work if a phased return to work, altered
hours, amended duties or work place adaptations were put in place.”
6.
Prior to 2014 the issue of the claimant’s return to work was raised by
the claimant and his partner (Mrs Laura Wray) on several occasions. On
8 December 2012, the occasion of the claimant’s 50th birthday, he asked
about returning part time but his father refused on the basis that the head
injury he had suffered had been serious and he needed time to heal. Further
examples of the complainer raising the issue of a possible return to work are
contained at paragraphs 72 and 73 of the Judgment. In essence the respondents
felt that the claimant was not ready to return to work. The claimant accepted
they were acting out of concern for him and did not challenge their decision.
In the spring of 2014 the claimant learned that his parents were intending to
sell the business. There followed the chapter of events that led to the end of
the claimant’s employment by the respondents. Mr and Mrs Anderson (senior)
invited offers for the funeral directing business with a closing date of
2 September 2014. The claimant submitted his offer and his son Ross Anderson
also submitted an offer. On 8 September 2014 the claimant hand delivered
a letter he had written to his parents. The letter contained an emotional plea
in relation to the claimant’s need to get back to work and to make a living.
The following day the claimant learned that the offer proposed by his son Ross,
which had been substantially higher than his, had been accepted. This led to
the following events:
“91. … the claimant returned to his
parent’s house ‘all guns blazing’ and asking what had happened to the business.
92. Mr Anderson had asked
Ross Anderson if he could work with his father, and had been told ‘no’.
93. Mr Anderson asked the
claimant if he could work with his son Ross. The claimant responded ‘yes I
could fuckin’ well work with him but he’ll have to do as I fuckin’ say’.
94. The claimant stormed out and
shouted ‘I’m fucking sure your heads will roll for this’. He then went to the
workshop where Johnny and Richard were working. He told them he had ‘blown
it’.
95. The claimant left and has not
spoken to his father again.
96. The respondents’ partnership
was dissolved in October 2014, and Mr and Mrs Anderson retired on
1 November 2014 when the undertakers business passed to Ross Anderson.
97. The joinery business ceased to trade.
Johnny King subsequently purchased some of the tools, and set up his own
joinery business.”
7.
On 25 September 2014 the respondents’ solicitor wrote to the
claimant contending that the employment relationship between him and his
parents had come to an end some time ago. The claimant understood from that
letter that his employment had come to an end. There was a dispute
subsequently about the date on which the employment had terminated. The
claimant had been in receipt of insurance payments in connection with a policy
taken out by the respondents with AXA on the basis that he was an employee who
was unfit for work. He was signed off by his GP as being unfit for work in the
period December 2011 until December 2014. The claimant informed AXA
to stop making payment to him in October 2014. The Tribunal found (at
para 105) that the claimant was unfit for work throughout the period from
December 2011 until September 2014.
8.
Against that background the Tribunal found that, albeit the letter sent
to the claimant on 25 September 2014 was not entirely clear in its terms,
its purpose was clearly to confirm that the employment relationship between the
parties had ended and so it found that that relationship came to an end on
26 September 2014 when the claimant received the letter. The Tribunal
concluded further that the reason for the respondents’ dismissal of the
claimant was for some other substantial reason, namely the breakdown in the
relationship between the parties. It was terminated because of a genuine
belief held by Mr Anderson (senior) that the claimant and
Ross Anderson could not work together in the undertaking business.
However, the dismissal was found to be unfair because the respondents had no
regard whatsoever to any procedure to be followed when dismissing the
claimant. There had been no meeting or discussion of any kind, nor were any
alternative resolutions considered. Albeit that this was a small family firm
the Tribunal considered that the absence of any such procedure rendered the dismissal
unfair. On the facts found the Tribunal concluded that if a fair procedure had
been followed there was a 60% chance that the claimant would still have been
dismissed.
9.
There was no dispute that the claimant is a disabled person, the
respondents having conceded that. Insofar as the section 20 reasonable
adjustments claim was concerned the Tribunal concluded that in circumstances
where the claimant was medically certified as being unfit for work, the duty to
make reasonable adjustments was not triggered simply by a bald assertion by the
claimant that he could return to work without supportive medical evidence. On
direct discrimination in terms of section 13 of the Equality Act 2010
the Tribunal concluded that the claimant had not been able to establish that he
was treated less favourably than a non-disabled person would have been treated
and on the section 15 Equality Act 2010 the Tribunal concluded that in
circumstances where the claimant was not fit to return to work there could not
have been a delay in allowing him to return to work. There was nothing to
suggest that the respondents had failed to meet with the claimant to have any
discussion about his capabilities. Any unfavourable treatment of the claimant
did not occur because of something arising in consequence of his disability.
The Tribunal’s reasons for reaching these decisions were all challenged during
the course of the arguments on appeal.
The Claimant’s Arguments on Appeal
10.
As indicated above, the arguments on appeal were divided into five main
chapters and I will summarise the arguments on each in turn.
(i) The Reason for Dismissal
11.
Mr Cameron contended that the Tribunal erred in law in determining
(at paragraphs 310‑327 of the Judgment) that the respondents
dismissed the claimant on legitimate “some other substantial reason” ground.
He claimed that the set of circumstances described by the Tribunal did not
describe a breakdown of the working relationship between the claimant and the
respondent but amounted to anticipated difficulties in the future working
relationship between the claimant and Mr Ross Anderson, the owner of the
transferee business. In essence, the Tribunal reasoned that the respondents
dismissed the claimant from his employment to prepare the business for sale and
in the interest of the transferee Ross Anderson. While it was not
suggested that this was a case in which the claimant could seek compensation
under the TUPE Regulations, the Tribunal had erroneously decided that the
breakdown in relationships was the reason for the dismissal and so the
dismissal could not be for a potentially fair reason as required by
section 98(1) of the Employment Rights Act 1996 (“ERA 1996”).
The point was important because the claimant continues to maintain that he was
dismissed because he was a disabled person. Mr Cameron submitted that
there were three requirements for a “some other substantial reason” dismissal
namely first, that the employer has a genuine belief at the time that the
reason stated was the reason for dismissal, secondly, the reason must not be
whimsical or capricious and thirdly the reason has to be one which could justify
dismissal (Harper v NCB 1980 IRLR 26). He contended that
the reason for dismissal identified by the Tribunal was not the “real reason”
for the dismissal and that the Tribunal had fallen into error by reflecting on
the future working relationships between the claimant and Mr Ross Anderson
in the transferee business rather than on the existing relationship between the
claimant, the respondents and other employees of the firm. He contended that
the future working relationships within the business were not legitimate
concerns of the respondents and had no obvious bearing on the existing
employment relationship or the operation of the respondents’ business. Any
future working relationships would be in an entirely different business. The
Tribunal was distracted by this irrelevant factor, as was evidenced by
paragraph 317 of the Judgment where the Tribunal stated:
“The nature of the relationship would have changed
fundamentally after the sale of the business when Ross Anderson would have
been the employer of the claimant, his father. We were satisfied the breakdown
in the relationship related to Ross Anderson and the claimant rather than, as
Mr Cameron suggested, the claimant and the respondents.”
12.
Mr Cameron submitted that the respondents had not suggested that
there had been any alleged breakdown in the employment relationship with the
respondents or indeed anyone else. The tenor of the respondents’ case had been
that the dismissal was on capability grounds or because the claimant had left
his employment to set up business on his own account. While there was
authority supportive of a Tribunal re-labelling a dismissal this case was an
example of a reason for dismissal being constructed by the Tribunal which the
employer had never entertained. The letter of dismissal (quoted in full by the
Tribunal at paragraph 102) made no mention of the some other substantial
reason found by the Tribunal in relation to it. Indeed there is no reference
to a breakdown of relationships in the letter at all. While it was accepted
that in closing submissions Counsel for the respondents had mentioned the some
other substantial ground, defence Mr Cameron claimed that this had been
relied on solely in relation to the Polkey argument.
Mr Cameron did acknowledge, however, that the issue of family tensions was
an issue contained in the pleadings of the respondents from about
February/March 2015 under reference to a “some other substantial reason”
defence. It was also argued that there was a pronounced difference between the
evidence of the respondents and the Tribunal’s interpretation of it and
consequent conclusions on this matter. For example it was noted that the
Tribunal had found (at paragraph 159) that Mr Anderson (senior) had
accepted in evidence that but for the accident the claimant would still be employed
in the business. The respondents’ position that the claimant had at no time
become fit for work was difficult to reconcile with paragraph 101 of the
Judgment which records that Mr Anderson ((senior)) opened the joinery side
of the business for the claimant to return to work on 1 October 2014.
13.
It was acknowledged that a Tribunal is entitled to find, on the
evidence, that the reason put forward by the employer for the dismissal at the
time was not the real reason. However that did not negate the requirement to
be satisfied that the reason selected by the Tribunal was the employer’s reason
at the time of the dismissal – McCrory v Magee [1983] IRLR 414; Iceland Frozen Foods v Jones [1982] IRLR 439b; and Tayeh v
Barchester Healthcare Limited [2013] EWCA Civ 29. The
Tribunal had erred in not exercising the necessary degree of caution in
evaluating a “some other substantial reason” basis for dismissal. The
conclusion that the dismissal had arisen because of a breakdown of the working
relationship between two employees had not been properly analysed by the
Tribunal. It was contended that the decision was based on a mere assumption
that the relationship between the claimant and Ross Anderson had or might
break down. There was no evidence that any conflict between those two
employees had or might substantially disrupt the business of the firm. An
employer ought not to initiate a dispute by canvassing an employee’s views on
his relationship with another without having good reason to do so. In any
event, even if there was evidence of a breakdown of employee relationships, the
respondents ought to have tried to repair those relationships and explore
alternatives to dismissal. Reliance was placed on three authorities in
relation to these points. First, in Perkin v St George’s Healthcare NHS
Trust [2005] EWCA Civ 1174 the Court of Appeal decided it was
incumbent on an employer to prove the facts necessary to show that personality
clash led to a breakdown in the functioning of the employer’s operation and
that the generalisations were insufficient to satisfy the test. The EAT in Summer
v Handshake UKEAT/0216/12 held that a power struggle for control of a
business is not synonymous with a breakdown in trust and confidence where
relationship was still functioning to the extent necessary for each (senior)
manager to carry out his job. The EAT also held in Turner v Vestrick
[1981] IRLR 23 that before a dismissal arising from personality
differences will be considered fair, the employer must show there is a
breakdown in the working relationship and also that it is an irredeemable
breakdown. A failure to take reasonable steps to improve relations between
employees will render the dismissal unfair. On the facts of this case, Mr Cameron
contended that there was no evidence of a breakdown in the employment
relationship between the claimant and Mr Anderson. They had not in fact
worked together from the time of the claimant’s accident in 2011. The strained
relationship following the breakdown of the claimant’s marriage to his wife had
occurred prior to Ross Anderson joining the firm.
14.
It was also contended on behalf of the claimant that the Tribunal’s
decision regarding the reason for dismissal was perverse because it was
contrary to all of the evidence and inconsistent with the defence advanced by
the respondents including in closing submissions. It was contended that there
was no evidence that a breakdown of the relationship between the claimant and
Mr Ross Anderson was in the respondents’ mind as a reason for dismissal at
any stage. It was claimed again that Counsel for the respondent had relied on
a “some other substantial reason” defence solely in support of a Polkey
argument. Mr Cameron went so far as to suggest that the meeting
between the claimant and his parents on 9 September 2014 had not taken
place and that there was no evidence that it had occurred. Overall, it was
said that the Tribunal handled the evidence in a cavalier fashion and was
highly selective in what it referred to and relied on. It had ignored its own
contrary findings. There was insufficient evidence on which the Tribunal could
ascertain the real reason for dismissal where the employer had failed to show a
potentially fair reason – Hertz (UK) Limited v Ferrao UKEAT/0570/05.
The Tribunal had dismissed each of the respondents’ different and inconsistent
defences (frustration, constructive resignation, abandonment of the contract,
capability and some other substantial reason based on falling out with the wider
family) and substituted its own reason, something it should not reasonably do
in a situation where the respondents were represented by solicitors and
Counsel. In any event, the claimant had not been confronted with the full
nature of the allegations against him (here the breakdown in relationships) and
had no adequate opportunity to consider and answer what was alleged. In those
circumstances the dismissal was likely to be unfair. Examples could be found
in Hotson v Wisbech Conservative Club [1984] ICR 859 and Murphy
v Epsom College [1985] ICR 80. Further, the Tribunal’s function
in this aspect of the case was to determine only whether the decision by the
employer fell within the range of reasonable responses. The Tribunal should
not put itself into the position of the employer and decide what it would have
done in the circumstances – Foley v Post Office [2000] ICR 1283.
The prohibition on a substitution mind-set applied equally to the reason for
dismissal. In essence what the Tribunal had done in this case was construct a
defence which was not pled, not based on any evidence and never advanced in
submissions.
15.
Mr Cameron contended also that the finding in fact at
paragraph 316 of the Judgment was perverse. That paragraph is in the
following terms:
“We concluded, having regard to the above
facts that the reason for the dismissal with some other substantial reason,
being the breakdown in the relationship between the parties. We decided the
claimant’s employment was terminated because Mr Anderson believed the
claimant and Ross Anderson could not work together in the undertaking
business. We were satisfied this was a belief genuinely held by
Mr Anderson, and was not whimsical or capricious.”
16.
Mr Cameron submitted that there was no evidence before the Tribunal
to support that conclusion. He stated that the Tribunal had acknowledged the
lack of evidence about any breakdown in the employment relationship between the
claimant and Ross Anderson. He accepted, however, that at
paragraph 324 that the Tribunal does record the reference to
Mr Anderson (senior) asking Ross if he could work with his father.
Nonetheless, Mr Cameron contended that Mr Anderson’s confused and
confusing evidence (see paragraphs 153 and 154) coupled with his
statements about the claimant not being able to return to work
(paragraph 155) contradicted the Tribunal’s conclusion in relation to the
reason for dismissal. The Tribunal could not conclude that Mr Anderson
had a genuine belief in the reason for dismissal when it had already recorded
(at paragraph 152) that “he did not know what his defence was”.Finally it
was suggested that it was highly improbable that a 36 year family working
relationship would breakdown irretrievably at the precise moment identified by
the Tribunal. The Tribunal’s conclusion on the whole issue of the reason for
dismissal was perverse and could not stand.
(ii) The Polkey Deduction
17.
Mr Cameron contended that the Tribunal, having held at
paragraphs 332 and 403 of the Judgment that a “Polkey
deduction” of 60% was appropriate, had done so or without inviting or hearing
any evidence or submissions from the parties on that subject. Accordingly, the
claimant had been denied the opportunity of leading evidence or advancing
submissions in opposition to a Polkey deduction. Mr Cameron
submitted that he and his client had understood that the issue of a Polkey
deduction would be reserved to the remedies hearing, the Tribunal having
divided the case into merits and remedy with the decision appealed against
having been restricted to the merits. Reliance was placed on the case of Nele
v Hereford & Worcester County Council [1986] ICR 471 in which
the Court of Appeal had observed that it would be unwise and potentially unfair
for a Tribunal to rely upon matters which occur to members of that Tribunal
after the hearing and which had not been mentioned or treated as relevant
without the party against whom the point was raised being given an opportunity
to deal with it, unless the Tribunal could be sure that the point was so clear
that the party could not make any useful comment in explanation. Further, in London
Metropolitan University v Storfer UKEAT/0073/11, [2012] UKEAT 0073_11_1302 the EAT had decided
that a Tribunal had erred in making a decision on contribution and Polkey
without giving Counsel an opportunity to call evidence and make submissions.
Mr Cameron asserted that the statement in the Judgment (at
paragraph 328) that the Tribunal was referred by both representatives to
the case of Polkey was wrong. Mr Cameron contended that Polkey
had been mentioned only in relation to the respondents’ Counsel confirming to
the Tribunal that the respondents were relying on the “some other substantial
reason” defence only in respect of a future Polkey argument in
the context of a remedies hearing. Mr Cameron accepted that he had made
reference to a Polkey argument in submissions but not in response
to any argument on the part of the respondent.
18.
Mr Cameron was critical of paragraph 331 of the Judgment where
the Tribunal stated that there were facts upon which it could rely and from
which it could draw inferences regarding what would have happened if the
respondents had followed fair procedure. He stated that the Tribunal had not
specified what those facts and inferences were. It was noted also that the
Tribunal did not hear any evidence from Ross Anderson and so, as already
submitted, there was no evidential basis for the finding that Mr Anderson
(senior) had satisfied himself that father and son would not be able to work
together. In summary, the argument under this Ground of Appeal was that the
Tribunal had determined the Polkey deduction prematurely and
unfairly at a merits hearing; that the respondents had not given notice of any Polkey
argument; that there had been neither evidence nor a debate in submissions over
a Polkey deduction and accordingly that the Tribunal had erred in
law in considering and making a deduction without inviting further evidence and
submissions. In any event, the Tribunal’s findings that there was a 60% chance
that the claimant would have lost his job after the sale of the business anyway
was widely speculative and had no foundation in the evidence. In Hamer v
Kaltz Limited UKEAT/05/02/13/BA the EAT had held that a Tribunal’s
reasoning in relation to a Polkey deduction argument does require
to meet a minimum standard and that such a decision cannot stand if it is not
possible to discern from the findings the Tribunal’s reasoning for reducing the
award. In Scope v Thornet [2007] ICR 236, a decision of the
Court of Appeal, it was observed that assessment of compensation will
necessarily involve a certain amount of speculation. While acknowledging that,
Mr Cameron submitted that the decision in this case constituted “wild
speculation” based on no evidence whatsoever. Finally, inadequate reasons had
been given for the finding that the claimant’s employment would only have
lasted a further six months.
(iii) Failure to make Reasonable Adjustments Claim (Section 20
Equality Act 2010)
19.
This chapter involves Grounds of Appeal 9 to 18 inclusive.
Those grounds involve various attacks on the Tribunal’s findings relating to
the claimant’s state of health and fitness for work. In essence, the
claimant’s position in evidence was that, notwithstanding that his GP had
produced “fit notes” which were used to advise the insurers AXA that he was
unable to work up until September 2014, he could have worked had
reasonable adjustments been made and that the respondents had failed to make
such adjustments.
20.
The first ground under this chapter was an argument that the Tribunal
had erred by rejecting the unchallenged expert opinion evidence of
Mr Douglas Gentleman, Consultant Neurosurgeon and brain injury
rehabilitation expert concerning the claimant’s fitness to work subject to
suitable adjustments at various times between September 2012 and September
2014. The rejection of Mr Gentleman’s findings was, in any event,
inconsistent with the Tribunal’s unqualified acceptance of his report at
paragraph 166 of the Judgment. The background to this argument is that
Mr Gentleman, an independent and impartial expert witness, gave evidence
before the Tribunal. He spoke to and expanded on a written report that he had
prepared. His evidence was that with goodwill and reasonable adjustments to
his duties the claimant could have returned to work sometime between July and
December 2012. There was no contradictor to his evidence and the Tribunal
accepted it as credible and reliable. In contrast, the respondents had no
knowledge of and had made no enquiry into the claimant’s medical condition and
led no contradictory evidence about it. The Tribunal appears to have rejected
Mr Gentleman’s opinion on fitness to work in favour of the GP “fit notes”
to which no witness spoke. Mr Cameron contended that the fit notes had
been prepared by a number of different GPs in a routine manner and that most of
the GPs involved had no or infrequent contact with the claimant and no
knowledge of his condition or workplace. The fit notes were prepared for
delivery to a third party (AXA) in the knowledge that the respondents were not
permitting the claimant to return to work at the time. The claimant gave
evidence that he had explained to his GP, Dr Mathewson, the issue of his
parents’ opposition to him returning to work until he was better. The Tribunal
had rejected the claimant’s evidence on this issue of fitness to work as
exaggerated. Importantly, Mr Gentleman had not been confronted with the
fit notes and challenged on the inconsistency between those and his stated
view. Mr Cameron argued that a “fit note” signed by a General
Practitioner is not a probative document and is not equivalent to an
occupational health assessment. The respondents had not called the General
Practitioner to give evidence. In any event, fit notes are advice notes
between patient and GP and are not principally intended for or binding on
employers. It was contended that the Tribunal had simply assumed, wrongly,
that the fit notes were incontrovertible evidence of the claimant’s unfitness
for work. Further, the Tribunal had rejected Mr Gentleman’s opinion
without giving clear and cogent reasons for so doing. There was ample
authority that a Tribunal cannot reject independent expert evidence without a
clear and cogent reason for doing so – English v Emery Reimbold &
Strick Limited [2002] EWCA Civ 605 and Kapadia v London
Borough of Lambath [2000] IRLR 699 at 702, the latter case
supporting the proposition that in disability discrimination cases a Tribunal
cannot substitute its own opinion in place of uncontested medical evidence
adduced by the claimant, at least where there is no challenge to the factual
basis upon which the medical opinion was given. The Tribunal in this case had
not been entitled to reject Mr Gentleman’s evidence simply because it was
retrospective and not contemporaneous. That was not the approach the Tribunal
had taken to the evaluation of the evidence of Mrs Margaret Maxwell, a
psychotherapist who had given evidence regarding the claimant’s fitness to work
from September 2012. The Tribunal had ignored the claimant’s own evidence
that he had spoken to his GP who had been fully supportive of a decision to
return to work after mid 2012 so long as he was careful.
21.
Another argument advanced on behalf of the claimant (Ground 10) was
that the Tribunal erred by disregarding the unchallenged opinion evidence of Mr
Peter Davies, a vocational consultant, concerning the claimant’s fitness
and the practicality of the respondents making reasonable adjustments to his
duties to facilitate a return. Mr Davies had given evidence on the
definition of light, medium and heavy work which related to the respondents’
claim that the claimant could not perform heavy duties and their reliance on
that for terminating his employment or even refusing him a return to work with
reasonable adjustment. Mr Davies had confirmed that the claimant had been
capable of erecting sheds and doing joinery work following his accident which
would involve elements of heavy work. He had given evidence also about the
examples of what an employer such as the respondents might have done by way of
reasonable adjustments. There was no challenge to Mr Davies’ evidence.
The Tribunal’s preference for the GP “fit notes” over Mr Davies’ evidence
was perverse and an error of law.
22.
The next ground in this chapter (Ground 11) attacked head on the
approach of the Tribunal to the fit notes provided by the General
Practitioner. It was submitted that the Tribunal had misunderstood the
function of such notes and had erred (at paragraphs 139 – 147) in making
erroneous assumptions about them without a foundation in evidence or a basis in
judicial knowledge. The Tribunal had also erred by disregarding the claimant’s
evidence (paragraph 136 and 138) in relation to his conversations
with Dr Mathewson about a return to work. There was to some extent an
overlap between this ground and grounds 8, 9 and 10. The specific
criticisms made under Ground 11 included a claimed inconsistency between
the evidence of Mr Anderson (senior) who, according to Mr Cameron, testified
that he was unaware of the claimant’s fit notes and a finding by the Tribunal
that those notes formed a backdrop to the decisions made by the respondents.
In any event, even if the respondents had been aware of the existence of the
fit notes, that awareness did not stretch to the contents of the notes which
was critical in light of the nature of fit notes. In essence, Mr Cameron
argued that the Tribunal had misappreciated the nature of the fit notes because
they are non-binding and advisory with an employee being able to return to work
during the period of the note; an employer can disregard the advice in favour
of an occupational health assessment; they are not true occupational health
assessments and the advice is intended to facilitate discussion between
employer and employee; they ought to be issued after consultation or
evaluation and the advice contained in them is only as good as the information
upon it which it is based and finally, GPs are not qualified occupational
health physicians. Mr Cameron placed some reliance on the claimant’s
evidence about the circumstances in which the fit notes were completed. He
suggested that while the Tribunal had rejected the claimant’s evidence on this
point it was nonetheless material evidence that they should not have disregarded
standing the expert evidence of Mr Gentleman, Mr Davies and
Mrs Maxwell. Further, it was submitted that in evaluating the fit notes
the Tribunal had made findings not supported by the evidence. For example that
the GP, Dr Mathewson, was experienced in the care of trauma patients and
that he spent many hours in the company of the claimant. The Tribunal found
that the claimant had a good relationship with his GP which, while true, was
said to be an entirely neutral fact lending nothing to the value of the fit
notes. The Tribunal found that there was a medical basis to the fit notes,
namely the claimant’s ongoing psychological symptoms. In support of that the
Tribunal referred (at paragraph 166) to Mr Gentleman’s report.
However, Mr Cameron contended that at a no point in his evidence or in his
report did Mr Gentleman say that the claimant would not have been able to
return to work because of his psychological problems. In any event,
Mr Gentleman was not aware of Mrs Maxwell’s opinion of the claimant’s
mental health. A significant attack was placed on the Tribunal’s finding that
Dr Mathewson would not knowingly issue misleading fit notes to AXA because
it would be professionally negligent to do so. Mr Cameron argued before
the Tribunal and on appeal that the situation was more nuanced and that the GP
had signed the fit notes on a pragmatic basis knowing that the respondents were
not permitting the claimant to return to work. He made reference to the “real
world” where GPs were busy professionals and often harried. In the present
case a series of GPs had signed fit notes prepared without consultation or
evaluation. Dr Mathewson had no information about the claimant’s
psychological health because the claimant had been waiting over 18 months
for any treatment. Mrs Maxwell had treated and counselled the claimant
privately and no reports had been sent to the GP. Further, the fit notes had
not been spoken to by any witness and in particular the Tribunal had not heard
from the GP. In Mr Cameron’s submission the fit notes therefore had
little or no evidential value and should not have been accorded any weight by
the Tribunal. They could not contradict expert evidence. The Tribunal had
ignored other evidence of the claimant’s capabilities including that of the
respondents who had admitted in their evidence that they had not regarded him
as not fit or unable to work but they wanted him to be 100 per cent
fit before he returned. This all demonstrated errors on the part of the
Tribunal.
23.
Ground of Appeal 12 is a separate ground claiming that the Tribunal
erred in law in disregarding the evidence of the claimant’s cognitive
behavioural therapist, Mrs Maxwell, in relation to his fitness to return
to work. Mrs Maxwell had been the claimant’s treating psychotherapist
since around September 2012. She had been instructed through the
respondents’ permanent health insurers AXA to provide courses of psychotherapy
including cognitive behavioural therapy (CBT) to the claimant with the specific
purpose of assisting his early return to work. The Tribunal had found (at
paragraph 129) that Mrs Maxwell considered that the claimant could
have coped with a phased return to work in September 2012. AXA had then
funded a second course of treatment by Mrs Maxwell in 2013. Thereafter
she continued to treat the claimant on a private fee-paying basis to assist his
recovery. Mrs Maxwell’s evidence was significant according to
Mr Cameron because it was the only independent evidence available to the
Tribunal about the claimant’s psychological status between September 2012
and the date of ultimate dismissal. The Tribunal records that she was a
credible and reliable witness and yet had failed to take her evidence into
account and impliedly rejected it in relation to the issue of fitness to work.
In essence the Tribunal appeared to have rejected the evidence of all three
experts who spoke to the claimant’s capability.
24.
Ground 13 related again to the fit notes and a challenge to the
finding (at paragraph 352) that the respondents were aware of the notes
after 2012. Mr Cameron again submitted that there was no evidence to that
effect and that the finding was contrary to the respondents’ averred position.
The only evidence in relation to the fit notes was from the claimant. The fit
notes were prepared for the insurance company and not for the employer. In
these circumstances and those already argued the finding at paragraph 352
was perverse as it ignored direct evidence that contradicted it.
25.
The 14th Ground of Appeal contends that the Tribunal’s view
that the claimant’s request to return to work should have been supported by
medical or occupational health reports was a misapplication of
section 21(2) and Schedule 8 of the Equality Act 2010. The
employers’ obligation to make reasonable adjustments to facilitate the
claimant’s return to work was not conditional upon his furnishing his employer
with such reports. The material passage containing the Tribunal’s reasoning in
this respect is at paragraph 356 and is in the following terms:
“The claimant did not at any time produce
any medical evidence to support either his position that he was fit to return
to work or his request to return to work… We considered that in the
circumstances where an employee has been absent from work and has been
certified as unfit for work by the GP, then some medical evidence is required,
regarding fitness for work before a return to work and adjustment can be
contemplated… We decided that in the circumstances of this case, where the
claimant was continually being signed off as being unfit for work, the duty to
make reasonable adjustments was not triggered. It was not sufficient for the
claimant to indicate he wished to return to work without some supportive
medical evidence indicating he was fit to do so, or may be fit to do so with
adjustments.”
The argument under this ground relied again on the Tribunal having
allegedly given the fit notes a higher status than they merited, their
inconsistency with the other evidence and their lack of a useful purpose so far
as the employment relationship was concerned.
26.
The duty on an employer to make reasonable adjustments is of course set
out in section 20 of the 2010 Act. The legislation places no duty
upon an employee to support a request to return to work with a medical report.
On the contrary it is the employer who is required to take positive steps to
ensure a disabled person can be put in a position where they can work. The
onus was on the respondents to ascertain the position by requiring an
occupational health assessment or at least a medical report. They had failed
to discharge that duty notwithstanding the claimant’s continued requests to
return to work. Further, an employer has a duty to keep in touch with an
employee who is absent from work through illness – Mitchell v Arkwood
Plastics (Engineering) Limited [1993] ICR 471. The more recent
decision of the Inner House in BS v Dundee City Council [2013] CSIH 91 also supports the proposition that the obligation is on an
employer rather than the employee to obtain medical evidence. That case gave
important guidance on the steps an employer must take in considering whether or
not to terminate an employee’s contract of employment by reason of incapability
due to ill health, including the need to consult with the employee and take his
views into account and also to take steps to find out about the employee’s
medical condition and likely prognosis. No such steps were taken in this case
and the Tribunal was wrong to regard the onus as being on the claimant to prove
his own capability by providing a medical certificate .Accordingly the Tribunal
had misunderstood the law in this area.
27.
The 15th Ground of Appeal related to paragraph 356 of
the Judgment, quoted at paragraph 25 above. The focus of this particular ground
was the background of the claimant’s various requests to return to work. These
requests had been made in June/July 2012 (paragraph 62), in
September 2012 (paragraph 63), on 8 December 2012
(paragraph 71), on 16 December 2012 (paragraph 72), and in
September 2013 (paragraph 73). Mr Cameron submitted that the
Tribunal had erred in law in finding that those requests had not triggered the
respondents’ duty to make adjustments to facilitate the claimant’s return.
There had also been evidence of a number of other occasions when the claimant
had asked the respondents to return to work and these other requests had been
corroborated by his partner Mrs Laura Wray. Before the Tribunal the
respondents had referred to and relied on of the case on Doran v DWP
UKEATS 0017/14 where the EAT had held that no duty to make reasonable
adjustments arose where the claimant was certified as unfit for work and had
given no indication of when she might be able to work. Mr Cameron submitted
that the circumstances in this case were readily distinguishable from Doran
because in this case the claimant had advised the respondents that he wanted to
work immediately. The sole principle arising from the case of Doran
was that the obligation to make reasonable adjustments is not triggered when an
employee cannot say when he will return to work and is not presently fit to
return where there is no dispute about his unfitness. In the present case the
claimant was fit to return subject to reasonable adjustments. He had
undertaken informal work for the respondents including emergency flood damage
repairs to their home and renovations to the firm’s workshop. The respondents
would not have relied on the claimant to take on such work if they thought he
was unfit. Mr Anderson (senior) had gone so far as to say in evidence
that he had been assessing the claimant’s capability when carrying out those
emergency repairs. He was unable to explain how he had done so. The Tribunal
ought to have given no credence to his evidence on that. Further in
considering the PCP applied by the respondent, the Tribunal had found (at
paragraph 366) that the PCP applied was that the respondent required the
claimant to be 100 per cent fit before returning to work. On that
basis the respondents would never have made adjustments and the PCP itself was
direct disability discrimination. Against that background it was unreasonable
of the Tribunal to expect the claimant to take unspecified proactive steps to
force the respondents to allow him to return to work. That said, the claimant
and Mrs Wray had given evidence of steps that had been taken such as
visiting the Job Centre in September 2013 when the claimant was
advised that if he staged a phase return to work he would retain some of his
benefits and a similar interaction with AXA in relation to insurance policy
benefits. Finally, it was clear from the Equality Act Code of Practice
(paragraphs 6.23 - 6.31) that the duty lies squarely with the employer and
not with the employee. In inverting the onus so that it was on the claimant in
relation to this matter the Tribunal had erred.
28.
Ground of Appeal 16 challenges the Tribunal’s finding at
paragraph 355 that:
“We did also consider whether, if the
respondents had, in response to the claimant’s request to return to work,
discussed with him the issue of reasonable adjustments, the claimant would have
been able to obtain a fit note stating he was fit to return to work in those circumstances?
The answer to that question is that we simply do not know.”
Mr Cameron submitted that such a finding was perverse and contrary
to all of the evidence. Again it was said to ignore or be inconsistent with
evidence of Mr Gentleman, Mrs Maxwell, Mr Davies, the claimant
and Mrs Ray and the Tribunal’s own findings. It was submitted that the
Tribunal had a large volume of evidence which would have allowed the question
posed to be answered. However the Tribunal had rejected all of the expert
evidence and formed its own interpretation of what Mr Cameron described as
“informal and ill-informed fit notes prepared by no doubt harried GPs for an
entirely different party (AXA) and purpose”. The Tribunal had recorded with
approval various aspects of Mr Gentleman’s evidence (paragraphs 107,
117, 120 and 155) that supported the claimant’s ability to return to work
with adjustments. Similarly the evidence of Mrs Maxwell (at
paragraph 129) and Mr Davies (at paragraph 167) supported the
claimant’s capability for a phased return to work. The respondents themselves
had given evidence of being pleased that the claimant appeared to be getting
back on his feet and of the informal duties he had performed. Mr Anderson
had made specific concessions regarding the claimant’s capability under
cross-examination. In particular he accepted that the claimant could have
performed light duties in the funeral side of the business, that he had been
doing some heavy work such as erecting sheds and decking in addition to having
worked on a ladder, fitted a new kitchen in his own house in the summer of 2013
and used all joinery equipment in rebuilding the racking for the workshop.
Mr Anderson (senior) had also conceded that the claimant would only be
required to work up a ladder occasionally and so the Tribunal could have
concluded that the claimant’s fear of heights was not an insurmountable
obstacle to a return to work. In essence the Tribunal had failed to have
regard to or analyse sufficiently the evidence supportive of the claimant being
fit for work. Standing the weight of that evidence the only logical answer to
the question posed by the Tribunal would be in the affirmative, namely that the
claimant would have been passed fit to resume his duties subject to reasonable
adjustment.
29.
The 17th Ground of Appeal involved the paragraphs of the
Judgment in which the Tribunal decided that the claimant’s section 20
claim failed because he had not identified or proved the application of the
correct PCP, namely paragraphs 363 – 367. Mr Cameron submitted first
that a claimant does not require to aver and prove an undisclosed and
unforeseeable PCP applied by the employer without his knowledge. Secondly, the
Tribunal misapplied the burden of proof by imposing on the claimant some additional
onus above and beyond identifying in broad terms the nature of the adjustment
that would ameliorate the disadvantage facing him on a return to work. The
respondents’ position was that the claimant was only capable of performing
light duties and was not able to work at height. Those restrictions, according
to the respondents’ pleadings, would have prevented him from working in his job
in his previous role, because as a small family business they were not of a
size or had sufficient employee resources to allow adjustments such as to
accommodate a post with only light duties. As that was the respondents’ stated
case on adjustments, there had been a broad consensus between the parties as to
the PCP that prevented the claimant’s return to work. Mr Anderson
(senior) had conceded, appropriately, that the claimant was able to perform the
vast majority of his duties and did not appear to contest that the claimant
could have returned to work or that reasonable adjustments could have been made
to facilitate that. Those admissions were recorded at paragraphs 155/159
of the Judgment. It was no part of the respondents’ case that the PCP in
operation was a requirement that the claimant be 100 per cent fit for
work. In any event, as already argued, such a PCP would have been
automatically discriminatory against a disabled person.
30.
The Tribunal recorded (at paragraph 363) that the onus was on the
claimant to establish the PCP applied by or on behalf of the employer and that
there was no evidence to support the assertion that the PCP advanced by the
claimant, namely in respect of the taking of rest breaks and operating
machinery, was applied. The Tribunal found this was not a case where the
respondents had put in place a provision criterion or practice regarding the
claimant’s hours or duties which prevented him from returning to work because
the claimant was not in fact fit to return to work. As the reason the claimant
could not return to work was because the respondent believed he was not fit to
do so, it appeared to the Tribunal that in fact the PCP applied by the
respondent was the requirement for the claimant to be 100 per cent
fit. That was the reasoning for the claimant having identified the incorrect
PCP. Mr Cameron reiterated that there had been broad consensus between
the parties as to the PCP which applied and which the claimant said were
variable with reasonable adjustment. The argument had been that the
respondents said the adjustments proposed by the claimant were not ones that
they could offer. It was wrong of the Tribunal to rely on a PCP that had not
been disclosed by the respondents and was not reasonably foreseeable. In any
event, the PCP identified by the Tribunal was not lawful or reasonable. The
Tribunal had effectively reversed the burden of proof on the section 20
claim and so absolved the respondents of any duty to make reasonable
adjustments because of the claimant’s alleged failure to identify the relevant
PCP. While it was accepted that the initial burden of proof to establish facts
from which the Tribunal can conclude that the respondent has committed an
unlawful act of discrimination falls on the claimant, the burden of proof moves
to the respondent if the claimant succeeds in proving those facts. It would
then be for the respondent to prove on the balance of probabilities that their
treatment of the claimant was not on the ground of a protected characteristic
such as disability. As the claimant in this case had specified in broad terms the
nature of the adjustments which would have ameliorated the substantial
disadvantage facing him and there was an abundance of primary evidence about
which findings had been made that were fully supportive of the claim, the
burden of proof ought to have shifted to the respondents. The Tribunal had
failed to appreciate that and so had erred.
31.
The last ground in this chapter, Ground 18 is that the Tribunal
erred in law in holding (at paragraphs 353 and 354) that an employer is
not obliged to engage in discussions with a disabled employee regarding his
return to work subject to reasonable adjustments. Mr Cameron contended
that the Tribunal’s decision in this respect evinced an error in law. An
employer cannot comply with its duties under the Equality Act 2010 if it
does not engage in discussions with the employee. The Tribunal expressed its
view as follows:
“353. We did
consider whether there was any obligation on the respondent to engage with the
claimant to discuss his request to return to work and the issue of
adjustments. It is within the industrial experience of this Tribunal that
employers, faced with a situation where an employee who is absent on sick leave
wishes to return to work, will often engage in discussions with the employee
and any relevant medical, or occupational health, practitioners.
354. We
concluded that whilst engaging in discussion and considering medical
information may be good practice, and is to be encouraged, there is no
statutory duty on an employer to do so. ”
Mr Cameron submitted that theses passages
disregarded the Equality Act Code of Practice at paragraph 6.32, 6.33 and
6.4 and also relevant case law including Rothwell v Pelican [2006] IRLR 24 and East Lindsey District Council v Daubney [1997] IRLR 181. The recent Inner House authority already referred to, BS
v Dundee City Council [2013] CSIH 91 confirms the general
obligation on an employer to engage in discussions with a disabled employee
regarding a return to work. The Tribunal’s finding that the employer was not
under a duty to consult was wrong in law and perverse.
(iv) The Section 13 Direct Disability Discrimination Claim
32.
The Tribunal’s analysis of the direct discrimination claim is contained
within paragraphs 368 – 392 of the Judgment inclusive. The claimant
contended that he was treated less favourably in relation to (1) the delay in
having him return to work, (2) a delay in making reasonable adjustments and (3)
when he was dismissed. The Tribunal had determined that the duty to make
reasonable adjustments was not triggered and so discounted that argument and
also the dismissal aspect standing the reason for dismissal that had been
determined. Accordingly, the only claim considered by the Tribunal under this
section was that of a delay in having the claimant return to work.
Mr Cameron pointed out that if his appeal against the reason for dismissal
and failure to make reasonable adjustments (or either of them) succeeded, then
the section 13 claim would fall to be considered of new and adopted his
earlier submissions in relation to those. He submitted that the respondents
delayed the claimant’s return to work because of his disability and then they
dismissed him because of his disability and so treated him less favourably than
they would have done a non-disabled employee. The hypothetical comparator for
the claimant’s case was a non-disabled employee in the same position, although
reference to a comparator in the circumstances of this case was superfluous
given the very obvious reason for the less favourable treatment. The claimant
had demonstrated a prima facie case of discrimination and less
favourable treatment and so it had been for the respondents to prove on balance
that the treatment was in no sense on the grounds of his disability. They had
failed to do so. The Tribunal had not applied the correct test. There had
been candid admissions by the respondents from which direct discrimination
could have been inferred. Mr Cameron described the Tribunal’s treatment
of the direct discrimination claim as “summary and unjust”. If the appeal
against the Tribunal’s decision in relation to the ground of dismissal and the
failure to make reasonable adjustments succeeded then the discriminatory
inference would become irresistible.
33.
Turning specifically to the delay in allowing the claimant to return to
work aspect of the section 13 claim, the evidence illustrated that the
respondents had a tendency to make unsupported assumptions about the claimant’s
state of health and work capability. These were not based on any medical or
other reliable source of information as the Tribunal acknowledged. It was
entirely speculative of the Tribunal to find that the respondents were caring
and concerned parents whose priority was their son as there was no evidence to
support that. Mr Anderson (senior) had applied demeaning stereotypes to
the claimant in his evidence. First, he had stated that employing the claimant
as a mentally disabled person would risk reputational harm to the firm and
secondly, he suggested that the claimant posed a health and safety risk to
himself and others. The assumptions made by the respondents were unfounded and
clearly discriminatory. The Tribunal’s characterisation of the respondents’
faults in this respect as being well-intentioned cannot exonerate them and
unintentional discrimination is still unlawful. The notion that the
respondents could “just tell” that the claimant was unable to work because they
were his parents was irrational and absurd. Accordingly, the Tribunal’s rejection
of the submission in relation to these stereotypical assumptions at
paragraph 381 of the Judgment was flawed. The respondents had agreed
during cross-examination that the claimant could do at least 90% of his former
duties. In the circumstances there was clear evidence that the respondents had
delayed the claimant’s return to work. The Tribunal’s finding that the
respondents wanted him 100% fit before returning was directly discriminatory.
The benchmark of 100% fitness was direct disability discrimination because it
was unachievable and created a complete bar on the claimant working for the
firm as a disabled person.
34.
The focus of direct disability discrimination is a comparative
exercise. However, in Shamoon v Chief Constable of the RUC [2003] UKHL 11 it was suggested that the issues that arise are so closely
related that one might simply ask whether the claimant because of the protected
characteristic (disability) received less favourable treatment than others.
This is the “reason why” question which may often be examined by constructing a
comparator against which the claimant’s treatment can be assessed.
Mr Cameron submitted that the respondents’ concerns about health and
safety as recorded in the Judgment at paragraphs 250 and 251
illustrate that the reason for their delay or refusal in taking the claimant
back to work related directly to his disability. There could be little doubt
that they would not have treated the hypothetical comparator in the same
manner. It was known that Mr Anderson (senior) was involved in a
workplace accident, sustained physical injuries and was absent from work for
two years but then returned. Those were facts against which an educated
guess could be made as to what would happen to the hypothetical comparator. It
was acknowledged that the Tribunal had accepted (at paragraph 372) that an
actual comparator was unnecessary, particularly where the reason for the
treatment is obvious. The Tribunal correctly directed itself to the law,
including the case of Stockton on Tees Borough Council v Aylott [2010] ICR 1278 but then, according to Mr Cameron, circumvented the
law by constructing an awkward and unhelpful comparator and overlooking clear
evidence of discriminatory motivation. The Tribunal had ignored
Mr Anderson (senior’s) position that if the claimant had not suffered the
accident he would still be employed in the business. That evidence effectively
answered the “because of” test in such a way that the section 13 claim should
have been upheld. Accordingly, the Tribunal erred in law in failing to apply
the test for direct discrimination to the facts of the case. There was
sufficient prima facie evidence to shift the burden of proof onto
the respondents to show that the treatment was not on the grounds of disability
but the Tribunal had effectively not subjected the respondents to that
requirement.
35.
It was submitted further that the Tribunal had failed to recognise that
direct discrimination is unlawful regardless of the employer’s motive or
intention and regardless of whether the less favourable treatment of an
employee is conscious or unconscious. It was apparent during the evidence of
Mr and Mrs Anderson that neither of them understood the concept of disability
discrimination and many of their answers amounted to admissions of
discrimination against the claimant, whether with the best intentions or not.
When asked about the claimant’s ability to carry out funerals Mr Anderson
(senior) had said that he could not take the chance on the claimant because the
job was about dealing with people and speaking to people, he referred to
stumbling and balance. This amounted to overt disability discrimination. The
Tribunal had made Findings in Fact which served only to illustrate the
respondents’ discriminatory attitude, including at paragraphs 62, 63, 64,
65, 71, 72 and 73. In essence, these were the findings relating to the
respondents considering that the claimant needed time to heal, suggestions that
he lacked concentration, refusing his requests to return to work part-time on
the basis that he had sustained a serious head injury and needed time to heal
and confirming that they regarded him as unfit to work even when he had
received information from the Job Centre that he could carry out up to
16 hours of work without affecting his benefits. There were further
findings at paragraphs 150, 155, 159 and 162 in a similar vein. In
cross-examination, as already relied on, Mr Anderson (senior) had accepted
a number of listed duties that the claimant could perform. Mr Cameron
submitted that the Tribunal’s attempt to characterise the various statements of
the respondents as non-discriminatory and as illustrating the respondents’
concern for the claimant was erroneous. As the respondents had effectively
admitted that they did not know the extent of the claimant’s injuries and had
made no investigation into his capability their presumptuous approach and
continued delay of the claimant’s return to work was directly discriminatory and
fell foul of section 13. The Tribunal had erred in failing to recognise
that.
(v) Section 15 Discrimination Arising from Disability Claim
36.
In this last chapter Mr Cameron argued that the Tribunal
misapplied the legal test in section 15 of the Equality Act 2010 in
dismissing this claim.Again the claimant had established prima facie facts
which ought to have transferred the burden to the respondent of showing that
the acts or omissions were not less favourable treatment and in no sense
related to the claimant’s disability. Mr Cameron emphasised that the
points made about the burden of proof in the section 13 and
section 20 claims applied equally to this chapter of argument. So far as
section 15 was concerned the claimant had proved that he was Equality Act
disabled, that he had repeatedly requested to return to work, that he was
capable of work, that the respondents had repeatedly refused his request to
return to work without giving any adequate explanation, that he was dismissed
prior to the sale of the business and that the respondents entertained
stereotyped views of his capabilities as a brain injured person which were not
rooted in medical fact. Those facts having been established, the Tribunal
ought to have asked itself what, if any, inference could be drawn from those
facts and had it done so it would have concluded that a powerful discriminatory
inference was created by them.
37.
As explained in the Judgment at paragraph 394, the Tribunal
effectively rejected the section 15 claim as a consequence of its finding
that the respondents did not dismiss the claimant for capability and did not
fail in their duty to make reasonable adjustments. Again, if the claimant’s
appeal against those decisions was successful then the section 15 claim
would have to be considered of new. Reference was made to the
Equality Act Code of Practice and the guidance in relation to
discrimination arising from disability. In particular, it was noted that what
required to be proved was unfavourable treatment with a connection between
whatever led to the unfavourable treatment and the disability. Mr Cameron
submitted that the unfavourable treatment in the claimant’s case arose directly
from the fact that after he had sustained a brain injury the respondents had
not allowed his return to work and then dismissed him. He pointed again to the
respondents’ admission that had the claimant not suffered the accident he would
still be employed. The respondents had failed to allow him to return and to
make modest adjustments to facilitate that return and had decided to dismiss
him to ease the sale of the business. As the respondents had not given any
evidence to justify these acts and omissions the claimant had been treated
unfavourably and the section 15 claim should have been sustained. The
Tribunal had properly directed itself in relation to the law on discrimination
arising from disability and had then given its analysis of the first stage of
the test as follows:
“397. There
was no dispute regarding the fact the claimant asked to return to work on a
number of occasions, and those requests were refused. There was, on the other
hand, evidence before the Tribunal – and the respondent – confirming the
claimant was not fit for work. The fit notes provided to the claimant by his
GP certified he was unfit for work continuously from December 2011 to October
2014.
398. We
concluded that in circumstances where the claimant was not fit to return to
work, there could not have been a delay. A delay could only have occurred once
the claimant was fit to return to work (fully or with adjustments) and that was
not permitted. However, as stated above, the respondents simply refused the
requests to return to work without further consideration. They could have made
enquiries to inform themselves of the position beyond the bald fact of the
claimant thinking himself fit to return to work, and the fit notes. They could
have held discussions with the claimant regarding his capabilities. The
respondent took neither of the above actions and accordingly the Tribunal
concluded the claimant suffered unfavourable treatment when the respondent
rejected his requests without further enquiry.”
Accordingly, it was clear that the first stage of the section 15
test had been found to be satisfied and the claimant had suffered unfavourable
treatment. The Tribunal’s analysis continued as follows:
“399. We next
asked whether the unfavourable treatment suffered by the claimant was because
of something arising in consequence of his disability. Mr Cameron did not
identify, in his submissions, the ‘something arising in consequence of
disability’. We asked ourselves what arose in consequence of the claimant’s
disability, and we concluded it was fatigue, reduced stamina, fear of working
at heights and climbing ladders.
400. We
asked ourselves, did the respondents treat the claimant unfavourably (when they
failed to make enquiries about the claimant’s request to return to work, or to
meet with him to discuss his capabilities) because of his reduced stamina, anxiety
and fear of working at heights and climbing ladders. We answered that question
in the negative. The respondents did not act as they did because of the
claimant’s fatigue etc but because they were unaware that they could approach
the claimant for consent to obtain a report from his GP. Mrs Anderson was
asked in cross-examination whether they had considered approaching the GP, and
she responded to the effect that this had not been considered because it would
be ‘confidential’.
401. We
noted that neither Mr nor Mrs Anderson was asked why they had not ever
considered it appropriate to meet with the claimant to discuss his
capabilities. There was nothing to suggest that they had failed to meet with
the claimant to have such a discussion because of his fatigue etc. They all
met regularly but did not address the issue.
402. We
accordingly concluded that the unfavourable treatment did not occur because of
something arising in consequence of the claimant’s disability. We decided to
dismiss this aspect of the complaint.”
38.
Mr Cameron submitted that the Tribunal’s decision to exonerate the
respondents because Mrs Anderson did not know she could ask the claimant
to produce a medical note was an error as ignorance of the legal position could
not excuse the respondents. It is clear from the Equality Act Code of Practice
that it is for the employer to justify the unfavourable treatment and that
evidence must be produced to support an assertion that it was justified. The
constant theme of the interactions between the claimant and the respondents
between December 2011 and September 2014 had been his disability and
request to return to work. Accordingly the respondents’ ignorance of how to
manage an absent disabled employee was an aggravation rather than a defence to
his claim. If the Tribunal’s rejection of the section 15 claim on this
basis was correct, then employers could easily defeat future claims of this
type by pleading inaction and ignorance. As a result of their error at this
stage of the test the Tribunal had not progressed to the last stage and examine
whether the respondents had led any evidence whatsoever to show that the
unfavourable treatment was a proportionate means of achieving a legitimate aim
or that they had no knowledge of the claimant’s disability. There is no small
or family firm exemption in the Equality Act provisions and the Tribunal
had been unduly lenient to the benefit of the respondents and detriment of the
claimants in their analysis. Further, there was an inconsistency between the
Tribunal’s rationale regarding the section 15 claim and their findings at
paragraph 366 of the Judgment in relation to the reasonable adjustments
claim. They had held there that the reason why the claimant could not return
to work was because the respondent believed he was not fit do so.
39.
It was submitted further that the decision on the section 15 claim
was insufficiently reasoned and also perverse. The Tribunal had elevated
aggravating factors such as ignorance of the law and poor and ill-informed
management policies and decisions to the status of an impregnable defence.
Having identified the correct legal test the Tribunal had then effectively
sought to circumvent it.
The Respondent’s Arguments in Response
40.
Mr Edward replied to Mr Cameron’s submissions in broadly the
same order as the arguments had been presented and for convenience I will use
the same headings as were used on behalf of the claimant so that the response
corresponds to the principal arguments.
(i) The Reason for Dismissal
41.
Counsel for the respondents pointed out that the reason for dismissal, a
breakdown in relationships, was included in an amended ET3 and so was averred
by the respondents in the pleadings. It was responded to in submissions by the
claimant which the Tribunal records at paragraphs 240 and 241 of the
Judgment and was also contained within the claimant’s written submissions to
the Tribunal. Further, there was significant evidence and argument before the
Tribunal on the issue of the breakdown of relationships. In particular, the
claimant in his evidence in chief disputed his father’s evidence about whether
or not he could work with his son Ross. The respondents’ position about the
meeting in September 2014 when, according to Mr Anderson (senior), he
asked the claimant if he could work with Ross was disputed by the claimant who
also contended that he did not swear at his parents. The employment judge had
noted that evidence. In cross-examination it was put to the claimant that he
had a problem working with Ross even prior to the accident which the claimant
disputed although said that he had tried to teach Ross joinery but that his son
was not really interested. It was also put to him that he was angry at the
meeting on 8 September and that is why he said to his parents “You’ll
fucking pay for this” although that was disputed by the claimant. Again that
was recorded in the judge’s notes and the Tribunal had required to decide where
it fitted into the case. Further, the Tribunal had analysed carefully all of
the witnesses’ evidence and had given careful treatment to the evidence of
Mr Anderson (senior) at paragraphs 152-159. The complaints made by
Mr Cameron about Mr Anderson’s evidence are all recorded and dealt with.
In essence the Tribunal had found that Mr Anderson was honest but
sometimes confused. He was 80 years old and gave evidence for a long time
at the hearing. There is no doubt that his evidence was contradictory in parts
and the Tribunal had some concerns about whether he had understood those
parts. It was entirely open to the Tribunal to accept parts of
Mr Anderson (senior)’s evidence and to reject other parts. That they had
done so was consistent with their overall findings.
42.
The most significant findings of the Tribunal to support the conclusion
that the dismissal of the claimant was for some other substantial reason,
namely the breakdown in relationships are contained in paragraphs 91 – 95
of the Judgment. The context was that the claimant had discovered that the
offer proposed by his son Ross for purchase of the business, which had been
substantially higher than his own, had been accepted. He had been worked up
and went to his parents’ house demanding to know what had happened. The
Tribunal records that Mr Anderson had already asked Ross if he could work
with his father and Ross had answered in the negative. At the meeting on 8
or 9 September Mr Anderson (senior) had then asked the claimant
whether he could work with his son Ross. The claimant’s answer, recorded at
paragraph 93 of the Judgment, was clearly unsupportive of the idea that
the claimant could work in a business owned by his son. The Tribunal also
found that the claimant had threatened his parents on departure and had
subsequently gone to the workshop where he had seemingly acknowledged to other
employees that he had “blown it” with his parents. The passage of the Judgment
finishes with a finding that the claimant has not spoken to his father again.
These were the principal findings that form the basis for the Tribunal’s
lengthy discussion at paragraphs 283 – 327 in relation to the unfair
dismissal aspect of the case. In particular, at paragraph 313 the
Tribunal concluded that the change in the relationship between the claimant and
his parents was not the claimant becoming disabled but was the sale of the
business to Ross Anderson. On the issue of the meeting at his parents’
house on 9 September the Tribunal (at paragraph 314) specifically
preferred the evidence of Mr Anderson (senior) to that of the claimant on
the matter. The Tribunal concluded (at paragraph 316) that the reason for
the dismissal was the breakdown in the relationship “between the parties”.
Although the Tribunal pin-pointed Mr Anderson’s belief that the claimant
and Ross Anderson could not work together in the undertaking business it
was clear that it was the impact of that on the respondent that created the
circumstances of the dismissal.
43.
On the issue of whether the reason for the dismissal has to be in the
mind of the employer at the time, Mr Edward pointed out that the Tribunal
had been satisfied that the date of the termination of employment was
25 September 2016. They accepted that Mr Anderson (senior)
genuinely believed at that time that Ross and the claimant could not work
together anymore. That was the genuine belief required. Regardless of whether
the respondents had characterised the facts as frustration or abandonment of
the contract, it was sufficient for the Tribunal’s conclusion that there was
evidence of the breakdown in the wider family relationships. It was clear from
the evidence that the relationship between the claimant and his father had not
always been a smooth one but the actual breakdown came in the context of the
sale of the business and Ross Anderson saying he could not work his
father. That in turn led Mr Anderson (senior) to believe that the
relationship between the claimant and his son had broken down. Accordingly, if
it was necessary for the reason to be in the mind of the employer at the time,
it was sufficient in the findings of the Tribunal to conclude that the
breakdown in the relationship between father and son was in Mr Anderson’s
mind. In any event, it is open to an Employment Tribunal to make a finding on
the reason for the dismissal whether clearly pled or not. In the circumstances
of this case the breakdown of relationships was ventilated in evidence and it
was open to the Tribunal to find a reason not relied on by either party if that
is how it has to be regarded – Kuzel v Roche Products Limited [2008] ICR 799.
44.
Turning to the issue of whether a breakdown in relationships can be a
potentially fair reason for dismissal where the employer has not attempted to
resolve a breakdown in the relationship, Mr Edward referred to one of the
cases relied on by Mr Cameron, namely Turner v Vestric Limited
[1980] ICR 528. He pointed out that in that case the EAT had not
discounted a personality clash or breakdown in a working relationship as a
potentially fair reason for dismissal. It had been found that the dismissal
was due to a breakdown in a working relationship but in moving to the stage of
deciding whether that dismissal was fair, account had to be taken of whether
the employers had tried to improve the relationship. In the present case there
was a finding of unfair dismissal. It could not be said that the Tribunal
could not reasonably have reached the decision that it did on the reason for
dismissal before going on to find that the dismissal was unfair due to lack of
any proper procedure. The claimant in this case appeared to persist in an
argument that he was dismissed to ease the sale of the business to
Ross Anderson in a situation where he was disabled and should have been
catered for. However, no claim was taken against the transferee purchaser of
the business and there were no findings that this was a TUPE transfer
situation. In a situation where an employee is unfairly dismissed by reason of
the transfer of a business that employee is deemed to have transferred to the
new employer (Litster v Forth Ports Authority). Accordingly, if
the claimant’s position was that he was in any way dismissed by reason of the
transfer of the business that was a claim he could have taken and did not.
45.
In essence as on so many other aspects of the evidence the Tribunal had
to choose between the claimant’s version of events and his father’s version of
events and by and large had preferred the evidence of Mr Anderson
(senior).
(ii) The Polkey Deduction
46.
Counsel for the respondents acknowledged that the issue of a Polkey
deduction does not fit easily in any case with being either part of a merits
hearing or a remedies hearing. There are numerous examples of Polkey
deductions being made as part of a merits decision. The first and essential
finding was that of unfair dismissal which was present in this case. While a
separate remedies hearing is normal if there is also a finding of
discrimination because damages can be particularly complex in the area of
discrimination, in unfair dismissal cases it is not unusual for a Tribunal to
address in the merits decision the question of what the chances were of the
employee being dismissed anyway. Mr Edward confirmed that he had made
submissions to the Tribunal first and had included passages on a Polkey
deduction. The claimant had made written submissions on the Polkey
point and lodged these with the Tribunal. The Judgment records the matter
adequately. At paragraph 231 it is recorded that the claimant’s representative
had submitted that there were no Polkey circumstances to take
into account. The Tribunal then recorded at paragraph 328 that the case
of Polkey had been referred to by both representatives and that
accordingly it would consider what would have happened if a fair procedure had
been followed. That paragraph is immediately followed by a summary of Counsel
for the respondents’ submission that the employment relationship would have
terminated anyway even if the dismissal had not been unfair. At paragraph 330,
the invitation of Mr Cameron to find that there was no evidence on which
to base any conclusions as to what might have happened if a fair procedure had
been followed is recorded but then, at paragraph 331, is rejected. The
Tribunal then gave brief reasons which have to be seen in the context of all
the other findings they have made for their decision that there should be a 60%
deduction as representing the chance that the claimant would have still been
dismissed. In essence what had occurred was that as with many other points
there had been conflicting arguments and both sides had the opportunity to
respond to the other side’s submissions. No issue had arisen about the
inappropriateness of a Polkey deduction argument being made. As
with all such arguments the Tribunal had to engage in a little speculation on
the point which was perfectly permissible. The requirement was for the
Tribunal to consider the point if there was any evidence on which it could do
so. The Tribunal effected that consideration and found that the outcome of the
events of 8 and 9 September 2014 would likely have resulted in dismissal
of the claimant. The respondent had argued for a 100% deduction on the basis
that there was really a certainty that the claimant would have been dismissed.
That clearly had not found favour with the Tribunal which had, in all the
circumstances, decided on a 60% deduction. In order to overturn that finding
the claimant would have to show that no reasonable Tribunal would have fixed
the percentage at 60%. Mr Edward submitted that there was no basis for
interference with the Tribunal’s decision in this respect.
(iii) Failure to Make Reasonable Adjustments Claim
47.
Mr Edward submitted that the crucial finding in fact in relation to
the whole chapter relating to reasonable adjustments was that the claimant was
not fit to return to work at any time prior to his dismissal in September
2014. That finding did not depend on the respondents’ level of knowledge of
the claimant’s fitness. It was a finding based on all of the evidence relating
to the accident, the claimant’s recovery, the insurance claim, the GP fit notes
and the evidence of the claimant and Mr Gentleman. As a matter of law the
duty on the respondents to make adjustments only arises where there is a
provision criterion or practice (PCP) that puts the claimant at a substantial
disadvantage when working. What the Tribunal required to do in this section of
the case was to address a very clear conflict in the evidence. The claimant’s
evidence was that he was fit to work but there was conflicting evidence,
including the fit notes and their use for the insurance claim. Again an appeal
in relation to this aspect of the case could only succeed, submitted
Mr Edward, if no reasonable Employment Tribunal could have concluded that
the claimant was not fit to return to work and so the duty to make reasonable
adjustments did not arise. The Tribunal had clearly explained its reasoning
with regard to Mr Gentleman’s report at paragraphs 141 – 147 of the
Judgment. Further, it had accepted the respondents’ evidence that the claimant
was unfit to return to work. So far as the fit notes evidence was concerned,
Mr Anderson (senior) accepted in cross-examination that he had assumed
that the claimant was faxing the sick lines to AXA. Mrs Anderson said
that she personally would fax the fit notes to AXA although she never read
them. The judges notes also record that the claimant gave evidence that his GP
visited weekly following the accident and then on a monthly basis. The fit
notes were specifically put to the claimant in evidence who said in
examination-in-chief that his parents knew he was faxing them to the insurance
company. Accordingly, the Tribunal was correct to record that there was no
real dispute about the use to which the fit notes were put. The employment
judge’s notes also record that the claimant’s General Practitioner was
concerned about the idea of him returning to work. Turning to the fit notes
themselves, the first batch available to the Tribunal and spoken to in evidence
did not address the option of the claimant returning to work on a phased
basis. Thereafter, all of the fit notes contained a striking through of that
particular option. There were 14 fit notes from November 2013 to September 2014
in which the GP had struck out the option of a phased return to work. The AXA
reference number is also included in the comments section of those later fit
notes. In her evidence, Mrs Wray had confirmed that the claimant had a very
good relationship with his GP and visited him once a month and that the doctor
was well aware of all the claimant’s health issues. Taking all of that into
account there was ample evidence before the Tribunal that the fit notes had
been used to support a contention that the claimant was unfit for work. The
Employment Tribunal had to decide what evidence to prefer on this point given
the clear contradiction between submission of the fit notes and the claimant’s
position to the Tribunal on his own fitness.
48.
Mr Edward recalled that at the hearing Mr Cameron had made an
extraordinary submission in relation to the fit notes and this was noted by the
employment judge as being “GP prepared a fit note for AXA in order to get money
– prepared in knowledge of claimant’s fitness…” It was that development that
was behind the Tribunal’s consideration of the point at paragraphs 132 to
147 of the Judgment. The Tribunal faced the argument made on behalf of the
claimant “head on” at paragraph 140, rejecting the submission that the
General Practitioner had certified the claimant as unfit for work on the fit
notes in order for the claimant to obtain insurance money whilst disregarding
an accurate assessment of the claimant’s medical condition. Against that
background, if the claimant now wanted to contend that no reasonable Tribunal
could have accepted the fit notes as against the claimant’s evidence, that
would have to be on the basis that the claimant’s representative’s argument
that the fit notes were prepared in order to get money regardless of the
claimant’s state of health should have been accepted. In other words, the
Tribunal and the Appeal Tribunal would have to accept that the General
Practitioner involved in this case falsely claimed that the claimant was unfit
so that there could be a financial gain. Mr Edward submitted that it was
difficult to see how the Tribunal’s conclusion in this respect could be
erroneous or perverse.
49.
So far as the evidence of Mr Gentleman, Mr Davies and
Mrs Maxwell were concerned, Mr Cameron had claimed that
Mr Gentlemen had access to all the claimant’s medical records. However,
the judge’s notes recorded that the witness had confirmed he had not seen the
GP records. It was not disputed for the respondents that Mr Gentleman was
an expert, but clearly he was dependant on what the claimant told him, he did
not have access to the GP records and the Tribunal was under no obligation to
accept his evidence on fitness to work where it conflicted with the other
evidence that it had accepted. So far as Peter Davies was concerned he
had not been cross-examined because again he was just repeating what he had
been told by the claimant. He had not looked at the claimant’s workplace or
spoken to the respondents about what adjustments could have been possible. The
interview with Mr Davies took place in August 2015 as confirmed in
paragraph 167 of the Judgment. So far as Mrs Maxwell was concerned
the Tribunal records that while at first she gave evidence that the claimant
would have coped with a phased return to work in September 2012 she
retracted a little in cross‑examination and acknowledged that a return to
work would depend on what level of work had to be carried out. The Tribunal’s
conclusion on fitness to work was based also on the evidence of the main
parties themselves. It is clear from the Judgment that the Tribunal did not
accept as entirely credible or reliable the claimant’s account of being fit for
work (para 171). It was noteworthy also that the claimant had written a
letter to his parents on 8 September 2014 in which he described himself as
no longer physically fit enough to cope with heavy work. The Tribunal had not
skirted over the matter of the claimant’s fitness without proper analysis. At
paragraph 179 it listed all of the inconsistencies in the claimant’s
evidence regarding his fitness for work recording that these were
inconsistencies that could not be reconciled. Mr Edward submitted that
the Tribunal was entitled to prefer the evidence that was consistent with the fit
notes to any reports prepared for litigation where these were reliant on input
from the claimant. The Tribunal reached the clear conclusion that “… the
claimant exaggerated his evidence and sought to rewrite history with regard to
his fitness for work, at that time” (para 180). The reasons for the
rejection of the claimant’s position are set out at paragraphs 181 – 188.
They included the Tribunal’s view that the letter of 8 September sent to
his parents and Mrs Wray’s evidence cast doubt on the credibility of the
claimant’s case. For all these reasons, this was not a case of the Tribunal
simply balancing the fit notes on the one hand against expert evidence on the
other. The conclusion reached was made after a consideration of all of the
evidence of the claimant, Mrs Wray and the respondents as well as the
documentary and expert evidence. There was ample evidence to support the
finding that the claimant was not fit to return to work at any time during the
relevant period. The evidence in support of that conclusion is all mentioned
in paragraphs 121 – 147 of the Judgment. There was no basis for the
submission that no reasonable Tribunal would have so concluded.
50.
Counsel addressed the argument that had been made by Mr Cameron
that the Tribunal had effectively inverted the usual onus by finding that it
was for the claimant to produce medical evidence to support his position that
he was fit to return to work or to support his request to return to work
(paragraphs 350 and 351). Mr Edward submitted that the argument on
this had ignored the Tribunal’s reasoning at paragraph 349 of the Judgment
which made clear that it was the bald assertion by the claimant to his parents
that he could return to work, without support of medical evidence that had to
be balanced against his continued certification by his GP as being unfit for
work. It was in those circumstances that the absence of supporting medical
evidence resulted in there being no sufficient basis to trigger the duty to
make reasonable adjustment. Again, the Tribunal’s detailed analysis of the
fitness to work issue at paragraphs 171 – 190 of the Judgment had to be
read together with the conclusions they reached at 349, 350 and 351 in relation
to this issue. In essence there was absolutely nothing before the respondents
as employers to support an assertion by the claimant that he could return to
work if adjustments were made. The Tribunal had recorded (at
paragraph 351) that Mr Gentleman had explained that it was not
uncommon for people to want to return to work too early. There had to be
something more than the claimant’s bald assertion, conflicting as it did with
the fit notes. The only medical information available was the fit notes and
the GP had never amended those to indicate that the claimant might be fit to
work if adjustments were made. Once that background was understood, it was
apparent that the Tribunal did not conclude that as a matter of law a claimant
must secure their own medical evidence to trigger the duty to make reasonable
adjustments. Rather, it had simply looked at all the facts that had emerged in
evidence and concluded and that there was no medical evidence to counter the
statements in the fit notes that the claimant continued to be unfit to work
generally.
51.
In response to the claimant’s arguments in the 17th Ground of
Appeal in relation to the identification of a provision criterion or practice
(PCP) Mr Edward referred to paragraphs 357 – 367 of the Judgment. He
submitted that it was important to note that this section of Judgment was all
presented on an esto basis, namely that if the Tribunal was found to be
wrong in relation to the duty to make reasonable adjustments not having been
triggered, then the conclusion would have been that the claimant had identified
the incorrect PCP. In any event, while it was clearly not essential to fix a
named comparator for the purposes of section 20, it was necessary for the
employee to identify the PCP that puts them at a substantial disadvantage.
Although the Tribunal had identified that the PCP would have been that he be
100% fit the claimant had failed to establish either that he was fit for work
or that there was actually such a PCP. It was insufficient for the claimant to
point to the discriminatory nature of a PCP never identified by him. It did
not matter that any PCP identified might be discriminatory as it will always be
something that is to the employee’s disadvantage.
52.
On the claimant’s 18th Ground of Appeal, Counsel
submitted that the claimant’s position appeared to be that there was a duty on
the respondents to discuss or consult with the claimant in relation to
reasonable adjustments. However, the legislation was quite clear and stated
only that there is a duty to make reasonable adjustments where the duty
is triggered. The consultation itself did not go towards fulfilment of the
duty, because if the duty was triggered then the adjustments must actually be
made. The process that an employer might adopt in working towards fulfilling
the duty is irrelevant. In Royal Bank of Scotland v Ashton [2011] ICR 632 it was held that in a reasonable adjustments case, the
focus had to be on the practical result of the measures that could be taken by
the employer and not on the process of reasoning leading to the making of or
failure to make a reasonable adjustment. Accordingly, any failure to consult
the employee would take the claimant nowhere in this appeal. It was also noted
that while some aspects of the EAT decision in Ashton had been
overruled by the Court of Appeal in Newham Sixth Form College v Sanders
[2014] EWCA Civ 734, it had been specifically approved on the
point about the result rather than the process being the only relevant matter.
The case of BS v Dundee City Council [2013] CSIH 91 relied
on by Mr Cameron in relation to a duty to consult related only to
circumstances in which dismissal was contemplated by reason of capability. The
decision in that case was to the effect that a reasonable employer would
investigate and obtain medical evidence before dismissing an employee on that
ground.
(iv) The Section 13 Direct Disability Discrimination Claim
53.
Counsel submitted that the Tribunal’s treatment of the section 13
claim was set out in some detail in paragraphs 369 – 392 of the Judgment.
As the duty to make reasonable adjustments had not been triggered while the
claimant was unfit to return to work then clearly any delay in making
reasonable adjustments and the fact of dismissal were not relevant under this
head. The Tribunal did consider in detail the issue of whether the claim of
less favourable treatment through a delay in having the claimant return to work
had been made out. Mr Cameron had made much in his submission of alleged
stereotyped views on the part of the respondents. While that allegation was
not accepted by the respondents, as a matter of law it was less favourable
treatment that was relevant for the purposes of any section 13 claim not
private views or thoughts. So far as the issue of a comparator was concerned,
there was no difficulty with the hypothetical comparator used by the Tribunal
at paragraph 388. The claimant’s appeal at various stages sought to argue
burden of proof issues but the burden of proof had not been the determining
factor in this case. Both in relation to this issue and others, the Tribunal
had been satisfied after hearing all of the evidence that the claimant’s
assertions in this respect had not been made out. There was clearly an overlap
between the evidence on other aspects of the discrimination claim and this
one. The Tribunal’s earlier conclusion that the claimant was not fit to return
to work at any time during the relevant period, was the basis for the
conclusion that there could not have been said to be any delay in allowing him
to return. The issue of “reputational damage” had been dealt with adequately
by the Tribunal. It had been entitled to accept the evidence of
Mr Anderson (senior) that it was not the risk to reputational damage that
had resulted in any delay in allowing the claimant to return to work but a
concern about the claimant’s health (paragraph 384). The judge’s notes
recorded also that the claimant himself had accepted that his parents had never
said that he would not be a good public face for the business. Accordingly, the
evidence did not support any contention that the respondents were worried about
reputational damage in refusing any of the claimant’s requests to return to
work.
(v) Section 15 Discrimination Arising from Disability Claim
54.
In answering the points made on behalf of the claimant on the grounds
relating to section 15, Mr Edward submitted that at
paragraphs 393 – 402 of the Judgment the Tribunal had identified and
applied the correct test. The conclusion of the Tribunal was that while there
had been unfavourable treatment that was not in consequence of the claimant’s
disability. The claimant had never identified what the “something” in
consequence of his disability was for the purposes of a section 15 claim.
Mr Cameron had attacked the conclusion of the Tribunal at
paragraph 355 that they simply could not know whether the claimant would
have been able to obtain a fit note stating he was fit to return to work if the
respondents had offered to make reasonable adjustments on any such return.
That was a conclusion the Tribunal was entitled to reach on the basis of all
the evidence it had heard. On the issue in Ground of Appeal 23 in which
the Tribunal had been criticised by the claimant for concluding that the
primary relationship between the claimant and respondents was one of parents
and son rather than employer and employee, Mr Edward questioned why it
would be that the respondents were somehow not entitled to have that personal
relationship at the heart of their decisions. In all of these grounds it was
important to remember that the Employment Tribunal had not regarded the
respondents as blameless or allowed them to escape without liability as it had
found that the claimant had been unfairly dismissed. When considering the discrimination
claims, however, different considerations applied. The statutory test of
whether the unfavourable treatment arose because of the claimant’s disability
was the issue that had to be faced. The Tribunal concluded that the treatment
of the claimant was not because of his disability but because of what had
occurred within the family relationships. Accordingly, the Tribunal had
applied the correct test and its conclusion could not be faulted. The family
relationships were an important part of the background circumstances of the
case but could not have been said to have clouded the Tribunal’s Judgment on
any of the issues before them.
Further Submissions on Behalf of the Claimant
55.
Mr Cameron sought to make further submissions following the conclusion
of argument by Counsel for the respondents. To the extent that these repeated
some of the points made earlier I will not rehearse them. On the Polkey
deduction Mr Cameron appeared to maintain that he had not made the
submissions attributed to him at paragraph 330 of the Judgment. He
continued to claim that Mr Edward had relied on the breakdown in family
relationships as reason for dismissal only in relation to this aspect of the
case and that the claimant had taken it that the respondents wanted to address
a Polkey deduction at the remedies hearing.
56.
On the various discrimination claims, Mr Cameron accepted that the
decision may ultimately be based on whether the Tribunal was entitled to prefer
the fit notes to the other evidence in the case. However, even if they could,
the “incidental factors” then became important and according to Mr Cameron
could not be justified on the evidence. It was not sufficient for the Tribunal
to prefer the fit notes on the basis that they were contemporaneous. It was
important that Mr Gentleman had not been cross-examined on the fit notes
that flatly contradicted the opinion he was expressing. Mr Cameron
claimed that it was within judicial knowledge that an employee can return to
work, at least on a phased return, even where there are fit notes advising
against it. He contended that it would “go against the grain of how things
work” if the EAT confirmed that fit notes should prevail over other evidence.
Mr Cameron also claimed that the judge’s notes, as quoted by
Mr Edward, had misrepresented what he had said in relation to the fit
notes and denied that he would make a submission as crude as that recorded by
the judge. However, he accepted that his position had been correctly recorded
by the Tribunal in the Judgment at paragraph 272. He maintained that it
was perfectly reasonable and in no sense improper to contend that the GP was
being pragmatic in continuing to sign fit notes when he knew that the claimant
was able to work. Finally, Mr Cameron returned to the question of the
circumstances of 8 and 9 September 2004 and maintained that the
claimant had not known who the successful bidder was at that time.
Discussion
57.
In recording the main points of the submissions made at the appeal
hearing, I have restricted the narrative to those submissions that properly
contained issues of whether the Tribunal had erred in its approach.
Unfortunately, Mr Cameron’s submissions continued to make various
criticisms of the Tribunal’s treatment of the credibility and reliability of
the witnesses despite the appeal not having been permitted to proceed on that
basis. I have put any such submissions to one side, just as I have ignored
suggestions made that somehow the Tribunal in this case was determined to treat
the respondents’ evidence as charitably as possible insofar as it appeared to
hint at some form of bias which was specifically stated to be something not
relied on by the claimant. Further, insofar as there were challenges to the
Tribunal’s findings where it was clear that it had simply preferred the
evidence of the one witness to another (eg in relation to the breakdown of the
claimant’s work as between the joinery business and the funeral side) I have
left these out of account as not even arguably illustrative of any error.
Against the background of those preliminary marks I will address the arguments
in the order in which they were presented.
The Reason for Dismissal
58.
A considerable amount of time was spent at the hearing on the issue of
whether the respondents had given notice that the claimant was dismissed for
some other substantial reason and in particular whether the basis for the
dismissal ultimately found by the Tribunal was one of which the claimant had
fair notice. I am satisfied that the issue of the breakdown of relationships
as a reason for dismissal had been highlighted for the respondents in the
amended ET3. The particular relationship that the Tribunal founded upon as
having been the one forming the catalyst for the dismissal was a slightly
narrower reason than that contended for by the respondents. The issue, then,
is whether the Tribunal had been entitled to find, on the evidence, that
Mr Anderson’s understanding of the breakdown in the relationship between
Ross Anderson and the claimant was the real reason for the dismissal. The
starting point on that is that it is for the Tribunal, having heard all of the
evidence, to identify the reason or principal reason for the dismissal. That
reason may not precisely coincide with the reason proposed by either side. As
Mummery LJ expressed matters in Kuzel v Roche Products Ltd [2008] ICR 799 at paragraphs 58 – 60:
“58. Having heard the evidence of both sides relating to
the reason for dismissal it will then be for the Tribunal to consider the
evidence as a whole and to make findings of primary fact on the basis of direct
evidence or by reasonable inferences from primary facts established by the
evidence are not contested in the evidence.
59. The
Tribunal must then decide what was the reason or principal reason for the
dismissal of the claimant on the basis that it was for the employer to show
what the reason was. If the employer does not show to the satisfaction of the
Tribunal that the reason was what he asserted it was, it is open to the Tribunal
to find that the reason was what the employee asserted it was. But it is not
correct to say, either as a matter of law or logic, that the Tribunal must find
that, if the reason was not asserted by the employer, then it must have been
for the reason asserted by the employee. That may often be the outcome in
practice, but it is not necessarily so.
60. As it
is a matter of fact, the identification of the reason or principal reason turns
on direct evidence and permissible inferences from it. It may be open to the
Tribunal to find that, on a consideration of all the evidence in the particular
case, the true reason for dismissal was not that advanced by either side.”
Applying that to the situation in which the Tribunal found itself in this
case, it is clear that the Tribunal concluded that the circumstances of the
exchanges between the claimant and his parents in early September 2014 had
a material bearing on the reason for the termination of the claimant’s
employment. It was an undisputed fact that the context of the dismissal was
the sale of the business by the respondents to Ross Anderson. In the
absence of any contention by the claimant that he should be regarded as having
been transferred as an employee to the new business, the actor in his dismissal
was clearly his father, Mr Anderson (senior). At the time of the
dismissal the respondents continued to own the business. Accordingly, the
reason for the dismissal and subsequent examination of the fairness or
otherwise of that dismissal were matters that were for the respondents to
explain. That the relationships within the family had become acrimonious is
clear from the Tribunal’s findings in fact 90 – 96. It was following the
unpleasant incident that took place when the claimant discovered Ross had
offered successfully for the business that the respondents first took action to
terminate the employment relationship. While the letter of 25 September
2014 that brought the relationship to an end was not entirely clear in its
terms or consistent with the reason later found by the Tribunal, in my view
that does not point to any error on the part of the Tribunal for concluding
that the real reason for the dismissal was somewhat more nuanced than that
which the respondents suggested as a fall-back position in their amended ET3.
There was evidence, albeit hearsay, that Ross Anderson had said that he could
not work with the claimant. There was also evidence that the claimant has not
spoken to his father since the meeting on 9 September 2014. The
claimant’s dismissal followed shortly thereafter. Accordingly, there was
sufficient evidence entitling the Tribunal to reach the conclusion that it did
at paragraph 316 that the reason for the dismissal was the breakdown in
the relationship between the parties. I note that the claimant’s
representative’s complaint about the weakness of the some other substantial
reason defence was a point made in submissions to the Tribunal – see
paragraph 240 of the Judgment. The some other substantial reason for
dismissal was accordingly very much a live issue before the Tribunal in the
pleadings, in evidence and in argument. Further, there was sufficient in the
evidence for the Tribunal to conclude that the breakdown in the parties’
relationship was the respondents’ reason at the time of the dismissal. While
it was not the reason given in the termination letter, the primary facts established
illustrated that the events of 8 and 9 September 2014 were a
watershed. The Tribunal could infer from that that there could be no future in
the employer/employee relationship thereafter.
59.
Mr Cameron relied in this context on the case of Summer v
Handshake UKEAT/0216/12 as support for the proposition that a power
struggle for control of a business is not synonymous with a breakdown in trust
and confidence where the relationship was still functioning to the extent
necessary for each employee to carry out his job. However, in the present case
the evidence supported a conclusion that relationships between the various
parties were not functioning to that necessary extent. Ross Anderson said
he could not work with his father and the claimant had been aggressive,
unhelpful and sarcastic when asked whether he could work with his son. So far
as the decision in Turner v Vestrick [1981] IRLR 23 is
concerned, as Mr Edward pointed out, there is no position taken in that
case that a dismissal arising from personality differences cannot constitute a
potentially fair reason for dismissal. The decision in Turner
was only that where a dismissal was due to a breakdown in a working
relationship; it was necessary, before deciding whether or not that dismissal
was fair, to ascertain whether the employers had taken reasonable steps to try
to improve the relationship. While the Tribunal in this case found that the
dismissal was unfair on other grounds, it might equally have found that the
respondents should have taken steps to see if the relationship between
Ross Anderson and his father was able to be repaired. However, this
Ground of Appeal goes to the finding that the breakdown in the relationship was
the reason for the dismissal rather than any attack on the subsequent decision
that the dismissal was unfair and the reasons for that. Accordingly, I do not
consider that the decisions in Summer v Handshake and Turner
v Vestrick assist the claimant’s argument.
60.
For the reasons given above, I reject Mr Cameron’s contention that
the some other substantial reason for dismissal was not properly canvassed or
that the claimant had no adequate opportunity to consider and answer it. I
have explained also why there cannot be said to have been insufficient evidence
on which the Tribunal could ascertain the real reason for dismissal. In
relation to Mr Cameron’s argument that the finding of the reason for the
dismissal was perverse, this appeared to be based on the lack of any evidence
about a breakdown in the employment relationship between the claimant and
Ross Anderson. I have already dealt with that and concluded that the
Tribunal had made sufficient findings on that matter. It seemed to me that
Mr Cameron took the Tribunal’s acknowledgement of Mr Anderson (senior’s)
confused evidence out of context. I do not consider that there is any
particular inconsistency between an 80 year old man becoming confused in
evidence about the precise legal nature of his defence was and the primary
facts of a breakdown in relationships being established. Accordingly, I also
reject the contention that the Tribunal’s conclusion on the whole reason of the
issue for dismissal was perverse.
The Polkey Deduction
61.
The claim made in this Ground of Appeal was that the Tribunal had held
that a Polkey deduction of 60% was appropriate without inviting
or hearing any evidence or submissions from the parties on that subject.
However, there is ample material to support the position of the respondent in
this case that both sides had made written submissions on the Polkey
point and lodged them with the Tribunal. It is specifically recorded at
paragraph 231 of the Judgment that Mr Cameron had submitted that
there were no Polkey circumstances to take into account. The
Tribunal disagreed and went on to consider what would have happened in this
case if a fair procedure had been followed. Accordingly, I reject the
contention that there was no basis upon which the Tribunal could consider
whether to make a deduction. The issue really is whether the specific
percentage of 60% was so speculative that does not meet even the minimum
standard required in such an exercise. Mr Cameron acknowledged that a
certain amount of speculation is always required in making this assessment.
The question is whether the Tribunal in this case went beyond the permissible
level of speculation into something unreasoned and without foundation. In the
case of Thornett v Scope [2007] ICR 236 the Court of Appeal
(Pill LJ) expressed the following view on the assessment of future loss by
a Tribunal:
“Any assessment of a future loss,
including one that the employment will continue indefinitely, is by way of
prediction and inevitably involves a speculative element. Judges and Tribunals
are very familiar with making predictions based on the evidence they have
heard. The Tribunal’s statutory duty may involve such predictions and
Tribunals cannot be expected, or even allowed, to opt out of that duty because their
task is a difficult one and may involve speculation.”
The Court of Appeal went on (at paragraph 39) to note that when a
Tribunal reaches a conclusion as to what is likely to have happened had the
employment been allowed to continue, the reasons for that conclusion and the
factors relied on must be sufficiently stated. In the present case, the
Tribunal sets that out at paragraph 331. The view was reached that had
the respondents arranged a meeting following the events of 8 and
9 September the claimant would have attended but that he would still have
been dismissed. The reasons for that are to be found in the preceding
paragraphs, particularly paragraphs 324 and 325 relating to the
circumstances of the business and the breakdown in the relationship. There is
accordingly brief though sufficient reasoning in relation to what would have
occurred. So far as the 60% chance that the claimant would have still been
dismissed is concerned, as Mr Edward pointed out, the respondents’
position was that the claimant would still have been dismissed and sought a
100% deduction. The Tribunal considered it more likely than not that the
claimant would still have been dismissed, thus signalling that the percentage
deduction was going to be more than 50%. However, the respondents’ argument
that it was a certainty that he would still have been dismissed did not find
favour as the Tribunal considered that some form of resolution or agreement may
have been reached. It was on that basis that the 60% figure was fixed.
62.
In my view, the short section on the Polkey deduction in
the Judgment has to be read in light of what comes before it. The Tribunal had
made detailed findings in fact about the whole unfortunate history of the
claimant’s accident, his absence from work thereafter and the circumstances in
which his employment terminated. Then there were the findings in relation to
the sale of the business which was the context in which the acrimony arose,
albeit that Mr Anderson (senior) was still making the decisions in relation
to the employment situation. All of that is reflected in the Tribunal’s view
that the claimant would on balance probably have been dismissed even if there
had been no procedural unfairness. The permissible speculation element relates
to the Tribunal’s conclusion about what would have occurred had a fair
procedure been followed. The specific percentage, on the Tribunal’s analysis,
would logically be in excess of 50%. The 60% chance simply reflected the
likelihood of dismissal, while making clear that the respondents’ position that
dismissal without agreement was inevitable was not being accepted. In the
circumstances I conclude that the issue of a Polkey deduction was
a live one before the Tribunal on which a decision required to be made. While
the Tribunal indulged in the permissible speculation necessarily required in
such an exercise, in my view it did not go beyond the legitimate parameters of
that exercise. There was little more that the Tribunal could have said in
relation to its assessment of the chance of dismissal being 60% rather than
55%, 65%, 70% and so on. It was a judgment made by a Tribunal fully acquainted
with the detailed facts if the case. I am not persuaded that the claimant has
shown that no reasonable Tribunal would have approached the matter as this
Tribunal did.
Failure to Make Reasonable Adjustments Claim
63.
The arguments under this chapter were central to all of the
discrimination claims made. A large number of attacks were made on the
Tribunal’s findings relating to the claimant’s state of health and fitness for
work. Central to those attacks was the manner in which the Tribunal had dealt
with the “fit notes” issued by the claimant’s GP and sent to the insurers AXA
right up until September 2014. The circumstances in which the Tribunal came to
assess the various adminicles of evidence in relation to the claimant’s ability
or inability to work during the relevant period were slightly unusual. Only
the claimant led medical evidence and that from Mr Douglas Gentleman,
Consultant Neurosurgeon. Mr Gentlemen is an acknowledged expert in the
field of brain injury rehabilitation. The claimant’s argument that there is an
inconsistency between the Tribunal’s acceptance of his report at paragraph 166
of the Judgment and its subsequent finding that the claimant was not fit to
work during the period late 2012 to September 2014 is superficially
attractive. It is true that there was no contradictor to Mr Gentleman’s
evidence and his evidence was effectively unchallenged. However,
Mr Gentleman’s assessment of the claimant’s fitness was to a considerable
extent reliant on information given by the claimant himself. The claimant’s
own evidence in relation to whether or not he had been fit for work was a significant
part of the evidence before the Tribunal. What the Tribunal required to do on
this issue was “square the circle” between the evidence of Mr Gentleman
and to some extent Mrs Maxwell on the one hand and the inconsistent
evidence of the claimant, the evidence of Mrs Wray and the fit notes on
the other. The evidence did not sit together as a whole to create a clear and
consistent picture. Accordingly, the Tribunal required to deal with the
various sources of evidence and conflicts within the evidence of individual
witnesses in determining this central issue of whether the claimant had been
fit to return to work during the relevant period. In the Judgment the Tribunal
deals in considerable detail with the submission made by Mr Cameron that
Mr Gentleman’s evidence should be preferred to that of the GP through the
fit notes. The relevant section is at paragraphs 132 – 147. In essence,
the Tribunal notes that the General Practitioner had continued to certify the
claimant as unfit for work after the June 2013 second operation recording
that this was chiefly in relation to ongoing psychological symptoms.
Accordingly, there was a basis for certifying the claimant as unfit for work of
which Mr Gentleman was aware. The Tribunal’s main reason for preferring
the assessment of the GP expressed in the fit notes rather than
Mr Gentleman’s view was that the latter’s report post-dated the GP’s
assessment of the claimant by a considerable period of time.
Mr Gentleman’s report was prepared in mid-2015 for the purposes of the
litigation while the GP had been the treating doctor during the whole period of
the claimant’s recovery. Accordingly, the fit notes were accepted because they
were prepared at the time rather than retrospectively. There is no doubt that
a Tribunal must give clear reasons for rejecting independent expert evidence.
What the Tribunal did in this case was accept that Mr Gentleman was
capable of giving an opinion and that his opinion should be accorded
considerable respect. However, because there was important material that
directly contradicted it, the Tribunal was not bound to accept it and explained
why it did not do so. The Tribunals’ acceptance of Mr Gentleman’s evidence was
also subject to what it made of other witnesses’ evidence, in particular its
credibility and reliability findings in relation to the claimant. The
evidence of Mrs Margaret Maxwell was also taken into account and dealt
with by the Tribunal, although Mrs Maxwell is not medically qualified and
could not directly answer the question of fitness for work. In any event, she
did not support the claimant’s fitness to return to work in 2012
unequivocally. So far as Peter Davies is concerned, he is a vocational
consultant and was speaking to the sorts of reasonable adjustments that could
be made if the claimant was fit to return. He had nothing relevant to offer on
the question of the claimant’s fitness to work.
64.
Mr Cameron argued that the Tribunal had misunderstood the function
of the fit notes and had erred in making assumptions about them that had no
foundation in the evidence. However, a reading of the paragraphs to which I
have just referred makes clear that the Tribunal understood what the fit notes
were and their context. This is clear from the terms of paragraph 145 of
the Judgment which is in the following terms:
“We concluded, having had regard to all of
the above points, that the fit notes are not immaterial and cannot be ignored.
There was a medical basis for the certification of the claimant as being unfit
for work throughout the period December 2011 to September 2014. We
accordingly found as a matter of fact the claimant was unfit for work during
the period December 2011 to September 2014.”
The issue was not whether the fit notes were probative documents. They had
been produced without objection and spoken to by the claimant in both
examination in chief and in cross examination and were seen by
Mr Gentleman. They were contemporaneous with the period of absence from
work. There was cross-examination of Mr and Mrs Anderson about them. The
accepted evidence was that the respondents knew that fit notes continued to be
submitted to AXA by the claimant right up until the point of dismissal. The
critical issue was the conflict between those fit notes and statements by the
claimant and others that the claimant may have been fit for work. The Tribunal
acknowledged (at paragraph 146) that its conclusion on his unfitness for
work was “at odds” with the claimant’s own evidence. They dealt with that
conflict in a lengthy section on the credibility and reliability of the
claimant’s evidence which begins at paragraph 171 of the Judgment.
Acknowledging the importance of the claimant’s evidence about his fitness for
work the Tribunal lists, at paragraph 179, seven particular inconsistencies
in the claimant’s evidence on that issue, noting that those inconsistencies
were difficult to reconcile. Ultimately, as the Tribunal did not find the
claimant’s account of his fitness for work entirely credible or reliable it was
drawn to the conclusion that during the whole period that he was signed off by
his GP as being unfit for work, the fit notes reflected the position
accurately. In my view, nothing turns on the question of whether the fit notes
can properly be described as “advice” rather than certification in the
circumstances of this particular case. The GP signed statutory forms over a
long period confirming that in his view the claimant was unfit for work and the
claimant used them in support of an insurance claim that had been accepted on
the basis that he was so unfit, If the fit notes are to be regarded as
advisory, then it is clear that the claimant impliedly accepted the advice
tendered in them that he was unfit to work by forwarding them to AXA in order
to receive payment on the strength of the advice contained in them.
65.
The Tribunal’s assessment of the claimant’s credibility and reliability
on this central issue of fitness for work also provides a context to the
submissions made about the circumstances in which the fit notes were
completed. At the appeal hearing, Mr Cameron referred repeatedly to “busy
harried professionals” suggesting that the GP’s approach to the fit notes was
something of a rubber stamp and not based on a proper assessment of whether the
claimant was fit to return to work. Although he retracted a little from the
graphic way in which he had described the GP’s actings to the Tribunal, he
continued to argue that the fit notes had been signed by the GP on a “pragmatic
basis knowing that the respondents were not permitting the claimant to return
to work”. Accordingly, there continues to be an underlying suggestion that
there was some sort of fraud being perpetrated on the insurance company in
which the GP was complicit. Even putting to one side the very serious and
inevitable consequences for the claimant if found to be involved in such a
course of action, it seems to me that if the GP considered that the claimant
was fit for work he simply could not in any good conscience have signed fit
notes, many of which specifically have the AXA reference number noted on them
by the GP and which confirm not just the claimant’s unfitness to work but also
rule out the possibility of a phased return. I accept the submission made by
Counsel for the respondents that, in order for the claimant’s argument to
succeed on this point, there would require to be an acceptance that the fit
notes were false and were prepared for the purpose of the claimant continuing
to receive insurance monies despite being fit for work, which fitness would
preclude any payments being made legitimately. The clear point that the
Tribunal was making was that, without that very serious allegation being put to
the General Practitioner, it was not something that the Tribunal could find to
be made out. At paragraph 255 of the Judgment the Tribunal records the
terms of Mr Cameron’s submissions that the GP had prepared the fit notes
for AXA in order for the claimant to continue receiving payments. That
paragraph accords with the note made by the employment judge at the time and
now produced to this Tribunal. It is quite clear that the vexed question of
whether the claimant and the GP were somehow colluding in a false insurance
claim was one that the Tribunal had no option but to address. The conclusion
reached was that the claimant, having been involved in the exercise of securing
fit notes confirming his unfitness to work and sending those to the insurance
company over a lengthy period in order to receive payment could not “have it
both ways” by now asserting that he was fit to work during that period. The
Tribunal accepted the respondents’ evidence that throughout the period they had
regarded the claimant as not yet fit to return to work and recorded (at
paragraph 147) that the respondents’ position was supported by the terms of the
fit notes. Importantly, as the Tribunal recorded at paragraph 104, the claimant
had not informed AXA to stop making payments to him until October 2014, after
he was dismissed. I have reached the view that, as the Tribunal was required
to resolve the conflict between the claimant’s internally inconsistent
evidence, the fit notes referred to by a number of witnesses including the
respondents, and Mr Gentleman’s opinion, the conclusion it reached was one
that it was entitled to reach standing the Tribunal’s inability to accept an
assertion made about improper behaviour on the part of the General Practitioner
without evidence to support that.
66.
The next main argument in relation to the section 20 claim was a
contention it was wrong for the Tribunal to conclude that the claimant’s
request to return to work should have been supported by medical or occupational
health reports. The material passage is at page 356 of the Tribunal’s
Judgment reproduced at paragraph 25 above. There is no doubt that an
employer has a duty to keep in touch with an employee who is absent from work
through illness (Mitchell v Arkwood Plastics (Engineering) Limited [1993] ICR 471). However, although the obligation would be on an
employer to obtain medical evidence in a context where a dismissal on grounds
of capability was being considered, as confirmed by the Inner House in BS
v Dundee City Council [2013] CSIH 91 – this was not such a case.
I do not consider that there was any question of the Tribunal inverting the
onus such that it considered that it was in general terms for the claimant to
take the initiative on proving he was fit to return to work. The Tribunal had
already found, the claimant continued to be certified by his General
Practitioner as being unfit for work and his parents were aware of that.
Against that background, the Tribunal found that something more than the
claimant’s bald assertion of wanting to return to work would be required before
any duty to make reasonable adjustments could be triggered. On the issue of
consultation, raised in the 18th Ground of Appeal, it seems to
me that the central question was whether the duty to make adjustments had been
triggered. It is clear from the case of Doran v Department for Work and
Pensions UKEAT/0017/14/SM and the cases cited therein that the duty to
make reasonable adjustments is not triggered during a period when the claimant
was certified as unfit for work and had not given an indication of when he
would return. A general statement of desire to return to work or even a
general request to return to work was not sufficient to trigger the duty.
Where the employer and employee had not got to a stage of fixing a return to
work then there were no measures that could be taken. A breach of section 20
would only be triggered if there was an actual failure to make reasonable
adjustments and that stage had simply not been reached. In Doran (above)
the EAT (at paragraph 43) supported the Tribunal’s finding that where medical
certificates were to the effect that the employee was not fit for any work,
then “ the ball was in her court” to raise and discuss a phased return
when she became fit to do some work.Similarly in this case, it seems to be to
be correct that, against a background of long standing certification by the GP
in relation to the claimant’s unfitness for work, it would have been for the
claimant to produce something to the contrary if seeking to persuade the
respondents that he could return, whether on a phased basis or not. I conclude that
the Tribunal’s reasoning on this aspect of the section 20 claim illustrates no
error of law or approach.
67.
I consider that the criticisms made of paragraph 355 of the judgment are
unfounded, for similar reasons. Mr Cameron pointed to passages of evidence that
supported a conclusion that the claimant might have been able to return to work
with adjustments. However, that was all against a background of the only
treating medical practitioner who saw the claimant continuing to disavow the
notion of a phased return to work. The Tribunal was in my view entirely correct
in concluding that it simply did not know whether, had the respondents
discussed with the claimant the possibility of a return to work with reasonable
adjustments, the General Practitioner would have supported that in a revised
fit note. The difficult situation that the Tribunal had to grapple with was
that while the claimant had made considerable progress in his recovery and
wanted to return to work, he does not appear to have pursued that with his
doctor and so the Tribunal had no evidence from which it could conclude that
the GP would be supportive of such a return.
68.
The 17th ground of appeal contends that the Tribunal’s
approach to the identification of a PCP was wrong. However, as Counsel for the
respondent pointed out, paragraphs 357-367 of the judgment are all predicated
on the basis that the Tribunal could be in error on the issue of the duty to
make reasonable adjustments not having been triggered. As I am satisfied that
the Tribunal did not err in that conclusion, the issue of the identification of
a PCP becomes academic. In any event, while it is undoubtedly the case that a
PCP that required an employee to be 100 % fit on the face of it discriminates
against the disabled, that axiomatic statement goes no further than to
establish that adjustments would be required to avoid that disadvantage. In the
circumstances of the present case, that would mean that adjustments would have
been required so that the claimant was not disadvantaged by being disabled and
allowances made so that he could work at whatever level of fitness he had
achieved. I do not accept that in principle such a PCP would mean that the
disabled could never be employed. Adjustments would be required to ensure that
a “100 per cent fit” requirement did not disadvantage them and that 100 per
cent of what they were in fact able to do would be sufficient following
adjustment. As the claimant was, on the Tribunal’s findings not fit to return
to work during the relevant period, no consideration of how adjustments to the
identified PCP would have worked in practice was necessary. In any event, as
the claimant did not raise the possibility of a phased return to work with the
respondents until his letter to them of 8 September 2014, the Tribunal was in
my view correct to conclude that he had failed to establish the application of
any PCP identified by him. Under reference (at paragraph 369) to Project
Management Institute v Latif [2007] IRLR 579 the Tribunal directed itself
correctly in relation to the issue of onus and found that the claimant had not
properly identified the PCP or the nature of the adjustment that would have
ameliorated any disadvantage, so no question of the burden shifting to the
respondents arose.
69.
As indicated earlier, the whole focal point of the claimant’s argument
in this chapter of the appeal was the fitness or otherwise of the claimant to
work and in particular the treatment of the fit notes provided by the GP and
submitted by the claimant to AXA, with his parents’ knowledge, right up until
September 2014. While there was more than one conclusion open to the Tribunal
on the available evidence on this vexed issue, the findings and conclusions
made by the Tribunal are fully reasoned and accord with the views they had
reached on the relative credibility and reliability of the claimant on the one
hand and the respondents on the other. For the reasons given there is no basis
for interfering with the central finding that the claimant was unfit for work
throughout the period December 2011 and September 2014. As a result, while
discussion and consultation would have been beneficial, the point at which an
alleged failure to actually make adjustments could be examined had not arisen
prior to September 2014. The Tribunal directed itself correctly and in detail
on the law relating to the duty to make reasonable adjustments and concluded
that in the circumstances the duty had not been triggered. That was a
conclusion it was entitled to reach on the evidence. Any complications that
arose from the respondents having pled a number of alternative cases were
ultimately resolved by the Tribunal through its determination of this central
issue.
The section 13 direct disability discrimination
claim
70. In light of the decision I have reached in relation to the
section 20 claim, it follows that I do not consider that the claimant can
succeed in the appeal in relation to the first two aspects of this claim. The
remaining issue on this claim is whether the Tribunal erred in failing to
sustain an argument that the respondents treated the claimant less favourably
than a non disabled employee by delaying in permitting him to return to work.
Much of Mr Cameron’s argument on this ground related to what he described as
stereotyped assumptions about those with disabilities, although what matters is
not what the respondents may have thought or assumes but the actual treatment
of the claimant. There was no suggestion that the Tribunal had been wrong to
accept that no actual comparator was necessary for a section 13 claim. The
argument was that having directed itself on the law correctly the Tribunal
failed to apply it. In the case of Stockton on Tees Borough Council v Aylott
[2010] ICR 1278 Mummery LJ found that a Tribunal’s finding of direct
discrimination had been correct in the particular circumstances of that case.
He went on to express the following view (at paragraph 49) ;-
“ I would accept that an employment tribunal can
err in law if they conclude that liability for direct discrimination has been
established simply by relying on an unproven assertion of stereotyping persons
with that disability. Direct discrimination claims must be decided in
accordance with the evidence, not by making use, without requiring evidence, of
a verbal formula such as ‘institutional discrimination’ or ‘stereotyping’ on
the basis of assumed characteristics.”
On the issue of a comparator, Mummery LJ confirmed, at paragraph 43 and
under reference to the clear analysis given in Shamoon v Chief Constable of
the Royal Ulster Constabulary [2003] ICR 337 that there was no obligation
on the Tribunal to construct a hypothetical comparator in every case because “
the question of less favourable treatment than an appropriate comparator and
the question whether hat treatment was on the relevant prohibited ground may be
so intertwined that one cannot be resolved without at the same time deciding
the other. There is essentially a single question: did the claimant, on the
proscribed ground, receive less favourable treatment than others? “
The issue in this case is whether there was evidence sufficient to
support a conclusion that the respondents treated the claimant less favourably
because of his disability.
71.The Tribunal specifically rejected (at paragraph 381) the submission
made on behalf of the claimant that the respondents had made stereotypical
assumptions about brain injuries, giving reasons for that in paragraphs 382 –
385, noting that the issue of “reputational damage” to the business was one
that Mr Cameron had introduced in questions rather than the respondents in
evidence. I consider that the Tribunal was entitled to conclude that the
respondents acted out of concern for the claimant as their son in not allowing
him to return to work earlier. There was sufficient evidence on the point such
that the conclusion cannot be regarded as speculative. Standing the Tribunal’s
conclusion that the claimant was unfit for work, it is in any event difficult
to see how the section 13 claim could succeed on this point. It is evident from
paragraph 390 of the judgment that the tribunal was conscious of the
inconsistency that would have resulted from finding that the claimant was unfit
to work but that there was discrimination on delaying his return to work. In
presenting the argument under this chapter Mr Cameron highlighted evidence
about what duties the respondents might have conceded the claimant could have
done, but the Tribunal had to consider all of the evidence and reach
conclusions based on its primary findings in relation to the claimant’s
unfitness to work during the material period. I conclude that there is no error
on the Tribunal’s reasoning or approach to the section 13 claim.
Section 15 Discrimination arising from Disability Claim
72.Again, in light of the decision I have reached in relation to the
appeal against the reason for dismissal and the section 20 claim, the only
argument to be considered in this chapter is that the return of the claimant’s
return to work was delayed because of something arising in consequence of his
disability and that the respondents failed to show that the treatment was a
proportionate means of achieving a legitimate aim. In my view, the Tribunal
was, correctly, also aware of the need for consistency in its approach to this
claim and the primary findings it had made on fitness to work. However, having
identified the correct test, the Tribunal did conclude that there was
unfavourable treatment of the claimant because the respondents had failed to
make any enquiries when the claimant asked to return to work and so the first
stage of the section 15 claim had been made out. The claim failed because the
less favourable treatment was not in consequence of the claimant’s disability.
In this context, the Tribunal accepted the respondents’ evidence that they were
unaware that they could have approached the claimant for consent to obtain a
report from his GP. Of course, the requests to return to work all took place
against a background of the GP continuing to sign fit notes confirming that the
claimant was not fit to return to work even on a phased return basis and so on
the basis of the evidence accepted by the Tribunal it is difficult to see that
anything favourable to the claimant’s case would have resulted from the enquiries
that the claimant now contends the respondents should have carried out. The
Tribunal noted also (at paragraph 401) that neither of the respondents had been
asked in evidence why they had never considered it appropriate to meet with the
claimant specifically to discuss his capabilities and so there was no evidence
from which it could be inferred that they had failed to do so because of his
disability. Accordingly, no question of the shifting of the burden of proof
arose required to be addressed by the Tribunal or arises in any meaningful
sense on appeal. In my view, in light of the Tribunal’s earlier findings and
conclusions, no different conclusion could have been reached in relation to the
section 15 claim.
Conclusions and Disposal
73.This appeal attacked nearly all of the conclusions of the Tribunal,
save for the actual finding of unfair dismissal. That is not intended as a
criticism of the claimant or his representative as there was a considerable
degree of overlap between the various chapters of the appeal. The key findings
of the Tribunal related to the reason for the dismissal and the claimant’s
unfitness for work at any time prior to that. Successful challenges to those
key findings would have led inevitably to review of the discrimination claims.
The case was an extremely difficult one for the Tribunal to adjudicate on and
issues of credibility and reliability were not straightforward. Reading the
judgment as a whole it is clear that the Tribunal’s approach was thorough and
measured and that the ability to reject parts of a witness’s evidcne while
rejecting other parts was well understood. There are one or two aspects of this
lengthy judgment that might have been better expressed. For example, the stated
acceptance of Mr Gentleman’s report at paragraph 166 might appear inconsistent
with the later preference for the evidence supporting a contrary view to that
expressed in that expert’s report. However, the sense of the decision on this
point is clear, namely that the Tribunal accepted Mr Gentleman’s report as
evidence but was unable ultimately to prefer the opinion expressed therein to
the other adminicles of evidence that supported a different conclusion on the
claimant’s fitness or otherwise to work. Judgments of specialist Tribunals are
not to be examined as if they are conveyancing documents. As the Court of
Appeal emphasised in Brent London Borough Council v Fuller 2011 ICR 806, “pernickety
critiques” are to be avoided. Mr Cameron made a number of
forceful arguments that I accept illustrate that the Tribunal could have
decided this case differently on the same set of facts. That is, however, an
insufficient basis to establish any material error of law such as to justify
interference with the judgment. For the reasons given I am unable to sustain
any of the grounds of appeal.
74. The appeal will be dismissed and the case remitted back to the
Tribunal for a hearing on remedy.
