The claimant was dismissed, and the Employment Tribunal held that he had been unfairly dismissed and unlawfully discriminated against contrary to Equality Act 2010, sections 13, 15 and 20. The respondent appealed, arguing that first, the Tribunal adopted an erroneous approach to the burden of proof provisions which apply in cases of disability discrimination; second, that the Tribunal adopted an erroneous approach to determining whether or not there was a failure to comply with the duty to make reasonable adjustments; third, that there are errors of law in the Tribunal decision in the finding that the dismissal was caused by a course of conduct said to constitute direct disability discrimination and/or discrimination arising disability; fourth, in relation to the finding of unfair dismissal the Tribunal impermissibly substituted its own decision and failed to assess the appellants decision.

The EAT allowed the appeal. First though, the claimant conceded that a finding of direct discrimination had to be set aside in the light of the ET's finding that the reason for the dismissal was the claimant's "manner or personality". It was also accepted that the ET had erred in finding that there was a failure to make reasonable adjustments without considering the PCP applied by the appellant or considering the nature and extent of the substantial disadvantage suffered by the claimant. Further, the EAT found that the finding of discrimination arising from disability could not be sustained, nor could the finding of unfair dismissal.  Also, in relation to both discrimination arising from disability and unfair dismissal the ET decision was not Meek compliant.

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Appeal No. UKEAT/0442/12/LA

EMPLOYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 12 July 2013

Before

THE HONOURABLE MR JUSTICE SUPPERSTONE

MR A HARRIS

MISS S M WILSON CBE

ASPIRE DEFENCE SERVICES LTD (APPELLANT)

MR HUTCHINGS (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR MARTIN PALMER (of Counsel)
Instructed by:
KBR Law Department
Hill Park Court
Springfield Drive
Leatherhead
KT22 7NL

For the Responden
MS NAOMI CUNNINGHAM (of Counsel)
Instructed by:
Thompsons Solicitors
22-24 Worple Road
London
SW19 4DD

UNFAIR DISMISSAL – Reasonableness of dismissal

DISABILITY DISCRIMINATION ACT

Employment Tribunal held Claimant had been unfairly dismissed and unlawfully discriminated against contrary to Equality Act 2010, sections 13, 15 and 20.

On appeal Claimant accepted that finding of direct discrimination had to be set aside in the light of ET's finding that the reason for the dismissal was the Claimant's "manner or personality". It was also accepted that ET erred in finding that there was a failure to make reasonable adjustments without considering the provision, criterion or practice applied by the Appellant or considering the nature and extent of the substantial disadvantage suffered by the Claimant.

EAT found that finding of discrimination arising from disability cannot be sustained, nor can the finding of unfair dismissal. Further, in relation to both discrimination arising from disability and unfair dismissal the ET decision was not Meek compliant. In the circumstances ET's findings in relation to reasonable adjustments, discrimination arising from disability and unfair dismissal are to be remitted to a freshly constituted tribunal for consideration.

1. Aspire Defence Services Limited appeals from the judgment of an Employment Tribunal sitting at Havant and sent to the parties on 13 June 2012 which held that Mr Hutchings, who we shall refer to as the Claimant, had been unfairly dismissed and unlawfully discriminated against contrary to sections 13, 15 and 20 of the Equality Act 2010. The Tribunal found that the Appellant discriminated against the Claimant because of his disability in dismissing him.

1. At the time of termination of his employment the Claimant was employed by the Appellant as a technician. He had been demoted from the position of supervisor but had retained the level of remuneration that he had previously received. His role was described as involving reactive maintenance. His employment with the Appellant commenced in July 2006 when his employment was transferred to the Appellant following a change of ownership. At that time it was acknowledged that his period of continuous employment would run from 6 January 2003. In summary, before the Tribunal the Claimant's claims were identified as unfair dismissal, direct disability discrimination, failure to make reasonable adjustments and discrimination arising from disability.

1. The Appellant conceded that the Claimant was disabled, however it was the Appellant's case that it did not know and could not have known that the Claimant was disabled at the relevant time.

1. Mr Martin Palmer who appears for the Appellant and also appeared below, advances four grounds of appeal; first that the Tribunal adopted an erroneous approach to the burden of proof provisions which apply in cases of disability discrimination; second, that the Tribunal adopted an erroneous approach to determining whether or not there was a failure to comply with the duty to make reasonable adjustments; third, that there are errors of law in the Tribunal decision in the finding that the dismissal was caused by a course of conduct said to constitute direct disability discrimination and/or discrimination arising disability; fourth, in relation to the finding of unfair dismissal the Tribunal impermissibly substituted its own decision and failed to assess the Appellants decision.

1. Ms Naomi Cunningham, who did not appear below, in her skeleton argument on behalf of the Claimant has very helpfully identified those parts of the decision of the Tribunal that cannot be sustained. At paragraph 169 of its decision the Tribunal found that:

"169. There were no issues with the Claimant's work. The issue was with the Claimant's manner or personality and this was how his disability manifested itself. The Tribunal finds that the respondent would not have dismissed someone for the reasons which it used to justify dismissing the Claimant who was not disabled."

1. Ms Cunningham concedes that in the light of the finding that the reason for the dismissal was "the Claimant's manner or personality" the Tribunal's finding of direct discrimination must be set aside. Ms Cunningham further accepts that the Tribunal erred in finding that there was a failure to make reasonable adjustments without considering the provision, criterion or practice applied by the Appellant or considering the nature and extent of the substantial disadvantage suffered by the Claimant. The issue of reasonable adjustments must accordingly, she submits, be remitted to the Tribunal for further consideration. Plainly in our view this is correct. The Tribunal had failed to act in accordance with the general guidance given by this Tribunal on the approach that should be taken with a reasonable adjustments claim in Environment Agency v Rowan [2008] ICR 218.

1. That leaves two issues for this Tribunal to consider. First, discrimination arising from disability; and second, unfair dismissal. Ms Cunningham seeks to uphold the findings of the Tribunal in relation to these two matters. We consider first discrimination arising from disability. At paragraphs 151 and 152 of the decision the Tribunal deals with the question of the Appellant's knowledge of the Claimant's disability. The Tribunal finds that, "by the time of the second period of ill health… there was information which put the respondent on notice of the claimant's disability". Mr Palmer does not challenge that finding.

1. The issue on this appeal is therefore the Tribunal's analysis of whether the dismissal was treatment arising in consequence of the Claimant's disability. Mr Palmer criticises the findings by the Tribunal as being simply confusing. The Tribunal, he submits, failed to explain what primary findings of fact gave rise, if any, to the inferences that the Claimant was discriminated against by the Appellant. Further he submits that the Tribunal fell into serious error in the manner in which it approached the relevant provisions concerning disability discrimination.

1. In his written submissions to the Tribunal he summarised the relevant law. However, apart from referring to the relevant statutory provisions (see paragraph 73 to 78 of the decision) the Tribunal did not set out or refer to any of the guidance given in the relevant leading authorities in this area of law. In particular, the relevant principles to be applied in considering a complaint of discrimination which were restated in Kamlesh Bahl v Law Society [2003] IRLR 640 were not referred to, nor is the general guidance given by the Court of Appeal in Igen v Wong [2005] IRLR 258 at 270.

1. The effect of Igen v Wong, Mr Palmer submits, is that the Claimant must prove facts from which inferences of discrimination could be drawn. It is then for the Tribunal to consider whether inferences can in fact be drawn from those facts. Only then does the burden of proof shift from the Claimant to the Respondent. The Respondent is obliged to provide an explanation for the facts and to prove on the balance of probabilities that in the present case disability was not the reason for the treatment.

1. Mr Palmer submits that it is difficult from the Tribunal's findings and conclusions to understand how the Tribunal approached the burden of proof in connection with the Claimant's various claims. He submits that the failings by the Tribunal infected their consideration of each of the relevant causes of action brought under the Equality Act. In consequence each finding as to unlawful discrimination amounts to an error of law.

1. At paragraph 166 of the Tribunal's reasons it states:

"The Tribunal finds that the fact of the claimant's disability was not the factor which motivated the respondent's actions. The way in which his disability manifested itself in the claimant was the reason for the action which it took. The Tribunal therefore finds that the consequence of the claimant's disability, for example his inability to article [this must mean articulate] himself which was demonstrated to the Tribunal caused the respondent to take the steps it did which led to his dismissal."

1. This assertion is repeated at paragraph 169 in relation to the claim for direct discrimination which we have noted in particular in the sentence, "The issue was with the claimant's manner or personality and this was how his disability manifested itself". Mr Palmer submits that there is a lack of reasoning in the Tribunal's decision in relation to the section 15 (discrimination arising from disability) claim rendering it defective. The findings in paragraphs 166 and 169 as to the way in which the Claimant's disability manifested itself being the reason for the action the Appellant took is not pre-figured by any primary findings of fact made by the Tribunal. He submits that there is no proper analysis, based on findings of fact properly made as to why there was discrimination arising from disability.

1. Ms Cunningham accepts that the Tribunal did not set out how it approached the reverse burden of proof issue but she submits that this is not centrally a burden of proof case. She refers to paragraph 149 of the decision where the Tribunal set out the nature of the task it was approaching and submits that there is nothing to suggest that it had departed from its own self direction. Ms Cunningham, whilst conceding that paragraph 166 is not as fully reasoned as it might be, nevertheless relies on the finding made in that paragraph which she submits is foreshadowed at paragraphs 104 and 160 of the decision. At paragraph 104 the Tribunal state:

"The respondents case is of ongoing communication difficulties the claimant. It is exactly for that reason that mediation was suggested and it is for that reason the claimant was dismissed."

1. At paragraph 160 the Tribunal state:

"The tribunal finds that had the respondent pursued this and at the very least sought guidance from occupational health, even without necessarily referring the claimant, that it would have been apparent that there were issues which arose as a result of the claimant's depression and which it needed to address."

1. Ms Cunningham observes the difficulty in communicating with other people is common in cases of depression. The problem in our view with Ms Cunningham's submission is that the Claimant was not dismissed because of his inability to communicate with others. The disciplinary allegations are set out at paragraph 79 of the Tribunal's decision. They are first, he rejected jobs on his PDA without contacting his supervisor; second, he refused to carry out reasonable management requests; and third, inappropriate behaviour towards his work colleagues. These were the allegations that led to his suspension on 10 September 2010.

1. Ms Cunningham submits that communication difficulties is short hand for difficulties in relationships and getting on with other people. As such the Claimant's disability as described in paragraphs 166 and 169 are a perfectly good fit with the allegations in paragraph 79. We do not accept that the allegations as set out in paragraph 79 are purely matters of difficulty with communication. We accept Mr Palmer's submission that it is difficult to see what, if any, primary facts are set out from which the inferences might have been drawn. There is a lack of clarity as to what aspect connected with the disability is said to be the actual cause of the Appellant's actions towards the Claimant. His inability to articulate himself, his manner or personality or more generally his behaviour.

1. Ms Cunningham was correct in our view to concede that the findings in relation to direct discrimination and reasonable adjustments could not be sustained. In our judgment nor can the finding of discrimination arising from disability.

1. We turn next then to the issue of unfair dismissal. Ms Cunningham accepts that at paragraph 128 of the decision the Tribunal wrongly proceeded on the assumption that dismissal for misconduct falling short of gross misconduct cannot be fair. She also accepts that the Tribunal is wrong at paragraph 122 of the decision in finding that the final written warning that had been given to the Claimant on 16 November 2009 to last 12 months was not relevant to the issues which the Appellant had to consider in October 2010. An employer is entitled to take into account earlier written warnings made against an employee even where the conduct in issue may be dissimilar: Auguste Noel Limited v Curtis [1990] ICR 604.

1. Nevertheless, Ms Cunningham seeks to uphold the decision on the basis of various findings of fact made by the Tribunal which she sets out at paragraph 22 of her skeleton argument. Those findings include the finding that the outcome of the disciplinary hearing was predetermined and the Appellant aimed to dismiss the Claimant (paragraph 93 of the decision), and Ms Cunningham adds to the list in paragraph 22 the finding of the trumped up allegation made at paragraph 132 of the decision. Mr Palmer confirms that there is no perversity challenge in this appeal and accepts that those two findings to which we have referred therefore stand. On that basis the findings made by the Tribunal and in particular those two findings, Ms Cunningham submits, justified the decision the Tribunal made.

1. However, in our judgment it is necessary to consider the reasons for the finding of unfair dismissal as a whole. At paragraph 148 the Tribunal state:

"For these reasons the Tribunal is satisfied that the dismissal was unfair. The procedure followed was flawed in that the allegations which were put to the claimant in the investigation meeting were not those for which he was dismissed. The Tribunal was also not satisfied that there was not [we think perhaps the 'not' should not have been included but it reads]

a sufficient link between the conduct for which the final written warning was issue and the conduct for which the claimant dismissed. There was confusion over which allegation, as referred to by the respondent amounted to gross misconduct, however the respondent asserted that the claimant was not dismissed for gross misconduct. The dismissal was therefore substantially and procedurally unfair."

1. In our view these reasons contain two serious errors as conceded by Ms Cunningham. The paragraph is very confusing. The fact is that the Appellant did not dismiss the Claimant for gross misconduct but for misconduct, having regard to the matters set out in the dismissal letter, including the final written warning. The letter at paragraph 11 reads, insofar as is material:

"After consideration and reviewing the evidence both the company and that presented by yourself and taking into account that you are subject to a final written warning I feel it appropriate that you are issued with notice of dismissal for issues relating to your conduct. Under your contract of employment you are entitled to a period of four weeks notice of termination of employment and I have determined in this case the company will make this payment and can confirm the company does not require you to work during this period. Your last day of service will be recorded as 22 October 2010."

1. In our judgment the decision of the Tribunal on the unfair dismissal issue cannot be sustained. In relation to both discrimination arising from disability and unfair dismissal the Tribunal decision fails to comply with the requirements set out in Meek v City of Birmingham District Council [1987] IRLR 351 where Bingham LJ as he then was stated in a passage that is so well known that it should not need restating but sadly in this case it does:

"It has on a number of occasions been made plain that the decision of an industrial tribunal is not required to be an elaborate formalistic product or refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT, or on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted."

1. It has to be said that at the start of the reserved Judgment the Tribunal did give some such guidance in short form, but as we have indicated the decision of the Tribunal is so lacking in reasoning that it cannot stand.

1. This, we should make clear, is not just a reasons challenge. We have reached the decision that we have for the reasons that we have explained. For those reasons this appeal succeeds.

1. In summary our decision is as follows: (1) the Tribunal's finding of direct discrimination is to be aside. (2) The Tribunal's findings in relation to reasonable adjustments, discrimination arising from disability and unfair dismissal are to be remitted to a Tribunal for further consideration. Mr Palmer invited us to substitute our own decision in relation to those three matters but we do not consider on the findings of fact that were made that it would be proper for us to do so. Ms Cunningham invited us to remit this case to the same Tribunal for reconsideration. We have regard to the guidance given in Sinclair, Roche & Temperley v Heard [2004] IRLR 763. In our view the decision of the Tribunal is totally flawed for the reasons we have given and in the circumstances the case must be remitted to a newly constituted Tribunal for consideration. It is greatly to be regretted that after a five-day hearing before the Tribunal, which started on 17 November 2011 and ended on 16 April 2012, that this case now has to be remitted for a hearing to start afresh, but we consider that in all the circumstances there is no alternative but to make this order.

1. Before leaving this case we wish to thank both counsel very much for their helpful submissions.