Hartley v Foreign & Commonwealth Office Services UKEAT/0033/15/LA
Appeal against the dismissal of the Claimant's claim of disability discrimination. Appeal allowed in part.
The Claimant suffered with Asperger's syndrome. Her symptoms were described as relatively mild so that she was able to maintain friendships but sufficiently severe for her ability to hold down a job was adversely affected. She was dismissed for capability reasons. The ET dismissed her claims of disability discrimination including a failure to make reasonable adjustments and harassment. She appealed.
The EAT allowed the appeal in part. Harassment related to disability: in considering whether two remarks were "related to" the Claimant's disability, the ET erred in law by focusing on the perception of the person who made the remark. Whether conduct is "related to" a disability should be determined having regard to the evidence as a whole; the perception of the person who made the remark is not decisive. Reasonable adjustments: the ET did not properly address one of the (many) issues for its determination: it drew a distinction which was not to be found in the issue, and it should have considered the issue as a whole. However, the ET had dealt properly with other issues; in particular, having rejected on the facts a PCP alleged in one issue, it was not bound to consider another possible, closely related, PCP.
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Appeal No. UKEAT/0033/15/LA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 27 May 2016
Before
HIS HONOUR JUDGE DAVID RICHARDSON
(SITTING ALONE)
HARTLEY (APPELLANT)
**
**
FOREIGN AND COMMONWEALTH OFFICE SERVICES (RESPONDENT)
Transcript of Proceedings
JUDGMENT
**APPEARANCES**For the Appellant
MS IRIS FERBER (of Counsel)
Instructed by:
Bindmans LLP
236 Grays Inn Road
London
WC1X 8HB
For the Respondent
MR MATHEW PURCHASE (of Counsel)
Instructed by:
Government Legal Department
Employment Litigation & Advice for Government
One Kemble Street
London
WC2B 4TS
HARRASSMENT
DISABILITY DISCRIMINATION - Reasonable adjustments
Harassment related to disability. In considering whether two remarks were "related to" the Claimant's disability, the Employment Tribunal erred in law by focusing on the perception of the person who made the remark. Whether conduct is "related to" a disability should be determined having regard to the evidence as a whole; the perception of the person who made the remark is not decisive.
Reasonable adjustments. The Employment Tribunal did not properly address one of the (many) issues for its determination: it drew a distinction which was not to be found in the issue, and it should have considered the issue as a whole. The Employment Tribunal dealt properly with other issues; in particular, having rejected on the facts a PCP alleged in one issue, it was not bound to consider another possible, closely related, PCP.
**HIS HONOUR JUDGE DAVID RICHARDSON****Introduction**- By a Judgment dated 14 October 2014 the Employment Tribunal sitting in London Central (Employment Judge Glennie, Mr Lucking and Dr Weerasinghe) dismissed claims of disability discrimination which Ms Hartley ("the Claimant") brought against Foreign and Commonwealth Office Services ("the Respondent"). She appeals against that Judgment on five grounds. Two grounds concern a claim of harassment related to disability, the remaining three concern claims of failure to make reasonable adjustments arising out of disability.
- The Claimant graduated in 1999 with an Honours Degree in Mechanical Engineering. She is a Chartered Engineer through the Chartered Institute of Building Service Engineers. In 2009 she was diagnosed with Asperger's syndrome. Her symptoms were described as relatively mild so that she was able to maintain friendships but sufficiently severe for her ability to hold down a job was adversely affected.
- The Claimant gave an account of the effects of her condition which the Employment Tribunal appears to have accepted. These effects included: communication difficulties; tending to take other people's communications literally; difficulty understanding and being understood; difficulty in handling stressful situations; inappropriate reactions such that she could be too abrupt and impulsive and could appear rude to other people; and difficulty with memory and recognition of people. It was common ground that she had a disability for the purposes of the Equality Act 2010.
- On 7 August 2012 the Claimant commenced employment with the Respondent as a Senior Mechanical Engineer. She had disclosed her disability. A reasonable adjustment plan was created with the assistance of the National Autistic Society's Employment Advisory Service. Her manager was Mr Fleet; his manager was Ms Brigden. There was a six-month probationary period. There was also what the Employment Tribunal described as a "usual rule" as regards sickness absence, that employment would be ended if an employee took more than seven days sickness absence during the six months of probation.
- On 13 November 2012 Mr Fleet completed a three-month review of the probationary period. The Claimant's performance, attendance and conduct were all regarded as satisfactory. She had actually been absent for six days for a variety of reasons but the diversity team had advised Mr Fleet to make some allowance for her disability.
- On 15 February 2013 Mr Fleet completed the six-month review. By this time he assessed performance, attendance and conduct as unsatisfactory. As to performance he gave examples of three reports which he considered unsatisfactory. Although Mr Fleet initially recommended that the Claimant's employment should not be confirmed at all, the Respondent decided to extend her probationary period and make her subject to a performance improvement plan ("PIP"). Subsequently, further reasonable adjustments were agreed and a plan drawn up. One of these further adjustments related to help with communication. An initial PIP meeting took place in March.
- On 11 June 2013 a further PIP meeting took place. This meeting is the subject of significant findings by the Employment Tribunal which are criticised on appeal. I will deal with it in more detail later in this judgment. On 25 June 2013 Mr Fleet reported that the Claimant had not met the PIP objectives. He said:
"Unable to meet the required business needs despite reasonable adjustments in place and support provided by management and specialist disability consultants. The total time spent on providing this support has been disproportionate to that required to achieve an acceptable outcome and has not led to any measureable improvement."
- By this time the Claimant had a further 17 days of sickness. The Employment Tribunal found that the Claimant was not producing reports to the required standard and was also arguing with Mr Fleet about the merits of his requirements. On 10 July 2013 the Respondent gave the Claimant four weeks' notice to terminate her employment on 9 August 2013. She appealed against her dismissal. The appeal was heard by Mr Keats. He said he would not have upheld the dismissal if absence had been the only issue; but as regards the standard of the Claimant's work he said that the reports were some of the poorest he had seen. He dismissed the appeal.
- The Employment Tribunal hearing took place in June 2014. Both parties were represented by counsel. There was a lengthy list of issues which the Employment Tribunal appended to its Reasons.
- In part the Claimant's claim related to alleged failures to make reasonable adjustments. Eventually, the Employment Tribunal had to determine ten such issues, several others were withdrawn or not pursued. The Employment Tribunal's findings in respect of three issues are the subject of this appeal. I will call them the "communication support issue" (ground 1 in the Notice of Appeal); the "TOIL issue" (ground 3 in the Notice of Appeal); and the "written communication issue" (ground 5 in the Notice of Appeal).
- In part the Claimant's claim related to harassment and discrimination arising from disability. The issues in these two respects were closely intertwined. Again, there were numerous issues and sub issues. The Employment Tribunal's findings in respect of two harassment issues are the subject of this appeal - they concern the PIP meeting on 11 June -ground 2 relating to a remark by Mr Fleet; ground 4 to a remark by Ms Brigden.
- The Employment Tribunal also had to consider a claim of discrimination arising from disability relating to the Claimant's dismissal. It found that the dismissal was a proportionate means of achieving a legitimate aim.
- The duty to make reasonable adjustments arises, in the case of an employer, by virtue of section 39(5) of the Equality Act 2010 (see also section 21(1) and (2) and section 39(1)). So far as relevant to this case, the duty is defined in section 20 and it will suffice to cite section 20(3):
"(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage."
- An employer must not harass an employee (see section 40(1)). The definition of harassment, so far as relevant to this case, is found in section 26(1) and (4):
"26. Harassment
(1) A person (A) harasses another (B) if -
(a) A engages in unwanted conduct related to a relevant protected characteristic, and
(b) the conduct has the purpose or effect of -
(i) violating B's dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
…
(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account -
(a) the perception of B;
(b) the other circumstances of the case;
(c) whether it is reasonable for the conduct to have that effect."
**Harassment - The PIP Meeting**- I will first consider, as did counsel, the grounds of appeal relating to harassment. These both concern the PIP meeting on 11 June 2013. In its findings of fact the Employment Tribunal recorded the following:
"54. Then on 11 June 2013 there took place a further PIP meeting attended by Mr Fleet, Ms Brigden and the Claimant. Mr Fleet prepared a record of this meeting, at pages 476-480. It was common ground that there was discussion about a spreadsheet and that Mr Fleet was somewhat frustrated when the Claimant appeared not to understand it. There was a dispute about precisely what he said. Mr Fleet's evidence was that he asked "Do you not understand the spreadsheet?" or words to that effect. The Claimant's evidence was that he asked "Are you not intelligent enough to understand the spreadsheet?" and that she replied to the effect that Albert Einstein was autistic as well, but no one questioned his intelligence. When asked about the point in his oral evidence Mr Fleet stated that he did not recall any mention of Albert Einstein in the course of this conversation.
55. The Tribunal concluded that the Claimant's recollection of this conversation was probably correct. The Tribunal accepted her evidence about the detail that Albert Einstein was mentioned, which suggested that Mr Fleet had made some reference to intelligence.
56. It was common ground that at the 11 June PIP meeting Ms Brigden referred to the Claimant constantly being rude, and said something to the effect that she believed that this was a facet of her personality rather than her disability. On the following day Ms Brigden sent an email at page 493 in which she apologised if she had upset the Claimant, but effectively repeated the point that there was a difference between being tenacious (which she recognised could be related to Asperger's) and being rude and aggressive (which she understood as more related to the Claimant's personality). The Tribunal found that these statements reflected the view that Ms Brigden held at the time."
- Although the appeal is put on the basis that the comments of Mr Fleet and Ms Brigden amounted to harassment, the Claimant's case below was both (1) that the Respondent thereby discriminated against the Claimant under section 15, discrimination arising from disability, by subjecting her to a detriment in these respects and (2) that the comments amounted to harassment. Strictly, the correct sequence for addressing these points would be to take harassment first, for if the acts amounted to harassment they would not be detriments: see section 212(1) which restricts overlap between harassment and other forms of discrimination.
- However, the Employment Tribunal understandably worked its way through the lengthy agreed list of issues and, for this reason considered discrimination arising from disability. It said the following:
"102. With regard to B1(2), the Tribunal found that Mr Fleet's comment about intelligence (B1(2)(b)) did not occur wholly or in part because of something arising in consequence of the Claimant's disability. Mr Fleet was frustrated because the Claimant did not appear to understand the spreadsheet: there was no reason to think that this was connected with her disability as the medical evidence did not suggest any effect on her ability to understand such things. It was the Claimant alone who made a link to her condition by referring to Albert Einstein and autism. The Tribunal found that Ms Brigden's comment about rudeness (B1(2)(c)) was a straightforward observation which expressly distinguished this from the Claimant's disability, and so did not occur wholly or in part because of something arising in consequence of the Claimant's disability."
- The Employment Tribunal then expressed its conclusion on the question of harassment largely by reference to its earlier finding:
"114. Points (2), (3) and (4) (equating to B1(2)(b), (c) and (d)) were made out on the facts in the ways described above. Issue C2 asked whether the conduct was related to the Claimant's disability. On the basis of the findings already expressed in relation to issue B2, the Tribunal also found that the conduct in issues C1(2) and (3) (i.e. the comments by Mr Fleet about understanding the spreadsheet and by Ms Brigden about rudeness) was not so related."
- On behalf of the Claimant Ms Iris Ferber criticises the Employment Tribunal's reasoning in respect of harassment in the following ways. She points out that the tests for harassment and the test for discrimination arising from disability are not the same. It is possible that an act may not be "unfavourable treatment because of something arising in consequence of B's disability" and yet may be "unwanted conduct relating to disability". The term "related to" has a broad meaning which does not require conduct to be because of the protected characteristic. The Employment Tribunal did not carry out the necessary analysis to see whether the remarks were related to the disability. If the Employment Tribunal had carried out this analysis it would have appreciated that the link was made out on the evidence as a whole. Instead, the Employment Tribunal concentrated on the perception of the perpetrator of the conduct which was an error of law.
- In respect to Mr Fleet's remark, she points out that on the evidence the remark arose when the Claimant said she did not understand a spreadsheet which related to her performance. This spreadsheet was, unlike many spreadsheets, not a list of figures or results but a series of comments which she might, by reason of her condition, find difficult to assimilate. She also points out that the Claimant immediately made the link between her condition and the remark, complaining about it that day and later. The Employment Tribunal ought not to have concentrated on the existence of medical evidence. The reference to "intelligence" in the context of a person with a mental disability should have been seen as related to the disability. In respect of Ms Brigden's remark, Ms Ferber points out that on evidence, which the Employment Tribunal accepted elsewhere in its Reasons, there was a direct link between the condition in question and rudeness. It would be perverse to conclude otherwise.
- On behalf of the Respondent Mr Mathew Purchase submits that the Employment Tribunal identified and decided the correct issue for the purpose of harassment. The question was whether Ms Brigden's conduct was related to the Claimant's disability. On this question the Claimant's perception was irrelevant. The focus was upon Ms Brigden's conduct and its relationship, if any, to the disability. This is a question of fact (see Warby v Wunda Group plc [2012] EqLR 536 at paragraph 24). Mr Purchase submitted that the Employment Tribunal did not necessarily commit an error of law by referring back to its earlier reasoning in connection with DAD. Its Reasons showed that it applied the correct test while relying on findings it had already made. He submitted that the perception of the person making a remark as to its connection with the protected characteristic was indeed an important matter for the Employment Tribunal to consider, and the Employment Tribunal did not err by doing so in this case. He too took me through the evidence concerning the remarks of Mr Fleet and Ms Brigden. There was, he submitted, nothing unlawful or perverse about the Employment Tribunal's conclusion.
- I turn to my own conclusions on this part of the case. It is, I think, important to recognise that the Employment Tribunal reached a conclusion only on the question whether the remarks of Mr Fleet and Ms Brigden related to the Claimant's disability. It did not go on to consider other aspects of section 26.
- The question posed by section 26(1) is whether A's conduct related to the protected characteristic. This is a broad test, requiring an evaluation by the Employment Tribunal of the evidence in the round - recognising, of course, that witnesses will not readily volunteer that a remark was related to a protected characteristic. In some cases the burden of proof provisions may be important, though they have not played any part in submissions on this appeal. The Equality Code says (paragraph 7.9):
"7.9. Unwanted conduct 'related to' a protected characteristic has a broad meaning in that the conduct does not have to be because of the protected characteristic. …"
- A's knowledge or perception of B's characteristic is relevant to the question whether A's conduct relates to a protected characteristic but there is no warrant in the legislation for treating it as being in any way conclusive. A may, for example, engage in conduct relating to the protected characteristic without knowing that B has that characteristic. A may not even know that B exists. Likewise, A's own perception of whether conduct relates to a protected characteristic cannot be conclusive of that question. A's understanding of the protected characteristic may be incomplete or incorrect, whether from the best of motives or from prejudice or the acceptance of myth.
- The Employment Tribunal's Reasons in the case of Ms Brigden concentrated upon her perception of the question whether her remark related to the protected characteristic. I can see no sign in the Employment Tribunal's Reasons that it has asked itself whether, objectively, the remark related to the Claimant's disability. Ms Brigden drew a distinction between the Claimant's tenaciousness, which she attributed to the disability and what she believed to be the Claimant's rudeness and aggression, which she attributed to her personality. But that distinction was not accepted by the Claimant, moreover, the Employment Tribunal had found that by reason of her disability the Claimant could appear rude and could be abrupt and impulsive. The Employment Tribunal's task was to look at the overall picture, including its own findings to the adverse effect of the Claimant's disability and to ask whether Ms Brigden's remark related to the protected characteristic.
- As regards Mr Fleet's remark, the Employment Tribunal's reasoning is less clear cut, but I think it unlikely that the Employment Tribunal adopted a different legal approach when assessing Mr Fleet's remark. He drew a distinction between the Claimant's intellectual ability and her communication problem, but the Employment Tribunal had itself identified an issue relating to understanding communication as well as expressing communication. I have reached the conclusion that the Employment Tribunal has, in the same way, focused on the perception of Mr Fleet rather than considering in the round whether the remark related to disability.
- Ms Ferber submitted to me that it was open to me to reach my own conclusion on the question of harassment having regard to the findings in the Employment Tribunal's Reasons. I do not agree. The remit of the Employment Appeal Tribunal is strictly to correct errors of law. It is not in a position to reach its own evaluation of the facts if more than one evaluation is possible (see Jafri v Lincoln College . In this case more than one evaluation is possible on the question whether the remarks were related to the protected characteristic. Moreover, the Employment Tribunal did not go on to ask or answer the other questions which section 26 requires to be answered and I do not think that I can possibly say that only one result was possible. It follows that the question of harassment in these two respects must be remitted. I will come later to the question whether remission should be to the same or to a different Employment Tribunal. I would, however, observe that the Employment Tribunal on remission would be wise to make findings concerning each aspect of section 26.
- Issue A15 was defined in the following way:
"A15. Auxiliary Aid 3: Asperger's Focussed Communication Support
A15.1. Was C put at a disadvantage due to disability-related difficulties that she experienced with general communication skills?
A15.2. But for the provision of Asperger's-focussed communication support, was the Claimant put at a substantial disadvantage in comparison to a person who was not so disabled?
A15.3. Did R take such steps as were reasonable to have to take to provide such an aid?"
- The Employment Tribunal dealt with this issue in paragraphs 95 to 97 of its Reasons:
"95. Issue A15 - Asperger's focused communications support. As identified in Professor Tantam's report, the Claimant's communication skills were affected by her condition. The Tribunal accepted the Claimant's evidence in paragraph 7 of her witness statement that she does not always fully understand other people's communications with her, and that others do not fully understand her. The Tribunal considered that this amounted to a substantial disadvantage.
96. The Claimant was asked in cross-examination what sort of support she contended would have been of assistance in this regard. She replied in terms of a person who could explain to neuro-typical individuals (meaning those without Asperger's) how to communicate with those with Asperger's, and who could facilitate communication both ways. That seemed to envisage an individual who would be available to assist as and when required, acting as a form of interpreter. The Tribunal did not consider that this would be an adjustment that it would be reasonable for the Respondent to have to make, as it would seemingly amount to a requirement to engage someone on a full time or similar basis to assist the Claimant when such assistance was required. That would place an unreasonable financial burden on the Respondent. If something other than that was being proposed, it was not identified sufficiently clearly for the Tribunal to be able to find that it was an adjustment that the Respondent could reasonably have to make.
97. The Tribunal therefore found that there had not been a failure to make a reasonable adjustment in this respect."
- On behalf of the Claimant Ms Ferber submits that the Employment Tribunal misunderstood this issue. The Claimant had not asked for a full time person to support her. She had asked for support "as and when required" (see paragraph 18 of her witness statement). If the Employment Tribunal had been in doubt it could have addressed the matter with her. As it was, the Employment Tribunal made an unsupported finding as to the nature of her case, which was, Ms Ferber submitted, perverse. She submitted that the Employment Tribunal ought to have appreciated that the Claimant's case was that she should have support from an outside organisation, Prospect. On occasions when there was a real communications difficulty.
- On behalf of the Respondent Mr Purchase replies that the Employment Tribunal cannot be faulted for the way in which it dealt with this issue. The adjustment required was not clear from the way the issue was put. The Employment Tribunal listened to and took into account cross-examination. In written closing submissions counsel for the Respondent had made to the Employment Tribunal the very point that there was no clarity as to the adjustment required. The Employment Tribunal did its best with the material it had.
- On this issue I have no hesitation in preferring the submissions of Mr Purchase. Although there is no burden on a Claimant to prove that a particular step was one which it was incumbent upon an employer to have to take, a Claimant should identify the step or steps upon which he or she wishes the Employment Tribunal to adjudicate. Thus, in Project Management Institute v Latif [2007] IRLR 579 EAT Elias P said:
"53. … It seems to us that by the time the case is heard before a tribunal, there must be some indication as to what adjustments it is alleged should have been made. It would be an impossible burden to place upon a respondent to prove a negative; that is what would be required if a respondent had to show that there is no adjustment that could reasonably be made. …"
See also HM Prison Service v Johnson [2007] IRLR 951 EAT where Underhill J pointed out that it is necessary for a Tribunal to identify with some particularity what step it is that the employers are said to have failed to take.
- In this case the issue set out by the Claimant did not identify in any practical sense what was required by way of "communication support". The ET1 claim form had not dealt with it. The Claimant's witness statement was extremely lengthy. There was nothing explicit to connect paragraph 18 with Prospect and with this issue. The question was explored in cross-examination.
- I can see no error of law or misunderstanding of the Claimant's case in the Employment Tribunal's Reasons. Her case was that a person should be available to assist with communications needs "as and when required"; but there was no way of predicting when such a person would be required. The need for communication and problems with communication might arise anywhere, for the Claimant's work sometimes took her abroad. These considerations underlie the Employment Tribunal's reference to engaging someone on a full time or similar basis. I do not think, given the state of the list of issues and the way in which the matter was approached at the Employment Tribunal, that it erred in any way in dealing with this issue as it did.
- The factual background of this issue appears in paragraph 29 of the Employment Tribunal's Reasons:
"29. On 22 January 2013 there took place a meeting attended by the Claimant, Ms Brigden and Ms Noureen Akhtar of HR. This concerned the question of using TOIL instead of sickness absence, as to which Mr Fleet had been exercising a degree of discretion with a view to helping the Claimant avoid exceeding the maximum number of days sickness absence allowed during the probation period. Ms Brigden's evidence, which the Tribunal accepted, was that the Claimant had difficulty with there being a discretion rather than a definite rule one way or the other, and that because of this she (Ms Brigden) decided that this practice would no longer be followed and that all sickness absence should be reported as such. This was confirmed in an email from Mr Fleet of 23 January 2013 at page 140a, where he wrote that the future arrangement "follows HR policy and stops confusion"."
- Issue A12 was concerned with this matter. It provided as follows:
"A12. Substitution of TOIL for sick leave
A12.1. Did R apply the PCP of not permitting its probationary employees to substitute TOIL for sick leave?
A12.2. Did this PCP put the Claimant at a substantial disadvantage in comparison with other employees with sick leave who are not disabled (such sick leave not being attributable to disability)? (The substantial disadvantage alleged by the Claimant which is not accepted by the Respondent is that her sickness levels were higher than staff members without her disability and therefore the lack of flexibility had a particularly acute effect on her, contributing to absence levels that led to her dismissal).
A12.3. Would it have been a reasonable adjustment to allow C to take half sick days as TOIL?
A12.4. If so, did R fail to make such an adjustment?"
- The Employment Tribunal dealt with this in the following way:
"90. Issue A12 - substitution of TOIL for sick leave. The Tribunal found that the Respondent did not operate a PCP of not permitting probationary employees to substitute TOIL for sick leave. The prevailing practice was one of exercising a discretion on a case by case basis.
91. What occurred in the Claimant's case was a form of adjustment to that practice. As has been described, at the meeting on 22 January 2013 the Claimant stated that she had difficulty with the notion of a discretion and that she found it much easier to operate with fixed rules. The Respondent in effect said that the only fixed rule that could apply would be that TOIL could not be used to cover sickness absences. This naturally disappointed the Claimant, who was hoping for a fixed rule that TOIL could be so used, but this did not create a PCP that TOIL could not be used in this way. This was a one-off decision in the particular circumstances of the Claimant's case." (Original emphasis)
- Ms Ferber submits that the Employment Tribunal erred in law because it did not find the requirement in the Claimant's case to record TOIL as such to be a provision, criterion or practice within the meaning of section 21. She says that, having regard to the Respondent's written policy, this was a PCP of general application. Alternatively, she says it was a one-off PCP in the Claimant's case; but there is no objection to such a PCP. She refers to the Employment Code of Practice and to British Airways plc v Starmer [2005] IRLR 862. So, she says, the Employment Tribunal should have found the decision to be a PCP and then proceeded to consider the other questions raised by section 20(3).
- In response Mr Purchase submits that the Employment Tribunal dealt with the pleaded issue before it. The Claimant's case had been that there was a PCP of general application to probationary employees. That case failed. It was then neither entitled nor bound to address a different case. It would have been unfair to do so. He points out correctly that a different issue - Issue A8, in respect of which there is no appeal - had dealt with reasonable adjustment in connection with sickness absence. It is by no means clear what this issue would have added or why.
- Again, I prefer on this point the submissions of Mr Purchase. It is plain that Issue A12 was directed to the existence of a PCP of general application to probationary employees. This was the case advanced at the Employment Tribunal. It was the case with which counsel then instructed for the Respondent, dealt in his final submissions (see paragraphs 125 to 131 of those submissions).
- It is perhaps convenient to say a word about lists of issues. They are an important feature of Employment Tribunal procedure, even though they receive little attention in Rules of Procedure or Practice Directions. A list of issues is a case management tool intended to distil from the pleadings the points which are really being pursued in a case in such a way that the parties and the Employment Tribunal can address them in evidence, submissions, Judgments and Reasons. A list of issues is not necessarily set in stone. If a party considers that an issue arises which is not reflected in pleadings or issues, an application may be made for leave to amend the pleadings and the list of issues. Such an application would be addressed on well known principles. If a party considers that an issue arises which is in the pleadings but omitted form or not in the list of issues, once again, there can be an application to amend the list of issues, which would be dealt with by applying the overriding objective.
- Subject to these points, however, an Employment Tribunal ought to decide a case in accordance with the list of issues. It is important that it should do so, otherwise, particularly in a case such as this with multiple issues, the process of hearing is liable to become chaotic and unfair. Here the Employment Tribunal addressed and decided the issue which it was asked to decide. Even if the Employment Tribunal saw the possibility of the case being put in a different way it was no part of its task to address a case different to that which had been advanced and the subject of submissions. It is certainly possible to see how the case could have been put, at least in the alternative, in a different way, but the Employment Tribunal cannot be criticised for dealing with the case in which it was put before it.
- I should add at this point that at the Preliminary Hearing of this appeal counsel then instructed for the Claimant applied for and obtained leave to amend the grounds of appeal concerning this issue by adding a ground that the decision amounted to direct discrimination in that the Respondent applied a different decision to the Claimant because of her disability. Ms Ferber realistically has not pursued that ground of appeal. It was, in truth, completely hopeless. The matter was never put that way before the Employment Tribunal. It is impossible to criticise the Employment Tribunal for approaching the matter in accordance with the issues listed by the parties
- Issue A14 was concerned with written communication training. It provided as follows:
"A14. Auxiliary Aid 2: Written Communication Training
A14.1. Was C put at a substantial disadvantage due to disability-related difficulties that she experienced with written communication[?]
A14.2. But for the provision of written communication training sessions, was the Claimant put at a substantial disadvantage in writing reports in comparison to a person who was not disabled?
A14.3. Could R reasonably be expected to know that the Claimant was likely to be placed at this substantial disadvantage and/or when could it reasonably have been expected to have known it?
A14.4. Did R take such steps as were reasonable to have to take to provide such sessions?"
- The Employment Tribunal dealt with this issue in paragraphs 93 to 94 of its Judgment:
"93. Issue A14 - auxiliary aid, written communication training. The Tribunal found that there was no evidence that the Claimant had difficulty with written communication as such related to her disability. In paragraph 7 of her witness statement she said only that she found that people did not fully understand her when she communicated with them in writing, verbally, or as a result of body language. The Claimant's various emails and correspondence showed no difficulty with the process of writing or communicating in writing. The difficulty arose with the content and/or organisation of the content of the reports that she produced.
94. The Tribunal therefore concluded that the duty to make adjustments did not arise in relation to written communication training. However, even if it did, the Respondent in fact provided such training in the sessions given by Richard Todd in May and June 2013. If the duty arose, it was for the Respondent to take such steps as it was reasonable for it to have to take to provide such training: the Tribunal considered that the Respondent had done that. An employer could not reasonably be expected to have to provide open-ended or long-term training in writing skills to a graduate such as the Claimant, who (from the evidence of her emails etc) demonstrably could communicate in writing."
- Ms Ferber submits that the Employment Tribunal's finding in paragraph 93 was perverse. It relied on a specious distinction between the process of writing and the content and/or organisation of the content of the writing. She points out that the Employment Tribunal had itself found that a further reasonable adjustment had been agreed in March 2013 for the Claimant to attend sessions with Mr Todd to work on writing and communication skills. This was to address a substantial disadvantage on the part of the Claimant. Ms Ferber further submits that the Employment Tribunal's alternative finding that the Respondent sufficiently provided such training ignored the fact that the intervention was late in the Claimant's employment. The Employment Tribunal ought to have considered when the duty arose and it should have found that more support was required at an earlier date. It appears to be part of the Claimant's case that her report writing improved after the training sessions and that she was to a significant extent judged on reports written before the training sessions.
- Mr Purchase submits that the Employment Tribunal's finding in paragraph 93 was not perverse. He submits that the Employment Tribunal distinguished between the writing of communications such as emails on the one hand and report writing on the other. He placed emphasis on the use of the phrase "as such" in the Employment Tribunal's Reasons. In any event, he submitted, that the reasoning in paragraph 94 disposed of the issue. The Employment Tribunal found that the Respondent made such adjustments as it was reasonable for it to have to make. It appears to be the Respondent's case that the Claimant's report writing did not significantly improve after the sessions.
- In my judgment there is force in Ms Ferber's submissions on this point. I am satisfied that the Employment Tribunal did draw a distinction between "the process of writing" on the one hand and the "content and/or organisation of the content" on the other. This was a narrow distinction which, in my judgment, the Employment Tribunal was not entitled to draw. Issue A14 does not contain any such distinction. The parties do not appear to have made it themselves. As we have seen, once a need was identified, some training was arranged. I can see that there is a distinction to be made between, on the one hand, technical competence in the areas required for report writing and, on the other hand, the communication of that competence in an organised well written report, but the process of writing and the organisation of writing are - as anyone who has to write a report or a précis or, for that matter, a Judgment knows - part and parcel of the same thing.
- In my judgment, the Employment Tribunal's first task was to ask itself whether the Respondent's requirements in respect of written reports placed the Claimant at a disadvantage in comparison with persons who were not disabled and it should have answered this question as a whole not by trying to make a distinction between different aspects of writing. I do not think I can say for certain how the Employment Tribunal would have answered this question, but as far as I can see the answer would not have varied from one period of employment to another.
- If the Employment Tribunal had answered this question in the negative that would have been an end of the issue; but if the Employment Tribunal had answered it positively there would have been further questions to be answered. The next would have been whether and when the Respondent knew or could reasonably be expected to know of the disadvantage in question (see Schedule 8, paragraph 20). The Employment Tribunal did not directly address this question. The parties may not be in agreement about it, especially since the need for this particular training does not seem to have been identified at the outset. As to when it became apparent, passages in Mr Fleet's witness statement at paragraphs 20 and following may be relevant.
- Then there would have been the question what steps it was reasonable for the Respondent to have to take and when it was reasonable for the Respondent to have to take them. I am told that it is not the Claimant's case that the Respondent could reasonably be expected to have provided open-ended or long-term training. It is the Claimant's case that the needs should have been identified earlier and addressed earlier. I am not confident that the Employment Tribunal ever considered whether, if the duty to make adjustments in this respect arose, it may have arisen substantially earlier in the Claimant's employment. I do not, therefore, think that paragraph 94 of the Employment Tribunal's Reasons is a sufficient answer to the appeal.
- Finally, if the Employment Tribunal found that there was a failure to make this reasonable adjustment, it would have had to consider the question of compensation. This might have entailed considering whether dismissal would have been avoided.
- For the reasons I have given the appeal will be allowed in part. Two grounds of harassment and one ground relating to reasonable adjustments will have to be remitted for consideration by an Employment Tribunal.
- At this point the question arises whether it should be the same Employment Tribunal or a differently constituted Employment Tribunal. This is a question which the Employment Appeal Tribunal addresses having regard to the overriding objective and, in particular, to criteria set out in Sinclair Roche & Temperley v Heard [2004] IRLR 763. I have had regard to those criteria and to the submissions which the parties have made to me.
- I have reached the conclusion that remission should be to the same Employment Tribunal, if that Employment Tribunal is available. I bear in mind the following. Firstly, this is overall a Judgment where the Employment Tribunal has carefully and conscientiously approached its task. It was faced with a very substantial list of issues. Although it had not, in respect of some of the issues with which I am concerned worked fully through the statutory provisions, that has to be seen against the very considerable scope of the issues it had to determine.
- Secondly, I see no sign in the Employment Tribunal's Reasons that it will not be prepared to consider the matter carefully and afresh. It did make significant findings in the Claimant's favour - in particular preferring the evidence of the Claimant in one important respect to that of Mr Fleet. I am confident that it will approach the matter afresh on the basis of submissions which it will give the parties an opportunity to make to it.
- Thirdly, a matter of practical convenience, there is a very substantial obvious advantage in the same Employment Tribunal considering the matter. It became very familiar with the papers and the issues, it heard the matter over a substantial period of time, it would be very difficult for a fresh Tribunal hearing the matter now some years after the event to recapture what the Employment Tribunal will have heard much more contemporaneously in 2014.
Published: 18/07/2016 19:35
