Secretary of State for Justice & Anor v Dunn UKEAT/0234/16/DM

Appeal against a finding of unlawful direct disability discrimination and discrimination arising from disability. Appeal allowed and the decision was set aside.

In November 2014 the Claimant made an application for ill-health retirement. The process for dealing with that application was a protracted one and it was not until 2015 when he was diagnosed with heart failure that his application was successful. The Claimant made claims of unlawful disability discrimination in relation to his treatment by the Respondents from September 2012 onwards and in particular in relation to the handling of his ill-health retirement application. Most claims were dismissed but his claim of unlawful direct disability discrimination and discrimination arising from disability succeeded. The Respondent appealed, the essence of the direct discrimination appeal being that the Tribunal misunderstood and misapplied the two-stage test in respect of the burden of proof and failed to provide adequate reasons. The essence of the section 15 appeal was that the Tribunal failed properly to deal with causation, failed to deal with justification and reached conclusions on a basis not advanced in the claim.

The EAT allowed the appeal. There was no basis on which the Tribunal could have held that the burden shifted to the Respondents. There was nothing in the evidence or the findings of primary fact from which inferences of less favourable treatment could be drawn (for the section 13 claim). Moreover, the Tribunal failed to address questions of causation adequately or at all in relation to the discrimination arising from disability claim (section 15).

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Appeal No. UKEAT/0234/16/DM

EMPLOYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 26 & 27 January 2017

Before

THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)

MR P L C PAGLIARI

MRS L S TINSLEY

(1) SECRETARY OF STATE FOR JUSTICE

(2) HM INSPECTORATE OF PRISONS (APPELLANTS)

**

**

DUNN (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellants MR THOMAS KIRK (of Counsel) Instructed by: Government Legal Department One Kemble Street London WC2B 4TS

For the Respondent MR ANDREW BOUSFIELD (of Counsel) Instructed by: Equal Justice Solicitors MFG House 15 Cambridge Court 210 Shepherds Bush Road Hammersmith London W6 7NJ

**SUMMARY**

DISABILITY DISCRIMINATION - Disability related discrimination

DISABILITY DISCRIMINATION - Section 15

DISABILITY DISCRIMINATION - Burden of proof

The Claimant complained of disability discrimination by the Respondents on many grounds. All but three were dismissed. On those three grounds the Tribunal held that the burden shifted to the Respondents and that they had not discharged the onus of proof. On appeal, held there was no basis on which the Tribunal could have held that the burden shifted to the Respondents. There was nothing in the evidence or the findings of primary fact from which inferences of less favourable treatment could be drawn (for the section 13 claim). Moreover, the Tribunal failed to address questions of causation adequately or at all in relation to the discrimination arising from disability claim (section 15). Other errors were also found. Appeal allowed. Finding of no discrimination substituted.

**THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)****Introduction**
  1. Dr Dunn, referred to as the Claimant, was employed as a Prisons Inspector based at Her Majesty's Inspectorate of Prisons by the Secretary of State for Justice. The Ministry of Justice ("MoJ") and HM Inspectorate of Prisons ("HMIP") are together referred to as "the Respondents", as they were before the Tribunal.
  1. In November 2014 the Claimant made an application for ill-health retirement on the grounds of clinical depression, a recognised disability suffered by him during his employment from September 2012. The process for dealing with that application was a protracted one, and during the course of it, in March 2015 he attended Accident and Emergency with a worsening of his atrial fibrillation. He submitted an updated application for ill-health retirement because of the change of circumstances relating to his heart condition on 19 June 2015, and in July 2015 was diagnosed with heart failure. His application for ill-health retirement was ultimately accepted by letter dated 21 December 2015 on the grounds of cardiomyopathy.
  1. The Claimant made claims of unlawful disability discrimination in relation to his treatment by the Respondents from September 2012 onwards and in particular in relation to the handling of his ill-health retirement application. By a Judgment with Reasons promulgated on 17 May 2016, an Employment Tribunal (comprising Employment Judge Lewzey and members, Lady Sedley and Mr Javid) rejected the significant majority of those claims. All claims pursued by the Claimant of harassment failed. The claims based on failures to make reasonable adjustments were rejected on their merits or regarded as out of time and therefore rejected, and ultimately claims based on three detrimental acts only succeeded, with a further claim that succeeded, namely issue 4.1.8, held to be out of time or not part of a continuing act.
  1. In relation to the three successful claims, the Employment Tribunal held

(i) the Respondents failed to provide reasonable adjustments in a timely manner from September 2012 to date (issue 4.1.2) and this was unlawful discrimination arising from disability (see [108]);

(ii) Maneer Afsar failed to put in place any or adequate support mechanisms for the Claimant at his return-to-work interview in May 2014 (issue 4.1.9) and this was both unlawful direct disability discrimination and discrimination arising from disability (see [115] and [116]);

(iii) the Respondents unreasonably delayed the Claimant's application for ill-health retirement in November 2014 and failed to consider his ten years' service up to August 2001 when calculating his pension (issue 4.1.10) and these were both acts of unlawful direct disability discrimination and discrimination arising from disability (see [117] and [118]).

  1. The Respondents appeal those findings. There are eight grounds of appeal, all permitted to proceed to a Full Hearing by HHJ Peter Clark. The essence of the direct discrimination appeal is that the Tribunal misunderstood and misapplied the two-stage test in respect of the burden of proof and failed to provide adequate reasons. The essence of the section 15 appeal is that the Tribunal failed properly to deal with causation, failed to deal with justification and reached conclusions on a basis not advanced in the claim. There is also a challenge based on natural justice in relation to the direct discrimination findings in that it is said that certain allegations were not put to the relevant witnesses.
  1. The appeal is advanced on the Respondents' behalf by Mr Tom Kirk of counsel; he appears for both organisations as he appeared below. The Claimant resists the appeal and appears by Mr Andrew Bousfield of counsel, who also appeared below. There is no cross-appeal.
  1. This is the unanimous judgment of the Appeal Tribunal to which both the lay members have contributed, and all three of us are grateful for the assistance provided to us by counsel.
**The Facts**
  1. Given the narrow scope of the appeal in terms of the three detrimental acts, it is unnecessary to set out all of the facts, but anybody reading this Judgment should recognise that we have not done so. The critical facts that are relevant to the three detriments found proved as found by the Employment Tribunal are summarised below.
  1. The Claimant had two relevant disabilities: clinical depression and a heart condition caused by atrial fibrillation. He commenced employment in October 2010 with the Respondents, and was diagnosed with clinical depression in September 2012. His direct line manager, the team leader of the Police Custody Team with effect from January 2013, was Ms Afsar. As the Tribunal found at paragraphs 25 and 26, in October 2014 the Claimant had a meeting with Ms Afsar and asked to be considered for medical retirement on the basis of his depression. He completed an application for medical retirement on 4 November 2014.
  1. On 18 November Lesley Young, an employee of MoJ who acted as Head of Finance for HMIP, submitted that form to a private company called Shared Services Connected Ltd ("SSC"). SSC dealt with transactional Human Resource issues, in other words, pay, pension, ill-health etc. The process was that SSC would forward the application for medical retirement to an organisation called Occupational Health Assist ("OH Assist", previously ATOS) who were Occupational Health advisors for MoJ. They in turn referred the application to an organisation called Health Assured Ltd, who are the pension scheme medical advisors. They are separate from another set of administrators of the Civil Service Pension Schemes, known as My CSP Ltd. Health Assured Ltd are the arbiters of whether an individual does or does not fulfil the ill-health retirement criteria, and it is they who make recommendations to My CSP Ltd in this regard.
  1. The Claimant's application form for medical retirement was rejected just before 3 December 2014, because it did not provide sufficient information. It was resubmitted by him directly to SSC on 3 December 2014. There was, accordingly a period of delay between October and December that was capable of being explained by reference to that failure. The form was unfortunately rejected again on 16 December because it had not been signed and dated. There was then some to-ing and fro-ing of correspondence about obtaining a signature, and there were difficulties with reading and printing various documents, but on 16 January 2015 there was confirmation that the relevant team would work with the documents provided as they were and that a case manager would be allocated to deal with the medical retirement process in respect of the Claimant. Nevertheless, as the Tribunal found, there remained an issue about whether the Claimant needed to be seen by Occupational Health and about how an appointment with Occupational Health should be progressed. An impasse, as it was described, remained as at 9 February 2015, and on 10 February 2015, Ms Afsar complained to Ms Young and to others at the MoJ about the length of time the process was taking. She was unhappy on the Claimant's behalf, about the delay.
  1. It was not until 6 March 2015 that an Occupational Health referral was made and the Claimant was then notified of an appointment to take place on 23 March. The appointment took place, and the Occupational Health report, dated 23 March 2015, provided as a consequence, identified depression, limited scope for adjustments and said that the Claimant was not fit for full duties. On 26 March 2015 the Claimant attended A&E with a worsening of his atrial fibrillation. He did not return to work after that date.
  1. On 11 May there was a telephone conference between the Claimant and Dr Peter Wright of OH Assist, subsequently recorded in a report, stating that the chances of significant improvement in the Claimant's mental health so that he could resume his previous duties were not substantial. Also on 11 May 2015, Lyn Fawcett was appointed as HR caseworker to work with the Claimant's line manager to deal with his application for ill-health retirement. She emailed Ms Young on 11 June 2015, advising that since the Claimant's circumstances had changed by reason of his heart condition he would need to complete a new application form making reference to that condition. That was done on 19 June, and subsequently, in early July, an ill-health retirement estimate was issued. That, however, was, as the Claimant viewed it, incorrect because the figures were wrong, and he communicated this on 3 July. On 4 July 2015 he was diagnosed with congestive heart failure, and on 3 August 2015 his GP wrote a report to Ms Fawcett stating that the Claimant was in heart failure and that the GP believed he would be unable to work for the foreseeable future due to both depression and his heart condition.
  1. There was a meeting on 2 September 2015 between the Claimant, who was accompanied by his partner Henry Kay, Gemma Cullen of MoJ and Ms Afsar. Ms Afsar recorded the outcome of that case conference in a letter dated 3 September 2015, quoted by the Tribunal in its Reasons. She said that the Claimant had made it clear that he was unable to return to work. She recorded that there had been a discussion about proceeding down a capability or absence management process that would lead to dismissal and would run in tandem with the Claimant's ill-health retirement application. If dismissal took place before ill-health retirement was granted, ill-health retirement could be applied retrospectively.
  1. On 29 September 2015 Dr Wright concluded that the Claimant fulfilled the criteria for ill-health retirement, and he wrote to the HR caseworker to that effect. There was then correspondence between Health Assured Ltd and Ms Fawcett about the ill-health retirement application, which was regarded as incomplete, between October and November. There were also inaccurate pension estimates provided in this period, and it was not until by letter dated 21 December 2015, the Claimant was granted ill-health retirement on the grounds of cardiomyopathy.
**The ET's Reasons**
  1. The Tribunal set out the issues to be determined at [2], listing the 16 detrimental acts relied on by the Claimant for each of the heads of claim at subparagraph 4. At subparagraph 5 the Tribunal identified the questions it would have to answer in relation to a section 13 direct discrimination claim. The chosen comparator relied on by the Claimant was dealt with at subparagraph 5.2:

"5.2. … The Claimant relies on hypothetical comparators, that is, someone with ill health or absent from work who is not disabled. He may also identify actual comparators."

In the event, no actual comparators were identified by him.

  1. At subparagraph 6 the Tribunal identified the questions it would have to answer in determining a section 15 discrimination arising from disability claim:

"6.1. The allegation of unfavourable treatment as 'something arising in consequence of the Claimant's disability' falling within [s.15] Equality Act 2010 is the Claimant being unable to carry out prison visits, being unable to work full time, being absent from work, requiring occupational health visits and applying for ill-health retirement. No comparator is needed.

6.2. Does the Claimant prove that the Respondent treated the Claimant as set out in paragraph 4 above?

6.3. Did the Respondent treat the Claimant as aforesaid because of the something arising in consequence of the disability? Does the Respondent show that the treatment was a proportionate means of achieving a legitimate aim?

6.4. Alternatively, has the Respondent shown that it did not know, and could not reasonably have been expected to know, that the Claimant has a disability?"

Importantly, the Tribunal identified the consequences that the Claimant relied on as arising from his disability and as amounting to the "something" that caused, at least in part, unfavourable treatment.

  1. The reasonable adjustments claim is dealt with at subparagraph 7. There were five PCPs relied on by the Claimant, all relating to the way in which he was required to work and none relating to the ill-health retirement process itself.
  1. The Tribunal dealt with its conclusions in relation to the direct discrimination and "discrimination arising from" claims together. Its relevant conclusions are as follows:

(i) In relation to issue 4.1.2, at [107]and [108] the Tribunal held:

"107. The second detriment (4.1.2):

"Failing to provide reasonable adjustments to the Claimant in a timely manner from September 2012 to date."

The Respondents had no knowledge of disability until February 2014. When the Respondents received the Occupational Health report they did not undertake the stress risk assessment of the weekly reviews. There were no regular meetings. There is no evidence from which the Tribunal can infer that these failures were because of [the Claimant's] disability. Rather they were because of incompetence. For that reason, the claim of direct discrimination fails.

108. In relation to the claim of discrimination arising from disability, the disability had the consequence of [the Claimant] not being able to work full time without stress. Therefore, the issue is whether he was treated less favourably by not being able to work full time because of that stress. We are satisfied that that was the case and therefore in relation to 4.1.2 the claim of discrimination arising from disability succeeds."

(ii) In relation to issue 4.1.9, at [115] and [116] the ET held:

"115. The next detriment (4.1.9) is:

"By Maneer Afsar not putting into place any or adequate support mechanisms for the Claimant at his return to work interview in May 2014."

Ms Afsar did not conduct the stress risk assessment. It was not put to Ms Afsar that the failure to deal with the adjustments was by reason of the disability. She did agree that there were no back-to-back assessments, that there would be no prison inspections, and that there would be regular meetings, although they did not happen. She failed to undertake the stress risk assessment and failed to hold the regular meetings, she did however put in place other things that [the Claimant] asked for. We have considered whether this [sic] anything from which the Tribunal can infer that this was because of depression in order for the burden to shift. We take into account that if there something [sic] from which an inference should be drawn the burden will shift to the Respondents and we should consider whether the Respondents have discharged the burden. We are not satisfied that the Respondents have demonstrated that the failure to put in place adequate support mechanisms was not because of the Claimant's disability. For that reason, the claim of direct discrimination succeeds in relation to issue 4.1.9.

116. In relation to discrimination arising from disability, the disability of depression had the consequence of [the Claimant] needing more support because of his sensitivity, the Respondent did not provide that additional support, and for that reason the claim of discrimination arising from disability succeeds in relation to issue 4.1.9."

There is plainly a significant overlap between the issues at 4.1.2 and 4.1.9. Although, as Mr Bousfield submitted, the way in which issue 4.1. 2 was originally advanced went far wider than the Tribunal's findings in relation to that issue, it seems to us that the detrimental act at 4.1.9 is fully contained within the detrimental act relied on as issue 4.1.2.

(iii) In relation to issue 4.1.10 the Tribunal held at [117] and [118] as follows:

"117. The next detriment (4.1.10) is:

"Unreasonably delaying the Claimant's application for ill health retirement in November 2014 and failing to consider his 10 years' service."

There was an unreasonable delay in the application for ill health retirement with no clear explanation for why that delay took place. The Respondents failed to consider his full service. We are satisfied that [the Claimant] was subjected to less favourable treatment by the MoJ, the First Respondent, although not by HM Inspectorate of Prisons, the Second Respondent. The Ministry of Justice operates an arcane and unwieldy system. There is a lack of proper management of individual cases, no one person oversees the case from beginning to end and there is a requirement to deal with three different contracted out services, all of which rely on different information held on computers in different parts of the organisations. We are satisfied that [the Claimant] was subjected to a detriment and the burden accordingly shifts to the Ministry of Justice. Indeed, the Ministry of Justice have acknowledged the shortcomings of their process in the letter from Mrs Whitcombe dated 20 May 2015 (2/764) in which she says:

"Overall it is clear from looking into the matters relating to your case that our process has failed to appropriately manage the filing of your referral papers, as well as keep you informed and updated on both the management of your referral and your complaint or manage your expectations on the sometimes lengthy processes in being supplied with FME related to the request for ill health retirement."

118. We are satisfied that the Ministry of Justice have failed to discharge the burden on them and we are therefore unanimous that the claim of direct discrimination in relation to this matter succeeds. In relation to the discrimination arising from disability, [the Claimant] required more support and sensitivity because of his depression. The history of the ill health retirement application does not reflect that he was provided with more support and sensitivity in those circumstances the claim of discrimination arising from disability succeeds against the Ministry of Justice only."

  1. It will be apparent that the Tribunal's conclusions do not expressly address the question whether the Respondents had shown that the unfavourable treatment in relation to 4.1.2, 4.1.9 and 4.1.10 was a proportionate means of achieving a legitimate aim for section 15 purposes.
**The Law**
  1. Section 13 provides:

"13. Direct discrimination

(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

(3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B."

  1. Section 15 provides:

"15. Discrimination arising from disability

(1) A person (A) discriminates against a disabled person (B) if -

(a) A treats B unfavourably because of something arising in consequence of B's disability, and

(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability."

  1. Section 136, which deals with the burden of proof, provides:

"136. Burden of proof

(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

(6) A reference to the court includes a reference to -

(a) an employment tribunal; …"

  1. The legal principles that apply to those provisions and that are relevant in this case are largely undisputed and are well established. So far as the burden of proof is concerned, the proper approach has been addressed by the Court of Appeal in Igen Ltd v Wong [2005] IRLR 258, Madarassy v Nomura International plc [2007] ICR 867 and Laing v Manchester City Council [2006] IRLR 748. It has also been addressed by the Supreme Court in [Hewage v Grampian Health Board ]()[2012] UKSC 37. It is unnecessary for the purposes of this appeal to summarise the effect of those well-known decisions. So far as section 15 is concerned, the approach here too is now well established (see, for example, the decisions in [IPC Media Ltd v Millar ]()[2013] IRLR 707; and Basildon & Thurrock NHS Foundation Trust v Weerasinghe . We do not consider that any extended consideration of those authorities is called for.
**The Appeal**

Direct Discrimination

  1. Two acts of unlawful direct discrimination were found established: issues 4.1.9 and 4.1.10. Grounds 1, 2 and 3 challenge those findings. Ground 1 challenges the findings on the basis that the directly discriminatory reasons for the less favourable treatment relied on by the Claimant were not fairly and squarely put to the putative discriminators. Mr Kirk submits that this was necessary on natural justice grounds to give them an opportunity of answering the case made against them. Furthermore, he submits that it was a necessary part of examining the thought processes of the relevant decision makers in this case in order to determine what facts operated on their minds.
  1. Fairness and proper procedure does demand that the substance of an allegation is put to a witness so that he or she has a proper opportunity to rebut or explain it. However, as Mr Bousfield submits there are many different ways in which the substance of an allegation can be put, though he agrees, put it must be. Moreover, we consider that in all but the most obvious cases involving direct discrimination a critical part of the tribunal's consideration is the mental processes, whether conscious or subconscious, of the putative discriminator (see to this effect the observations of Lady Hale at [62] to [64], in R (on the application of E) v Governing Body of JFS and Ors. If those matters are not explored and a claimant's case is not put, it is difficult to see how a tribunal can properly consider them.
  1. Here, there is no dispute that in relation to issue 4.1.9 the Tribunal was invited to find that Ms Afsar ignored recommendations of the Occupational Health doctor, Stephanie Foster, by failing to undertake a stress risk assessment or hold or put in place adequate support for the Claimant at his return-to-work interview. Nor is there any dispute that the case advanced was that she treated him in this way because of antipathy to depression and managing it and the consequences of depression or a fear of so managing it. It was said that this was part of the reason operating on her mind when she treated the Claimant as she did (see for example [66] of the Claimant's closing submissions to the ET). Antipathy is a strong word, as Mr Bousfield accepts, and suggests at least a conscious attitude. We have been provided with the notes of cross-examination, and in any event Mr Bousfield concedes that this allegation was not put to Ms Afsar and she was not asked any questions exploring whether she had antipathy towards depression or its consequences or any fear of managing a person with depression. Indeed, her reasons for treating the Claimant in the way she did were barely, if at all, challenged.
  1. So far as issue 4.1.10 is concerned, although no specific individual is identified as having been responsible for the alleged detrimental treatment in relation to this issue, Mr Bousfield has made clear that the allegation was directed at the three MoJ employees with responsibility for the process (Traci Wilson, Ms Fawcett and Ms Cullen). Again, in relation to these individuals, the case advanced by the Claimant was that the remarkable delay in dealing with his ill-health retirement application was influenced, consciously or unconsciously, by their antipathy towards disability and the expensive process or outcome of ill-health retirement (see [71] of the Claimant's closing submissions). Again, we have been shown the notes of cross-examination of these three witnesses. Whilst the section 15 claim was explored with these witnesses, direct discrimination on disability grounds was not put to Ms Wilson or Ms Fawcett in any way at all. So far as Ms Cullen is concerned, the closest the questioning got to exploring whether the depression was part of the reason for Ms Cullen's treatment of the Claimant is a series of what can only be described as somewhat confused questions on page 32 of the notes we have been provided with as follows:

"Clear that you don't go out of away to discriminate but do you accept you were influenced by the fact that needed to be dealt with? Influence on what.

When providing strategic advice you are looking at absence management? One factor would be the factors in my mind was he was not at work.

You may not have made a distinction between somebody not at work and somebody at work because they were disabled? Sorry.

Do you think have made a difference between somebody who was not disabled and somebody who was off work long term disabled? No."

  1. At no time was it put to Ms Cullen that she had any antipathy towards those with depression, but nor did the Tribunal make its finding on that basis. In the circumstances, save in relation to Ms Cullen, we have concluded that ground 1 is made out. In our judgment, the allegations of direct discrimination were not only not fairly and properly put to the relevant witnesses but the thought processes and the reasons for their treatment of the Claimant were simply not explored. Because the ET made findings on a different basis in relation to Ms Cullen, we have not been persuaded that Ms Cullen had no opportunity to answer the allegations of direct discrimination, and so, in relation to her, ground 1 fails.
  1. We deal with grounds 2 and 3 together. They are:

(i) Ground 2: The Tribunal erred in law in making findings of direct discrimination on issues 4.1.9 and 4.1.10 without:

(a) determining the facts that operated on the mind of the relevant discriminators, in accordance with the guidance of the Supreme Court in JFS;

(b) making proper findings of primary facts such as would justify the shifting of the burden of proof; or

(c) articulating reasons for those findings that are Meek v City of Birmingham District Council [1987] IRLR 250 compliant.

(ii) Ground 3: The Tribunal erred in law when failing to give any or adequate consideration to relevant evidence of non-discriminatory reasons for the treatment under issues 4.1.9 and 4.1.10 offered by the Respondents' witnesses.

  1. So far as direct discrimination is concerned, the issues come down to the question whether there was a sufficient basis in the primary facts found by the Tribunal to justify its conclusion that the impugned treatment was less favourable and was because of the Claimant's disability. There is also a reasons challenge, which at least in relation to issue 4.1.10 is conceded.
  1. Mr Bousfield made a number of preliminary points in relation to these two grounds that we accept. This was a hearing that lasted many days, during which many witnesses gave evidence and were cross-examined. There was also a substantial amount of documentary evidence. We recognise that we have seen only a small part of that material, and we bear that firmly in mind. Mr Bousfield also submits that this Tribunal did make proper findings of primary fact, considered carefully what inferences it was proper and appropriate to draw and conducted the inference drawing process correctly. He submits that these two grounds are in effect perversity challenges, for which there is a very high threshold. Moreover, he resists the reasons challenge in relation to issue 4.1.9, contending that the Tribunal adequately set out its findings, that those findings justified the inferences it drew and that this Appeal Tribunal should not succumb to what is advanced by the Respondents as a counsel of perfection.
  1. There can be no dispute that it is an error of law for a tribunal to find less favourable treatment because of a protected characteristic where there is no evidence or material from which that conclusion or inference can be drawn. That proposition has been stated by the courts in many cases including as in Effa v Alexandra Healthcare NHS Trust, unreported, Court of Appeal, 5 November 1999, by Mummery LJ who held:

"It is common ground that an error in law is made by a tribunal if it finds less favourable treatment on racial grounds where there is no evidence or material from which it can properly make such an inference. … Although an employment tribunal is less formal in its procedures than a court of law and is not bound by the rules of evidence, it must be satisfied that the complaint is proved, on the balance of probabilities, by the person who makes it. In the absence of direct evidence on an issue of less favourable treatment on racial grounds, the tribunal may make inferences from other facts which are undisputed or are established by evidence. However, in the absence of adequate material from which inferences can be properly made, a tribunal is not entitled to find a claim proved by making unsupported legal or factual assumptions about disputed questions of less favourable treatment on racial grounds. This is so whether the discrimination is alleged to arise from conscious or subconscious influences operating in the mind of the alleged discriminator."

  1. The critical enquiry required by these two grounds is, accordingly to consider what evidence or primary findings of fact were available on which to base the conclusion that the Claimant was treated as he was, consciously or unconsciously, at least in part, because of his disability by Ms Afsar not putting in place adequate support mechanisms and/or by the unreasonable delay in his application for ill-health retirement and the failure to consider his full service in calculating pension. We have set out the findings made at [115] above. No factual findings are identified to support this conclusion in relation to Ms Afsar, still less to explain the basis on which the Employment Tribunal determined that the burden of proof shifted. Whilst the Tribunal must have found that the burden shifted, there is nothing in that paragraph to explain why. Similarly, at [117] the Tribunal found unreasonable delay that was not clearly explained and a failure to consider the Claimant's full service. Both were regarded by the Tribunal as detrimental. Significantly, the Tribunal did not make any express finding that the detrimental treatment was less favourable. The Tribunal found a lack of proper management and an unwieldy system and concluded that the burden shifted. That is, as Mr Kirk submits, akin to a finding of unreasonable treatment, and it is well established that unreasonable treatment on its own is not enough. Moreover, again, the Tribunal did not identify the primary facts or evidence from which inferences could be drawn or conclusions reached that a conscious or unconscious reason operating on the mind of the alleged discriminator was the Claimant's disability.
  1. Any conclusion that there was unlawful direct discrimination in this case required findings both of less favourable treatment and that the reason for such treatment was the Claimant's admitted disability. Both were disputed issues that had to be established by evidence or inference drawn from evidence and findings that supported such inference. If there is no such evidence and no such findings were made, then no proper inference could have been drawn, and, as Mummery LJ said, what was done was the making of unsupported legal or factual assumptions about disputed issues. Even if a tribunal considers that the conduct of the employer requires some explanation, before the burden of proof can shift there must be something to suggest that the treatment was less favourable and by reason of the relevant protected characteristic (see, if necessary, B & C v A.
  1. Although it is not mandatory for a tribunal to adopt a two-stage approach to questions of proof in a discrimination case and a focus on the reason why instead is permissible, in this case the Employment Tribunal did in fact adopt a two-stage approach. Having done so, before the burden of proof could shift the Claimant had to prove facts from which the Tribunal could conclude in the absence of an adequate explanation that there was both less favourable treatment in relation to each of the detrimental acts he relied on and that the reason for that treatment was at least in part his disability. One means of addressing the less favourable treatment question is to consider how a hypothetical comparator without the Claimant's disability would have been treated. Whilst it is not an error of law to fail to approach a case in that way, the task of a tribunal dealing with direct discrimination claims is to scrutinise the evidence to determine whether there has been less favourable treatment of somebody in a comparable position. If this is not done by reference to a hypothetical comparator it must nevertheless be done to determine why the employer did the impugned treatment. We do not consider that the Tribunal engaged in this task. It did not identify its findings of fact or the evidence that permitted a conclusion that the Claimant had been treated less favourably than a person without a disability would have been treated.
  1. We asked Mr Bousfield to identify such findings, and he was unable to do so. We asked Mr Bousfield to identify what material there was on which it could be said that a person without the disability but in otherwise comparable circumstances would have been treated more favourably. In writing, at paragraph 19 of his Respondent's Answer, he asserts that:

"19. This is a case where there were other indications of discriminatory conduct drawn out in cross-examination and throughout the evidence, viz, the fact that the MoJ make early retirement "not easy to get" and that this itself, and the evidence from a senior MoJ civil servant … justified an inference being drawn on primary facts. …"

We have considered those points. We do not consider that making early retirement difficult to obtain or operating an arcane and unwieldy process for early retirement are facts that come anywhere close to being material from which an inference of less favourable (not unfavourable) treatment can be drawn. There are findings of unreasonable treatment but without more, they cannot justify a conclusion that a person without disability would have been treated in any better or more favourable way.

  1. We specifically invited Mr Bousfield to address this issue in the course of the hearing. In relation to issue 4.1.9 he identified matters that he said justified inferences being drawn in relation to Ms Afsar. First, she had herself been through disability and understood the procedures. Secondly, she had never worked with anyone with depression. Thirdly, the Occupational Health doctor, Dr Foster, gave clear advice that was simply not followed by Ms Afsar, and there was no conceivable explanation for her failure. All of those matters, he argued, justified the inference that disability played a part in her treatment of the Claimant. Quite apart from the fact that we do not consider that those matters provide any or sufficient basis for drawing the inference that Ms Afsar would have treated a person without depression but in otherwise comparable circumstances more favourably, the Employment Tribunal simply made no such findings. In our judgment, this Tribunal did not engage with Ms Afsar's thought processes or in any comparative analysis of the way in which she treated or would treat others.
  1. The same is true in relation to issue 4.1.10. We do not accept Mr Bousfield's submission that the Tribunal rejected the explanations offered by the MoJ witnesses about the delays in the ill-health retirement process. We have summarised the Tribunal's findings of fact about the different periods and the way in which different periods of delay attributable to different organisations were explained. Although at [117] the Tribunal held that there was "no clear explanation for why that delay took place", we do not understand this to be a finding that there was unexplained delay. Indeed the ET went on to identify a number of reasons for that delay in the same paragraph. First, it described the system itself as arcane and unwieldy. Secondly, the Tribunal found that there was a lack of proper management of individual cases. Thirdly, the Tribunal found that no single person oversaw the case from beginning to end. Finally, the Tribunal found that there was a requirement to deal with three different contracted out services all of which relied on different information held on computers in different parts of the organisation. Those were all matters that formed part of the explanation for the delay as identified in the evidence and indeed in the Tribunal's own findings. Nevertheless, the Tribunal engaged in no comparative analysis as to how or why others without the relevant disability fared or would have fared under this ill-health retirement process. Further, the Tribunal failed to engage at all with the mental processes of the relevant decision makers.
  1. Mr Kirk submits, and we agree, that the Tribunal's finding that the burden shifted in relation to issue 4.1.9 was all the more demanding of an explanation given that the Tribunal had previously concluded at [107] when dealing with issue 4.1.2, within which issue 4.1.9 was subsumed that Ms Afsar's failure to undertake a stress risk assessment was because of incompetence rather than unlawful discrimination. Furthermore, the Tribunal had rejected the greater part of the allegations of unlawful discrimination made against Ms Afsar in this case. In those circumstances, we consider that it was all the more incumbent on the Tribunal to explain why although the disability did not operate on her mind in relation to the greater part of her treatment of the Claimant, it did operate on her mind in relation to this limited aspect. As Peter Gibson LJ observed in Bahl v Law Society [2004] EWCA Civ 1070 at paragraph 127:

"127. … It would be astonishing for a person subconsciously motivated by discriminatory considerations only to act in a discriminatory fashion in such a haphazard way. There is no explanation given by the ET for this."

The same is true in this case. The Tribunal did not stand back and consider how its finding that Ms Afsar unlawfully discriminated in relation to this limited aspect of her treatment of the Claimant sat with its conclusions that she did not unlawfully discriminate against him in respect of the greater part of her handling of his employment situation and the meetings she had with him.

  1. So far as issue 4.1.10 is concerned, Mr Kirk contends - and, again, we agree - that the Tribunal's conclusion was all the more demanding of an explanation in light of the evidence available to it. In particular, there was oral evidence given by Ms Cullen, as disclosed by the Notes of Evidence, that another ill-health retirement application had taken nearly two years - that is to say, double the time taken in the Claimant's case - whilst a yet further case had been dealt with much more swiftly, in just two months. It is clear that there were no questions asked of Ms Cullen about the individual circumstances of those cases and there was no evidence that the case that took two years involved a person with a disability or that the case that took two months did not involve such an individual. There was also evidence, as recorded by the Tribunal, provided by the note of the case conference that took place on 2 September 2015 at which the Claimant was told that the "Ill health process without the hiccups is a lengthy process - sometimes is [sic] taking nearly a year".
  1. We have concluded that had the Tribunal undertaken any sort of comparative exercise to address the question of less favourable treatment rather than jumping to an unsupported assumption, that evidence would have had to have been considered by it. It was not, and, whilst, as we have said, it may not be necessary to construct a hypothetical comparator to address those issues, it is necessary for a Tribunal to scrutinise all of the evidence provided with care so that it can properly assess and determine whether the explanations given by the Respondents, together with any explanations that are available in the evidence accepted by the Tribunal and the findings it makes, are sufficient to establish, at least, a prima facie case that the Respondents treat people less favourably because of disability. That was not done at any stage. Grounds 2 and 3 succeed accordingly and the findings of unlawful direct discrimination in relation to issues 4.1.9 and 4.1.10 cannot stand.

Discrimination Arising from Disability

  1. There are four grounds of challenge in relation to the findings under this heading. Ground 4 challenges the Tribunal's conclusions in relation to all three detrimental acts on the basis that the finding of unlawful discrimination under section 15 was made on a wholly different basis to that which had been pleaded by the Claimant, or set out in the list of issues or advanced on his behalf at the hearing. Mr Kirk refers to subparagraph 6 of the Judgment, where the Tribunal identified the five matters said to be consequences of the Claimant's disability and to constitute the "something" that caused at least in part the unfavourable treatment. To reiterate, these were first, the Claimant's inability to carry out prison visits; secondly, his inability to work full-time; thirdly, his absence from work; fourthly, his need for health visits; and fifthly, his application for ill-health retirement.
  1. Mr Kirk contends that in concluding that there was unlawful discrimination pursuant to section 15 in relation to the three detrimental acts, the Tribunal identified different consequences of the disability to those listed above. He points to [108] where the Tribunal found in relation to issue 4.1.2 that the disability had the consequence of the Claimant being unable to work full-time without stress. He points to [116] where, in relation to issue 4.1.9, the Tribunal found that the disability had the consequence of the Claimant "needing more support because of his sensitivity". Finally, in relation to issue 4.1.10, Mr Kirk points to [118] where the Tribunal found that the Claimant "required more support and sensitivity because of his depression".
  1. Where is no dispute that when determining a claim for discrimination it is the act about which complaint is made that must be considered and addressed by the tribunal and it is not for a tribunal to substitute some other act. If authority is needed for that proposition, it is to be found in Chapman v Simon [1994] IRLR 124. We consider that principle must extend as a matter of logic to the determination of a section 15 claim and in particular to the question whether the reason for the treatment was "something" that was itself a consequence of the disability. Mr Bousfield did not seriously argue the contrary. However, he contends that the inconsistencies between the pleaded matters and those identified by the Tribunal merely reflect the oral evidence given by the various witnesses, including the Claimant, and, further, that the lack of support and sensitivity identified by the Tribunal in the paragraphs to which Mr Kirk refers fell within the matters that had been pleaded so that there can be no material error of law.
  1. We have considered that submission carefully, bearing in mind that a Tribunal's decision should be viewed broadly and that the Reasons should be looked at in the round. The Claimant's case was that the result of his disability was an inability to fulfil his role fully or at all together with the need to have health visits and ultimately the need to take ill-health retirement. We regard those as obvious consequences or potential consequences of his disability. The question for the Tribunal was accordingly whether any of the unfavourable treatment was in part at least because of those consequences. If the consequences found by the Tribunal were different to those listed and to those explored in the evidence by reference to the pleaded and agreed issues, that would mean that the Respondents' witnesses would not have been given the opportunity to say whether or not or to what extent those matters formed part of their reasons.
  1. We have concluded that the point made by Mr Bousfield does have force in relation to issue 4.1.2. The pleaded "something" is encompassed within the "something" that was found by the Tribunal, and we have concluded that the Tribunal's broadening of that "something" to include stress made no material difference. We reach a different view, however, in relation to issues 4.1.9 and 4.1.10. In relation to those issues, the Tribunal relied solely on the stress and sensitivity and not on any of the pleaded consequences. That, because it was not pleaded or advanced as part of the Claimant's case, was not explored with the witnesses. In our judgment, that was an error of law, and, accordingly, this ground succeeds in relation to those two findings.
  1. Ground 5 challenges as in error of law, perverse or unreasoned the Tribunal's approach to causation in relation to the three detrimental acts or aspects of treatment that were found to have been because of something arising in consequence of disability.
  1. There are four main elements identified by section 15 that must be established for such a claim. First, there must be unfavourable treatment. No comparison is required. Secondly, there must be something arising in consequence of the disability. Those are ordinary words to be given their natural meaning. The consequences of a disability are infinitely varied depending on the particular facts and circumstances of an individual's case and the disability in question. They may include anything that is the result, effect or outcome of a disabled person's disability. Some consequences are likely to be obvious, such as where the disability causes a claimant to be ill and absent from work so that absence is a consequence. Others may be less so. It is a question of fact for an employment tribunal to decide whether something does in fact arise in consequence of a claimant's disability. The third element is that the unfavourable treatment must be because of the something arising in consequence of the disability. As Mr Kirk submits, this involves a consideration of the thought processes of the putative discriminator in all but the most obvious cases in order to determine whether the something arising in consequence of the disability operated on the mind of the putative discriminator, whether consciously or subconsciously, at least to a significant extent (see paragraph 17 of IPC Media Ltd v Millar). If so, the treatment will have been because of the "something" even if there were other reasons for the impugned treatment.
  1. Finally, unfavourable treatment because of something arising in consequence of disability will not amount to unlawful discrimination if the alleged discriminator can show that the treatment is a proportionate means of achieving a legitimate aim and therefore justified.
  1. With those four main elements in mind, we set out the Tribunal's essential reasoning in relation to each of the three issues. First, in relation to issue 4.1.2, the Tribunal found that the something arising in consequence was the Claimant's inability to work full-time without stress. It identified the question as being whether the unfavourable treatment - that is to say, the failure to provide reasonable adjustments in a timely manner - was because of that and concluded that it was. It gave no reasons or explanation for that finding. There is nothing, moreover, in the Judgment to demonstrate that the Tribunal engaged with the subjective thought processes of any of the relevant decision makers. Moreover, as Mr Kirk submits and we have already explained, that conclusion is inconsistent with the Tribunal's conclusion at [107] where it held that the reason for the self same failures was incompetence on the part of the decision maker.
  1. In relation to issue 4.1.9, the Tribunal found that the "something" was the Claimant's need for additional support because of his sensitivity and that such support was not provided and "for that reason the claim of discrimination arising from disability succeeds" ([116]). We consider this to be illogical. It does not follow from a failure to provide adequate support that the reason for the failure or part of the reason was the sensitivity of the individual leading to a need for more support. There may be a link between these matters, but the reasoning fails to apply the statutory words to the facts found and demonstrates a failure to engage with Ms Afsar's reasons, whether as identified by her or by the evidence, or any inferences that were capable of being drawn from her evidence or the evidence more generally.
  1. The ET's reasoning in relation to issue 4.1.10 is sparse indeed. It held that the Claimant required more support and sensitivity because of his depression and that was the "something". The Tribunal held that the history of the ill-health application showed that the additional support he needed was not provided, and "in those circumstances the claim … succeeds" ([118]). Again, on the face of it, this reasoning fails to engage with the reason why there were delays in the process and the errors that led to a failure to consider the Claimant's full service in calculating pension. The question for the Tribunal was whether the Claimant's need for more support and sensitivity formed any part of the reason why unfavourable treatment was meted out to him, namely delay and poor handling of his application. That question, on the face of it, was simply not addressed.
  1. Mr Bousfield's answer in writing to these points is that motive is irrelevant. Moreover, he submits that the Claimant did not have to prove the reason for the unfavourable treatment but simply that disability was a significant influence in the minds of the decision makers. We agree with him that motive is irrelevant. Nonetheless, the statutory test requires a tribunal to address the question whether the unfavourable treatment is because of something arising in consequence of disability. As we have said, it need not be the sole reason, but it must be a significant or at least more than trivial reason. Just as with direct discrimination, save in the most obvious case an examination of the conscious and/or unconscious thought processes of the putative discriminator is likely to be necessary. In relation to issue 4.1.9, the Tribunal did not identify the reason for Ms Afsar's failure. In relation to issue 4.1.2, it made no examination of her thought processes. To the extent that the Tribunal addressed her thought processes at all in relation to issue 4.1.2, these were addressed at [107] by a finding that the reason for her failure to treat the Claimant as it was said she should have done was incompetence. Beyond that, the Tribunal made no further examination of her thought processes. Similarly, in relation to issue 4.1.10, the Tribunal failed to engage with the reason why there were delays, as we have already indicated. In all these circumstances, we have concluded that ground 5 succeeds and that the findings of discrimination arising from disability cannot stand.
  1. Ground 6 challenges the Tribunal's failure in relation to all three detriments to consider objective justification. This was pleaded in detail by the Respondents in their amended Answer. It was identified as an agreed issue by the Tribunal. In closing submissions, the Respondents invited the Tribunal to consider the pleaded objective justifications, and there is no suggestion by anyone that they abandoned that defence. The Tribunal simply failed to engage with this issue and its decision is in error to that extent. Mr Bousfield concedes that there was a failure to deal with objective justification. He did not suggest to us that there could be no legitimate aim for the treatment in this case or that this is a case where such a defence could not have succeeded. In those circumstances, ground 6 also succeeds, and the decision cannot stand for that reason too in relation to discrimination arising from disability.
  1. In light of the conclusions we have expressed in relation to ground 6, it seems to us that grounds 7 and 8 simply fall away and it is unnecessary to address them.
**Disposal**
  1. We turn then to consider the effect of our findings that there were significant errors of law that vitiate the Tribunal's findings both of unlawful direct discrimination and discrimination arising from disability in relation to all three detrimental acts found. Mr Kirk invites us to substitute a finding of no discrimination in this case rather than remit to the same or to a fresh Tribunal. That is an unusual course to adopt and is a course that we could only adopt if no purpose could be served by remitting the case because the inevitable and only conclusion a properly directed tribunal could come to in this case is that there was no unlawful discrimination on either of these grounds.
  1. So far as direct disability discrimination is concerned, Mr Kirk relies in support of his submission on the fact that there are no primary facts upon which this Tribunal could have determined that the burden of proof shifted to the Respondents and that there was therefore no prima facie case of unlawful direct discrimination. He points, moreover, to the non-discriminatory reasons in the evidence and the findings made by the Tribunal for the detrimental treatment, which were not rejected and which provide, he submits, an answer to these claims. He says that there is nothing to remit and that no reasonable tribunal properly directed could conclude that there was unlawful direct discrimination here.
  1. So far as discrimination arising from disability is concerned, he submits that there is no evidence that the Claimant's sensitivity or inability to work full-time without stress was a reason in the mind of the Respondents for any of the impugned treatment whether consciously or unconsciously. In the absence of evidence and against the findings of fact made in relation to the delays in the ill-health retirement process and as to the reason why Ms Afsar did not undertake a stress assessment or do the other things identified in issues 4.1.2 and 4.1.9, here too he submits that there is simply nothing to remit.
  1. We have considered those submissions anxiously and with care. We are conscious in particular, given the length of this hearing and the amount of documentary evidence available, that there was a substantial amount of evidence heard in this case and that an important backdrop to it was the expression, albeit internally, of serious concern amongst HMIP senior personnel about the way in which this ill-health retirement process was handled. We invited Mr Bousfield to identify for us material in the evidence that could have led the Tribunal to find that Ms Afsar acted unlawfully in relation to issues 4.1.2 and 4.1.9 or at least a prima facie case to that effect and that the MoJ employees - Ms Wilson, Ms Fawcett and Ms Cullen - acted unlawfully in relation to issue 4.1.10 or at least a prima facie case to that effect.
  1. So far as Ms Afsar is concerned, Mr Bousfield was unable to identify a single piece of evidence that might have led the Tribunal to conclude that there was a prima facie case of less favourable treatment on disability grounds or unfavourable treatment at least in part because of something arising in consequence of the Claimant's disability. So far as issue 4.1.10 is concerned, Mr Bousfield identified emails forming part of a series of emails from senior people within HMIP expressing concern and consternation about the delay and the unacceptable way in which the ill-health retirement process was being handled. He produced, in particular, an email demonstrating that such concerns were communicated by HMIP to personnel at MoJ. Whilst it is obviously a matter of concern that senior people were so seriously concerned about the process, that in itself has no other sensible relevance, to the reasons for the delay in the particular process in the Claimant's case, nor does it touch on the reason why there was such a delay or even begin to demonstrate that those reasons included, consciously or unconsciously, the Claimant's disability or something arising from that disability.
  1. Mr Bousfield makes a number of additional and broader points that he submits could support such inferences being drawn. First, he says that the Claimant's case was that the Respondents were pushing the managing absence process rather than pursuing the ill-health retirement process, in part at least, because of the relative expense of ill-health retirement and a desire to avoid such expense. Whilst that might have formed the basis of adverse inferences, that case was expressly rejected by the Tribunal at [121] in relation to issue 4.1.14. In that paragraph, the Tribunal found that there was no breach by the Respondents of policy in pursuing managing absence in tandem with ill-health retirement even where that might result in a dismissal before the ill-health retirement application had been dealt with.
  1. Mr Bousfield raises a second point, namely that early retirement was regarded as expensive and therefore the process was deliberately made more difficult. However, that too was addressed by the Tribunal at [122] where the Tribunal dealt with and rejected issue 4.1.15. The Tribunal rejected the factual basis for the allegation, going on to say that even if the burden shifted it was satisfied that ill-health retirement had a high hurdle and that it was not satisfied that there was either direct discrimination or discrimination arising from disability in this regard. In other words, it found this to be a difficult ill-health retirement process that demands a high hurdle before an individual is accepted as fulfilling the criteria for ill-health retirement, in part because the benefits provided are expensive to provide. That fact on its own does not mean that people without disability are treated any differently from those who do have a disability or that unfavourable treatment is involved by reference to the consequences of such disability.
  1. It seems to us that the Tribunal did not find anything more in relation to issue 4.1.10 than that the ill-health retirement process was operated unreasonably and perhaps even to some extent unfairly. It did not find that there was unexplained, unreasonable conduct, and, as we have already indicated, whilst there was no clear explanation, as the Tribunal said, for all of the delay, there were a number of reasons that explained, at least, some delay, none of which involved unlawful discrimination of any kind. In those circumstances, we have come to the somewhat reluctant conclusion that this is a case where there is nothing in the findings of fact or in the evidence drawn to our attention that could lead a properly directed tribunal to reach the conclusion that a prima facie case of less favourable treatment on disability grounds or unfavourable treatment caused by something arising in consequence of disability has been established. The inevitable conclusion in this case is that there was no such unlawful discrimination, and we accordingly substitute that finding in relation to all three findings of unlawful treatment.
**Conclusion**
  1. We cannot leave this case without this further comment. The lay members in particular, who have experience of managing absence and ill-health retirement processes of the kind in focus in this case, are concerned by the manner in which it was applied and operated by MoJ as found by the Tribunal. The Tribunal found that the system operated in a manner that caused stress and anxiety to the Claimant, who was already unwell with depression and who suffered a worsening of his heart condition as a consequence. It undoubtedly led to inordinate delay. The systemic failures and the inordinate delay that occurred here may have impacted more harshly on the Claimant as a disabled person and in future might operate more harshly on others with disabilities. However, that was not the case advanced by the Claimant to the Tribunal and not a case, accordingly, that we have been able to address. The lay members in particular feel that these systemic failures and the delays that they cause should be addressed for the future by those with responsibility at MoJ so that others are not subjected to what may be both unfair and disadvantageous treatment.
  1. For all the reasons we have given above, this appeal is allowed. The findings of unlawful disability discrimination and discrimination arising from disability are set aside, and in their place are substituted decisions that there was no unlawful discrimination and no discrimination arising from disability in relation to issues 4.1.2, 4.1.9 and 4.1.10.

Published: 21/03/2017 13:02

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