1. We need not summarise the Tribunal's reasoning in full, much of which relates to aspects of the case which are not live on this appeal. There is, however, some overlap between its reasoning as regards the unfair dismissal and disability discrimination claims. As part of the discussion of the former it says, at paras. 56-58 of the Reasons:

"56. … We know that Kate Thompson was offered the role of Associate Editor, but decided to take redundancy from 31 March 2011. We also know that the possible vacancy was mentioned to the Claimant on 7 April 2011 but that that the role was not advertised until 6 May.

57. What was missing from the Respondent's evidence was any documentary evidence supporting the proposition in the statement of Ms O'Farrell that the delay was because of 'the amount of change already in the Real Life Group' with the result that it was not possible to offer it to the Claimant, or to invite her to apply for it, before the termination of her employment. Further, a delay in putting an advertisement in the vacancies bulletin does not by itself justify not offering it to the Claimant. The post obviously existed because it was in the original plan, and had been already been offered to Ms Thompson and declined by her. We wholly fail to understand how it is that the Claimant was denied the opportunity of applying for it simply because management had apparently not got round to advertising it before the end of the Claimant's employment. We are not saying that the Claimant would necessarily have been appointed following an interview (competitive or otherwise) but we do remind ourselves that the Claimant was originally appointed as Assistant Editor of Chat.

58. The other post in issue was that of the Group Associate Head of Features. Very much the same points arise as with the role of Associate Editor. There was an established post in the new structure which was at the time filled by a freelancer. No adequate explanation was given as to why this post was not advertised until after the Claimant's employment has ended, nor why at the very least the Claimant was not considered for the post. Again we are not finding that the Claimant would necessarily have been appointed to the post."

1. The Tribunal addresses the disability discrimination claim at paras. 65-66 of the Reasons, as follows:

"65. The final claims are those of the Claimant not being considered for alternative employment being either direct discrimination, or a claim under section 15 as being because of her past and anticipated future absences. We conclude that the claim of direct discrimination fails, but that under section 15 succeeds. In respect of the claim of direct discrimination, we must consider whether the Respondent would have treated another employee in the same circumstances, who had had the same past absences and was likely to have the same future absences, but was not disabled, in the same way. It may be difficult to construct such a person. What we have to decide was whether it was the disability per se which resulted in the Claimant not being considered for the alternative positions. We find that there was no evidence to that effect. The burden of proof does not pass to the Respondent.

66. However, when it comes to the claim under section 15 matter is different. We have found that no steps were taken to enable the Claimant at the very least to apply for two vacant posts for which the evidence was that she was potentially appointable. There was no persuasive evidence as to why that was not done, and in particular why the advertisements for the posts were delayed until after the Claimant's employment had ended. Taking those facts into account, along with the history of past significant absences, we find that there is evidence from which we could conclude that the reason was those absences. We find therefore that the Respondent must show that what occurred in relation to the two posts in question was to no extent because of the absences arising from the Claimant's disability. That the Respondent has failed to do."

1. The reasoning in para. 66 is squarely based on the burden of proof provisions. To spell it out, the Tribunal held that:

(a) the absence of any "persuasive evidence" explaining the Appellant's failure to ensure that the Claimant had the opportunity to apply for the posts of Associate Editor and Group Head of Features, in particular by not advertising them until after her employment had ended, coupled with

(b) her record of absences, which were a consequence of her osteoarthritis (which it was accepted constituted a disability)

together constituted facts from which it could conclude that the former had occurred (at least to a significant extent) because of the latter. That shifted the burden to the Appellant to prove that no contravention had occurred – i.e. in practice that it had not been influenced in the relevant respects by the Claimant's absences – but it had not done so.

1. That reasoning is arguably not correctly structured. The phrase in section 136 (2) and its predecessors "in the absence of any other explanation" has generated real difficulty about whether it is legitimate to take into account at "Igen stage 1" – or, as we prefer to say, in considering whether a prima facie case of discrimination has been established4 – the fact that the employer has given an explanation which the tribunal has not accepted. The fullest discussion is in the judgment of this Tribunal, Langstaff P presiding, in [Birmingham City Council v Millwood]() (UKEAT/0564/11), to which Ms Ling referred us, at paras. 17-28. It is arguable that the Tribunal should not have referred, as it did, to the absence of persuasive evidence about why the Claimant was not given the opportunity to apply for the two jobs as a factor contributing to the shifting of the burden of proof, and that it should have been asking only whether the fact that she was not given that opportunity and her history of absences were, taken together, sufficient to raise a prima facie case of discrimination; and that it should have turned to consider the explanation only if it held that they were. However, this is not pleaded in the Notice of Appeal as constituting a misdirection of law – no doubt sensibly, because the whole trend of the authorities is to deprecate the mechanistic application of the burden of proof provisions; and we do not need to enter into this territory for the purpose of resolving the appeal.

1. Mr Brown submitted that the Tribunal's reasoning is flawed in three respects. He contended:

(1) that there was no evidence that Ms O'Farrell had any knowledge of the Claimant's history of absences, and she could not therefore have been influenced by it;

(2) that the Tribunal was not entitled to find that there had been no persuasive explanation of the decision to defer advertising the two posts; and

(3) that the Tribunal's finding of section 15 discrimination is inconsistent with its rejection of the claim of direct discrimination.

We take those points in turn.

1. The starting-point, this being a case which depends on the thought processes, conscious or unconscious, of the putative discriminator, is to identify the individual(s) responsible for the act or omission in question – that is, here, the failure to give the Claimant the opportunity of applying for these two vacancies, whether by advertising them sooner or otherwise, before the termination of her employment. It was common ground before us that the relevant responsibility was Ms O'Farrell's.

1. That being so, Mr Brown submitted, no prima facie case of discrimination could arise unless it were shown that Ms O'Farrell knew about the Claimant's history of absences: you cannot be influenced (consciously or unconsciously) by something of which you are unaware. But the Tribunal made no finding to that effect and indeed made no attempt to analyse the question of who knew what. If it had done so, it would have appreciated that there was in fact no evidence that Ms O'Farrell was aware of the Claimant's osteoarthritis or of her history of absences. The state of the evidence can be summarised as follows:

(1) There was of course no question that Ms Sinclair, as the Claimant's Editor, knew about her absences in 2009 and 2010; and the Tribunal also found that she knew about the further operation due in May 2011 – see para. 14 above. But there was no evidence from Ms Sinclair stating, or suggesting, that she mentioned those absences to Ms O'Farrell; nor was it put to her that she did (though Mr Moffett did elicit from her the full details of the absences).

(2) Ms O'Farrell said at para. 4 of her witness statement that although she was aware that the Claimant was Copy Editor of Chat she had very little contact with her. The statement does not mention the Claimant's absences at all.

(3) Ms O'Farrell was not asked in her oral evidence, whether by supplementary questions in chief or in cross-examination or in questioning by the Tribunal, whether she was aware of the Claimant's absences. The nearest approach to the point was in Mr Moffett's cross-examination, when, having explored the position about alternative employment, he put it to Ms O'Farrell in a single omnium gatherum question that the reason that she had not taken reasonable steps in this regard was "because she was an older member of staff, disabled and was occasionally absent because of her disability".⁵ Her response was that that was not true.

(4) There is nothing in the contemporary documents evidencing any awareness by Ms O'Farrell of the Claimant's history of absences.

Mr Brown expressly made the point to the Tribunal in his closing submissions that Ms O'Farrell was not asked if she knew about the Claimant's disability or its effect (sc. the absences).

1. Mr Brown observed in his submissions before us that the lack of focus in the evidence on the question of Ms O'Farrell's knowledge reflected the emphasis of the Claimant's case. Although her history of absences had been referred to in the Claimant's grounds as originally pleaded, it had been in the context of Ms Sinclair's thinking and not Ms O'Farrell's. Indeed Ms Sinclair had been the main target of the claim, the Claimant attaching considerable weight to her remark about retiring to Wales (see para. 15 above). It was thus entirely unsurprising that Ms O'Farrell had not addressed it in her witness statement and that Mr Moffett had not asked any questions about it. And in any event the case that the Claimant was discriminated against because of her absence history had appeared to be very much a makeweight point, meriting only two short (and unreasoned) paragraphs at the end of Mr Moffett's 107-paragraph written submissions.

1. Ms Ling's primary response was that it was not necessary for the purpose of establishing a prima facie case that the Claimant should definitively prove that Ms O'Farrell knew of her absences. On the contrary, that was one of the elements in her case which she was entitled to have the benefit of section 136 in seeking to establish. It was enough that she should prove facts from which it could be inferred that Ms O'Farrell had the necessary knowledge, at which point the burden would shift to the Appellant to prove that she did not. The matters on which she relied as being sufficient to get her to "stage 1" on this aspect were helpfully identified at para. 27 of her skeleton argument as follows:

"Ms O'Farrell [gave] evidence … that:

(a) She was aware that the Copy Editor role had been created for C by Gilly Sinclair in 2008

(b) She had discussed the issue of selection pools with Gilly Sinclair

(c) C had not been able to attend meetings in person on 22 February 2011 and 2 March 2011 because she was unwell

(d) She attended and answered questions at C's appeal hearing (at which C had raised the issue of her health)

(e) She was aware that another individual, Kate Thompson, had had several periods of sick leave."

1. We have the misfortune to disagree about whose argument is to be preferred. The Chairman and Mrs Chapman believe that Mr Brown's submissions are well-founded but Ms Tatlow does not. We give the reasoning of the majority at paras. 30-31 below and Ms Tatlow's at para. 32.

1. The majority observes by way of preliminary that none of the particular points identified at paragraph 28 above is made by the Tribunal or indeed seems to have been made by Mr Moffett. They are the product of Ms Ling's diligent, and intelligent, combing of findings made for other purposes. Well though she argued the point, we do not believe that, either individually or collectively, those facts could justify an inference that Ms O'Farrell knew of the Claimant's absences. Taking them in turn:

– As to (a), Ms Ling's point here was of course that the reason why the Claimant had become Copy Editor in 2008 was because of her problems with her knees. But it is entirely speculative whether Ms O'Farrell (who was not in post at the time) had been told that that was so; and even if she was it would not follow that she was told that there had been continuing problems leading to significant absences.

– As to (b), the discussion of selection pools would not in itself have required any discussion of the characteristics of the individuals doing the jobs in question.

– As to (c), Ms Ling did not press this point in her oral submissions. (In fact there seems to have been only one meeting which the Claimant did not attend through illness, and the illness appears to have had nothing to do with her osteoarthritis.)

– As to (d), this gets closest to being a good point. But it has to be borne in mind that the "health" issue was raised entirely by the Claimant, in her appeal letter (see para. 10 above). She gave no particulars, and on the Tribunal's findings (see para. 11 above) the question was not substantively discussed at the appeal meeting. We do not think that this point by itself could justify an inference that Ms O'Farrell knew about the Claimant's absences.

– As to (e), we cannot see the relevance of Ms Thompson's sickness absences. (And in fact she seems to have been offered a job despite them: see para. 13 (1) above.)

It follows that there was in our judgment no evidential basis for the Tribunal's finding at para. 66.

1. We do not differ lightly from the decision of an experienced Tribunal, which considered the case overall with evident care. But we do so with rather less reluctance for two reasons. First, this is not a case where the Tribunal made an explicit finding, by inference or otherwise, about what Ms O'Farrell knew, which we are presuming to overturn. In fact, as Mr Brown noted, the Tribunal did not in fact directly address the question at all. Its reasoning was based entirely on the burden of proof provisions and is very short. In such cases tribunals do not in our experience always give the same detailed attention to the facts relied on at stage (1) as they would if they had been relying on them to reach a definitive factual finding. But it is important that they should do so: even where the burden of proof provisions are deployed a finding of a discriminatory motivation is a real finding of fact, not the product of a legal presumption. Secondly, this version of the Claimant's case was, as Mr Brown pointed out, very much a makeweight.

1. Ms Tatlow believes that the evidence did justify the drawing of an inference that Ms O'Farrell knew of the Claimant's history of absences. In particular she attaches importance to Mr Moffett's question to Ms O'Farrell identified at para. 26 (3) above and her reply, which she believes involved an acceptance that she was aware of the Claimant's absences albeit denying that she was influenced by them.

1. Since the majority believes that the evidence before the Tribunal did not justify a finding of section 15 discrimination we need not, strictly, consider Mr Brown's other two points; but we will do so briefly.

1. As we have seen, a crucial element in the Tribunal's thinking – and it does not matter whether it comes in at "stage 1" or "stage 2" – was that there was no "persuasive evidence" of why the Claimant had not been given the opportunity to apply for either of the two vacant posts. Mr Brown submitted that Ms O'Farrell had in fact given an explanation in both respects. As regards the post of Associate Editor she had said that it was not advertised at once because of "the amount of change already in the Real Life Group" (see para. 13 (1) above). The Tribunal said that there was "no documentary evidence" supporting that assertion (see Reasons para. 57). But Mr Brown's criticism is that it is not fair for the Tribunal to describe the explanation as "unpersuasive" in circumstances where it was not challenged when she gave it in evidence. As regards the Group Associate Head of Features role, Ms O'Farrell was asked in cross-examination why the Claimant was not notified of this post and gave a reason, namely that she did not believe the Claimant was suitable for it (see para. 13 (2)). The Tribunal did not say why that was "unpersuasive"

1. We see some force in those criticisms. If the burden of proof had indeed shifted, Ms O'Farrell's explanations of why the Claimant had not been given an opportunity to apply for these two jobs was the decisive question in the case. If the Tribunal was going to reject those explanations it needed to say why it found them "unpersuasive" and its reasoning is not very explicit; it is also unsatisfactory that Ms O'Farrell was not directly challenged about them. Having said that, if this were the only point we are not sure that it would have been fatal. We can understand the Tribunal taking the view that if the Appellant really took its obligations to find the Claimant alternative employment seriously ways could have been found to see that she was at least interviewed for these two roles. The real question is whether there was sufficient reason to raise a prima facie case that Ms O'Farrell's failings in this regard were the result of a concern about the Claimant's absence history (rather than, say, thoughtlessness or inertia or a genuine, albeit on the Tribunal's findings wrong, view that she was not appointable). But that brings us back to the question considered under the previous heading.

1. Mr Brown's argument was that if, as the Tribunal found at para. 65 of the Reasons, the Claimant had not shown a prima facie case that the failure to help the Claimant to apply for the two jobs constituted direct discrimination it was impossible to see why the position was different as regards section 15 discrimination. There is nothing in this. The difference between the two claims is that the former asserted that the Appellant was motivated by the Claimant's disability as such whereas the latter asserted only that it was motivated by her absences, which were a consequence of her disability. There is nothing inherently inconsistent about the Tribunal rejecting the former claim while accepting the latter: it is precisely because there is a real difference between the two types of discrimination that section 15 is included in the Act.

1. The appeal is allowed and the claim of disability discrimination is dismissed.

1 Para. 1 of Ms O'Farrell's witness statement says that she became Publishing Director of the group in March 2011; but at para. 4 she refers to having the role "from 2010", and it seems clear that she must have been in post before March 2011. We assume "2011" in para. 1 is a typo.

2 We have both parties' notes though not those of the Judge.

**

3 We should record a concern felt by the Chairman about the Tribunal's description of Ms O'Farrell's observation as "disingenuous". That word connotes a lack of candour and its use comes close at any rate to an allegation of dishonesty. Such a criticism of a witness by a tribunal ought to be fully explained, which it was not in the present case; and it is not clear to him how Ms O'Farrell's point exhibited a lack of candour as opposed to simply being bad or unfair. He suspects that the word was used loosely. Ms Tatlow, however, takes the view that the Tribunal should be taken to have meant what it said. But the criticism does not form part of the Tribunal's reasoning and the point is not important for the purpose of this appeal.

4 Mummery LJ uses the phrase a "prima facie case" in Madarassy at para. 58 at p. 879, and we think it is a useful shorthand for what a claimant is required by section 136 to prove in order to shift the burden of proof.

5 There is a good record of the precise terms of the question because we have what appears to be Mr Moffett's notes for his cross-examination, with the answers inserted.