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.