The claimant was dismissed on capability grounds after being off sick and after several phased returns to work were unsuccessful. The ET found that the claimant had suffered unlawful discrimination for a reason relating to her disability by the respondent’s implementing a phased return to work before it had consulted with a medical specialist and/or before the underlying cause of the claimant’s condition had been identified.  Also the Tribunal found that the claimant had suffered unlawful discrimination for a reason relating to her disability because she had been invited to a disciplinary meeting. Finally the Tribunal found that the respondent had been guilty of harassment of the claimant by bullying her to agree to phased returns to work. The respondent appealed.

The EAT allowed the appeal. The Employment Tribunal at no stage appreciated the full impact of the decision of the House of Lords in Malcolm and had fallen into a fundamental error of law in not appreciating the true comparator which it had to have in mind before it could find that there had been disability related discrimination in this case. The harassment claim was also rejected because the ET judgment did not find that the alleged harassment was for a reason which was related to a person’s disability, which it should be if the harassment claim was to be upheld.

_______________

Appeal No. UKEAT/0107/12/JOJ

EMPLOYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 14 March 2013

Before

THE HONOURABLE MR JUSTICE SINGH, MR M CLANCY, MR G LEWIS

THE PRINCE'S TRUST (APPELLANT)

DONELAN (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MS L McNAIR-WILSON (of Counsel)

Instructed by:
Magrath LLP Solicitors
66-67 Newman Street
London
W1T 3EQ

For the Respondent
MISS K DONELAN (The Respondent in Person)

DISABILITY DISCRIMINATION ACT – Disability related discrimination

The Respondent employer appealed against the findings of the Employment Tribunal that the Claimant had been subject to disability related discrimination and harassment. The principal ground of appeal was that the ET failed to appreciate the full impact of London Borough of Lewisham (2008) on the need for a comparator under the DDA 1995.

Held: the ET had erred in the manner alleged and the appeal would be allowed.

1. This is an appeal by the Respondent employer against the decision of the Employment Tribunal sitting at London Central which was sent to the parties on 7 November 2011. The Tribunal upheld the Claimant's claim in three respects but dismissed the rest of her claim. At paragraph 19 of its Judgment it found that the Claimant had suffered unlawful discrimination for a reason relating to her disability by the Respondent's implementing a phased return to work before it had consulted with medical specialist and/or before the underlying cause of the Claimant's condition had been identified. Also at paragraph 19 of the Judgment the Tribunal found that the Claimant had suffered unlawful discrimination for a reason relating to her disability because she had been invited to a disciplinary meeting in November 2009.

1. At paragraph 17 of its Judgment the Tribunal found that the Respondent had been guilty of harassment of the Claimant by bullying her to agree to phased returns to work. The Respondent in this appeal criticises each of those findings and appeals against them in point of law. The Claimant has submitted succinct arguments in a written skeleton argument and has also made brief and courteous submissions before this Tribunal at this hearing and we are grateful for those submissions.

1. The Claimant was employed by the Respondent as an administrative assistant in its Programme, Quality and Safety Department from 24 September 2007 until her dismissal on the ground of capability on 26 February 2010.

1. On 2 March 2009 the Claimant was absent from work for a period of seven weeks. No underlying medical diagnosis was identified at that time, however, the Respondent obtained an occupational health report on 16 March. On 7 May 2009 a return to work meeting was convened with the Claimant's line manager, Simon Doyle. On the recommendation of a second occupational health report a phased return to work was agreed over a four week period.

1. On 1 June 2009 when the first phased return to work had been unsuccessful, a second phased return was attempted. On 9 June a further occupational health report was obtained. This recommended reduced hours and home working for the Claimant for two days per week. On 11 June, the Respondent received a letter from the Claimant's GP, Dr Akwenuke to the effect that she was suffering symptoms of chronic fatigue. On 16 June Mr Doyle met the Claimant to explore what schedule she felt able to comply with. On 18 June 2009 a third occupational health report was received recommending that the Claimant should be permitted to work alternate days from home or be given sick leave on those days. On 19 June, Mr Doyle agreed a third phased return to work with the Claimant in which she was required to work reduced hours and permitted alternate days off. When this proved unsuccessful the Respondent obtained a detailed report from its occupational health physician, Dr Simpkin. On the basis of this recommendation following discussion with the Claimant a fourth phased return to work was implemented on 25 June 2009.

1. When the Claimant did not complete this phased return the Respondent convened an investigatory meeting with her on 15 July. The Claimant was told that her absence was considered a matter of capability beyond her control but that it was going to be dealt with under the Respondent's disciplinary procedure because since April 2009 the capability and disciplinary procedures had merged. From 20 July the Claimant was continuously absent from work by reason of ill-health. A second investigatory meeting was convened on 24 July but the Claimant did not attend by reason of ill-health. A letter was received from her GP.

1. On 12 August the Claimant was invited to attend a disciplinary hearing following the expiry of her last medical certificate on 11 November. On 3 November the Claimant was seen by a Consultant Neurologist, Professor Findlay, who diagnosed her as suffering from severe complex anxiety and fatigue and concluded that she was totally unfit for work. On 18 November the Respondent was informed by Dr Simpkin that the Claimant was quite unfit to resume any form of employment for the foreseeable future and recommended termination of her employment on medical grounds.

1. On 20 November the Claimant was invited to a disciplinary meeting to take place on 26 November. On 7 December 2009 the Claimant attended a disciplinary hearing chaired by Amie Hoyland. On 15 December she raised a grievance against Michelle Unsworth. On 8 January 2010 the Claimant attended a reconvened disciplinary meeting chaired by Amie Hoyland. On 18 January she attended a grievance meeting. On 26 February 2010 the Claimant received the outcome of her grievance. Her complaint was not upheld and she was dismissed on grounds of capability.

1. On 1 March the Claimant appealed the decision not to uphold her grievance. On 3 March she appealed the decision to dismiss her. On 10 March she attended a dismissal appeal meeting chaired by Emma Langridge. On 26 March 2010, the Claimant was informed that her appeal had not been upheld.

1. Since the events in this case took place before the Equality Act 2010 came into force the relevant legislation was contained in the Disability Discrimination Act 1995 as amended. Section 3A(1)(a) of the 1995 Act rendered it unlawful for any person to discriminate against another person for a reason which related to their disability. Section 3B of the 1995 Act provided:

"(1) For the purposes of this part, a person subjects a disabled person to harassment where for a reason which relates to the disabled person's disability he engages in unwanted conduct which has the purpose or effect of:

(a) violating the disabled person's dignity or;

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

(2) Conduct shall be regarded as having the effect referred to in paragraph (a) or (b) of subsection (1) only if having regard to all the circumstances, including in particular the perception of the disabled person it should reasonably be considered as having that effect."

1. The Employment Tribunal had before it, as set out at paragraph 3 of its Judgment an agreed list of issues compiled by the parties. Some of those issues related to the claim for unfair dismissal which was dismissed by the Tribunal and is not the subject of the present appeal. At paragraph 3(d) of the issues, the Tribunal said this:

"Whether the respondent treated the claimant less favourably than a hypothetical comparator on the grounds of her disability and/or for a reason related to her disability, and/or failed to make reasonable adjustments [there then followed a number of specific reasonable adjustments which it was argued on behalf of the claimant should have been made and had not been made in breach of the respondent's duty]

."

1. From paragraph 5, the Tribunal set out its findings of fact. We will have to return to some of those findings in the context of the specific grounds of appeal raised before this Tribunal. At section 6 of its Judgment the Tribunal set out its understanding of the law. It referred to relevant legislation including the provisions of the 1995 Act to which we have already made reference, it also referred to what it understood to be relevant authorities. In particular at paragraph 6.9 it referred to the decision of the House of Lords in London Borough of Lewisham v Malcolm [2008] 1 AC 1399. It again made brief reference to Malcolm at paragraph 9 of its Judgment; we shall have to return to that in due course.

1. From paragraph 8 of its Judgment the Tribunal set out its conclusions on the various complaints which were made on behalf of the Claimant. It dealt first with the complaints of breach of the duty to make reasonable adjustments. At paragraph 12 it concluded that there was, in fact, no failure by the Respondent to make reasonable adjustments. At paragraph 13 in what appears to us to be a section of the Judgment primarily concerned with the complaint of unfair dismissal the Tribunal made a number of findings that the Respondent employer had behaved unreasonably. For example, it said that to agree with a sick employee a return to work plan as Mr Doyle did on 7 May 2009 was not reasonable. Furthermore, the Tribunal said it was unreasonable of Mr Doyle at the meeting on 29 May 2009 to agree with her phased return to work when the Respondent had no medical report on her, that indicated what hours she could work.

1. It was unreasonable, said the Tribunal, of Mr Doyle to meet with the Claimant on 17 June at a time when the Claimant's medical condition had still not been clearly established and to put pressure on her to both agree and commit to a phased return to work. It also said that his tone, for example in an email of 19 June indicated as did his evidence to the Tribunal, that he did not believe the Claimant was incapable of work but rather was choosing not to do so. The Tribunal said that this unreasonable approach as far as a phased return to work was concerned was continued on 29 June when, having referred to the return to work plan the Claimant had agreed with Dr Simpkin, the Respondent referred to the implementation of its disciplinary procedure if it was not adhered to.

1. Finally, at the end of paragraph 13 the Tribunal said that the Claimant's laudable guilt arising out of the difficulties caused by her absence and the fear of consequences of not returning were exploited by the Respondent at the meeting on 15 July to put pressure on her to confirm her position even though she had not been seen by a specialist. Nonetheless, as the Tribunal itself observed at paragraph 14 of its Judgment, there were a number of reasons why it concluded that in fact the dismissal of the Claimant was not unfair. The Tribunal said at the end of paragraph 14 that the Respondent had shown that Claimant was dismissed by reason of her capability for performing work of the kind she was employed to do, assessed by reference to her health. At paragraph 15 the Tribunal found that the Respondent acted reasonably in treating capability as a sufficient reason for dismissing the Claimant. Furthermore, it found that the procedural steps taken by the Respondent after becoming aware that the Claimant was a disabled person coincided (we understand that to mean was in accordance with), the procedure set out in the Respondent's Attendance Management Policy. The Tribunal concluded therefore that despite the concerns it had expressed in paragraph 13 the procedure as a whole was a fair one. Finally, in this context the Tribunal concluded that the substantive decision to dismiss the Claimant was within the range of reasonable responses available to the Respondent. Accordingly the dismissal was fair, both as a matter of procedure and as a matter of substance.

1. Importantly, at paragraph 16 the Tribunal found that any employee who had been absent for the same period of time would have been treated in the same way. The Claimant was not therefore dismissed for a reason related to her disability but the Tribunal concluded that even if she had been there were no reasonable adjustments which would have made a difference and the treatment was justified. However, at paragraph 17, as we have indicated already, the Tribunal considered allegations of harassment. It dismissed most of those allegations on the facts but in respect of one complaint of harassment it found in favour of the Claimant. So far as material, paragraph 17 reads:

"In relation to the allegation that the claimant was bullied into agreeing phased returns to work, Mr Doyle used punitive language towards the claimant as set out in paragraphs 5.12, 5.14, 5.20 and 5.22 above which had the effect of creating an intimidating and hostile environment for the claimant. He did so because of her absence, believing she could choose to come to work. Her perception, suffering as she was from a variety of symptoms during this period, the cause of which had not been diagnosed and very much wanting to keep her job, was that she was being punished for her absences and pressurised to attempt to return to work when she was not well enough to do so. In all the circumstances it can reasonably be regarded as having that effect. In that respect only the claimant's claim of harassment succeeds."

1. At paragraph 19, as we have indicated, the Tribunal found there to have been two breaches by the Respondent. First it said this:

"As far as the remaining matters which the claimant alleges in the list of issues amounted to disability related discrimination, the respondent did implement phased returns to work before it had consulted with a medical specialist and/or before the underlying cause of the claimant's condition had been identified. In doing so, Mr Doyle did not follow the respondent's own attendance management policy to which Mr Collins referred him and to which he referred the claimant. We also reiterate the facts in relation to the claimant which we set out in paragraph 11 above and which led us to conclude that by the end of May 2009 the respondent had constructive knowledge that the claimant was a disabled person. Mr Doyle used punitive language in his dealings with the claimant believing she could choose to come to work. From the above facts we could conclude in the absence of an adequate explanation that implementing further phased returns after the end of May 2009 was unlawful discrimination. Mr Doyle has given no adequate explanation for his treatment of the claimant. We conclude that he would have followed the appropriate procedure and made adequate enquiries before deciding what course of action he should take in relation to a non-disabled employee who was similarly absent from work and that he treated the claimant less favourably for a reason relating to her disability; namely her absence and that treatment was not justified."

1. In the second part of paragraph 19 the Tribunal found a distinct and separate breach in the following terms:

"Similarly, the Respondent did invite the claimant to a disciplinary meeting in November 2009. By then it had actual knowledge that she was disabled, it had an attendance management policy which Ms Unsworth did not follow despite the clear reference in it as to the circumstances in which the disciplinary procedure would apply. It was decided in August 2009 that on expiry of her sick note she would be called to attend a disciplinary meeting. From the above facts, we could conclude in the absence of an adequate explanation that inviting the claimant to a disciplinary meeting was unlawful discrimination. We do not find the explanation given to the claimant by Ms Unsworth from whom we heard no evidence for the application of the disciplinary procedure to her credible. A non-disabled employee who had not complied with four phased returns to work due to an illness which did not amount to a disability would not have been invited to a disciplinary meeting but to a meeting under the respondent's attendance management policy. We conclude that the respondent did treat the claimant less favourably for a reason relating to her disability; namely she had failed to comply with four phased returns to work and that treatment was not justified …"

1. The Respondent, which is the Appellant before this Tribunal, advances three grounds of appeal; first that the Tribunal erred in law by finding that the phased returns to work amounted to disability related discrimination, secondly that the Tribunal erred in law by finding that the invitation to a disciplinary meeting in November 2009 amounted to disability related discrimination, thirdly that the Tribunal erred in law by finding that the Claimant had suffered unlawful harassment. We address each of those three grounds in turn.

1. The essential submission which is made on behalf of the Respondent is that the Tribunal failed to appreciate and direct itself correctly in accordance with the decision of the House of Lords in Malcolm to which we have already made reference. At paragraph 6.9 of its Judgment the Tribunal said as follows:

"When an employee is dismissed for the potentially fair reason of capacity a Tribunal must consider whether the employee was treated less favourably for a reason related to her disability under section 3A(1)(a) DDA and the appropriate comparator for such exercise is a person who is not disabled or who has a different disability and who is also incapable of working. In order for the alleged discriminators reason to relate to the disability it is necessary that the discriminator knows of to know of the disability at the time of the alleged discriminatory act (London Borough of Lewisham v Malcolm [2008] UKHL 43). An employer may be justified in dismissing the employee even if the illness relates to a disability."

1. At paragraph 9 of its Judgment when considering the duty of reasonable adjustment under section 4A of the 1995 Act the Tribunal again made a brief reference to the decision in Malcolm. In that context it said:

"… after Malcolm, in relation to a claim under section 3A(1) of DDA an employer was required to have actual or imputed knowledge of the disability."

1. It would appear from the two passages which we have quoted from the Tribunal's Judgment that it was under the impression that the point of law for which Malcolm is authority goes to the stage at which an employer will be regarded as having knowledge of a person's disability, whether actual or imputed. Of far greater importance, it would seem to us, is the central holding in Malcolm. The decision followed the earlier law as it had been understood to be, for example in the decision of the Court of Appeal in Clark v Novacold Ltd [1999] ICR 951. The House of Lord by a majority, with Lady Hale dissenting, overruled the Court of Appeal's decision in Clark. The impact of the decision of the House of Lords in the context of employment law, since that was a case concerned with Landlord and Tenant law, can best be understood by reference to the Judgment of this Tribunal inCity of Edinburgh Council v Dickson UKEAT/0038/09 which was given by the then President of this Tribunal, Underhill P. At paragraph 33 having considered the different provisions of section 3A of the 1995 Act, in particular the two different provisions concerned with direct discrimination of the kind familiar from other anti-discrimination legislation and the more specific concept of disability related discrimination the President said this:

"There was thus until recently a real and well recognised difference between the two types of discrimination but in London Borough of Lewisham v Malcolm … the House of Lords construed the language of a section of the Act whose terms were substantially identical to section 3A(1) in such a way as to render its scope for all practical purposes no different from that of direct discrimination. That is because it defined the comparator as a person whose case was in all respects identical of that of the claimant but who was not disabled. On this basis, less favourable treatment would in practice only be established where the disability constituted the ground for the treatment, i.e. in a case of direct discrimination. That this was the effect of the House's decision was expressly recognised by Lord Brown; see para.114, page 715 and also by Lady Hale in her dissenting speech; see para.81, page 712. It has since been confirmed that the reasoning of Malcolm applies to cases under Part 2 of the Act; see most recently Carter v London Underground Ltd UKEAT/0292/08 which reviews the earlier authorities."

1. It would seem to us that the Employment Tribunal in the present case never in its Judgment directed itself to the full implications of the decision of the House of Lords in Malcolm in the context of employment law. The impact of that decision went well beyond the question of when knowledge, actual or imputed, is to be taken to have arisen on the part of an employer. It deals with the much more fundamental point that, as the President put it, in effect the concept of disability related discrimination became conflated with the concept of direct discrimination in the 1995 Act.

1. True it is that on occasion the Tribunal in the present case does seem to have been aware of the need for there to be a comparator, for example in paragraph 19 itself it refers to how there was less favourable treatment compared to a person who was not disabled. Nevertheless, the Respondent submits before this Tribunal that it never correctly understood the full implications of the decision of the House of Lords in Malcolm or the subsequent decisions of this Tribunal which have applied that case to the context of employment law such as Dickson. The Respondent also reminded this Tribunal of the well known decision of the House of Lords in Zafar v Glasgow City Council [1998] IRLR 36, in particular in the speech of Lord Browne-Wilkinson, a former President of this Tribunal, at paragraph 11. The essential point which emerges from that is that however unreasonably an employer may have behaved, that does not give rise to an implication that the employer has discriminated on a ground prohibited by law. Lord Browne-Wilkinson said:

"The reasoning of the Industrial Tribunal on this issue is wholly defective. The Act of 1976 [that is the Race Relations Act 1976] requires it to be shown that the claimant has been treated by the person against whom the discrimination is alleged less favourably than that person treats would have treated another. In deciding that issue the conduct of a hypothetical reasonable employer is irrelevant. The alleged discriminator may or may not be a reasonable employer. If he is not a reasonable employer he might well have treated another employee in just the same unsatisfactory way as he treated the complainant, in which case he would not have treated the complainant less favourably for the purposes of the Act of 1976. The fact that for the purposes of the law of unfair dismissal an employer has acted unreasonably casts no light whatsoever on the question whether he has treated the employee less favourably for the purposes of the Act of 1976."

1. In the present case the Respondent submits that still more will that be the case where the Employment Tribunal in fact finds that the employer has behaved reasonably for the purposes of unfair dismissal. That was indeed the finding of the Tribunal in the present case. It found, as we have already said, not only that the decision to dismiss the Claimant on ground of capability was within the band of reasonable responses, it also found that the procedure leading up to that dismissal was a reasonable one and that included the decision to initiate a disciplinary process and the invitation of the Claimant to a disciplinary meeting in November 2009.

1. We accept the Respondent's submissions on this fundamental point. We have concluded that the Employment Tribunal regrettably did fall into a fundamental error of law in not appreciating the true comparator which it had to have in mind before it could find that there had been disability related discrimination in this case. As the Respondent submits at paragraph 37 of its skeleton argument, the correct comparator is an individual who like the Claimant has expressed a desire to return to work in circumstances where the medical consensus was that they are well enough to do so.

1. Reference was made before this Tribunal, which we need not rehearse because it would unduly lengthen the Judgment, to the medical evidence which was before the Employment Tribunal to that effect; that evidence is summarised in the Respondent's skeleton argument at paragraph 37. Furthermore, as the Respondent there says, the Tribunal itself at paragraphs 5.9 to 5.23 implicitly recognised that all the medical professionals who saw the Claimant considered her well enough to return to work on a phased basis. The Tribunal made no finding that a person who is similarly absent but deemed well enough to work by the medical professionals would not have been required to return. Furthermore, we also accept the Respondent's submission summarised at paragraph 38(a) of its skeleton argument that the Tribunal misunderstood the uncontradicted evidence before it, in particular as to what was required by the Respondent's attendance management policy; in particular sections 9 and 10. As the Respondent has submitted that policy did not in fact include the obligations which the Tribunal appears to have imputed to it; for example to have the diagnosis of a specialist at the relevant time.

1. So far as one particular suggestion is concerned that the employer was required to investigate the underlying cause of a disabled person's condition, that appears to have proceeded from a misunderstanding of the policy at page 158 of the bundle before us which is in section 9.1. There appears in that section a table which includes various steps. Step 3 suggests that the employer should try to establish through investigation and discussion with the employee:

"The underlying reasons for frequent absences. Until the underlying cause is identified an appropriate and effective remedy will be impossible to identify."

1. Below that step there appear a number of further boxes. It is quite clear to us that the references in those boxes are to the sort of enquiries that might have to be conducted by an employer, for example to ask: are the absences in part because of personal/family problems, are the absences in any way work related, i.e. nature of job, duties, etc? Those matters, it seems to us, have nothing to do with obtaining, for example, a specialist diagnosis as to the cause of a disabled person's condition.

1. In any event, and more fundamentally, as we have already indicated there is nothing in the Tribunal's reasoning in this case to support any suggestion that however the employer might have been required to behave in respect of others that the employer treated this Claimant less favourably compared to those others. Even if, as we have said, the Tribunal was right to consider that in some ways, as it summarised at paragraph 13, the Respondent behaved unreasonably that would not in any way support the conclusion that the employer necessarily discriminated on grounds of disability. For all those reasons we accept the Respondent's first ground of appeal.

1. Under this ground the Respondent criticises the second part of paragraph 19 of the Employment Tribunal's Judgment. Here, as we have seen, the specific complaint was that there was disability related discrimination because the Respondent invited the Claimant to attend a disciplinary meeting in November 2009. Again, we accept the Respondent's submissions that the Tribunal fell into error as a matter of law in dealing with this finding. This is again fundamentally, for the reasons we have already given, that the Employment Tribunal at no stage appreciated the full impact of the decision of the House of Lords in Malcolm, particularly in the context of employment law. It never asked itself correctly who the right comparator was for this purpose. It is of some concern that the Tribunal found to be a discriminatory decision in this context something which it had regarded as being reasonable earlier in its decision. Furthermore, as we have already said, at paragraph 16 the Tribunal had already found that any employee who had been absent for the same period of time would have been treated in the same way and that the Claimant was not dismissed for a reason related to her disability.

1. As it seems to us on its findings as to the reasonableness of the procedure which was adopted, the Tribunal would and should have found that the relevant comparator who had all the characteristics of this Claimant except for her particular disability would have been treated in the same way; in other words they too would have been considered in accordance with the Respondent's disciplinary policy. It is quite clear, for example, from a note of the meeting of 15 July 2009 that the Respondent's disciplinary policy was not confined to questions of misconduct. As was explained to the Claimant at that meeting in accordance with that note it included cases of capability which were outside an employee's own control. There was no necessary stigma therefore or disapproval to be attached to the use of the disciplinary procedure. It may be, and it is unnecessary for this Tribunal to decide this question, that the Employment Tribunal was right to criticise the Respondent for taking the view that changes made by ACAS in April 2009 should lead to the merger of its policy to do with absence by reason of sickness and disciplinary matters.

1. However, it seems to us that that is not to the point. The crucial point is that the Tribunal never made any finding of fact that a non-disabled person would have been treated any differently or more favourably. All the evidence before the Tribunal indicates that if a non-disabled person with a lengthy absence on grounds of ill-health had had to be considered by the Respondent, he or she would have been treated in exactly the same way. Whether that was wrong or even whether that was unreasonable is neither here nor there when it comes to deciding whether there was discrimination related to disability for present purposes. Furthermore, and finally, we also accept the Respondent's submission in this context that any discrimination there was would have been justified. After all, we have said, the Tribunal had already for itself decided that a reasonable and fair procedure had been adopted by the Respondent; see for example paragraph 15 of its Judgment.

1. The decision to invite the Claimant to a disciplinary meeting in November 2009 would have been a justified one, even if otherwise as a matter of law could amount to discrimination which was related to disability. For those reasons we also accept the Respondent's second ground of appeal.

1. This ground relates to the specific finding of harassment which was made at paragraph 17 of the Tribunal's Judgment which we have already quoted so far as material. It is important to note that the background was that in the further and better particulars of her claim which was provided by the Claimant before the employment Tribunal, she was making 19 separate allegations of harassment. The only allegation of bullying was to be found in item 8:

"I was bullied into agreeing to phased return to work when I stated I have no choice to agree through the fear of losing my job as I haven't seen a specialist."

1. The Respondent submits that the finding by the Tribunal at paragraph 17 of its Judgment was wrong in law because it did not in any way reflect the specific allegation of bullying which was actually being made by the Claimant. The Respondent submits by reference to the well known decision of the Court of Appeal in Chapman v Simon [1994] IRLR 124 that it was not within the power of the Tribunal to make the finding which it did at paragraph 17. In Chapman v Simon Peter Gibson LJ said:

"Under section 54 of the 1976 Act the complainant is entitled to complain to the Tribunal that a person has committed an unlawful act of discrimination, but it is the act of which complaint is made and no other that the Tribunal must consider and rule upon. If it finds that the complaint is well founded the remedies which it can give a complainant under section 56(1) of the 1976 Act are specifically directed to the act to which the complaint relates. If the act of which complaint is made is found to be not proven it is not for the Tribunal to find another act of racial discrimination of which complaint has not been made to give a remedy in respect of that other act."

1. So the Respondent submits by way of analogy in the context of the 1995 Act the specific allegation of harassment has to be pleaded and proved before the Tribunal can make a finding in favour of a Claimant. In the present case it is submitted there was no such allegation, furthermore it is pointed out that no allegation of the kind mentioned in paragraph 17 in respect of Mr Doyle had ever been made by the Claimant, either in her pleaded case or in her witness statement. It is pointed out that insofar as she was directing a complaint of harassment at any particular individual it was only against Michelle Unsworth. Furthermore, the Respondent points out that at paragraph 17 of its Judgment, the Employment Tribunal made reference to four earlier passages in its Judgment, none of which in fact support the conclusion which it drew from them.

1. Those passages did not in fact suggest that Mr Doyle had done or said anything, for example, to use "punitive language towards the Claimant" as suggested at paragraph 17. For example, at paragraph 5.20 of the Judgment there is reference to a letter of 29 June 2009. When that letter is examined (at page 116 of the bundle before this Tribunal), in fact it emerges that the letter was signed by Ms Unsworth and not by Mr Doyle. Furthermore, the passage at paragraph 5.22 makes reference to a meeting on 30 June 2009 at which Mr Doyle was amongst those present. However, there is nothing in paragraph 5.22 which makes any finding of fact that Mr Doyle did or said anything, it simply records his presence at the meeting.

1. In paragraph 5.14 there is reference to correspondence after the Claimant's phased return to work had been agreed. Indeed, there is a reference to an email of 19 June 2009 to be found at page 110 of the bundle before us in which there is express reference made to the Claimant's agreement to that particular phased return to work. Be that as it may the fundamental point which the Respondent makes is that none of that can possibly amount to what the Tribunal inferred from it at paragraph 17, namely that Mr Doyle had been guilty of bullying the Claimant and that this had the effect of creating an intimidating and hostile environment for her.

1. Furthermore, and even more fundamentally as it seems to us, there is this crucial difficulty in the conclusion reached by the Employment Tribunal at paragraph 17 the Tribunal identified the reason for Mr Doyle's conduct, even if it did amount to bullying, as being, "because of her absence believing she could choose to come to work". That, as it seems to us is not a reason falling within section 3B of the 1995 Act. It is quite clear from the terms of that section, which we have already quoted, that the alleged harassment must be for a reason which is related to a person's disability. Even if actually something may be true and even if it may be categorised as being unreasonable it will not fall within the statutory definition unless it is for a relevant reason. There is no finding fact in paragraph 17 or elsewhere in this Employment Tribunal's Judgment that it was so related.

1. For all of those reasons therefore we also accept the Respondent's third ground of appeal.

1. We have carefully considered what should follow from the conclusions which we have so far reached. In our judgment there is no need for this case to be remitted to the Employment Tribunal because our conclusions have not depended on anything which would need further investigation of the evidence or any further facts to be established. Our fundamental conclusion is that regrettably the Employment Tribunal fell into error as a matter of law: it misdirected itself in particular as to the approach to be taken to the correct comparator.

1. Accordingly, we would allow this appeal and substitute simply this decision for that of the Employment Tribunal; namely that the claims of disability related discrimination and harassment are dismissed.