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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Pnaiser v NHS England & Anor (Disability Discrimination: Burden of proof)  UKEAT 0137_15_0412 (04 December 2015)
Cite as:  IRLR 170,  UKEAT 0137_15_0412
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EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8AE
At the Tribunal
Judgment handed down on 4 December 2015
THE HONOURABLE MRS JUSTICE SIMLER DBE
MS R PNAISER APPELLANT
(1) NHS ENGLAND
(2) COVENTRY CITY COUNCIL RESPONDENTS
Transcript of Proceedings
For the Appellant
MS KAREN MOSS
Darbys Solicitors LLP
For the First Respondent
MISS KIRTI JERAM
DAC Beachcroft LLP
3 Hardman Street
For the Second Respondent
MISS SOPHIE GARNER
Coventry City Council
4th Floor, Christ Church House
DISABILITY DISCRIMINATION - Burden of proof
DISABILITY DISCRIMINATION - Section 15
The Claimant brought claims of unlawful disability discrimination under section 15 against both NHS England and the Council alleging (inter alia):
(i) that the withdrawal of a job offer by Prof Rashid on behalf of NHS England was unfavourable treatment, done because of something arising in consequence of her disability; and that Prof Rashid knew or ought to have known of her disability. No justification argument was advanced by NHS England.
(ii) In relation to the Council she alleged (among other things) that the giving of a negative reference by Ms Tennant which led to the withdrawal of the job offer was unfavourable treatment, given as a consequence of the absences which arose in consequence of her disability. It was conceded that the Council (and Ms Tennant) knew that the Claimant was disabled at the time the reference was given.
The claims failed and were dismissed by the Employment Tribunal on the basis that the Claimant failed to establish a prima facie case such as would shift the burden of proof to either Respondent.
The appeal would be allowed. A fair reading of the whole of paragraph 122 of the Tribunal Reasons shows that the Tribunal did apply a test that required the Claimant to show that the only inference that could be drawn was a discriminatory one before it could conclude that the burden shifted to the Respondents. This was an impermissibly high hurdle. What the Tribunal should have asked itself instead is simply whether the fact that Ms Tennant gave a negative reference, which she denied giving, in a conversation where she mentioned the Claimant’s significant absence, and her knowledge of and concerns about the Claimant’s history of significant absences were together sufficient to raise a prima facie case against the Council that absence was (consciously or unconsciously) a reason in Ms Tennant’s mind for giving the negative reference, so that the burden shifted.
Further, the Tribunal reached a conclusion that was not only unsupported by the evidence, but was contrary to the evidence about the negative reference, and contrary to the Tribunal’s own finding as to why Ms Tennant denied giving it. There were facts from which the Tribunal could infer that the unsuitability comments were made by Ms Tennant (at least partly) because of the Claimant’s absences (which were a consequence of her disability) so that the burden shifted to the Respondents to show that absence (or the consequence of the Claimant’s disability) played no part whatever in the reasons she said the Claimant was unsuitable that led to Prof Rashid’s withdrawal of the offer of employment.
The cross-appeal against the finding that Prof Rashid had constructive knowledge of the Claimant’s disability failed. The Tribunal made a conscientious assessment of the facts and a permissible finding that was not arguably perverse or in error of law.
For the reasons given at paragraphs 81 to 83, the EAT substituted findings of unlawful discrimination pursuant to section 15 against both Respondents.
THE HONOURABLE MRS JUSTICE SIMLER DBE
1. The claim and this appeal arises out of the following undisputed facts. The Claimant (who is the Appellant on this appeal) was employed by NHS Coventry Primary Care Trust, (a predecessor organisation to Coventry City Council (“the Council”)) as a Lifestyle Risk Management Services Implementation Manager. She suffered from a medical condition amounting to a disability within the meaning of the Equality Act 2010 (“the Act”) and over at least two years, had significant absence in consequence. Having been made redundant by the Council she was offered and accepted, subject to satisfactory references, a new position with NHS England. After a telephone call on 16 September 2013 between Prof Aly Rashid, on behalf of NHS England, and Ms Ruth Tennant, on behalf of the Council, in which information was requested by Prof Rashid and given by Ms Tennant about the Claimant, Prof Rashid withdrew the job offer.
2. The Claimant brought claims of unlawful disability discrimination against both NHS England and the Council. So far as material to the appeal (and cross-appeal), she alleged:
(i) That the withdrawal of the job offer by NHS England was unfavourable treatment, done because of something arising in consequence of her disability; and that Prof Rashid knew or ought to have known of the disability. No justification argument was advanced by NHS England.
(ii) In relation to the Council she alleged (among other things) that the giving of a negative reference which led to the withdrawal of the job offer was unfavourable treatment, given as a consequence of the absences which arose in consequence of the Claimant’s disability. It was conceded that the Council (and Ms Tennant) knew that the Claimant was disabled at the time Ms Tennant gave the reference.
3. The case was heard by a Tribunal comprising Employment Judge Kelly and members, Mr Moss and Mr Woodall, over five days between August and December 2014. By a Judgment with Reasons sent to the parties on 29 December 2014, all claims of unlawful disability discrimination were dismissed. The Tribunal however found that NHS England, by Prof Rashid, had constructive knowledge of the Claimant’s disability.
4. The Claimant’s appeal is limited to the finding that there was no unlawful discrimination arising in consequence of disability under section 15 of the Act by either Respondent; and (although it ought to have been done by way of Respondent’s Notice) NHS England cross-appeals against the finding of constructive knowledge.
5. The Claimant has been represented by Ms Karen Moss who appeared below. The appeal is resisted by both Respondents, Miss Kirti Jeram appearing for NHS England as she did below and Miss Sophie Garner appearing for the Council which was represented by Ms Gillian Carter below.
6. The facts so far as relevant to the issues on this appeal can be summarised by reference to the Tribunal’s comprehensive findings.
7. The Claimant commenced employment with Coventry NHS Primary Care Trust on 1 July 2010 and Ms Tennant became her line manager in December 2010. The Claimant was unable to start work on an 8 week phased return until December 2010 as a result of a disability-related operation. She then had two further periods of disability related absence: first from 15 March 2011 to 14 April 2011 following further disability related surgery, which was followed by a three-week phased return; secondly, a week of sickness absence in July 2011. She also regularly needed to work from home as a result of ongoing symptoms.
8. The Tribunal found that it was Ms Tennant’s opinion that when working during 2011, the Claimant’s ability to carry out her duties was affected by her symptoms or the side-effects of her treatment (paragraph 31). Ms Tennant never questioned with the Claimant her ability to fulfil her role. Another manager (Elaine Russell) became the Claimant’s line manager in January 2012 and Ms Tennant reviewed the appraisal she conducted at that time, which contained:
“… no negative comments and the overview of performance was all positive, referring to the Claimant making good progress in post, taking responsibility for the management of a programme and completing important areas of work. The appraisal stated that the Claimant made a good contribution to the team and established good working relationships. Under cross-examination, Ms Tennant said that she had no performance concerns in respect of the Claimant.” (paragraph 33).
9. In April 2012 the Claimant successfully applied for a secondment with the NHS Institute for Innovation and Improvement in a Grade 8B role (her substantive role being Grade 7). Ms Tennant provided a reference supporting the secondment application in which she stated that the Claimant was suitable for the post and that her overall standard of performance was satisfactory. In the section asking “would you re-employ Candidate, if NO please give reason …” Ms Tennant answered: “YES, at current level” (paragraph 35). Ms Tennant explained that the secondment post (8B) was at a higher level than the role subsequently offered to her by NHS England (which was 8A), but there is a difference between a secondment and a permanent or substantive post (paragraph 36).
10. The Claimant started the secondment at the end of May 2012 but from 10 August 2012 was absent with a recurrence of her previous medical problems. Her secondment was terminated in September 2012 and in October 2012 she had further disability related surgery. She did not return to work for the Council at all before the end of her employment with it.
11. By September 2012 the Council was in consultation with employees regarding the effect of the Health and Social Care Act 2012 which abolished Strategic Health Authorities and Primary Care Trusts. Although the Claimant was ring-fenced for a post, she could not participate in the interview process as a consequence of her ill health and expressed an interest in being made redundant rather than applying for a position in the new structure. This was agreed. An agreed reference was produced by Ms Tennant in March 2013. The reference was as follows:
“Dr Pnaiser was employed by NHS Coventry from 01/07/2010 to 31/03/13 in the post of Lifestyle Risk Manager Implementation Manager (NHS Agenda for Change Band 7). In this post, she was responsible for leading on the development of strategy, planning, commissioning and performance management for specific projects/programmes within Lifestyle Risk Management Services. This period included a secondment to the NHS Institute for Innovation and Improvement from May 2012. Dr Psainer always carried out her tasks to the best of her ability and worked diligently. The employee was not subject to any disciplinary procedures whilst employed by NHS Coventry”.
12. The Claimant’s employment with Coventry Primary Care Trust terminated on 31 March 2013 by reason of redundancy. She did not transfer to the Council. The Tribunal found that the Council did not have access to personnel files of employees of Coventry Primary Care Trust who did not transfer to it. Ms Tennant transferred to the Council with effect from 1 April 2013.
13. On 2 July 2013 the Claimant applied to NHS England for a position as Programme Manager at Grade 8A.
14. Prof Rashid (a medical doctor with knowledge of equality, diversity and discrimination issues) interviewed the Claimant on 31 July 2013. His notes described her as an “excellent candidate” (paragraph 46). He made a verbal offer of the role on 1 August 2013 which was accepted. A written offer was sent by letter dated 2 August 2013 subject to satisfactory pre-employment checks. These were carried out by a body known as NHS Business Services Authority (“NHS BSA”) on behalf of NHS England.
15. The Claimant was referred by NHS BSA to Capita Health and Well-being (“Capita”), external occupational health providers for NHS England. A form completed following a phone call with her by a nurse at Capita said she did not have any illness, impairment or disability that might affect her work and nor did she require any adjustments. The form indicated that she was waiting for treatment and the Capita Nurse notes regarding that read as follows:
“8/8 Fibroids removed and endometriosis ablation in October 2012 treated by gynae, has monthly injection in hospital as an outpatient. Takes calcium and vitamin D tablets. JH”.
16. Capita found the Claimant fit for the post applied for and informed NHS BSA of this and also that the Claimant had
“been identified as needing ongoing treatment for a medical condition which might need some time off for ongoing medical care in the coming months.”
17. Neither NHS BSA nor Capita informed NHS England of the outcome of the medical assessment. The practice was for NHS BSA only to inform NHS England if adjustments were necessary. The Tribunal accepted that neither Prof Rashid nor Giovanna Leeks (interim Head of Human Resources Midlands and East Region for NHS England) were aware of the medical information obtained by Capita and NHS BSA.
18. The Claimant provided the names of four referees in support of her application for employment. One, Dr Fleming, to whom a standard reference form had been sent by NHS England, responded that the number of days’ sickness absence was not readily answerable since the Claimant had two surgical procedures which were the cause of her absence during her last 12 months of employment ending in June 2010 (paragraph 54). Ms Tennant responded by providing the agreed reference rather than completing the standard reference form, under cover of an email offering to discuss the matter further. The other two provided satisfactory references.
19. There were negotiations between the Claimant and NHS England in relation to aspects of the job offer, including salary and place of work. At the end of a further meeting to discuss outstanding issues about terms and conditions, on 12 September 2013, she verbally accepted the offer although she continued to raise an issue about working from Lincoln. By email dated 13 September she accepted the position.
20. The Tribunal found that Prof Rashid read the Claimant’s references for the first time on receipt of that letter. By then he was having “significant second thoughts about appointing her” because of concerns about working with her, set out at paragraph 65, but had not made up his mind (paragraph 66). When he phoned Ms Tennant he knew about the surgical procedures causing two occasions of absence (paragraph 67).
21. He had noted that Ms Tennant’s reference was not in the required form and was brief, and therefore phoned her on 16 September 2013. The call lasted 10 to 15 minutes and is referred to by the Tribunal as “the Reference Call”. Other than agreeing that Ms Tennant told Prof Rashid that the Claimant had had significant time off work in her previous post the content of that telephone call was disputed as between Prof Rashid and Ms Tennant.
22. Ms Tennant’s evidence, rejected in some but not all respects, is important. The Tribunal described it at paragraphs 71-73 as follows:
“71. Ms Tennant’s evidence was that she told Prof Rashid that she could not supply him with details of the Claimant’s sickness absence record because the Second Respondent did not have access to the Claimant’s personnel file. She said that she told him that during her employment with the PCT, the Claimant had taken significant periods of sickness absence and as a result it was difficult for her to judge whether the Claimant was suitable for role he described. She said “In making this comment, I was conscious that my last contact with Dr Pnaiser was only 5 months earlier and at that point she was still signed off by her GP on a long term sickness absence which had lasted almost 8 months.”
72. Under cross examination, she said she was unable to judge the Claimant’s suitability for the higher graded role which was very stressful and involved line management responsibilities. She said the responsibilities of the new role were not part of the Band 7 role which the Claimant undertook for her. She said that she felt she could not judge the Claimant’s potential because of her problems managing her symptoms. (We note that the Claimant asserts the evidence given related to problems managing her time, but this is not our note.) She said it was difficult for her to judge the Claimant’s suitability given her periods of sickness absence and the very different nature of the post which she had been offered. Ms Tennant agreed that she had concerns due to sickness absence, not competencies, but denied she made assumptions that the Claimant would continue to have sickness absence. It was put to her that it was her case that she held back on a positive reference because of sickness absence and she responded that she could see how that could be construed. She agreed she did not give a positive reference. She said she thought, at the time, it was explicit in her written reference that she was saying the Claimant’s performance was satisfactory when she managed her, but accepted that this was not in fact the case.
73. Under cross examination, Ms Tennant agreed that her opinion of the Claimant’s satisfactory performance at Grade 7 did not change and the only thing which changed was the Claimant’s two periods of sickness absence. She confirmed she received no negative feedback on the Claimant’s performance in her secondment. It was put to her that she could have said the Claimant was suitable for the new role. Her response was that she did not believe that she could have said that.”
23. Prof Rashid disputed Ms Tennant’s account of the Reference Call, save as already identified. He said that after explaining the new role to Ms Tennant she told him she would not employ the Claimant in such a role and that she understood its demands and sensitivity better after he had described it and did not think the Claimant would be able to undertake it. The email he sent on 17 September to NHS England staff including Ms Leeks summarising the conversation with Ms Tennant, supported his account, as follows:
“Yesterday (16/09/13) I had a telephone conversation with Ruth Tennant, Deputy Director of Public Health regarding a reference for the post of Programme Manager … I stated that the reference was very brief and did not convey very much about the applicant and had not followed the specified format. In particular, there was no reference to sickness absence, timekeeping, punctuality, reliability, attitude to work and ability to work with others. Ruth stated that she was expecting a call from me and that she had some difficulty in giving an appropriate reference as the applicant had had significant time off work in her previous role. I described the role that Rajinder had applied for and asked her if she was suitable for such a role – the answer was that she (Ruth Tennant) would not employ her in such a role. I asked her to put this in writing. …”
24. Importantly, the Tribunal found:
“Prof Rashid’s evidence on this decision was that: He did not ask Ms Tennant about the absence because he knew there could be variety of reasons for this; he then went onto explain the role and ask if the Claimant was suitable for it and he was concerned by the response he got that Ms Tennant would not employ the Claimant in the role. He said he did not ask Ms Tennant why she thought the Claimant would not be able to undertake the role and why she said she would not employ the Claimant in the role.”
25. On receipt of the 17 September email Ms Leeks telephoned Prof Rashid. Her evidence was that Prof Rashid was concerned that NHS England would be employing someone who was unable to fulfil the position. He informed her of his conversation with Ms Tennant but did not mention absence. He told her that Ms Tennant had said she would not employ the Claimant in the role and was not capable of fulfilling it. He told her, based on the Claimant’s line manager’s reference that the offer would have to be withdrawn on the basis that she could not fulfil the role. Ms Leeks told him that they needed Ms Tennant to put her views in writing as there was the possibility of an Employment Tribunal claim (though she had no specific claim in mind). Prof Rashid asked her to follow that up with Ms Tennant but after unsuccessfully attempting to speak to her, she asked Prof Rashid to do so. Ms Leeks set in motion the withdrawal process and on 18 September was warned by NHS BSA that:
“it is important to understand what the reason for the absence was as it may be related to maternity or disability”
26. The Tribunal accepted that Prof Rashid never saw this email and was not told about it. NHS BSA was so concerned about withdrawing the job offer that they refused to do so and Ms Leeks had to call the Claimant to inform her. Ms Leeks’ explanation for ignoring the advice of NHS BSA was that she considered that they had misunderstood the situation as the motivation for the withdrawal was the reference that the Claimant would not be able to fulfil the role, not her absence. She therefore considered NHS BSA’s concerns to be unfounded.
27. On 20 September 2013 Ms Leeks telephoned the Claimant to inform her that the job offer was withdrawn. This was confirmed in writing by letter dated 20 September. On 23 September 2013 Prof Rashid phoned Ms Tennant again. He told her that the job offer had been withdrawn due to her unsatisfactory verbal reference. He summarised the telephone discussion in an email at 1:35 pm that day:
“I talked to Ruth Tennant today and asked her for an honest reference in respect to the above candidate as NHS England’s regional HR department feared an industrial tribunal claim. Ruth said that the reference was given as part of a compromise agreement with the candidate and the wording was agreed with her Union at the time of her redundancy. I pointed out that as registered health professionals we had a duty to be honest about references and failure to do so can lead to referral to our professional bodies. She requested that the form for references that was originally sent out to be sent out again to see if there was anything she was prepared to add but she was not prepared to write a further reference until she had taken HR advice. I said that I would send her a copy of my notes from my last conversation with her.”
28. Later on 23 September, Ms Tennant was sent a copy of Prof Rashid’s email of 17 September setting out his account of the Reference Call, together with his email of 23 September. The covering email explained that these set out his recollection of facts and asked her if she wished to amend anything to send separate notes at her earliest convenience. She responded to Prof Rashid stating:
“Having taken advice on this matter, I will not enter into any further communication on this and have informed the recruitment team that we are not able to provide any additional information above and beyond the reference that we have already sent you.
This email should not be taken as implying that I agree that the file note you have sent over is an accurate reflection of our phone call earlier today.”
29. In light of those findings, in passages to which I shall return below, the Tribunal rejected the claims of unlawful discrimination arising from disability. It concluded that:
(i) Prof Rashid’s account of the Reference Call set out in his email of 17 September was an accurate account of that conversation (paragraph 99).
(ii) The Tribunal rejected other reasons advanced for why Prof Rashid withdrew the job offer, finding only that he withdrew the job offer because Ms Tennant told him that she would not employ the Claimant in the role and would not be able to undertake the role (paragraph 100).
(iii) Prof Rashid did not ask Ms Tennant why she held that view.
(iv) Prof Rashid could reasonably have been expected to know of the Claimant’s disability from the comments of Dr Fleming in the reference and Ms Tennant’s reference to significant absence and his own knowledge and understanding (paragraph 114).
(v) The withdrawal of the job offer was unfavourable treatment (paragraph 107); but was not because of references to the Claimant’s absence by Dr Fleming or Ms Tennant in the Reference Call.
(vi) The negative reference given by Ms Tennant was also unfavourable treatment, and there was no dispute that Ms Tennant knew of the Claimant’s disability.
(vii) As to why Ms Tennant said the Claimant was unsuitable for the new role, there was a difficulty in answering this question because Ms Tennant denied saying it altogether (paragraph 116).
(viii) But by reference to the burden of proof provisions, the Tribunal decided that the Claimant had failed to make out “a prima facie case of discrimination” in this regard. It found Prof Rashid’s email of how the discussion developed in the Reference Call to be “most persuasive of the reason for Ms Tennant’s comments” (paragraph 123). In other words, the reason she made the comment that the Claimant was unsuitable was that she did not consider the Claimant could do the role having heard his description of it.
The Background Law
30. Section 15 of the Act provides as follows:
“(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.”
31. In the course of submissions I was referred by counsel to a number of authorities including IPC Media Ltd v Millar  IRLR 707, Basildon & Thurrock NHS Foundation Trust v Weerasinghe UKEAT/0397/14/RN and Hall v Chief Constable of West Yorkshire Police  IRLR 893, as indicating the proper approach to determining section15 claims. There was substantial common ground between the parties. From these authorities, the proper approach can be summarised as follows:
(a) A Tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises.
(b) The Tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a section15 case. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.
(c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A’s motive in acting as he or she did is simply irrelevant: see Nagarajan v London Regional Transport  IRLR 572. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises, contrary to Miss Jeram’s submission (for example at paragraph 17 of her Skeleton).
(d) The Tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is “something arising in consequence of B’s disability”. That expression ‘arising in consequence of’ could describe a range of causal links. Having regard to the legislative history of section 15 of the Act (described comprehensively by Elisabeth Laing J in Hall), the statutory purpose which appears from the wording of section 15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability.
(e) For example, in Land Registry v Houghton UKEAT/0149/14 a bonus payment was refused by A because B had a warning. The warning was given for absence by a different manager. The absence arose from disability. The Tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact.
(f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.
(g) Miss Jeram argued that “a subjective approach infects the whole of section 15” by virtue of the requirement of knowledge in section 15(2) so that there must be, as she put it, ‘discriminatory motivation’ and the alleged discriminator must know that the ‘something’ that causes the treatment arises in consequence of disability. She relied on paragraphs 26 to 34 of Weerasinghe as supporting this approach, but in my judgment those paragraphs read properly do not support her submission, and indeed paragraph 34 highlights the difference between the two stages - the ‘because of’ stage involving A’s explanation for the treatment (and conscious or unconscious reasons for it) and the ‘something arising in consequence’ stage involving consideration of whether (as a matter of fact rather than belief) the ‘something’ was a consequence of the disability.
(h) Moreover, the statutory language of section 15(2) makes clear (as Miss Jeram accepts) that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the ‘something’ leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so. Moreover, the effect of section 15 would be substantially restricted on Miss Jeram’s construction, and there would be little or no difference between a direct disability discrimination claim under section 13 and a discrimination arising from disability claim under section 15.
(i) As Langstaff P held in Weerasinghe, it does not matter precisely in which order these questions are addressed. Depending on the facts, a Tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of “something arising in consequence of the claimant’s disability”. Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to ‘something’ that caused the unfavourable treatment.
32. The Tribunal addressed the law shortly, at paragraphs 90 to 98, by summarising rather than setting out the relevant provisions. As for section 15, it summarised it as requiring “motivation by an effect of the Claimant’s disability.” If by referring to ‘motivation’ the Tribunal meant the conscious or unconscious reasons or cause of the treatment, that summary is acceptable.
33. The effect of section 136 of the Act and the reverse burden of proof is summarised at paragraph 94 and the Tribunal made reference to relevant authorities setting out what all parties agree is a correct direction as to the proper approach to the burden of proof.
34. The Tribunal also referred briefly to Nagarajan in the context of direct discrimination, and to IPC Media for the proposition that “an act or omission can occur ‘because of’ a proscribed factor as long as that factor operates in the mind of the putative discriminator (consciously or unconsciously) to a significant extent”.
35. Against that background I turn to address the grounds of appeal and cross-appeal.
36. Four grounds of appeal are advanced on the Claimant’s behalf. The first two grounds relate to Ms Tennant’s reference and the Council’s liability for discrimination arising from disability. Grounds three and four are parasitic on the first two grounds and concern Prof Rashid and NHS England.
Ground 1: error of law in relation to the reverse burden of proof
37. Although no direct criticism is made of paragraph 94 and the direction the Tribunal gave itself in relation to the burden of proof, Ms Moss contends that the Tribunal nevertheless misdirected itself and/or misapplied section 136 of the Act, wrongly deciding that the Claimant had not established a prima facie case and as a consequence, failing to conclude that the burden shifted to the Council to show that Ms Tennant’s negative reference was in no sense because of something arising from the Claimant’s disability. Since there was no dispute that the Claimant’s significant absence from work arose in consequence of her disability to Ms Tennant’s knowledge, and no dispute that Ms Tennant gave an unfavourable reference, the Claimant had only to establish a prima facie case that the negative reference was given by Ms Tennant, at least partly, because of the Claimant’s absence. She submits that the Claimant did this.
38. Although it can be helpful in some cases for Tribunals to go through the two stages suggested in Igen v Wong, as the authorities demonstrate, it is not necessarily an error of law not to do so, and in many cases, moving straight to the second stage is sensible. This Tribunal did not however do so. It approached this case on a two stage basis and its Reasons must be considered in that context.
39. The Tribunal’s reasoning on the question of what caused Ms Tennant to give the negative reference appears under a heading related to Prof Rashid and NHS England, but it is common ground that the relevant passages are at paragraphs 116 to 125.
40. At paragraph 116 the Tribunal posed the question why Ms Tennant told Prof Rashid that the Claimant was unsuitable. This was a proper question to ask, although the Tribunal then said “i.e. was it because of the Claimant’s ill health” when the question should simply have been “was it (consciously or unconsciously) because of the Claimant’s absences?”
41. At paragraph 117 the Tribunal set out facts relied on by the Claimant including the satisfactory appraisal and secondment references Ms Tennant gave; and comments in her witness statement explaining why, on her case, she told Prof Rashid that since the Claimant had taken significant periods of absence, it was difficult for her to judge whether she was suitable for the role he described:
“… “In making this comment, I was conscious that my last contact with Dr Pnaiser was only 5 months earlier and at that point she was still signed off by her GP on a long term sickness absence which had lasted almost 8 months.” She (the Claimant) relied on the further similar comments by Ms Tennant when cross examined and her comment that she was unable to judge her potential because she was having difficulty managing her symptoms … She relies on Ms Tennant’s concession that her holding back on giving a positive reference could be construed as due to the sickness absence.”
42. At paragraph 118 the Tribunal noted that the Claimant’s job had been at Band 7 but the new role was at Band 8A, the secondment having been at Band 8B; the new role was sensitive and stressful, involving line management responsibilities which the Claimant did not have in her former role; and Ms Tennant made the comments about suitability for the role after Prof Rashid had explained the role to her.
43. At paragraph 120 the Tribunal referred to the chronology of the Reference Call as set out in Prof Rashid’s email of 17 September, which it accepted. On the basis of this account of the conversation it said:
“on the face of it, Ms Tennant made her comments as a response to the description of the role and so the reason she made them was that she did not consider the Claimant could do the role having heard the description.” (emphasis added)
44. At paragraph 122 the Tribunal said:
“The strongest argument for the Claimant is Ms Tennant’s failure to accept that she made the comments in question about the Claimant’s suitability for the role. One may be tempted to infer from this that the comments had a discriminatory motivation. However, we do not accept that the only inference to be made from this is that Ms Tennant had a discriminatory motive. She was quite frank about having referred to sickness absence in the Reference Call which would more obviously link to the disability. Ms Tennant was consistent in saying she did not comment further on suitability because of the Claimant’s sickness absence and because she did not fully understand the new role. However, just because she says [she] did not comment on suitability because of sickness absence does not necessarily mean that she in fact commented on suitability due to sickness absence. We consider that the reason that Ms Tennant denied making the comments was because, as it was put to her in cross examination, she knew she had gone too far in saying that the Claimant was unsuitable for the role. If Ms Tennant had had in mind the sickness absence when making the comment, and been anxious to disguise this, she would not have so readily admitted to commenting on the sickness absence in the Reference Call.
Therefore, we do not consider that the Claimant has made out a prima facie case of discrimination. …”
45. The first criticism made by Ms Moss is that the Tribunal set too high a hurdle for the Claimant, requiring her in effect to prove that the only inference that could be drawn was, as the Tribunal incorrectly put it, “Ms Tennant had a discriminatory motive”. Leaving aside the wrong reference to motive, she submits that the Claimant was not required to show positively that the negative reference (the unfavourable treatment) was caused (or was caused only) by her significant absence but merely that there were facts from which such an inference could be drawn. Ms Moss submits that the first two sentences of paragraph 122 amount in fact, to an acknowledgment by the Tribunal that the Claimant had established a prima facie case and that the burden did shift to the Council.
46. Both Respondents contend that this criticism is unjustified and that the Tribunal was simply answering the case advanced by the Claimant as summarised at paragraph 117.1 where the Claimant is recorded as saying that “the only reason Ms Tennant could have had for her comments was the Claimant’s sick absence”. Thereafter, both contend that the Tribunal carried out a proper assessment of all the facts and reached conclusions that were permissible. Accordingly they say that paragraph 122 discloses no error of law.
47. I accept the point made by the Respondents about the way the Claimant put her case. If there was nothing else in the decision to suggest that too high a hurdle was imposed by the Tribunal that might explain what it said without amounting to a misdirection or misapplication of the test.
48. However, I have concluded that a fair reading of the whole of paragraph 122 shows that the Tribunal did apply a test that required the Claimant to show that the only inference that could be drawn was a discriminatory one before it could conclude that the burden shifted to the Respondents. I reach that conclusion because, having pointed out that a discriminatory motivation was not the only inference, the Tribunal went on to say that comments on suitability did not “necessarily mean” that Ms Tenant “commented on suitability due to sickness absence”. This is consistent with the impermissibly high hurdle it had identified earlier. What the Tribunal should have asked itself instead is simply whether the fact that Ms Tennant gave a negative reference, which she denied giving, in a conversation where she mentioned the Claimant’s significant absence, and her knowledge of and concerns about the Claimant’s history of significant absences were together sufficient to raise a prima facie case against the Council that absence was (consciously or unconsciously) a reason in Ms Tennant’s mind for giving the negative reference, so that the burden shifted.
49. It is possible that the Tribunal fell into the trap of substituting ‘motive’ for causation in deciding whether the burden of proof shifted. Thus, at paragraph 118.4, the Tribunal said:
“Ms Tennant denied making the comment about the Claimant’s suitability for the role. On the face of it, this could lead us to infer that she had a discriminatory motive. …”
50. Then at paragraph 122 it said this was not the only inference to be drawn. But motive was irrelevant. The question for the Tribunal was why Ms Tennant gave the negative reference, and in that regard, was there evidence from which it could be inferred that the Claimant’s absence was part of the reason.
51. Had the Tribunal asked this question, the only possible answer, as it recognised at the beginning of paragraph 122, was that sufficient facts had been shown to shift the burden of proof. This ground of appeal is accordingly upheld.
Ground 2: no evidence to support the Tribunal’s conclusion that absence was not the reason
52. The Claimant contends that there was no evidence to support the Tribunal’s conclusion that Ms Tennant was not “motivated by the effects of the Claimant’s disability” in giving the negative reference, and moreover, that the Tribunal failed to answer the critical question why Ms Tennant said the Claimant was not suitable for the role. The evidence relied on by the Tribunal as “most persuasive of the reason for Ms Tennant’s comments” was Prof Rashid’s email account of the Reference Call, but Ms Moss submits that the email does not support the Tribunal’s conclusion. None of the other matters relied on by the Tribunal as evidence to support its implicit conclusion (at the end of paragraph 122) that absence was not the reason for the negative comments, was relied on by Ms Tennant and in fact Ms Moss submits, the evidence supported the opposite conclusion.
53. The Respondents resist this argument, albeit accepting that the judgment is not clear in certain respects. Nevertheless, both contend that there was no critical omission or failure. They acknowledge the difficulty the Tribunal found itself in because Ms Tennant denied making any comment whatever about the Claimant’s suitability, but submit this does not mean there was no evidence to support the Tribunal’s conclusion. Rather, the Tribunal assessed the facts, drew appropriate inferences, and reached a conclusion that was fully supported by its findings of fact. Both rely in particular on what are said to be the critical findings of fact at paragraphs 35 and 36 (see paragraph 9 above) as justifying the Tribunal’s conclusion. They both contend that grounds 1 and 2 are perversity appeals dressed up as errors of law, and the high hurdle for perversity has not been overcome.
54. I disagree, and accept the arguments advanced by Ms Moss in relation to this ground of appeal.
55. First, in my judgment, Prof Rashid’s email affords no evidence in fact, still less persuasive evidence of the conscious or unconscious reasons or causes operating on Ms Tennant’s mind when she made the negative comments. The email provides his account of the conversation, and at best, the order in which comments were made. Since, as the Tribunal found, Ms Tennant did not explain why she said the Claimant was unsuitable, and Prof Rashid did not ask her why she had that view, the email does not address that question. The Tribunal’s conclusion that on the face of the account the negative comments were made as a response to Prof Rashid’s description of the role “and so” the reason she made them was that she did not consider the Claimant suitable for the role begged the question whether the comments were made because of lack of competence, or the fact the Claimant had significant absences, or a combination of the two.
56. Second, because Ms Tennant denied giving the negative reference, and Prof Rashid asked no questions of her, there was in fact no direct evidence, whether given by her or at all, as to what consciously or unconsciously was operating on her mind in saying the Claimant was unsuitable. The Tribunal was permitted to draw proper inferences, but only where these were supported by undisputed evidence or its own evidence-based findings.
57. While the Respondents rely on the findings that Ms Tennant said she would re-employ “at the current level” (paragraph 35) and drew a distinction between acting up on secondment and permanent employment in a higher banded post (paragraph 36), it is difficult to see how these statements could support an inference, without more, that competence alone was the reason for the negative reference. Moreover, these statements had to be considered alongside a series of other matters set out by the Tribunal in relation to Ms Tennant and not expressly rejected, including satisfactory references, her knowledge of the Claimant’s significant absence and as summarised at paragraphs 71 to 73, her difficulty in judging the Claimant’s potential to fulfil the new role, because of concerns about absence rather than competence.
58. Third, the Tribunal’s conclusion that the reason Ms Tennant denied giving a negative reference was that she knew she had gone too far in saying to Prof Rashid that the Claimant was unsuitable for the new role (paragraph 122) was wholly inconsistent with its conclusion that Ms Tennant had genuine competence concerns that led to her negative comment. Ms Tennant would only have “gone too far” if she did not have genuine competence or performance concerns that justified it.
59. Accordingly, in my judgment the Tribunal reached a conclusion that was not only unsupported by the evidence, but was contrary to the evidence about the negative reference, and contrary to the Tribunal’s own finding as to why Ms Tennant denied giving it.
Grounds 3 and 4: errors of law in relation to Prof Rashid’s unfavourable treatment
60. I take these grounds together. The Claimant contends that if she is correct in relation to the Tribunal’s findings about Ms Tennant, it follows that there was an error of law in relation to Prof Rashid and NHS England, when it held that this claim under section 15 failed too. Further, she contends in any event, that the Tribunal misapplied the law by failing to examine whether there was the necessary casual link between the reason for the treatment complained of (the withdrawal of the job offer) and the disability.
61. It is common ground that Prof Rashid withdrew the job offer because of Ms Tennant’s negative suitability comments. Having rejected the Claimant’s case that it was Ms Tennant’s reference to significant absence that led Prof Rashid to withdraw the job offer (her primary case) and made a positive finding that it was her comments about the Claimant’s lack of suitability for the role, the question for the Tribunal was whether the unsuitability comments were something that arose in consequence of the Claimant’s disability because they arose in consequence of her absence.
62. Although Miss Jeram sought to argue that this case was never advanced against NHS England, and that the Tribunal’s finding that Prof Rashid did not withdraw the job offer because of references to the Claimant’s absence was a conclusive finding of fact on this part of the case and cannot be impugned as in error of law, I disagree. Paragraph 111 demonstrates clearly that the argument was run, and in my judgment, had therefore to be addressed. It was not answered by the findings relied on by Miss Jeram at paragraphs 100 and 100.2 that references to absence in the Reference Call were not the reason for the job withdrawal.
63. Nor in my judgment is there merit in Miss Jeram’s argument that it was wholly irrelevant and indeed impermissible to look behind the reason why Ms Tennant said the Claimant was unsuitable when considering NHS England’s liability. She relies on CLFIS (UK) Ltd v Reynolds  IRLR 563 in this regard to argue that looking behind Ms Tennant’s negative reference at her reasons for giving it involves an unacceptable composite approach to liability and would impermissibly bring together Ms Tennant’s motivation and Prof Rashid’s treatment so that her motivation is treated as a part of the ground for his action.
64. The Tribunal was required to apply the two stage test in section 15 in relation to both Respondents and to do so in relation to the unfavourable treatment identified in each case. The question why Ms Tennant said the Claimant was unsuitable is a relevant question to ask in relation to Prof Rashid’s unfavourable treatment because of it, in order to identify whether it arose in consequence of disability. This does not involve an impermissible composite approach, but the application of the statutory test which may encompass indirect consequences depending on the facts.
65. If the opinion expressed by Ms Tennant was as a matter of fact (consciously or unconsciously) significantly influenced by the Claimant’s absences (which were disability related), then subject to knowledge of disability and justification, the burden would shift to NHS England, on the facts found by the Tribunal.
66. That involves no unfairness on the facts of this case, contrary to Miss Jeram’s contention. The Tribunal found that Prof Rashid knew that the Claimant had had surgical interventions and significant absence, though he did not ask anyone about that or why. When told by Ms Tennant that she considered the Claimant unsuitable and would not employ her in the new role, in a conversation where significant absence was again referred to, again Prof Rashid did not ask why Ms Tennant held that view. At paragraph 114 the Tribunal said:
“When Ms Tennant said to him that the Claimant would not be able to undertake the role and she would not employ her in it, he should have considered whether comment (sic) could be linked to the information he had about the Claimant’s surgical interventions and absence and investigated whether the Claimant had a disability and whether Ms Tennant’s opinion was due to a disability on the part of the Claimant …”
67. In light of my conclusions in relation to grounds 1 and 2, there were facts from which the Tribunal could infer that the unsuitability comments were made by Ms Tennant (at least partly) because of the Claimant’s absences (which were a consequence of her disability) so that the burden shifted to the Respondents to show that absence (or the consequence of the Claimant’s disability) played no part whatever in the reasons she said the Claimant was unsuitable that led to Prof Rashid’s withdrawal of the offer of employment. Grounds 3 and 4 of the appeal are accordingly upheld.
68. NHS England seeks to challenge the Tribunal’s finding that Prof Rashid had constructive knowledge of the Claimant’s disability.
69. It is common ground that while the statute does not require knowledge (whether actual or constructive) of the precise diagnosis of the disability in question, it does require knowledge (actual or constructive) of the facts constituting the disability. In other words, that the individual is suffering from a physical or mental impairment which has substantial and long-term adverse effects on his or her ability to carry out normal day-to-day activities: see Wilcox v Birmingham CAB UKEAT/0293/10 at paragraph 34.
70. Miss Jeram submits that on the Tribunal’s findings it was not possible to discern that the Claimant had such an impairment, and so the Tribunal fell into error in finding that constructive knowledge was established. Moreover, she submits that the Tribunal wrongly fixed Prof Rashid with constructive knowledge because he closed his eyes to the possibility of disability, rather than the fact of disability (as indicated by paragraph 113).
71. Although it is true that the sentence relied on by Miss Jeram in paragraph 113 refers to the possibility of disability, in the next sentence the Tribunal set out the requirement that the alleged discriminator “either knew or ought to have known of the disability” italicising that phrase. Reading paragraph 113 as a whole, together with paragraph 114, I am satisfied that this is the test applied by the Tribunal, and that it was not concerned to establish whether Prof Rashid knew merely of the possibility of disability.
72. The question what a Respondent knew or should reasonably have been expected to know is one for the factual assessment of a Tribunal. Here, the Tribunal made findings about the reference given to Prof Rashid by Dr Fleming (paragraphs 54 and 67). This referred to two surgical procedures which were the cause of two periods of absence during the 12 months of her employment ending in June 2010. Ms Tennant referred to significant absence in the period to May 2012. If linked, these facts could lead to the conclusion that the Claimant had a physical condition that had substantial, long term adverse effects on her day to day activities because it required two surgical interventions and caused her to have significant absences from work (consistent with not being able to perform normal day to day activities) over a period longer than 12 months. The Tribunal found that Prof Rashid was a doctor with a high level of awareness of medical conditions. If he had asked Ms Tennant about the absences, and whether there was a link with the earlier surgery (as the Tribunal found he should have done), it is implicit on the Tribunal’s findings that Ms Tennant (who knew that the Claimant’s significant absence was disability related) would have told him that the Claimant was disabled.
73. This was a conscientious assessment of the facts and in my judgment, the Tribunal made a permissible finding that was not arguably perverse or in error of law. This challenge accordingly fails.
74. Having reached those conclusions, the question is whether I should, as Ms Moss urges, substitute a finding that both Respondents unlawfully discriminated against the Claimant under section 15 of the Act, or whether I should remit these matters to the Tribunal, as Miss Jeram and Miss Garner urge me to do. The circumstances in which the EAT substitutes its own view for those of the fact finding Tribunal are rare. This Tribunal must be satisfied that there is no other possible conclusion on the facts found before it can do so.
75. This is a case where the Tribunal made all the findings of fact necessary. The errors made were at the stage of applying the law to the facts satisfactorily found.
76. If the Tribunal had properly applied section 15 and the burden of proof provision, in light of the undisputed evidence and those factual findings, the inevitable conclusions in relation to Ms Tennant and the Council would have been as follows:
(i) There were facts from which a Tribunal could infer that a reason Ms Tennant made the comments that the Claimant was unsuitable for the new role was the Claimant’s absences.
(ii) Since there was no dispute that she knew of the disability and the absences were disability related (again as she knew), this was sufficient to establish a prima facie case under section 15 (1), and the burden shifted to the Council to show that the absences played no part whatever in the reasons for her negative reference.
(iii) Ms Tennant denied saying the Claimant was unsuitable, had not questioned the Claimant’s competence, gave no explanation for saying the Claimant was unsuitable, and gave evidence (not rejected by the Tribunal) that her concerns about the Claimant were due to absence and not competence. Absence being part of the reason for Ms Tennant’s unfavourable treatment cannot be excluded on the facts found.
(iv) No justification argument was run in relation to Ms Tennant saying (for whatever reason) that the Claimant was unsuitable.
77. In relation to Prof Rashid and NHS England, once it is concluded that the unfavourable reference given by Ms Tennant was (at least partly) in consequence of the Claimant’s absence (which arose from the disability), the following analysis follows inevitably:
(i) The Tribunal found that the unfavourable treatment was done by him because of the unsuitable reference, having rejected all other reasons advanced as a matter of fact.
(ii) Prof Rashid did not know why Ms Tennant gave the unsuitable reference and did not ask that question.
(iii) The Tribunal found that he had constructive knowledge of the Claimant’s disability.
(iv) The only remaining question on the facts found, was whether the unsuitable reference was something arising in consequence of the disability.
(v) The only possible conclusion available on the facts found was that it was: it arose at least partly in consequence of the Claimant’s significant absence, which was a consequence of the disability.
(vi) There is no unfairness to Prof Rashid or NHS England in substituting that finding. It was always open to him to advance a justification argument. No justification argument was pursued, and it is now too late.
78. Accordingly, this is one of those rare cases where it is appropriate to substitute findings of unlawful discrimination against both NHS England and the Council under section 15 of the Act.
79. The appeal is allowed and findings of unlawful discrimination under section 15 against both Respondents are substituted. The cross-appeal fails and is dismissed.
80. The case will have to be remitted to the Tribunal to deal with remedy.