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Cite as: [2018] EWCA Civ 1998

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Neutral Citation Number: [2018] EWCA Civ 1998
Case No: A2/2017/0349

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Simler P

Royal Courts of Justice
Strand, London, WC2A 2LL
04/09/2018

B e f o r e :

LORD JUSTICE UNDERHILL
(Vice-President of the Court of Appeal (Civil Division))
and
LORD JUSTICE HOLROYDE

____________________

Between:
DR PETER DUNN

Appellant
- and -

(1) THE SECRETARY OF STATE FOR JUSTICE
(2) HM INSPECTORATE OF PRISONS

Respondents

____________________

Mr Martin Westgate QC (instructed by Equal Justice Solicitors) for the Appellant
Mr Tom Kirk (instructed by the Treasury Solicitor) for the Respondents

Hearing date: 2nd May 2018

____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Crown Copyright ©

    Underhill LJ:

    INTRODUCTION

  1. The Appellant was employed from 22 November 2010 by the First Respondent, the Secretary of State for Justice, as a prison inspector. From late 2012 he suffered from a depressive illness, and in the summer of 2015 he was also diagnosed with a serious heart condition. He took early retirement on ill-health grounds with effect from 29 February 2016. Although "HM Inspectorate of Prisons" is named as a Second Respondent in the proceedings, and in this appeal, it is not a separate legal entity, and I will refer to both Respondents together simply as "the Respondent" or "the MoJ".
  2. The Appellant brought proceedings in the Employment Tribunal for disability discrimination and harassment arising out of the way in which he was treated by the Respondent in relation to his illnesses. He identified sixteen different complaints, though there is some overlap between them.
  3. By a Judgment and Reasons sent to the parties on 17 May 2016 an ET chaired by Employment Judge Lewzey dismissed the Appellant's claim of harassment. As regards the claim of discrimination it dismissed thirteen of his complaints (some of them on the basis that they were out of time) but allowed three. The complaints which succeeded were substantial and at a subsequent remedy hearing the Appellant was awarded compensation of about £100,000.
  4. The Respondent appealed. By a judgment dated 16 March 2017 the Employment Appeal Tribunal, Simler P presiding, held that the ET's reasoning as regards the three complaints on which the Appellant succeeded was flawed. It held that if the correct approach had been taken in law the complaints in question would have been bound to fail and it accordingly dismissed them without a remittal.
  5. This is an appeal against that decision. The Appellant accepts that the ET went wrong in law; but it is his case that the EAT was wrong to dismiss the complaints itself and that it should have remitted them for re-hearing.
  6. The Appellant was represented before us by Mr Martin Westgate QC, though the skeleton argument in support of the appeal was drafted by Mr Nicholas Toms. He was represented in the ET and the EAT by Mr Andrew Bousfield. The Respondent has been represented throughout by Mr Tom Kirk.
  7. THE FACTS

  8. I need only set out those facts which are material to the complaints on which the Appellant succeeded, and I can do so fairly shortly.
  9. The Appellant's line manager was a Ms Afsar. Although the ET was critical of her failure to take certain specific steps in his regard, it is clear that she took his depression seriously, and the tone of her e-mails to and about him is sympathetic and humane. (In this connection I mention, because it featured in the argument, that she herself had fairly recently suffered serious illness.) She found his case difficult to manage, partly at least because of the process problems referred to below, which she described as "mak[ing] me stressed never mind him", and at one point issued "a cry for help", asking for the difficulties to be shared by her colleagues.
  10. The Appellant's first sickness absence due to depression was between 24 February and 11 April 2014. Following his return to work an occupational health report was obtained dated 6 May, and in late May a return to work interview took place with Ms Afsar.
  11. On 4 November 2014 the Appellant completed an application for early ill-health retirement, on account of his depression. The process for dealing with that application was elaborate. Simler P summarised it at para. 10 of her judgment in the EAT as follows:
  12. "On 18 November Lesley Young, an employee of MoJ who acted as Head of Finance for HMIP, submitted [the application form] to a private company called Shared Services Connected Ltd ('SSC'). SSC dealt with transactional Human Resource issues, in other words, pay, pension, ill-health etc. The process was that SSC would forward the application for medical retirement to an organisation called Occupational Health Assist ('OH Assist', previously ATOS) who were Occupational Health advisors for MoJ. They in turn referred the application to an organisation called Health Assured Ltd, who are the pension scheme medical advisors. They are separate from another set of administrators of the Civil Service Pension Schemes, known as My CSP Ltd. Health Assured Ltd are the arbiters of whether an individual does or does not fulfil the ill-health retirement criteria, and it is they who make recommendations to My CSP Ltd in this regard."
  13. There was a long delay in dealing with the initial stages of the Appellant's application. Although there may have been some failures on his part, a substantial part of the delay was due to unnecessary bureaucratic processes, which led Ms Afsar to protest to Ms Young about the time being taken. The Appellant initiated a grievance about the delay: the "case review manager" at the MoJ was Traci Willson. Medical opinions were eventually obtained in the spring of 2015, but the position was complicated by the worsening of the Appellant's heart condition. He was off work from 26 March 2015. A Ms Fawcett was appointed as HR caseworker to work with Ms Afsar in relation to the application. A Ms Cullen was also involved as "Human Resources Business Partner".
  14. Eventually in July 2015 an ill-health retirement estimate was issued, setting out the benefits to which the Appellant would be entitled if he took retirement. Unfortunately this contained errors, in particular about his length of service, which led to his entitlement being under-estimated. This took time to sort out and there were further complications of a process nature before a final decision was made on 21 December 2015 to permit the Appellant to retire on ill-health grounds.
  15. It is convenient to say at this stage that it has never been disputed that the Appellant's application for early retirement was very poorly handled. The ET quotes at para. 117 of its Reasons a letter to the Appellant dated 20 May 2015 from Mrs Whitcombe, the MoJ "Case Manager Team Leader", saying:
  16. "Overall it is clear from looking into the matters relating to your case that our process has failed to appropriately manage the filing of your referral papers, as well as keep you informed and updated on both the management of your referral and your complaint or manage your expectations on the sometimes lengthy processes in being supplied with FME [further medical evidence] related to the request for ill health retirement."

    As already noted, there were also a number of contemporary expressions of dismay or concern by Ms Afsar and other managers about how long the process was taking.

    THE BACKGROUND LAW

  17. Direct discrimination. Section 13 (1) of the Equality Act 2010 reads:
  18. "A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others."

    Disability is a protected characteristic.

  19. Section 15 discrimination. Section 15 (1) of the 2010 Act reads as follows:
  20. "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."

    An example sometimes given of the type of situation which section 15 is intended to cover is where an employee is treated unfavourably because his or her written English is poor as a result of dyslexia. The case is not one of direct discrimination because the dyslexia is not as such the reason for the treatment; but because the actual reason is something arising in consequence of the dyslexia it will be unlawful unless it can be justified.

  21. One potentially significant difference between the language of section 13 and section 15 is that the former explicitly involves a comparison between how the claimant and other persons without the protected characteristic are treated – "less favourable treatment" – whereas the latter refers only to "unfavourable treatment". That distinction was considered in this Court in Williams v Trustees of Swansea University Pension & Assurance Scheme [2017] EWCA Civ 1008, [2018] ICR 233, in which the Supreme Court has given permission to appeal. However, the present case does not directly involve the issue of law raised in that case, and we were not invited to adjourn it to await the decision of the Court.
  22. Burden of proof. Section 136 of the 2010 Act reads (so far as material):
  23. "(1) This section applies to any proceedings relating to a contravention of this Act.
    (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
    (3) But subsection (2) does not apply if A shows that A did not contravene the provision.
    (4)-(5) …
    (6) A reference to the court includes a reference to—
    (a) an employment tribunal;
    (b)-(f) …"

    The effect of the condition in sub-section (2), the satisfaction of which places the burden of proof on the employer, was discussed in this Court in Madarassy v Nomura International Plc [2007] EWCA Civ 33 [2007] ICR 867, where Mummery LJ used the shorthand of establishing a "prima facie case".

  24. "Because of". It is a condition of liability for disability discrimination both under section 13 and under section 15 that the complainant should have been treated in the manner complained because of either (under section 13) his or her disability or (under section 15) the "something" which arises in consequence of that disability. That will typically, though not invariably, involve establishing (with the benefit of section 136 if required) that the disability, or the relevant related factor, operated on the mind of the putative discriminator, as part of his or her conscious or unconscious "mental processes". Establishing an employer's "motivation" (as it is often put – NB that this is not in this context the same as "motive") is of course a familiar exercise in discrimination law generally. The most recent authoritative exposition is in the judgments of the majority in the Supreme Court in R (E) v Governing Body of JFS [2009] UKSC 15, [2010] 2 AC 728: see in particular per Lady Hale at paras. 62-64 (pp. 759-760).
  25. I should mention for completeness that in addition to direct discrimination and section 15 discrimination a disabled person may also bring a claim of indirect discrimination under section 19 or, under section 21, of failure to comply with the duty under section 20 to make reasonable adjustments. There was in the present case a claim under section 21 but it was dismissed by the ET (partly on time grounds) and there was no appeal to the EAT in that regard.
  26. THE DECISION OF THE EMPLOYMENT TRIBUNAL

  27. We are concerned only with the three detriments that the ET found proved. In the agreed list of issues these were numbered 4.1.2, 4.1.9 and 4.1.10. I take them in turn.
  28. First, detriment 4.1.2 was that the Respondent – principally Ms Afsar – failed to react adequately to the recommendations of the occupational health report of May 2014. No stress risk assessment or weekly reviews were undertaken, and there were no regular meetings. The ET found that this failure was not directly discriminatory but that it did constitute section 15 discrimination. It said, at paras. 107-108 of the Reasons:
  29. "107. … There is no evidence from which the Tribunal can infer that these failures were because of Dr Dunn's disability. Rather they were because of incompetence. For that reason, the claim of direct discrimination fails.
    108. In relation to the claim of discrimination arising from disability, the disability had the consequence of Dr Dunn not being able to work full time without stress. Therefore, the issue is whether he was treated less favourably by not being able to work full time because of that stress. We are satisfied that that was the case and therefore in relation to 4.1.2 the claim of discrimination arising from disability succeeds."
  30. Secondly, detriment 4.1.9 was that Ms Afsar failed to put any support mechanisms in place for the Appellant at his return to work interview in May 2014. The ET found these failures to constitute both direct and section 15 discrimination. At paras. 115-116 of the Reasons it said:
  31. "115. … Ms Afsar did not conduct the stress risk assessment. It was not put to Ms Afsar that the failure to deal with the adjustments was by reason of the disability. She did agree that there were no back-to-back assessments, that there would be no prison inspections, and that there would be regular meetings, although they did not happen. She failed to undertake the stress risk assessment and failed to hold the regular meetings, she did however put in place other things that Dr Dunn asked for. We take into account that if there [is] something from which an inference should be drawn the burden will shift to the Respondents and we should consider whether the Respondents have discharged the burden. We are not satisfied that the Respondents have demonstrated that the failure to put in place adequate support mechanisms was not because of the Claimant's disability. For that reason, the claim of direct discrimination succeeds in relation to issue 4.1.9.
    116. In relation to discrimination arising from disability, the disability of depression had the consequence of Dr Dunn needing more support because of his sensitivity, the Respondent did not provide that additional support, and for that reason the claim of discrimination arising from disability succeeds in relation to issue 4.1.9."
  32. Thirdly, detriment 4.1.10 related to the handling of the Appellant's early retirement application. More specifically, it was identified in the list of issues as
  33. "unreasonably delaying the Claimant's application for ill-health retirement made November 2014 and failing to consider the Claimant's ten years' service up to August 2001 when calculating the pension due."

    The ET found that this constituted both direct and section 15 discrimination. At paras. 117-118 of the Reasons it said:

    "117. There was an unreasonable delay in the application for ill health retirement with no clear explanation for why that delay took place. The Respondents failed to consider his full service. We are satisfied that Dr Dunn was subjected to less favourable treatment by the MoJ …. The Ministry of Justice operates an arcane and unwieldy system. There is a lack of proper management of individual cases, no one person oversees the case from beginning to end and there is a requirement to deal with three different contracted out services, all of which rely on different information held on computers in different parts of the organisations. We are satisfied that Dr Dunn was subjected to a detriment and the burden accordingly shifts to the Ministry of Justice. Indeed, the Ministry of Justice have acknowledged the shortcomings of their process in [the letter quoted at para. 13 above].
    118. We are satisfied that the Ministry of Justice have failed to discharge the burden on them and we are therefore unanimous that the claim of direct discrimination in relation to this matter succeeds. In relation to the discrimination arising from disability, Dr Dunn required more support and sensitivity because of his depression. The history of the ill health retirement application does not reflect that he was provided with more support and sensitivity. In those circumstances the claim of discrimination arising from disability succeeds against the Ministry of Justice only."
  34. There were thus findings of section 15 discrimination as regards all three detriments and of direct discrimination as regards the second two.
  35. THE DECISION OF THE EMPLOYMENT APPEAL TRIBUNAL

  36. Although, as I have already trailed, the only issue before us is whether the EAT should have remitted the case to the ET rather than dismissing it, it is necessary to set out first its reasons for finding the ET's decision to be flawed. As to that, Simler P considered the ET's findings of direct and section 15 discrimination separately, although they related to the same detriments. I take them in turn.
  37. Direct Discrimination

  38. The essential flaw which the EAT found in the ET's reasoning as regards the direct discrimination claim is that it had given no consideration to the motivations of the relevant decision-makers – that is, to whether the fact of the Appellant's disability had operated on their minds so as to cause them to act, or fail to act, in the manner complained of. Nor, therefore, since the two questions are different sides of the same coin, was there was any finding that others who were not disabled would not have been treated in the same way. It will be seen that there are no such findings in the passages from the Reasons which I set out above; but the EAT also found that there was nothing in the earlier parts of the Reasons which supplied the necessary findings, or formed a basis from which such findings could be inferred, with the assistance of section 136 or otherwise. That overall analysis is applied to the two detriments as follows.
  39. As regards detriment 4.1.9 – Ms Afsar's failure to put in place proper support mechanisms – Simler P noted at para. 37 of her judgment that unreasonable treatment could not, by itself, justify a conclusion that a person without disability would have been treated more favourably. She continued, at para. 38:
  40. "We specifically invited Mr Bousfield to address this issue in the course of the hearing. In relation to issue 4.1.9 he identified matters that he said justified inferences being drawn in relation to Ms Afsar. First, she had herself been through disability and understood the procedures. Secondly, she had never worked with anyone with depression. Thirdly, the occupational health doctor  … gave clear advice that was simply not followed by Ms Afsar, and there was no conceivable explanation for her failure. All of those matters, he argued, justified the inference that disability played a part in her treatment of the Claimant. Quite apart from the fact that we do not consider that those matters provide any or sufficient basis for drawing the inference that Ms Afsar would have treated a person without depression but in otherwise comparable circumstances more favourably, the Employment Tribunal simply made no such findings. In our judgement, this tribunal did not engage with Ms Afsar's thought processes or in any comparative analysis of the way in which she treated or would treat others."
  41. As regards detriment 4.1.10 – the delay in the ill-health retirement process – Simler P said, at para. 39:
  42. "The same is true in relation to issue 4.1.10.  We do not accept Mr Bousfield's submission that the Tribunal rejected the explanations offered by the MoJ witnesses about the delays in the ill-health retirement process.  We have summarised the Tribunal's findings of fact about the different periods and the way in which different periods of delay attributable to different organisations were explained.  Although at [117] the Tribunal held that there was 'no clear explanation for why that delay took place', we do not understand this to be a finding that there was unexplained delay.  Indeed the ET went on to identify a number of reasons for that delay in the same paragraph.  First, it described the system itself as arcane and unwieldy.  Secondly, the Tribunal found that there was a lack of proper management of individual cases.  Thirdly, the Tribunal found that no single person oversaw the case from beginning to end.  Finally, the Tribunal found that there was a requirement to deal with three different contracted out services all of which relied on different information held on computers in different parts of the organisation.  Those were all matters that formed part of the explanation for the delay as identified in the evidence and indeed in the Tribunal's own findings.  Nevertheless, the Tribunal engaged in no comparative analysis as to how or why others without the relevant disability fared or would have fared under this ill-health retirement process.  Further, the Tribunal failed to engage at all with the mental processes of the relevant decision makers."
  43. At para. 40 of her judgment Simler P noted that explicit findings as to Ms Afsar's motivation were all the more necessary in the light of the ET's express findings at para. 107 that her failure to undertake a stress risk assessment was because of "incompetence" and its rejection of many other allegations of discrimination against her.
  44. I should also note that the EAT explored with some care how the direct discrimination case had been put in the ET. As regards detriment 4.1.9, it appeared that Mr Bousfield had advanced the case that Ms Afsar's failures were "because of antipathy to depression and managing it and the consequences of depression or a fear of so managing it". But, having seen the notes of Ms Afsar's cross-examination, it found that no such case had been put to her and that "her reasons for treating the Claimant in the way she did were barely, if at all, challenged" (see para. 27): that of course reflects the ET's own observation near the start of the passage which I have quoted from para. 115 of the Reasons. As regards detriment 4.1.10, Simler P says this, at para. 28:
  45. "… [A]lthough no specific individual is identified as having been responsible for the alleged detrimental treatment …, Mr Bousfield has made clear that the allegation was directed at the three MoJ employees with responsibility for the process, Traci Wilson, Ms Fawcett and Ms Cullen. Again, in relation to these individuals, the case advanced by the Claimant was that the remarkable delay in dealing with his ill health retirement application was influenced, consciously or unconsciously, by their antipathy towards disability and the expensive process or outcome of ill health retirement (see [71] of the Claimant's closing submissions)."

    Again, with the benefit of the notes of the cross-examinations of the three individuals identified, the EAT found that no such case had been put to them.

    Section 15 Discrimination

  46. There were in the EAT some other issues about the section 15 claim which I need not consider here. For present purposes it is enough to say that one of the grounds on which the Respondent's challenge succeeded (ground 5) was essentially the same as in relation to direct discrimination – that is, that the ET did not consider the motivations of the individual decision-takers. Simler P said, at para. 54:
  47. "Mr Bousfield's answer in writing to these points is that motive is irrelevant.  Moreover, he submits that the Claimant did not have to prove the reason for the unfavourable treatment but simply that disability was a significant influence in the minds of the decision makers.  We agree with him that motive is irrelevant.  Nonetheless, the statutory test requires a tribunal to address the question whether the unfavourable treatment is because of something arising in consequence of disability.  As we have said, it need not be the sole reason, but it must be a significant or at least more than trivial reason.  Just as with direct discrimination, save in the most obvious case an examination of the conscious and/or unconscious thought processes of the putative discriminator is likely to be necessary.  In relation to issue 4.1.9, the Tribunal did not identify the reason for Ms Afsar's failure.  In relation to issue 4.1.2, it made no examination of her thought processes.  To the extent that the Tribunal addressed her thought processes at all in relation to issue 4.1.2, these were addressed at [107] by a finding that the reason for her failure to treat the Claimant as it was said she should have done was incompetence.  Beyond that, the Tribunal made no further examination of her thought processes.  Similarly, in relation to issue 4.1.10, the Tribunal failed to engage with the reason why there were delays, as we have already indicated.  In all these circumstances, we have concluded that ground 5 succeeds and that the findings of discrimination arising from disability cannot stand."

    Disposal

  48. I turn to the EAT's decision not to remit the case. This is dealt with at paras. 57-64 of Simler P's judgment, and I think I need to set this passage out in full. It reads:
  49. "57. We turn then to consider the effect of our findings that there were significant errors of law that vitiate the Tribunal's findings both of unlawful direct discrimination and discrimination arising from disability in relation to all three detrimental acts found.  Mr Kirk invites us to substitute a finding of no discrimination in this case rather than remit to the same or to a fresh Tribunal.  That is an unusual course to adopt and is a course that we could only adopt if no purpose could be served by remitting the case because the inevitable and only conclusion a properly directed tribunal could come to in this case is that there was no unlawful discrimination on either of these grounds.
    58. So far as direct disability discrimination is concerned, Mr Kirk relies in support of his submission on the fact that there are no primary facts upon which this Tribunal could have determined that the burden of proof shifted to the Respondents and that there was therefore no prima facie case of unlawful direct discrimination.  He points, moreover, to the non-discriminatory reasons in the evidence and the findings made by the Tribunal for the detrimental treatment, which were not rejected and which provide, he submits, an answer to these claims.  He says that there is nothing to remit and that no reasonable tribunal properly directed could conclude that there was unlawful direct discrimination here.
    59. So far as discrimination arising from disability is concerned, he submits that there is no evidence that the Claimant's sensitivity or inability to work full-time without stress was a reason in the mind of the Respondents for any of the impugned treatment whether consciously or unconsciously.  In the absence of evidence and against the findings of fact made in relation to the delays in the ill-health retirement process and as to the reason why Ms Afsar did not undertake a stress assessment or do the other things identified in issues 4.1.2 and 4.1.9, here too he submits that there is simply nothing to remit.
    60. We have considered those submissions anxiously and with care.  We are conscious in particular, given the length of this hearing and the amount of documentary evidence available, that there was a substantial amount of evidence heard in this case and that an important backdrop to it was the expression, albeit internally, of serious concern amongst HMIP senior personnel about the way in which this ill-health retirement process was handled.  We invited Mr Bousfield to identify for us material in the evidence that could have led the Tribunal to find that Ms Afsar acted unlawfully in relation to issues 4.1.2 and 4.1.9 or at least a prima facie case to that effect and that the MoJ employees - Ms Wilson, Ms Fawcett and Ms Cullen - acted unlawfully in relation to issue 4.1.10 or at least a prima facie case to that effect.
    61. So far as Ms Afsar is concerned, Mr Bousfield was unable to identify a single piece of evidence that might have led the Tribunal to conclude that there was a prima facie case of less favourable treatment on disability grounds or unfavourable treatment at least in part because of something arising in consequence of the Claimant's disability.  So far as issue 4.1.10 is concerned, Mr Bousfield identified emails forming part of a series of emails from senior people within HMIP expressing concern and consternation about the delay and the unacceptable way in which the ill-health retirement process was being handled.  He produced, in particular, an email demonstrating that such concerns were communicated by HMIP to personnel at MoJ.  Whilst it is obviously a matter of concern that senior people were so seriously concerned about the process, that in itself has no other sensible relevance to the reasons for the delay in the particular process in the Claimant's case, nor does it touch on the reason why there was such a delay or even begin to demonstrate that those reasons included, consciously or unconsciously, the Claimant's disability or something arising from that disability.
    62. Mr Bousfield makes a number of additional and broader points that he submits could support such inferences being drawn.  First, he says that the Claimant's case was that the Respondents were pushing the managing absence process rather than pursuing the ill-health retirement process, in part at least, because of the relative expense of ill-health retirement and a desire to avoid such expense.  Whilst that might have formed the basis of adverse inferences, that case was expressly rejected by the Tribunal at [121] in relation to issue 4.1.14.  In that paragraph, the Tribunal found that there was no breach by the Respondents of policy in pursuing managing absence in tandem with ill-health retirement even where that might result in a dismissal before the ill-health retirement application had been dealt with.
    63. Mr Bousfield raises a second point, namely that early retirement was regarded as expensive and therefore the process was deliberately made more difficult.  However, that too was addressed by the Tribunal at [122] where the Tribunal dealt with and rejected issue 4.1.15.  The Tribunal rejected the factual basis for the allegation, going on to say that even if the burden shifted it was satisfied that ill-health retirement had a high hurdle and that it was not satisfied that there was either direct discrimination or discrimination arising from disability in this regard.  In other words, it found this to be a difficult ill-health retirement process that demands a high hurdle before an individual is accepted as fulfilling the criteria for ill-health retirement, in part because the benefits provided are expensive to provide.  That fact on its own does not mean that people without disability are treated any differently from those who do have a disability or that unfavourable treatment is involved by reference to the consequences of such disability.
    64.  It seems to us that the Tribunal did not find anything more in relation to issue 4.1.10 than that the ill-health retirement process was operated unreasonably and perhaps even to some extent unfairly.  It did not find that there was unexplained, unreasonable conduct, and, as we have already indicated, whilst there was no clear explanation, as the Tribunal said, for all of the delay, there were a number of reasons that explained, at least, some delay, none of which involved unlawful discrimination of any kind.  In those circumstances, we have come to the somewhat reluctant conclusion that this is a case where there is nothing in the findings of fact or in the evidence drawn to our attention that could lead a properly directed tribunal to reach the conclusion that a prima facie case of less favourable treatment on disability grounds or unfavourable treatment caused by something arising in consequence of disability has been established.  The inevitable conclusion in this case is that there was no such unlawful discrimination, and we accordingly substitute that finding in relation to all three findings of unlawful treatment."

    It will be apparent that that reasoning to a considerable extent depends on the EAT's reasoning on the substantive issues, as set out at paras. 26-31 above.

  50. I should finally set out para. 65 of the EAT's judgment, since Mr Westgate attaches some importance to it. It reads:
  51. "We cannot leave this case without this further comment.  The lay members in particular, who have experience of managing absence and ill-health retirement processes of the kind in focus in this case, are concerned by the manner in which it was applied and operated by MoJ as found by the Tribunal.  The Tribunal found that the system operated in a manner that caused stress and anxiety to the Claimant, who was already unwell with depression and who suffered a worsening of his heart condition as a consequence.  It undoubtedly led to inordinate delay.  The systemic failures and the inordinate delay that occurred here may have impacted more harshly on the Claimant as a disabled person and in future might operate more harshly on others with disabilities.  However, that was not the case advanced by the Claimant to the Tribunal and not a case, accordingly, that we have been able to address.  The lay members in particular feel that these systemic failures and the delays that they cause should be addressed for the future by those with responsibility at MoJ so that others are not subjected to what may be both unfair and disadvantageous treatment."

    THE APPEAL

  52. It has been confirmed by a series of recent decisions of this Court – Jafri v Lincoln College [2014] EWCA Civ 449, [2014] ICR 920; Burrell v Micheldever Tyre Services Ltd [2014] EWCA Civ 716, [2014] ICR 935; Henderson v General Municipal and Boilermakers Union [2016] EWCA Civ 1049, [2017] IRLR 340; and Kuznetsov v Royal Bank of Scotland Plc [2017] EWCA Civ 43 – that where the EAT (or this Court) finds an error of law in a decision of the ET it is obliged to remit the case to the ET for reconsideration unless (in summary) there is only one decision to which it could properly have come. Mr Westgate accepted that the EAT had directed itself correctly in this regard – that is clear from para. 57 of Simler P's judgment – but he said that it was wrong to conclude that in this case there was only one possible outcome if the ET had taken the correct approach in law. He acknowledged that the authorities permit the EAT to take a "robust" approach to that question, but he cautioned against over-robustness, particularly in cases involving discrimination claims.
  53. That general point was developed by Mr Westgate in his oral submissions (which, it has to be said, bore little relation to the skeleton argument drafted by Mr Toms) separately in regard to those detriments for which Ms Afsar was responsible – that is, 4.1.2 and 4.1.9 – and what he characterised as the "systemic" failings about the ill-health retirement system – detriment 4.1.10. In relation to both, however, he focused his attention primarily on the section 15 claim. While he made no formal concession, it was his position that the direct discrimination claim was more difficult for the Appellant to establish, partly at least because of the explicitly comparative nature of the exercise: cf. para. 16 above.
  54. As to the first two detriments, Mr Westgate pointed out that para. 38 of Simler P's judgment used the language "we do not consider that [the matters relied on by Mr Bousfield] provide [a sufficient basis for an inference of discrimination]". He submitted that that was not the right question: the question was whether the ET might have done so. The EAT effectively adopted that reasoning in the later section of its judgment dealing with disposal: see in particular para. 61. If it had focused on the right question it could not properly have concluded that the claim was bound to fail. He was inclined to accept that the points specifically relied on by Mr Bousfield might not go very far, but the EAT should not have confined itself rigidly to them but should have considered the totality of the evidence available to the ET, which included e-mails and evidence from Ms Afsar that could fairly be interpreted as showing that she had an antipathy to towards managing employees with depression: he referred in particular to the "cry for help" that she had issued (see para. 8 above).
  55. I do not accept that the EAT asked itself the wrong question. It is in my view adequately clear even if one looks only at the language of para. 38 of Simler P's judgment that it was saying that the matters relied on by Mr Bousfield were incapable in law of forming the basis for an inference of discrimination. But if there were any doubt about that the language of the first sentence of para. 61 is quite clear: the focus there is explicitly on what the ET might have concluded.
  56. Further, I believe that the EAT was right to conclude that there was no realistic prospect that the parts of the case based on Ms Afsar's acts or omissions could succeed, whether under section 13 or section 15. In either case it was necessary to show that Ms Afsar had acted as she did because her thought processes were influenced, consciously or subconsciously, by the fact that the Appellant was depressed or by something which was a consequence of that. As to the former, Mr Bousfield appears to have submitted in his closing submissions to the ET, as Mr Westgate did to us, that Ms Afsar had an antipathy to dealing with cases of depression. However, as the EAT established (see para. 30 above), that had never been put to her in cross-examination; and the basis for it in the documents relied on by Mr Westgate is distinctly flimsy and hard to reconcile with the ET's straightforward, if rather unkindly expressed, finding that her failings were the result of "incompetence". Mr Westgate suggested that the antipathy may not have been to handling cases of depression as such but rather to the Appellant being "high-maintenance", which was itself a consequence of his depression within the meaning of section 15; but the same objections arise. No such case was put to Ms Afsar: indeed it does not appear, at least in that form, in Mr Bousfield's closing submissions. And, for what it is worth, it seems to me from the materials to which we were referred that Ms Afsar's expressed frustrations were not about any characteristics of the Appellant himself but about the failings of the system with which she had to work.
  57. I turn to the third detriment – that is, the reprehensible delay in dealing with the Appellant's ill-health retirement application. Mr Westgate here explicitly relied only on section 15. His submission was that it would have been open to the ET, had the case been remitted, to find
  58. (a) that the Appellant had applied for ill-health retirement "in consequence of his disability", and

    (b) that that necessarily involved him in "unfavourable treatment", because of the inherent inadequacies of the arcane and unwieldy system for handling such applications – described by the ET at para. 117 of the Reasons and acknowledged equally by the EAT at para. 65 of Simler P's judgment;

    and accordingly that the requirements of the section were satisfied unless the Respondent could prove justification (which would be difficult in view of the criticisms made by the ET and the EAT). As regards (b), he emphasised that his case depended on the delays and mishandling being, as he put it, an "inseparable part of the system", so that once you applied you were inevitably subject to them. There was no need for an examination of the thought processes of individual decision-takers. He submitted that the Respondent "could not have it both ways". If delays of the kind that the Appellant experienced were not an inseparable part of the process, then the question arose of why he had suffered them, and it would have been open to the ET (with the benefit of section 136) to find that the reason was his disability. But if they were indeed inherent in it then he suffered them simply because he had made an application, which was itself a consequence of his disability.

  59. Mr Kirk objected that this was a wholly new way of putting the case. The claim in relation to issue 4.1.10 had been presented in both the ET and the EAT on the basis of the delays that had occurred in his particular case as a result of the mental processes, conscious or unconscious, of the particular MoJ staff involved. He referred to paras. 70-71 of Mr Bousfield's written closing submissions in the ET, which I should set out in full:
  60. "70. The oral evidence showed remarkable delay on the part of the MoJ. Thus, it took Tracy Wilson three months to investigate the Claimant's grievance about delay in filing IHR documents, during which time Mrs Wilson did not manage to read the Claimant's grievance. Further, when Gemma Cullen became involved she insisted this was for 'hand holding' and 'strategic advice', but this did not appear to include reading into the history of the matter other than a timeline provided by Ms Young.
    71. It will be for the tribunal to conclude whether the remarkable delay in this case took place and was influenced, consciously or subconsciously, by antipathy towards disability and the expensive process of ill health retirement. There was evidence that IHR benefits were paid in any event by the pension provider, so this cannot have hit departmental budgets, meaning the motivation may not have been financial in the delay – rather processes which discriminate against disability (depression) and its consequences."

    I need not elucidate the various particular points made in para. 70: Mr Kirk's point is that they are all directed, as appears from the first sentence of para. 71, to the conscious or subconscious thought processes of the individuals. There was patently no case being advanced that the deficiencies of the system themselves were sufficient to satisfy section 15. If there had been, the Respondent would have wished to call evidence directed to that question, not least in order to advance a case of justification.

  61. Mr Westgate in his reply rebutted that objection. The Appellant's case below had been, in its essentials, that the delay and mishandling of his application happened to him because he was disabled. He drew our attention to the final sentence of para. 71 of Mr Bousfield's closing submissions, which refers explicitly to "processes which discriminate against disability (depression) and its consequences". By way of fallback he submitted that, even if that were not how the case was initially put, the ET had now made findings of fact, based partly on the Respondent's own evidence, which would found such a case, and it should be remitted so as to allow a case based on those findings to be developed.
  62. In my view Mr Kirk is right that Mr Westgate's argument as set out above represents a new way of putting the Appellant's case. It is certainly not expressly pleaded, or set out in the list of issues; but that might not be a complete answer since both the pleading and the issues are at a fair level of generality. More significantly, I find it hard to see any trace of it in Mr Bousfield's written closing submissions. I take Mr Westgate's point about the second half of final sentence of para. 71, but it needs to be read in the context of the whole sentence, and indeed the paragraph: in that context the rather opaque reference to "processes" does not seem to be to the inherent deficiencies of the system but to a "motivation" other than financial, namely "antipathy" of the kind referred to in the previous sentence. (In fact I rather suspect that "processes" is a reference to "mental processes" – a phrase which occurs frequently in the relevant case-law including a passage specifically cited at para. 21 of the closing submissions.) But the matter is put beyond doubt by the way the case went in the EAT. It is clear from paras. 60-64 of Simler P's judgment that the debate in the EAT about whether there was an arguable case as regards detriment 4.1.10 was conducted entirely in terms of whether there was any evidence that might have justified an inference of discriminatory motivation on the part of those responsible for the system or its operation; there was no attempt to rely on the fact of a defective system as satisfying the "because of" test. That is consistent with how Simler P characterises the Claimant's case at para. 28 of her judgment (where, NB, she refers expressly to para. 71 of the closing submissions): see para. 30 above. And, conclusively, in para. 65 Simler P refers explicitly to the possibility that "the systemic failures and the inordinate delay that occurred here" may have been discriminatory in themselves but says that "that was not the case advanced by the Claimant to the Tribunal". That must be based on what the EAT understood from Mr Bousfield.
  63. It is of course open to this Court to admit an argument not advanced below. Mr Westgate did not in fact ask us to do so, because he did not accept that the argument was being advanced for the first time. But I do not in any event believe that I would have agreed to any such request. That is partly because of Mr Kirk's point that if the case were to be remitted to the ET on this basis he might wish to call further evidence on justification. But, more fundamentally, this is not a point that can be decided one way or the other by this Court. On the contrary, the entire basis of the appeal is that the case should be remitted to the ET to allow it to consider a point which – so I have found, though the Appellant does not accept – was not advanced below. It is not in the interests of justice to allow the Appellant a further hearing to consider a new point which could have been advanced first time round. I would add that Mr Westgate's argument was barely, if at all, foreshadowed in Mr Toms' skeleton argument, and Mr Kirk was not in a position to, and did not, make any submissions on the substance, which is not a good basis on which to decide what may be a difficult point of law.
  64. I appreciate that it would be more satisfactory if I felt able to dismiss Mr Westgate's argument definitively on the merits, since that would avoid the Appellant wondering whether there might have been a different outcome if the case had been argued differently. I have been tempted to take that course because I do indeed see real difficulties with Mr Westgate's argument. In the context of direct discrimination, if a claimant cannot show a discriminatory motivation on the part of a relevant decision-maker he or she can only satisfy the "because of" requirement if the treatment in question is inherently discriminatory, typically as the result of the application of a criterion which necessarily treats (say) men and women differently. In this case, if the ill-health retirement process was inherently defective in the ways found by the ET, it does not follow that it was inherently discriminatory. In truth Mr Westgate's argument appears to be "I would not be in the situation where I was the victim of delay and incompetence if I were not disabled"; but that kind of "but for" causation is not regarded as sufficient to constitute direct discrimination. There is an analogy with the not uncommon case where an employee who raises a grievance about (say) sex discrimination which is then, for reasons unrelated to his or her gender, mishandled: the mishandling is not discriminatory simply because the grievance concerned discrimination. Mr Westgate's answer is that section 15 cases require a different approach. But as at present advised I cannot see why the differences between section 13 and section 15 (essentially (a) the extension of protection to cases where the cause of the treatment is "something arising from" the protected factor, and (b) the use of "unfavourable" rather than "less favourable") justify any different approach to the meaning of "because of", which is common to both provisions. So I doubt whether the Appellant has lost anything by Mr Westgate's argument not being advanced previously. However, this is not a straightforward area of law, and we did not hear argument on it from both sides. It is also possible that the decision of the Supreme Court in Williams may have at least a tangential impact on the analysis. In those circumstances I prefer to reject Mr Westgate's argument on the basis that it was not raised below.
  65. DISPOSAL

  66. I would accordingly dismiss this appeal. I wish to say, though I fear this will be little comfort to the Appellant, that it is no credit whatever to the MoJ that its ill-health retirement processes, which by definition are applied to people who are to a greater or lesser extent vulnerable, are so, in the ET's phrase, arcane and unwieldy; and I would endorse the EAT's recommendation that they be reconsidered. But it does not follow from the fact that they are so deficient that they are also discriminatory.
  67. Lord Justice Holroyde:

  68. I agree.


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