The Claimant lost her claims at the ET, the Tribunal deciding that it was bound by the decision of the EAT in Griffiths. The Employment Judge did not like that decision and recorded that his decision, at any rate, would have been different on some issues were the Tribunal not bound by it. However, since that decision, the Court of Appeal said in Griffiths that the disadvantage for the disabled employee is "not eliminated if the PCP bites harder on the disabled" (although the appeal was dismissed for another reason). The Tribunal also considered the issue of unfair dismissal and said that the unfair dismissal claim was "parasitic on the discrimination claim", the latter claims had failed and the unfair dismissal claim must therefore also fail. Had the discrimination claims succeeded, the unfair dismissal claim would have done: "it cannot be reasonable to dismiss an employee for a discriminatory reason". The Claimant appealed.

The EAT allowed the appeal. It follows from the Court of Appeal's decision in Griffiths that use of the Malcolm comparator was an error of law, and the error was or may have been material. As to the unfair dismissal claim the approach taken by the ET, that it would fail if the discrimination claims failed and succeed if they succeeded, was an error of law. The tests in section 98 of the ERA - which were not considered at all - are completely different from the tests applicable to claims under the Equality Act.

______________

Appeal No. UKEAT/0079/16/RN

EMPLOYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 28 June 2016

Before

THE HONOURABLE MR JUSTICE KERR

(SITTING ALONE)

PERRATT (APPELLANT)

**

**

THE CITY OF CARDIFF COUNCIL (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant
MR ANDREW SMITH (of Counsel)
Instructed by:
UNISON Legal Services
UNISON Centre
130 Euston Road
London
NW1 2AY

For the Respondent
MR OWAIN JAMES (of Counsel)
Instructed by:
Cardiff County Council
Legal Services
County Hall
Cardiff
CF10 4UW

**SUMMARY**

DISABILITY DISCRIMINATION - Disability related discrimination

DISABILITY DISCRIMINATION - Reasonable adjustments

UNFAIR DISMISSAL - Reasonableness of dismissal

The Tribunal below was required under a decision of the Appeal Tribunal, subsequently (after the Tribunal's decision) found by the Court of Appeal to have been in error, to apply the wrong comparison when determining claims for breach of the duty to make reasonable adjustments.

Those issues that may have been decided differently must be remitted to the same Tribunal for reconsideration in the light of the Court of Appeal's decision in[Griffiths v Secretary of State for Work and Pensions]() [2016] IRLR 216. That included the Appellant's claim under section 15 of the Equality Act 2010 for discrimination constituting unfavourable treatment because of something arising in consequence of a disability.

The Tribunal had erred by failing to consider the Appellant's unfair dismissal claim independently of her claims for disability discrimination. Dismissal for a discriminatory reason is not necessarily unfair; whether it is or not depends on application of the tests in section 98 of the Employment Rights Act 1996.

**THE HONOURABLE MR JUSTICE KERR**

1. This appeal turns mainly on whether the decision of the Court of Appeal in Griffiths v Secretary of State for Work and Pensions [2016] IRLR 216 invalidates part or all of the reasoning and conclusions in the prior decision of the Employment Tribunal in Cardiff in this case (Employment Judge Wayne Beard, sitting with Ms Hurds and Mrs Farley), dismissing the Appellant's (the Claimant's) claims for disability discrimination and unfair dismissal.

1. The appeal proceeds to a Full Hearing by leave of Supperstone J. The Respondent below and to this appeal (the council), took an essentially neutral stance in the appeal, making no specific submissions in response to those advanced by the Claimant. This morning, Mr James for the council confirmed that he did not oppose the appeal being allowed and a remission to the same Tribunal of the issues which the Claimant says should be remitted.

1. The facts found by the Tribunal were set out in detail in the decision below. I respectfully observe that they would have been easier to absorb had they been set out chronologically. That aside, there is no criticism of the Tribunal's account. I content myself with the following summary, which is incomplete but sufficient for present purposes.

1. The council is a large public undertaking with its own personnel department. The Claimant joined in 2003 as a recruitment adviser. It was agreed that the Claimant was at the material times disabled: she suffered from obsessive compulsive disorder, depression and stress, dyslexia, a back and hip condition, and autism, being on the autistic spectrum with a diagnosis of Asperger's syndrome.

1. At first, she dealt with recruiting teachers, and coped alright. Later, her recruitment duties broadened. She was often absent from work through sickness, not always disability related. Her absences increased in her last two years of employment. From 2 April 2013, she was off work mainly because of her back and hip condition. She returned to work on 11 August 2013.

1. In mid-September, the council produced a work needs assessment report. It referred to the Claimant's difficulties absorbing information. There was discussion at that time about adjustments because of the Claimant's disabilities. It included discussion about adjustments - of which more below - which the Tribunal later considered when adjudicating on the claims.

1. An Occupational Health report was made, dated 18 November 2013. Some modifications to the Claimant's work were permitted by the council, such as reducing her workload, but it was not enough. In January 2014, she asked for a meeting with her team to explain how her Asperger's syndrome affected her work. At the time, the team was subject to restructuring and redundancies, and was shrinking in size.

1. An incident occurred on 29 April 2014, which upset the Claimant. She was sent home because of her emotional and mental state. She asked the absence to be recorded as an industrial injury. After that, she was absent on sick leave and never returned to work. An Occupational Health report was prepared in early May 2014.

1. There were meetings between the parties in May and June 2014, during her absence. The council's long term absence policy was applied. After the second meeting, there was a further referral to the council's Occupational Health service. Then the Claimant raised a grievance on 11 July, about many matters, saying she was being undermined in various ways. A Mr Lenz rejected her grievance (subject to one point) on 18 July 2014. The Claimant appealed.

1. The awaited further Occupational Health report was produced and provided to the Claimant on 30 July 2014. Her appeal was dismissed on 5 August 2014. Two days later, she attended a "capability" meeting. A week or so later, she was dismissed, essentially because the decision maker, Ms David, could not see her becoming fit to work again in the foreseeable future.

1. The Claimant appealed against her dismissal. After a long meeting, Ms Bignall of the council dismissed the appeal. The Claimant then presented her claims to the Employment Tribunal on 12 December 2014. One of the claims, for indirect discrimination, was subsequently withdrawn and I need say no more about it.

1. The remaining claims were for discrimination because of something arising in consequence of a disability (section 15 of the Equality Act 2010), failure to comply with a duty to make reasonable adjustments (sections 20 and 21 of the 2010 Act) and unfair dismissal. They were heard in Cardiff from 22 to 26 June 2015.

1. In its Decision, dated 5 August 2015 and sent to the parties the next day, the Tribunal set out the applicable law in some detail, with the exception of the law relating to unfair dismissal. I assume this was because "[b]oth parties accept that this [unfair dismissal claim] is parasitic on the discrimination claims" (paragraph 5 of the Reasons).

1. The Tribunal's account of the law included a learned exposition by the Judge of the difference between his view and the lay members' on the subject of comparison arising in a "reasonable adjustments" claim; and between his view and this Appeal Tribunal's, sitting in [Griffiths v Secretary of State for Work and Pensions ]()UKEAT/0372/13/JOJ, on the same subject. That exposition is now overtaken by the decision of the Court of Appeal in the same case.

1. The Tribunal then applied the law to the facts. The Tribunal rejected the claim under section 15 on the ground that, while dismissing the Claimant was treatment falling within section 15, the only means of avoiding dismissal was redeployment; and the council had shown that dismissal was a proportionate means of achieving the legitimate aim of having an active member of the workforce.

1. The Tribunal rejected the argument that the council should have done more to explore redeployment. They accepted that dismissal was proportionate because the Claimant was unfit for her role and likely to remain so for the foreseeable future. The Employment Judge, however, expressed "reservations" about that conclusion, which he regarded as closely connected to the issue of reasonable adjustments.

1. The Tribunal then went on to consider the reasonable adjustments issues. Seven separate adjustments were referred to by the Claimant. She submitted that they should have been provided. The Tribunal considered them in turn. I will return shortly to the Tribunal's treatment of each of them. The Claimant failed on each of them, though for differing reasons.

1. The Tribunal lastly considered the issue of unfair dismissal in two short paragraphs, stating that both parties accepted that the unfair dismissal claim was "parasitic on the discrimination claim", the latter claims had failed and the unfair dismissal claim must therefore also fail. Had the discrimination claims succeeded, the unfair dismissal claim would have done: "it cannot be reasonable to dismiss an employee for a discriminatory reason".

1. The first ground of appeal is that the Tribunal applied the wrong test when considering the reasonable adjustments issues. The Tribunal decided that it was bound by the decision of the Appeal Tribunal in Griffiths. The Employment Judge did not like that decision and recorded that his decision, at any rate, would have been different on some issues were the Tribunal not bound by it.

1. The Court of Appeal has since decided that the approach of the Appeal Tribunal in Griffiths was wrong on two counts, one of which was:

"48. … to assume that the ruling of the House of Lords in the Malcolm case, which was concerned with the nature of the appropriate comparison under the old concept of disability-related discrimination, is applicable to the obligation to make reasonable adjustments. …" (per Elias LJ at paragraph 48).

1. In short, Elias LJ explained at paragraphs 49 to 63 why that was not so. The approach of the majority in London Borough of Lewisham v Malcolm [2008] IRLR 700 (when the legislation was differently worded) was that the disabled tenant who because of his disability needed to sublet in breach of his tenancy, had not been discriminated against by the giving of notice to terminate it, because the correct comparison was with an able bodied person who had sublet, not with a person who had not sublet.

1. Griffiths concerned treatment under an absence from work policy, under which able bodied and disabled employees were treated in the same way but disabled employees were more likely to attract sanctions under it because their absences would probably be more frequent. Elias LJ rejected the approach in Malcolm; the wording of section 20 of the 2010 Act did not support that approach, and the disadvantage for the disabled employee is "not eliminated if the PCP [provision, criterion or practice] bites harder on the disabled …" (paragraph 58).

1. Elias LJ (McCombe and Richards LJJ agreeing) held, however, that the appeal should be dismissed on the single ground that the Tribunal had been entitled to hold that "the proposed adjustments were not steps which the employer could reasonably be expected to take" (paragraph 82). Elias LJ's analysis was therefore technically obiter but it is clearly authoritative and must be followed.

1. Mr Smith, for the Claimant, is right to submit that the Court of Appeal's analysis vindicates the Judge's discontent with the shackles that bound him and the lay members. The decision of the Tribunal below must therefore be tested for durability, applying the correct approach.

1. That approach requires the Tribunal simply to ask itself whether a PCP puts the Claimant at a substantial disadvantage in comparison with non-disabled persons who are also subject to the PCP. If the PCP "bites harder" (in Elias LJ's phrase) on the disabled employee, the duty to make reasonable adjustments arises.

1. How then did the Tribunal approach the section 20 claim? As already noted, seven potential adjustments were advanced. The first related to a centralised printer. The Claimant's duties included getting things printed. The nearest printer was too distant for her to walk to it without substantial disadvantage because of her hip and back condition.

1. Initially, an adjustment helped her: a colleague fetched her printed materials and she did not have to walk to the printer. But that arrangement came to an end. Thereafter, the Claimant was at a substantial disadvantage. The Judge would have found her section 20 claim well founded, but for the comparator difficulty arising from Griffiths in the EAT.

1. However, the claim was brought out of time and an extension of time was refused. The erroneous approach of the EAT in Griffiths therefore did not affect the result. It cannot be said that the Tribunal's analysis of the timing issues (whether the claim was brought in time, and if not whether an extension should be granted) would have been any different if the Tribunal had had the benefit of the Court of Appeal's decision in Griffiths.

1. Next, the Tribunal assumed that the PCP requiring the Claimant to work from the council's offices, not from home (the proposed adjustment) placed the Claimant at a substantial disadvantage. They decided, however, that the council was not in breach of its assumed duty: home working would have caused organisational difficulties. In any event, this claim too was out of time and it would not be just and equitable to extend time. These decisions are unimpeachable and, again, the result was unaffected by the Griffiths comparator issue.

1. Third, the Claimant submitted that the council should have provided an adjustment in the form of help from a supervisor and support person. A named individual (a Ms Chappell) was proposed. This was found on the facts not to be a reasonable adjustment: the Claimant was, in effect, demanding the benefit of Ms Chappell's services for half Ms Chappell's working time. Once again, that decision cannot be impugned and the result is unaffected by the Court of Appeal's decision in Griffiths.

1. Fourthly, the Claimant argued below that the council should have adjusted her workload by reducing it so that (as had been the position at the start of her employment) she only had to recruit teachers and not teaching assistants and non-teaching staff as well. But again, the Tribunal rejected that as a reasonable adjustment: the council would have had to restructure its working system which involved allocating recruitment staff to groups of schools, not according to what type of staff were being recruited. That finding cannot be impeached, and the result is unaffected.

1. Fifth, the Claimant argued that the council should have made an adjustment to the Claimant's work by allowing her to tape record meetings. The Tribunal, applying the analysis of the EAT in Griffiths, was driven to use the Malcolm comparator, and therefore had to conclude that there was no disadvantage to the Claimant by not being allowed to tape record meetings: a non-disabled employee with memory difficulties similar to the Claimant's would be in no better position than the Claimant.

1. It follows from the Court of Appeal's decision in Griffiths that use of the Malcolm comparator was an error of law, and the error was or may have been material. I therefore agree with the Claimant that this issue should be remitted to the same Tribunal, and Mr James, for the council, does not submit otherwise.

1. The sixth adjustment which, the Claimant argued, ought to have been made by the council, was that the council should have sought more medical information. The Tribunal rightly held that this was not an adjustment at all, but rather, a means of identifying what adjustments might be made (applying the reasoning in Tarbuck v Sainsbury Supermarkets Ltd  [2006] IRLR 664 EAT, per Elias J (as he then was) at paragraph 71). This part of the decision is unaffected by Griffiths in the Court of Appeal and should stand, as both counsel agree.

1. Finally, the Claimant argued that the council should have provided an adjustment to the Claimant's work by redeploying her, rather than dismissing her. The Tribunal was constrained to compare the Claimant's position with that of a non-disabled worker who had been absent for the same period of time and had the same work relations difficulties as the Claimant.

1. On that footing, there was no disadvantage to the Claimant, and that part of her claim failed. As Mr James concedes, that part of the decision was materially affected by the error of law subsequently shown by the Court of Appeal's decision in Griffiths: the wrong comparison was undertaken. Accordingly, as both parties agree, that issue must be remitted for reconsideration by the same Tribunal.

1. Thus, the Tribunal dismissed the entirety of the claim founded on breach of the duty to make reasonable adjustments. As I have explained, it also dismissed the claim founded on section 15 of the 2010 Act, for discrimination by treating the Claimant unfavourably (dismissing her) because of something arising in consequence of her disability.

1. As explained above, the Tribunal found that dismissal was proportionate because the Claimant was unfit for her role and likely to remain so for the foreseeable future; although the Judge expressed "reservations" about that conclusion because he did not have faith in the correctness of the Tribunal's use of a Malcolm comparator in the section 20 (reasonable adjustments) claim.

1. It is easy to see why the Judge entertained such reservations. If the true position is that an employer should redeploy a disabled employee by way of a reasonable adjustment to her work, it may be difficult to accept that dismissing her instead is a proportionate means of achieving the legitimate aim of having an effective workforce (cf. the reasoning of Simler J in Dominique v Toll Global Forwarding Ltd.

1. I am satisfied that the Tribunal's decision to dismiss the claim under section 15 was marred by the errors that afflicted its decision in relation to reasonable adjustments, and in particular the last of the adjustments relied upon by the Claimant, namely that of redeploying her. The section 15 claim must therefore, as was common ground before me today, be remitted for reconsideration by the same Tribunal.

1. That leaves the unfair dismissal claim. The parties and the Tribunal proceeded on the footing that the unfair dismissal claim stood or fell with the discrimination claims. It appears from the Tribunal's use of the word "parasitic" to describe the unfair dismissal claim, that there was a common understanding that the unfair dismissal claim did not need to be considered on its merits at all; it would fail if the discrimination claims failed, and succeed if they succeeded.

1. That approach was, in my judgment (and neither counsel contended otherwise) erroneous, despite having had the support of all concerned. The tests in section 98 of the Employment Rights Act 1996 - which were not considered at all - are completely different from the tests applicable to claims under the 2010 Act.

1. A dismissal can be fair, though in breach of contract, or unfair, though compliant with the employee's contract. The issues are different. So it is in discrimination law. A discriminatory dismissal may be fair; a non-discriminatory dismissal may be unfair. Whether that is so on the facts, depends on applying to those facts the differing statutory tests applicable to the different causes of action.

1. I am unaware of any authority for the Tribunal's proposition in the last two lines of its decision that "it cannot be reasonable to dismiss an employee for a discriminatory reason". I regard that proposition as contrary to principle and statute. In my judgment, the unfair dismissal claim must be remitted for reconsideration on that ground, and not on the ground that the discrimination claims are in part to be remitted.