1. This is the Disposal Hearing in this matter. I heard the substantive appeal on 19 February 2015 and handed down my Reserved Judgment on 22 April 2015, by which I allowed the parties to make further representations as to the disposal of this matter in the light of the conclusions I had reached. The written submissions received from the parties disclosed such disagreement that it was appropriate to list this matter for further hearing; hence, it comes back before me today. I adopt the same titles for the parties (the Claimant and the Respondent, as below) as on the hearing of the substantive appeal. Regard should be had to my earlier Judgment for the background to this matter and my conclusions and reasoning on the appeal.

1. In summary, I allowed the appeal against the dismissal of the unfair dismissal claim because I considered that the ET's Reasons failed to demonstrate engagement with the Claimant's case that a material change in circumstances between the taking of the decision to dismiss and the dismissal itself impacted upon the question of fairness. Second, I allowed the appeal against the dismissal of the disability discrimination claim due to a failure to make reasonable adjustments as I was not satisfied that the ET had applied section 18B of the Disability Discrimination Act 1995 and had regard to the extent to which taking the steps in question might have prevented the disadvantage suffered. In reaching that conclusion, however, I agreed with the Respondent that the ET's finding of substantial disadvantage - a necessary prerequisite - was inadequately explained. I further held that, if there was a substantial disadvantage, the ET had been entitled to conclude that adjustments proposed by the Claimant were not reasonable in terms of questions of cost and practicability.

1. In the light of my judgment on the appeal, the Claimant submits the proper course is for me to remit this matter for rehearing on those outstanding questions before a differently-constituted ET. For its part, the Respondent agrees the unfair dismissal case has to be remitted but contends that it should be to the same ET. On the disability discrimination claim the Respondent submits I should substitute my own decision: the only possible outcome being that the claim should be dismissed.

The Claimant's Arguments

1. Given more than one outcome was possible, it was not open to the EAT to determine the relevant questions (Jafri v Lincoln College [2014] IRLR 544 CA). Further, given the guidance laid down by the EAT in Sinclair Roche & Temperley v Heard & Fellows [2004] IRLR 763, it was appropriate for this matter to be remitted to a differently-constituted ET.

1. First, because the value of the claim (some £136,000-odd) and the issues at stake, meant that it was proportionate to do so; the costs involved would not be greatly increased. Second, the trial of this matter took place in January 2014, so there was a real risk the original ET would have largely forgotten about the case by the time any further rehearing was listed. Third, while not contending bias or partiality on the part of the original ET, there would naturally be a concern that having once decided the matter in the Respondent's favour the ET might, in practice, find it difficult to change its mind. Fourth, it would be fair to characterise the ET's decision in this case as totally flawed: it failed to engage with a central part of the Claimant's case on unfair dismissal and, on the claim under the Disability Discrimination Act, failed to engage with the requirements of section 18B. Fifth, remitting to a different ET would avoid the impression that might otherwise arise that the ET was being given a second bite of the cherry; a chance to improve upon its reasoning while confirming the conclusions it had already reached. In so saying, the Claimant did not question the professionalism of the ET but submitted the balance favoured remission to a new Tribunal.

The Respondent's Arguments

1. On the unfair dismissal claim the Respondent agreed with the Claimant that more than one outcome was possible. The matter must, therefore, be the subject of a remission but should, so far as practical, be before the same ET. The appeal was successful on a fairly narrow basis; this was not a wholly flawed decision. There was no reason to think this ET could not approach the remitted hearing in an entirely fair and professional way.

1. As for the disability discrimination claim, the only PCP remaining in issue was the seven-day time limit for submitting an appeal. Taking care to focus on that particular PCP, the Claimant had been allowed to appeal out of time and the conditions imposed for that were - as the ET had found - (1) reasonable and, (2) could be complied with by the Claimant. There could be no finding of substantial disadvantage: the only permissible conclusion (on the ET's findings) was that the Respondent had not breached any obligation to make reasonable adjustments. It had made adjustments to the PCP, which the ET expressly found to be reasonable. In the alternative and for the same reasons as relied on for the unfair dismissal claim, the matter should be remitted to the same ET.

The Claimant in Reply

1. Responding to the Respondent's submission on the disability discrimination claim the Claimant took issue with the narrowness of that approach. The Claimant's case was not limited to the adjustment of allowing an appeal out of time included extending the notice period for his dismissal: that, too, could be a step that would avoid the disadvantage the Claimant would otherwise suffer as a result of the PCP. In any event, when considering whether the Claimant had in fact been allowed to appeal out of time, account needed to be taken of the approach made by the Claimant's trade union representative on 9 September 2010, which made clear that he did wish to pursue an appeal but was denied the actual opportunity to do so.

1. I start with the disability discrimination claim. By my substantive Judgment I have been critical of the ET's reasoning, both in respect of the question of substantial disadvantage and on the issue of reasonable adjustment. I was critical to start with because of the ET's apparent failure to consider the step taken by the Respondent that mitigated the PCP: Mr Fraser's letter to the Claimant of 6 September 2010, which allowed for the possibility of an appeal out of time, provided reasons were given for the delay. That, I accepted, might have been a matter either going to substantial disadvantage or should have been considered at the later stage, when determining whether the Respondent had failed in an obligation to make reasonable adjustments. In either respect, I saw it as a relevant matter.

1. Mr Coghlin submits that putting a spotlight on this issue shows the position might have been yet more nuanced, given the approach made on the Claimant's behalf by his trade union representative on 9 September 2010 (suggesting that he did indeed wish to pursue an appeal). The difficulty for the Claimant is that the evidence relating to the approach made by the trade union representative was before the ET but it reached a very clear conclusion that the Respondent had imposed a reasonable requirement when allowing for the possibility of an extension of time for the appeal, and that the Claimant was put at no disadvantage by that requirement; he could comply with it (see the ET's clear findings at paragraph 56).

1. Given that I must respect the ET's role as the fact-finding Tribunal (and not go behind its findings after picking through the evidence myself), its conclusion in this regard seems to me to provide a complete answer to the disability discrimination case, given the PCP in issue.

1. Mr Coghlin argues that one cannot see the Claimant's case simply in terms of the extension of time for the submission of the appeal but must also allow for his argument that a further reasonable adjustment would have been the extension of the notice period. I was critical of the ET's approach to considering that issue on which it focused in its Reasons, but ultimately I am satisfied that the point can take the matter no further. The Claimant's argument is that it is wrong to link the reasonable adjustment simply to the PCP; the adjustment need only relate to the disadvantage suffered as a result of the PCP. That submission, however, begs the question whether there was any disadvantage resulting from the PCP (that is, the imposition of a time limit for the appeal). The PCP in this case was mitigated by the fact that the Respondent had allowed for the Claimant to appeal out of time, provided he have reasons for the delay. The ET concluded that this was a reasonable condition, with which the Claimant could comply (paragraph 56); he was placed at no disadvantage.

1. Even if that analysis was wrong - and the ET had been bound to find there was a disadvantage simply because of the initial imposition of the time limit - when assessing the steps taken by the Respondent to avoid the disadvantage, the ET has again answered the question: it took the reasonable step of allowing the Claimant to pursue an appeal out of time on condition that he explained his delay.

1. Ultimately, therefore, I have to agree with the Respondent: on the disability discrimination claim, absent the ET's errors in approach and reasoning, its findings of fact permit of only one conclusion. I must, therefore, myself hold that this claim be dismissed.

1. That leaves the unfair dismissal claim and the remaining question (following my Judgment on the substantive appeal) whether the dismissal was fair, given a material change in circumstance between the taking of the decision to dismiss and the dismissal itself. It is common ground that matter must be remitted; the issue is as to the identity of the ET.

1. Taking account of the guidance laid down in Sinclair Roche & Temperley, I am satisfied that this matter should be remitted, so far as practicable, to the same ET for reconsideration. In so ruling I have had regard to the fact that time has passed; this matter may not be entirely fresh in the ET's mind. It is, however, not unreasonable to expect the ET to be able to recall the case and the other aspects of its reasoning, with which no issue has been taken. It will thus be able to approach this issue more shortly than an entirely new ET, coming to the matter for the first time. It is proportionate for this course to be followed. In saying that, I bear in mind the significance of this matter, particularly for the Claimant's side. There is, however, no suggestion of bias or partiality; and I am satisfied that this ET would approach its task on remission in an entirely professionally way. This is, further, not a case where the ET's decision was wholly flawed. I am satisfied that justice in this case would be best met by the outstanding question on the unfair dismissal claim being remitted to the same ET and I so direct.