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United Kingdom Employment Appeal Tribunal


You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Gallop v Newport City Council (Disability Discrimination: Direct disability discrimination) [2016] UKEAT 0118_15_0403 (04 March 2016)
URL: http://www.bailii.org/uk/cases/UKEAT/2016/0118_15_0403.html
Cite as: [2016] IRLR 395, [2016] UKEAT 0118_15_0403

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Appeal No. UKEAT/0118/15/DM

 

 

EMPLOYMENT APPEAL TRIBUNAL

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

 

 

                                                                                               At the Tribunal

                                                                                               On 14 January and 25 February 2016

                                                                            Judgment handed down on 4 March 2016

 

 

 

Before

HIS HONOUR JUDGE HAND QC

(SITTING ALONE)

 

 

 

 

 

 

 

MR N J GALLOP                                                                                                     APPELLANT

 

 

 

 

 

NEWPORT CITY COUNCIL                                                                              RESPONDENT

 

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 


 

 

 

 

 

 

 


APPEARANCES

 

 

 

 

 

For the Appellant

MR NIGEL GALLOP

(The Appellant in Person)

For the Respondent

MS DEBBIE GRENNAN

(of Counsel)

Instructed by:

Newport City Council

Civic Centre

Godfrey Road

Newport

South Wales

NP20 4UR

 

 

 

 


SUMMARY

DISABILITY DISCRIMINATION - Direct disability discrimination

DISABILITY DISCRIMINATION - Reasonable adjustments

DISABILITY DISCRIMINATION - Burden of proof

 

Neither paragraph 15.5 of the Code of Practice: Employment and Occupation 2004 nor Bowers v William Hill UKEAT/0046/09/DM are authority for the proposition that knowledge of disability in one part of an organisation or on the part of one individual in an organisation means that knowledge can be imputed to the organisation generally or to any or all of its employees for all purposes and in particular in the context of deciding whether there has been discriminatory conduct.  On the contrary, paragraph 36 of the Judgment of Underhill LJ in the decision of the Court of Appeal in CLFIS (UK) Ltd v Reynolds [2015] EWCA Civ 439, [2015] IRLR 562 makes clear that in the case of a sole decision maker it is his or her state of mind not the state of mind of those providing information to the decision maker which is material.  Consequently the Employment Tribunal had not erred either by focussing on his intention, motive and knowledge or by not imputing the knowledge of disability of the Occupational Health Department to him.  In any event there was no evidence that anybody involved in the dismissal process had acted as they had done because of the Appellant’s disability.

 

Nor had the Employment Tribunal misdirected itself in relation to reversing the burden of proof.  Whilst a false explanation of a difference of treatment in the context of a difference in status, particularly if a lie/dishonesty is, as suggested in paragraphs 26 and 27 of the Judgment in Birmingham City Council and another v Millwood UKEAT/0564/11/DM and in The Solicitors Regulation Authority v Mitchell UKEAT/0497/12/MC likely to be “something more” in relation to shifting the burden of proof that need not always be so.  Cases depend on their own facts and here whilst one explanation had been exposed as false, the explanation accepted did not assist in establishing a prima facie case of discrimination and the Employment Tribunal had not erred.

 

Although a “practice” might involve recurrence as suggested by paragraph 21of the Judgment in Nottingham City Transport Ltd v Harvey [2013] EqLR 4 and paragraph 19 of the Judgment in Carphone Warehouse Ltd v Martin [2013] EqLR 481 that was not necessarily so in relation to a “provision” or a “criterion” but in any event the statement by the Employment Tribunal that a “one off failure” could not amount to a PCP was an alternative comment and not a conclusive decision.

 

An Employment Tribunal only need address the case placed before it.  If matters raised in pleadings are not subsequently supported by evidence, the Employment Tribunal is not under any duty to pursue the points raised in the pleadings and cannot be criticised for not having done so.

 


HIS HONOUR JUDGE HAND QC

 

Introduction

1.                  This is an appeal from the Judgment and Written Reasons of an Employment Tribunal, comprising Employment Judge Cadney, Mrs Evans and Mrs Farley (“the Cadney Tribunal”), sitting at Cardiff listed over five days in July and August 2014 with a further day in Chambers, the Decision having been sent to the parties on 20 November 2014.  At the hearing of this appeal the Appellant has represented himself and his former employer, the Respondent to this appeal, has been represented by Ms Grennan of counsel, as was the case at the Employment Tribunal.

 

2.                  It is necessary, at the outset, to say a little more than usual about that sequence of events.  In fact the actual hearing was somewhat shorter than five days because the first day, Monday 28 July 2014, was taken up with a renewed application to amend by the Appellant, the Claimant below, who, when his application was refused, sought an adjournment so as to file an Appeal with this Tribunal against that decision.  The Cadney Tribunal agreed not to sit until a decision was made by this Tribunal and in the meantime to read the documents.  Sometime during the following morning the Cadney Tribunal learned that the appeal had been dismissed through the sift procedure of this Tribunal and resolved to start the hearing.  I understand some evidence was heard that day.  But the following day, Wednesday 30 July 2014, the Appellant was unable to continue due to feeling unwell and the hearing was again adjourned.  It recommenced on Thursday 31 July 2014 and the evidence was completed too late on Friday 1 August 2014 for it to be possible to hear submissions then.  After discussions between the Cadney Tribunal and the parties, directions were given for submissions to be in writing and for sequential filing and service of written submissions.  In compliance written submissions were received by the Cadney Tribunal, which dismissed the Appellant’s complaints of direct disability discrimination and reasonable adjustment disability discrimination, which he had made pursuant to the provisions of the Disability Discrimination Act 1995 as amended (“DDA”).

 

The History of the Proceedings

3.                  The case has a considerable history, some of which it is necessary for me to explain.  The Appellant was dismissed in 2008.  He complained of both disability discrimination contrary to the provisions of the DDA, and unfair dismissal and those complaints were considered by another Employment Tribunal, comprising Employment Judge Beard, Mr Allen and Mrs Edgar sitting at Cardiff in 2010 (“the Beard Tribunal”).  The Employment Tribunal upheld his complaint of unfair dismissal by Reasons sent to the parties on 14 September 2010 but dismissed the disability discrimination claims on the basis that at no material time did the Respondent either know or ought to have known of the Claimant’s disability.  Various aspects of that decision were the subject of an appeal to this Tribunal but the Appellant was unsuccessful in relation to disability discrimination.  He appealed further to the Court of Appeal, was successful on disability discrimination and the issue of disability discrimination was remitted to be re-heard by a differently constituted Employment Tribunal, which turned out to be the Cadney Tribunal.

 

4.                  The terms of that remission, which I understand to have been agreed[1] by counsel who had conducted the appeal on behalf of the Appellant and the Respondent, are to be found at page 30 of the appeal bundle and read:

“(2) The Appellant’s claims for unlawful discrimination contrary to the Disability Discrimination Act 1995 are remitted back to a differently constituted tribunal for fresh hearing, in particular for the Employment Tribunal to determine:

a. Whether, at the times material to the discrimination claims, the Respondent had actual or constructive knowledge that the Claimant was a disabled person.

b. If so, whether the Respondent discriminated against the Appellant on the grounds of his disability.

c. Whether the duty to make reasonable adjustments arose and if so, whether the Respondent failed in its duty to make such adjustments.

d. Whether the discrimination claims were brought within the statutory time limits and if not, whether there should be an extension of time for the presentation.”

 

5.                  The Appellant submitted that meant the remitted hearing should have been concerned with the issues as to disability discrimination summarised by the Beard Tribunal in the Reasons in paragraphs 3 and 4 of its 2010 Decision (see pages 126 and 127 of the appeal bundle), namely:

“3.1. The Claimant complained that from September 2006 the Respondent had failed to manage the Claimant’s workload prior to and following absences from work.  The absences being due to his disability (depression).

3.2. Then further on adjustments [sic] the claimant complains that, following his return to work in February 2007, the respondent’s Occupational Health adviser made recommendations in respect of the claimant.  The Respondents had failed either to implement or to monitor and review those particular control measures.

3.3. He further complained that there was a failure to make reasonable adjustments whilst instigating the disciplinary procedure during 2008, leading to the Claimant’s dismissal.  This complaint includes failing to give the Claimant sufficient information to prepare his case and providing information at a stage where the claimant found it difficult to deal with the information, and to formulate a response in the time available.

4. The Claimants [sic] claims in respect of direct disability discrimination are related to a failure to implement a risk assessment or to conduct further risk assessments and follow the Occupational Health recommendations.  He also complains that the decision to dismiss was direct discrimination.”

 

6.                  The history of the Case Management Hearings leading up to the Cadney Tribunal is not of sufficient relevance to merit exploration in detail but four matters are worth mentioning.  Firstly, in his oral submissions to me the Appellant said his understanding was that the issue raised by paragraph 2(a) of the Court of Appeal’s Order, i.e. date of knowledge of disability (see above at paragraph 4 of this Judgment) was to be taken as a preliminary issue.  I will need to come back to that later but during the case management of this case in three hearings for that purpose (20 June 2014, 9 July 2014, and 23 July 2014) no direction to that effect was given.

7.                  Secondly, in relation to disability discrimination the Cadney Tribunal focussed on the Further and Better Particulars of the ET1 form, which had been supplied pursuant to an Order dated 13 May 2009 (see pages 114 and 115 of the appeal bundle) and which are quoted (as to the allegations of failure to make reasonable adjustments and direct disability discrimination) at paragraph 7 of the Reasons of the Cadney Tribunal (see page 4 of the appeal bundle) as follows:

Reasonable Adjustments

1(a) From 20 September 2006 consistently failing to manage the claimant and his workload with the consequence that the claimant was responsible for excessive amounts of work whilst in receipt of no assistance or support.

(b) The claimant’s absence from work between August 2006 the February 2007 was caused by the claimant’s excessive workload and lack of support from the respondent.  On his return despite recommendations from the Occupational Health Advisor the respondent failed to implement, monitor and review stress control measures.

(c) The respondent failed to make adjustments to the disciplinary process taken against the claimant during 2008.  In particular the claimant was placed at a disadvantage by the respondent failing to provide him with sufficient information to prepare his own case and provided such information as it did only a few days before the hearing with the result that the claimant was placed at a disadvantage in formulating his responses at the hearing itself.

Direct Discrimination

1. The failure to implement risk assessment action plans or conduct further risk assessments or to adhere to recommendations of Occupational health amount to less favourable treatment on the grounds of the claimant’s disability.

2. The claimant’s dismissal on 23 May 2008 amounts to less favourable treatment on grounds of the claimant’s disability.”

 

As with the first point I will need to return to this later but it is convenient to point out now Ms Grennan’s position was that the use of these Further and Better Particulars as the allegations of disability discrimination at the hearing conducted by the Cadney Tribunal had been directed in a Case Management Hearing.

 

8.                  Thirdly, and connected to the second point, the Appellant had sought to amend his Particulars of Claim before the Cadney Tribunal hearing.  I understand this matter had been raised at all three Case Management Hearings in 2014.  A decision had been made on 20 June 2014 by Employment Judge Cadney that there would be no permission to amend and that the case would proceed on the Further and Better Particulars which had been provided to the Beard Tribunal.  Between the hearing on 9 July 2014 and 23 July 2014 the Appellant submitted an application in writing, which was in part a draft proposed amendment (see pages 192 to 195 of the appeal bundle).  His application was rejected by Employment Judge Cadney on the first morning of the hearing.

 

9.                  Fourthly, it seems likely that the Court of Appeal’s Order had not reached Employment Judge Cadney at the hearing on 20 June 2014.  It appears to have been forwarded to the Employment Tribunal at Cardiff immediately afterwards by the Respondent (see page 185 of the appeal bundle).

 

The Grounds of Appeal

10.              This appeal proceeds on the amended grounds of appeal (see pages 21 to 23 of the appeal bundle) which were drafted by experienced counsel, who represented the Appellant under the auspices of ELAAS at an oral hearing under Rule 3(10) as a result of which this appeal proceeded to a Full Hearing.  At the start of that hearing before me on 14 January 2016 the Appellant sought to further amend the amended grounds of appeal.  After submissions which lasted most of the morning I refused permission for any further amendment in an oral Judgment which has been transcribed and in which details of my reasoning appear.  Consequently, there is no need for me to repeat them here.

 

11.              I should just say, however, that whilst considering the proposed amendments I looked at the original grounds of appeal[2], which had been entirely replaced by the amended grounds, and concluded that the proposed further amendments might well amount to an abuse of process insofar as they sought to resurrect the original grounds of appeal, which had been withdrawn.  I indicated to the Appellant that some of his latest skeleton argument proceeded on the basis that the scope of the appeal would be broadened by further amendment, encompassing the previously withdrawn grounds of appeal, and that, having regard to my refusal of permission for further amendment, some of the points, which he wished to develop were not open to him.  Although I have endeavoured to make it clear from time to time during the hearing that the scope of the appeal must be dictated by the amended grounds of appeal, this was something that the Appellant either would not or could not comprehend, and the hearing on 14 January 2016 went part heard with a further listing on 25 February 2016 becoming necessary.  This lasted all of that day and by the time oral submissions were completed it was too late to deliver a Judgment, hence this Reserved Judgment. 

 

12.              The first ground of the amended grounds of appeal is as to whether the Cadney Tribunal made an error of law at paragraphs 46 to 50 of the Reasons (see page 16 of the appeal bundle) that the “conclusions” of the Beard Tribunal as to the question “why as a matter of fact was the claimant dismissed?” were “necessarily binding on us”.  The Beard Tribunal had decided that the disciplinary procedure brought against the Appellant in 2008 on grounds of his alleged misconduct was “a sham” to disguise the “real reason”, namely that it was dismissing the Appellant was because of representations received from what was described as a “delegation to the employer by a Trade Union indicating that employees would not be prepared to work with the Claimant”.

 

13.              At paragraph 48 of its Reasons the Cadney Tribunal summarised the Respondent’s submissions in the following way:

“48. … The previous tribunal has made a very specific finding of fact as to why he was dismissed, which was because his colleagues refused to work with him.  The tribunal has determined as a matter of fact that the reason he was dismissed was the fact of the deputation and the difficulties that presented the respondent going forward rather than a belief in the underlying misconduct itself. … Thus whether by the route of concluding that the dismissal was unfair because the respondent had failed to establish a potentially fair reason or because if a potentially fair reason had been established that the decision was not one which a reasonable employer could come to for the reasons given by the tribunal that the dismissal was unfair.  Self evidently that decision is not tainted by any consideration of the fact of the claimant’s disability.”

 

14.              Then the Cadney Tribunal recorded an alternative approach at paragraph 49:

“49. An alternative way of saying the same thing is that direct discrimination requires a comparator whose material circumstances are not different from those of the claimant; in other words an employee who had had precisely the same allegations made against him in respect of which the employer found itself in precisely the same situation but who was not disabled.  The respondent submits that there is no evidence sufficient to satisfy stage 1 of the Igen v Wong test that would shift the burden onto the respondent of satisfying the tribunal that there was no discrimination in the dismissal given the clearest findings of fact by the previous tribunal.  Furthermore they called Mr Davison again and it was not suggested to him by the claimant that his disability in fact played any part in his decision to dismiss.”

 

The reference in the last sentence to Mr Davison is a reference by the Cadney Tribunal to some of the evidence which it had heard.

 

15.              Although the Cadney Tribunal is only summarising the submissions made by the Respondent in those paragraphs it is clear from paragraph 50 that it accepted them.  It reads:

“50. In our judgment all of those points are correct.  There is in truth no evidence before us which could possibly satisfy Stage 1 of the Igen v Wong test in light of the previous tribunal’s findings of fact that the dismissal was an act of discrimination and accordingly that part of his claim must also be dismissed.”

 

16.              The second ground of appeal really raises two points.  Both relate to reasonable adjustment discrimination.  The context is the alleged failure to make reasonable adjustments in relation to the disciplinary procedure, an allegation which the Cadney Tribunal dismissed at paragraph 43 of the Judgment in these terms:

“43. The final allegation is of the failure to make adjustments to the disciplinary process.  However, as set out above the claimant’s witness statement is silent as to this claim.  As a result we have no evidence which could allow us to determine what the provision criterion or practice was, or how it placed the claimant at a substantial disadvantage.  The pleaded claim refers to the failure to provide the claimant with the disciplinary documentation and evidence a sufficient time before the hearing so as to allow him to adequately prepare.  We have in any event significant doubts as to whether a one-off failure, if it was a failure, to do so could properly fall within the description of a provision criterion or practice; and how it would place the claimant at a substantial disadvantage in comparison with a non disabled employee in the same circumstances.  However, in the absence of any primary evidence it is not necessary to form a concluded view on those points.”

 

The first point raised by the second of the amended grounds of appeal is that the Tribunal had enough material from the claim form in order to understand how the point was being put and that it was unduly formalistic not to explore it because it did not appear in the witness statement.  The second point is that it is simply erroneous to refuse to consider an allegation of a failure to make a reasonable adjustment because it relates to only one matter or only a single instance of a matter, which cannot amount to a “provision, criterion or practice” (“PCP”).

 

The Facts

17.              The factual background to the case is that the Appellant, who had been employed previously for a number of years by the Respondent, became a Technical Officer in 2004.  This is a job which has management responsibilities.  By May 2005 the Appellant was alleging that he was suffering from stress.  The Cadney Tribunal found as a fact that he was not subjected to an excessive workload at that time (see paragraph 14 of the Written Reasons at page 6 of the appeal bundle), although it recognised that in a risk assessment made about that time an issue had been identified of the Appellant perceiving excessive demands were being made upon him and that his work situation was unsatisfactory for a number of other reasons (see paragraph 16 of the Reasons at page 6 of the appeal bundle).

 

18.              The Appellant went off sick on 1 August 2005.  A return to work action plan was drawn up in early September 2005 and in October 2005 there was a return to work meeting at which the Cadney Tribunal found the Appellant had agreed a job description and a phased return to work.  He started back at work on 1 November 2005 but in January 2006, whilst the return to work action plan was still in the course of being implemented, the Appellant was seconded to the Cemeteries Department.  I understand it to be common ground that the work there was not stressful for him (see paragraph 20 at page 8 of the appeal bundle).

 

19.              He returned to his work as a Technical Officer in the Grounds Maintenance Department on the 3 July 2006.  The Cadney Tribunal found that his return to work coincided with him having become a disabled person (see paragraph 2 of the Reasons at page 2 of the appeal bundle).  He alleges that once again he encountered an excessive workload there.  It should be said that the contemporary evidence suggests that he was complaining at the time of a lack of work (see paragraph 23 of the Reasons at page 9 of the appeal bundle).  Be that as it may, by 15 August 2006 the Appellant was absent through illness once again.  He had been back at work about 6 weeks.  He was fit for work again and had a formal return date of 19 February 2007 (see paragraph 28 of the Reasons at page 10 of the appeal bundle).  In fact he was on holiday until early March but after that he should have returned.

 

20.              On 13 March 2007 there was a meeting to discuss his return to work and on the same date return to work plans were forwarded to him.  Two days later at a meeting on 15 March 2007 the Appellant stated that he was not fit for work.  This appears to have been in contradiction of the opinions held by both the Occupational Health Department of the Respondent and by his own General Practitioner.  By 11 April he was again absent from work through illness.  He had been at work then for about 4 weeks.  He remained unfit until January 2008 but he was then suspended on allegations of misconduct and dismissed in May 2008.

 

 

 

The Appellant’s Submissions

21.              There have been several iterations of the Appellant’s skeleton argument.  The latest was produced at 2.00pm on 14 January 2016, after I had rejected the Appellant’s application for permission to further amend the grounds of appeal.  It is a considerably expanded version of the earlier skeleton arguments, running, as it does, to some 33 pages.  The Appellant indicated that he wished to use it as a speaking note and Ms Grennan, despite its late production, accepted she was not prejudiced by it and could deal with it.  I allowed the Appellant to model his submissions on it but indicated that by doing so I was not accepting its contents were necessarily admissible or arguable on the appeal.

 

22.              In that skeleton argument, the Appellant firstly raises at subparagraphs a) to o) on pages 1 to 3 a collection of what he submitted were important facts.  They seem to me to be a mixture of fact and argument.  The Appellant accepted that he had not raised the matter in this form before the Employment Tribunal.  For that reason alone this material is dubious so far as any appeal is concerned but it is really introductory material leading to the first complaint against the Cadney Tribunal raised by this new skeleton argument, namely that the Tribunal has failed properly to implement the terms of the remission made by the Court of Appeal.  This is only within the scope of the amended grounds of appeal currently before me if I take an elastic view about the nature of ground 1 of the amended grounds of appeal.  But the elasticity can only go so far; consideration of these matters on this appeal must be related to and within the allegations of disability discrimination raised before, and considered by, the Cadney Tribunal and it is only in that context that I am prepared to consider any of this material.  For this reason I do not propose to recite the factual detail of submissions made to me orally by the Appellant about the significance of the actions of the Occupational Health Department because it seems to me these raise issues of fact not questions of law and fall outside the scope of the amended grounds of appeal.

 

23.              The Appellant submitted that the Cadney Tribunal had failed properly to implement the terms of the remission by the Court of Appeal because it had never properly considered paragraphs (2)b and (2)c of the Order directing remission.  Thus it had never properly considered disability discrimination or reasonable adjustments discrimination.  The Appellant specifically rejected the analysis by the Cadney Tribunal of his complaints of disability discrimination through the prism of the Further and Better Particulars (set out above at paragraph 7 of this Judgment).  He argued that they did not represent his case, which should have been taken from paragraphs 3 and 4 of the Beard Tribunal’s Reasons at page 126 of the appeal bundle (as set out above at paragraph 5 of this Judgment). 

 

24.              The Appellant then submitted that the Cadney Tribunal had erred in respect of “the date of knowledge issue” because the Cadney Tribunal found the date of knowledge to be April 2007 (see paragraph 36 of the Reasons at page 13 of the appeal bundle).  The significance of this complaint is that if I accepted that firstly this was raised by the amended grounds of appeal and secondly it was arguable that the Cadney Tribunal had got it wrong, then the scope of enquiry by the Cadney Tribunal had been too narrow.

 

25.              As to direct discrimination and paragraphs 46 to 50 of the Reasons of the Cadney Tribunal, the Appellant submitted that the error disclosed there was a failure to investigate the motives of the deputation, which had complained about the Appellant and the motives of the investigating officer Mr Morris and the dismissing officer Mr Davison.  The Cadney Tribunal had failed to appreciate that the complaint of the deputation stated in those terms must either amount to harassment on the grounds of disability (not an allegation made at any previous stage) or disability discrimination itself.  Complaints about the Appellant by his colleagues should have been seen through and recognised for what they were, namely discrimination on the grounds of his disability.

 

26.              This matter had not been raised before the Beard Tribunal but the whole point of the remission was to enable detailed exploration of the issue; this was what the Court of Appeal had intended.  The question, which the Cadney Tribunal should have asked itself was whether any part of the ultimatum presented by the deputation resulted from the Appellant’s disability?  The Appellant had been deterred from pursuing this point after his amendments had been rejected but there was a duty on the Cadney Tribunal to look at the matter critically this being a rehearing of the matter de novo (see paragraph 21 of a Judgment of a division of this tribunal presided over by HHJ Peter Clark in Varma v North Cheshire Hospitals NHS Trust UKEAT/0178/07/CEA).  The essential question was whether there was any “head room” for an effective cause of the dismissal having been the Appellant’s disability?

 

27.              Also in the context of direct discrimination the Appellant submitted that the Cadney Tribunal had misdirected itself by suggesting at paragraph 44 that he was his own comparator.  Paragraph 44 reads as follows:

“44. The central difficulty the claimant has in respect of his contentions as to the failure to implement the risk assessments is that it is his own case that prior to him becoming a disabled person that that was already the position.  Indeed one of the matters he asserted is that Mr Boyett who did not give evidence before us but did give evidence before the previous tribunal has asserted in evidence that a decision had been taken to implement the 2005 risk assessment.  It follows that any subsequent failure to implement a risk assessment would founder on the logical difficulty that the claimant’s comparator is effectively himself at a point before he became disabled, and his own evidence is that before and after having become disabled he was treated identically.  It follows logically that he cannot have been so treated on the ground of his disability.  On his own evidence, therefore, this claim appears doomed to failure.”

 

In order to make a proper comparison the Cadney Tribunal should have used a third party comparator or constructed a hypothetical comparator and had that been so then there would have been no such difficulties with causation.

 

28.              The Appellant then turned to reasonable adjustments discrimination.  The first difficulty he faces in that respect is his own acknowledgment that the submissions he wishes to make in respect of “return to work reasonable adjustments” cannot be fitted into paragraph 2 of the amended grounds of appeal, which is confined to reasonable adjustments in relation to discipline.  The second difficulty is that the way the Appellant now wishes to put this point in rather different to the way it was discussed before the Cadney Tribunal.  The Appellant now wishes to say that the Respondent’s Occupational Health Department has “suppressed” the opinion of his GP.  I am not at all clear that this matter was put to the Employment Tribunal and it seems more likely than not the matter was never raised in this form.

 

29.              There then follows in the skeleton argument a discussion (see pages 8 to 15) of what the Appellant calls “Reverse Burden of Proof”.  In so far as it relates to the amended grounds of appeal it must do so through the complaints raised by grounds 1 and 2 about disability discrimination and reasonable adjustments discrimination.  But neither ground 1 nor ground 2 expressly refer to the reverse burden of proof.  The only reference to it by the Cadney Tribunal is at paragraph 49 of the Reasons and in the subsequent acceptance of the Respondent’s submission referred to there at paragraph 50; both of these references are in the context of direct discrimination.  The Appellant complains also that the Respondent’s submissions on the reverse burden of proof were made in a written submission sent to the Employment Tribunal two weeks after the oral evidence had been completed but it seems certain that this was as a result of a direction by the Employment Tribunal about the closing submissions being made in writing and filed sequentially. 

 

30.              The Appellant’s oral submissions on the burden of proof were also made in the context of direct discrimination.  His argument was that the Beard Tribunal rejected the evidence of Mr Davison that he had dismissed the Appellant because of his conduct (see paragraphs 30.5, 30.6, 30.7 and 30.8 of the Reasons of the Beard Tribunal at pages 132 and 133 of the appeal bundle) and had concluded instead that the dismissal had been because of the complaints about the Appellant made by a Trade Union deputation on behalf of his colleagues.  The finding at paragraph 30.9 of those Reasons that the dismissal was a sham must therefore include the implicit finding that Mr Davison had been guilty of mendacity; he had lied about the reason for dismissal.  The Appellant also relied on the findings that the evidence of Mr Lewis (paragraphs 32.3 to 32. 6 at pages 133 to 134 of the Reasons of the Beard Tribunal) about the lack of a search for alternative employment had been found by the Beard Tribunal to be unimpressive; this must likewise be another illustration of a lack of honesty in the evidence called by the Respondent.

 

31.              The Appellant accepted that the evidence of Mr Lewis related to the Polkey issue rather than the dismissal itself and that he had not raised the Lewis evidence at the Cadney Tribunal.  But he submitted to me that these points were obvious and there for all to see.  Even if he accepted the Cadney Tribunal’s findings on date of knowledge of disability, which, of course, he disputed and wished to challenge on this appeal, the significance would still be that the Respondent had known of his disability for about 12 months by the time of his dismissal and both Mr Davison and Mr Lewis must be taken to have that knowledge.  As support for that proposition he relied on paragraphs 15 and 16 of the Judgment of a division of this Tribunal presided over by HHJ Clark in Bowers v William Hill UKEAT/0046/09/DM which record that the approach of the Employment Tribunal in that case, against which there had been no appeal, was to impute knowledge of disability reposing in one part of an organisation to another part of it, which did not know of it.  If that was the case in Bowers, submitted the Appellant, then that must also be the case here.

 

32.              So the Cadney Tribunal had erred in not recognising that the lies told by the Respondent’s witnesses were a significant factor in relation to the burden of proof.  Likewise the Cadney Tribunal had failed to recognise the significance of the Respondent’s failure to respond to the statutory questionnaire, which the Appellant had forwarded to the Respondent.  The Cadney Tribunal had failed to consider it in the Reasons.  Also the Cadney Tribunal had ignored the Statutory Code of Practice: Employment and Occupation 2004, a publication of the then Disability Rights Commission, paragraph 5.15 of which states:

“If an employer’s agent or employee (such as an occupational health adviser, personnel officer or line manager or recruitment agent) knows, in that capacity, of an employee’s disability, the employer will not usually be able to claim that it does not know of the disability, and it therefore has no obligation to make a reasonable adjustment.  The same applies in respect of actual or potential applicants for employment.  Employers therefore need to ensure that where information about disabled people may come through different channels, there is a means - suitably confidential - bringing the information together, to make it easier for the employer to fulfil its duties under the Act.”

 

So Mr Morris, Mr Davison and Mr Lewis must be taken to have been aware of the Appellant’s disability when investigating and concluding there was a disciplinary case against him, dismissing him because of it and not considering whether an alternative position could be found for him.

 

33.              Thus the Appellant’s main complaint is that the Cadney Tribunal failed to recognise that this factual material, considered cumulatively, should have caused it to regard the burden of proof as reversed because this material amounted to “something more”, an expression used by the Employment Tribunal in Birmingham City Council and another v Millwood[3] UKEAT/ 0564/11/DM, a decision of this Tribunal presided over by the then President, Langstaff J.  That was a case of a difference of treatment and a difference of race and “something more” but the Employment Tribunal had not identified clearly what that might have been.  If it was the fact that explanations had been disbelieved that might have been “something more”, but as a result of the lack of clarity the matter was remitted.  Paragraphs 26 and 27 of the Judgment consider the difference between rejecting an explanation as a lie and accepting one explanation in preference to another, the former likely to be “something more”, the latter less likely to be so.  This passage was cited as part of a full analysis of authority relating to the burden of proof[4] by a division of this Tribunal presided over by His Honour Judge Serota QC in The Solicitors Regulation Authority v Mitchell UKEAT/0497/12/MC, a case where the conclusion of an Employment Tribunal, that a false explanation amounted to “something more” was upheld on appeal.  The Appellant relied on the passage as a definitive statement of the law and submitted that the lies and other material he relied on here amounted to “something more”.

 

34.              As to ground 2(a) of the amended grounds of appeal the Appellant submitted that although his witness statement did not raise any issue about reasonable adjustments in the context of the disciplinary process, the matter had been raised in his claim form and that was sufficient to raise the matter as a live issue for consideration by the Cadney Tribunal.  In relation to ground 2(b) the Appellant’s submissions to me were confined to asserting that this would not have been a “one-off” matter had the Cadney Tribunal allowed more evidential material to be placed before it by the Appellant.  Even so, I am prepared to consider also the issue of principle, namely whether a single instance might be capable of constituting a “PCP”.

35.              The rest of the skeleton argument (i.e. pages 16 to 33) is said by the Appellant to be an overall picture of the way the Employment Tribunal came to its conclusions.  As such it does not fall within the terms of the amended grounds of appeal and I do not propose to address it.

 

The Respondent’s Submissions

36.              Ms Grennan’s primary position was that she need only address the amended grounds of appeal, although she did make some secondary submissions as to why the other points which the Appellant sought to argue, as well as being inadmissible on this appeal because they were not within the amended grounds of appeal, were also without any merit.  Firstly there was no merit in the suggestion that there was to be a preliminary hearing of the issue of knowledge of disability.  No such direction had been given by the Court of Appeal or as a result of any of the Case Management Hearings.  The case had always been listed to deal with all the points remitted by the Court of Appeal, hence the five day listing.  After the evidence had concluded on the fifth day, written submissions had been directed and made on all the points in issue.  The Appellant had participated in that process without demur and certainly without any suggestion beforehand that there should be the hearing of a discrete point or any suggestion afterwards in his closing submissions that there should have been such a hearing.

 

37.              Secondly, the point was immaterial in any event because the Cadney Tribunal had dealt with the case not only on the basis that it need not consider events before the date of knowledge, which it had concluded was April 2007, but also on the alternative basis that, if it was wrong as to the date, then it would consider whether looking at matters before April 2007 would have made any difference to its conclusions.  Paragraphs 33 to 36 of the Reasons at pages 12 and 13 of the appeal bundle deal with the date of knowledge.  Paragraph 37 states the alternative approach as follows:

“37. However, we are acutely conscious of the age and history of this claim and have gone on to consider the claimant’s claims before April 2007 on their merits in case we too have erred in the assessment of the question of knowledge and/or the date of knowledge.”

and paragraphs 38 to 45 at pages 13 to 16 of the appeal bundle all proceed on the alternative basis of considering the complaints of failure to make reasonable adjustments in respect of the allegations made in the Further and Better Particulars of the Particulars of Claim or made in Beard Tribunal summary at paragraphs 3.1, 3.2 and the first sentence of paragraph 4 (set out above at paragraph 5 of this Judgment); reasonable adjustments are dealt with at paragraphs 38 to 43 and paragraphs 44 and 45 deal with the allegations of direct discrimination, which do not relate to dismissal.

 

38.              Thirdly, it had never been suggested that the deputation amounted to harassment because of or related to the Appellant’s disability.  Nor had any such point been raised in evidence; this overlaps with Ms Grennan’s submissions on the amended grounds of appeal to which I now turn. 

 

39.              As to the first ground of appeal Ms Grennan submitted that the Cadney Tribunal had been entitled to rely upon the Beard Tribunal’s conclusion as to the reason for dismissal.  There had been nothing to suggest in any Tribunal or Court before which the case had been heard that the deputation or the managers conducting the disciplinary procedure were influenced or motivated by the Appellant’s disability.  Two members of the deputation, Ms Jennifer Lovell and Ms Jennifer Judd gave evidence, which was not challenged (see paragraph 10 of the Reasons at page 5 of the appeal bundle).  It was never suggested to either that their conduct had been influenced by any disability from which the Appellant was suffering.  Nor was it ever put as part of the Appellant’s case that the complaints made by his colleagues were in themselves discriminatory.  Moreover, the behaviour of which the deputation complained pre-dated the onset of disability in June or July 2006 and so, as a matter of fact, there could be no connection.

40.              Moreover, the Cadney Tribunal had been well aware of the principle that disability need not be the sole cause of dismissal but that discrimination on the grounds of disability could arise if it were found that disability were an effective cause of it (see O’Neill v Governors of St Thomas More RC School [1997] ICR 33 and O’Donoghue v Redcar and Cleveland Borough Council [2001] IRLR 615, both of which had been drawn to the attention of the Cadney Tribunal in the Respondent’s written closing submissions at page 63 of the supplementary bundle).  The critical issue was the state of mind of the decision maker, Mr Davison.  He did not believe that the Appellant had been a disabled person and he told the Tribunal that his decision was “not based in any way upon any health or disability issues” (see paragraph 49 of the Reasons at page 19 of the appeal bundle).  This was an ample factual justification for the decision made by the Cadney Tribunal.  As to the other evidence, which the Appellant now sought to suggest provided support for the proposition that the disciplinary process and the dismissal were tainted by discrimination, it had never been put to Mr Morris or Mr Lewis that the actions they had taken were as a result of the Appellant’s state of health or disability.

 

41.              In any event the Appellant’s argument that the knowledge of one employee (or in this case of the Occupational Health Department) must be imputed to all employees was misconceived, at least in the context of direct discrimination.  The authority cited by the Appellant, Bowers v William Hill, did not support the proposition about imputed knowledge which he had advanced; even if it did it must now be taken to have been overruled, at least in the context of direct discrimination, by the Judgment of the Court of Appeal in CLFIS (UK) Ltd v Reynolds [2015] EWCA Civ 439, [2015] IRLR 562.  This demonstrates that the focus should be on those committing alleged discriminatory acts and on their state of knowledge and state of mind and not on those supplying the information.  In that case, as in the instant case, the decision under question was solely that of one particular manager (see paragraph 18 of the Judgment at page 565 of the IRLR Law Report).  What has to be addressed is the mental process of the person making that decision and not that of those providing information to that person (see paragraph 20 at page 566) unless it could be considered to be a joint decision (see paragraphs 32 and 34 at page 568) because as Underhill LJ pointed out at paragraph 36 on page 569:

“36. In my view the composite approach is unacceptable in principle.  I believe that it is fundamental to the scheme of the legislation the liability can only attach to an employer where an individual employee or agent for whose act he is responsible has done an act which satisfies the definition of discrimination.  That means that the individual employee who did the act complained of must himself have been motivated by a protected characteristic.  I see no basis on which his act can be said to be discriminatory on the basis of someone else’s motivation.  If it were otherwise very unfair consequences would follow.  I can see the attraction, even if it is rather rough-and-ready, of putting X’s act and Y’s motivation together for the purpose of rendering E liable: after all, he is the employer of both.  But the trouble is that, because of the way the Regulations[5] work, rendering E liable would make X liable too: see the analysis at paragraph 13 above.  To spell it out:

(a) E would be liable for X’s act of dismissing C because X did the act in the course of his employment and - assuming we are applying the composite approach - that act was influenced by Y’s discriminatory-motivated report.

(b) X would be an employee for whose discriminatory act E was liable under reg. 25 and would accordingly be deemed by reg. 26(2) to have aided the doing of that act and would personally liable.

It would be quite unjust for X to be liable to C where he personally was innocent of any discriminatory motivation.”

 

42.              Finally, submitted Ms Grennan, there is another striking similarity between the instant case and CLFIS which she illustrated by quoting the first two sentences of paragraph 50 of the Judgment:

“50. It is plain from that analysis that the reason why the tribunal’s focus was exclusively on Mr Gilmour was that was the only case advanced by the claimant.  In my view it follows that Canada Life’s ground (2) is well-founded: as I have said, the tribunal cannot be said to have erred in failing to address a case that was never advanced. …”

 

Exactly the same position applies to the instant appeal.  The case now being put was never advanced to the Cadney Tribunal.

43.              So far as the burden of proof was concerned Ms Grennan was prepared to accept that ground 1 of the amended grounds of appeal should be interpreted so as to accommodate within it an attack on the approach of the Cadney Tribunal to the question of the burden of proof.  But she submitted that none of the factors relied upon by the Appellant had been overlooked by the Cadney Tribunal.  The statutory questionnaire had not been raised in the context of the burden of proof and likewise the Code of Practice (see the Appellant’s closing submissions to the Cadney Tribunal at pages 80 to 135 of the supplementary bundle); in any event the latter did not support the concept of a decision taken solely by one person being tainted by discriminatory motives or conduct on the part of others, who did not make the decision.

 

44.              Ms Grennan accepted, in principle, the possibility of a difference in treatment and status being coupled with a dishonest explanation for the treatment and that combination leading to a sound conclusion that the burden of proof had been shifted.  She did not accept, however, that was the case here.  The case on reason for dismissal had always been put in the alternative by the Respondent.  The Beard Tribunal had accepted that alternative explanation of the reason for dismissal.  She had to face the fact that Mr Davison’s primary evidence had been rejected and she could not complain of the analysis that, therefore, it had been found that he was untruthful.  But the Beard Tribunal had found that the real reason for the dismissal was the unwillingness of his colleagues to work with the Appellant again.  This was a non-discriminatory explanation that could add nothing more to the difference in status and the difference in treatment and, accordingly, the Cadney Tribunal had made no error in relation to the burden of proof.

 

45.              Turning to ground 2, Ms Grennan submitted that the appeal was only concerned with reasonable adjustments relating to the disciplinary process.  In that context it had proved impossible ever to define the PCP at issue in this case.  All the more reason for the Appellant to clarify this complaint in the course of his oral evidence.  On the contrary, he simply never developed it in his own evidence nor did he explore it in his cross-examination of any of the witnesses called on behalf of the Respondent.  He never explained what the PCP might be and he never made any suggestion as to what sort of adjustment might have been made to the disciplinary process and why it might have been reasonable to make it.  At the time of the disciplinary process the evidence appeared to show that he was well and that there were no medical reasons as to why he should not be put through the process.  Therefore, the Cadney Tribunal was quite correct to reach the conclusion that it did at paragraph 43 of the Reasons.

 

46.              She expanded on these submissions by referring to the Case Management Hearings at which the Respondent had sought Further and Better Particulars and asked for the key factors to be explained.  A Scott Schedule had been devised and proffered in order to provide a framework within which the Appellant might define this case but he had chosen not to do so.  Employment Judge Cadney had been sympathetic to the Appellant and directed that the fair way to allow him to explain his case was for it to be set out fully in his witness statement.  The Appellant submitted a full witness statement and later he had supplied his own Scott Schedule.  Neither had cast any light on how he put the case in relation to reasonable adjustments in the context of the disciplinary process.  Nor did he raise any positive case in cross-examination of either Mr Morris or Mr Davison.  Indeed he did not cross-examine either of them.  Therefore the Cadney Tribunal had no evidence on which it could find any of the material factors set out in section 4A of the DDA.

 

47.              In any event, Ms Grennan asked, responding to the Appellant’s assertion that whether or not he raised particular matters it was for the Employment Tribunal to investigate them if they had been raised allegations in the pleadings, what evidence was there?  The Appellant had never applied for any extension to any of the time limits applicable during the disciplinary process.  Nor had he requested access to any particular documents.  Nor was the Occupational Health Department making any suggestions about amendments or adjustments to the disciplinary process.  The most recent reports from the Occupational Health Department were those in January 2008 (see page 1 of the supplementary bundle), the notes upon which that was based (see page 2 of the supplementary bundle) and the report of 20 March 2008 (see pages 3 and 4 of the supplementary bundle).  None of those documents raised anything that might be interpreted as a suggestion of the need for reasonable adjustments and the lack of comprehension of the allegation of a failure to make reasonable adjustments in respect of the disciplinary process expressed by Mr Morris at paragraph 51 of his witness statement (see page 55 supplementary bundle) cried out for an answer and should have been addressed by the Appellant during the course of the hearing.  That he had not done so and to require the Employment Tribunal in the absence of any documentary written or oral evidence to start an inquisition was imposing a burden upon the Cadney Tribunal, which it did not or should not bear.

 

48.              Nor was the alternative approach taken by the Cadney Tribunal, and criticised in ground 2(b) of the amended grounds of appeal, flawed.  Certainly the word “practice” has been said to have “the element of repetition about it” (see Nottingham City Transport Ltd v Harvey [2013] EqLR 4 at paragraph 21 and also Carphone Warehouse Ltd v Martin [2013] EqLR 481 at paragraph 19).  Most important, however, on this topic, is the last sentence of paragraph 43 in which the Cadney Tribunal make it clear that it was not formally a concluded view.  That was because, having regard to the lack of evidence, it was not necessary to do certain circumstances.

 

Discussion and Conclusions

49.              For my part I can recognise no significant difference between the Further and Better Particulars provided to the Beard Tribunal, by which the Cadney Tribunal chose to define the Appellant’s case, and the summary provided by the Beard Tribunal at paragraph 3 and 4 of the Reasons as set out above in paragraph 5 of this Judgment.  Consequently, even if the complaint that the Cadney Tribunal has looked at the wrong allegations were within the scope of the amended grounds of appeal, which it is not, I would reject it as without any significant foundation.

 

50.              In my view it is at least possible that the Appellant’s real complaint is that the Cadney Tribunal refused to broaden the scope of the hearing as set out at paragraph 5 of the Reasons at page 3 of the appeal bundle by refusing any amendment.  If the refusal to consider broader allegations is the implicit core of this appeal, then that has been adjudicated upon in case management terms by the Cadney Tribunal.  Moreover, they are not within the scope of this appeal.  Even so I will say that I find it entirely understandable that they were rejected and I very much doubt that their rejection involved any error of law.

 

51.              In essence the application to re-amend the amended grounds of appeal was a yet further attempt to broaden the scope of this case.  I have already given Judgment refusing the amendment but now that I have heard the merits of the appeal it seems to me clear that the proposed resurrection of the original grounds of appeal was just another chapter in the Appellant’s attempt to start this case all over again.  I regard his complaint, which in my view is certainly not within the amended grounds of appeal, that the Cadney Tribunal has failed to implement the terms of the remission by the Court of Appeal as a yet further tactical manoeuvre towards getting the proceedings started all over again.  Even though I do not regard that complaint as falling within the scope of this appeal because it is not part of the amended grounds of appeal, I should say that in my judgment the Cadney Tribunal loyally implemented the terms of the remission (except as to whether or not the complaints of disability discrimination were in time (paragraph 2(d) of the Order of the Court of Appeal), an omission which was entirely justifiable because the point had been rendered otiose by the other findings).  

 

52.              I regard in the same light another theme of the Appellant’s submissions namely that the Cadney Tribunal erred in respect of “the date of knowledge issue” because the Cadney Tribunal found the date of knowledge to be April 2007 (see paragraph 36 of the Reasons at page 13 of the appeal bundle).  As a complaint this is plainly inadmissible in terms of the scope of this appeal because it falls outside the amended grounds of appeal but even had it been within the scope of this appeal, I would not have thought it capable of being argued as amounting to an error of law.  The date of knowledge must clearly be a question of fact and I can see nothing wrong with the approach of the Cadney Tribunal to this issue and certainly nothing that could be characterised as an error of law.

 

53.              I turn now to disparate collection of matters not within the scope of the amended grounds of appeal but which I feel I should deal with.  I regard the Appellant’s complaint that he was wrong-footed at the hearing by the Cadney Tribunal because it dealt with the merits and not simply with a preliminary issue as to date of knowledge of disability as being without foundation.  I accept Ms Grennan’s submission that there was never any direction given this matter would be taken as a preliminary issue nor any basis for the Appellant’s apparent misapprehension that would be the case nor was there any complaint by the Appellant about that until this appeal.  I think the matter never had any substance but if it had the time to raise it was at the Cadney Tribunal and not on this appeal. 

 

54.              Another factor of which complaint is made is that the Cadney Tribunal failed to consider the deputation by the Appellant’s colleagues to management as amounting to harassment.  It is not surprising that it was not considered.  Until the hearing of the oral submissions at this appeal that allegation had never been raised before.  It is far too late to raise it now.

 

55.              At one point in his submissions the Appellant complained that he had not had a proper opportunity to deal with the burden of proof because the Respondent’s submissions on that subject came after the hearing in the shape of written submissions.  This was entirely in accordance with the directions given by the Cadney Tribunal.  The Appellant had ample opportunity to address this matter in his written submissions and in so far as he failed to do so he cannot blame anybody else.

 

56.              Finally it seems to me that his allegations as to the suppression of his GP’s medical opinion by the Occupational Health Department, if this matter was ever raised before the Cadney Tribunal, even though not dealt with expressly in the Reasons, must have been rejected.  Quintessentially it is a matter of fact and not the proper subject of an appeal to this Tribunal.  I turn then to the amended grounds of appeal.

 

57.              As to ground 1 of the amended grounds of appeal I accept it was open to the Cadney Tribunal to reach a determination about whether disability discrimination was an effective cause of the Appellant’s dismissal notwithstanding the conclusions reached by the Beard Tribunal?  What, in my judgment, the Cadney Tribunal was not entitled to do was to reach a different conclusion about the reason for dismissal.  That had been decided by the Beard Tribunal and the issue for the Cadney Tribunal was whether, in considering the intention and motive of the decision maker, Mr Davison, there was “headroom” for a conclusion that in deciding to dismiss because of the refusal of the Appellant’s colleagues to work with him, Mr Davison had been significantly influenced by the Appellant’s disability towards reaching a determination that he would not otherwise reached.  Perhaps it is unfortunate that the Cadney Tribunal at paragraph 46 to 50 of its Reasons compressed that thought process into the relatively brief last sentence of paragraph 49.  Nevertheless that sentence shows that the Cadney Tribunal was considering the motivation, intention and state of mind of Mr Davison.  In my view that was entirely the correct approach and no error of law arises from it.

 

58.              I reject the Appellant’s submission that Bowers v William Hill establishes a principle of imputed knowledge of general application; I take the same view about paragraph 15.5 of the Code of Practice.  As to the former, the passage relied on only amounts to a recitation of what had been decided by the Employment Tribunal on issues not the subject matter of that appeal.  In analytical terms the passage probably does not even amount to obiter dictum.  As to the latter it establishes practical guidance that should be taken into account, but is only guidance.  Both are dealing with knowledge of disability and it is not necessary for me to decide on this appeal, which, contrary to what the Appellant might wish and has argued, does not involve a challenge to the finding on knowledge of disability, whether, in that context, imputed knowledge represents a sound legal principle.

 

59.              I do need to decide, however, whether the Cadney Tribunal has erred in its approach to the evidence of Mr Davison.  In anticipation of the decision of the Court of Appeal in CLFIS it seems to me that the Cadney Tribunal quite correctly concentrated upon the state of mind of Mr Davison, the person solely responsible for taking the decision to dismiss.  In my judgment there is no room for imputed knowledge in this context.  As paragraph 36 of the Judgment of Underhill LJ (quoted above at paragraph 41 of this Judgment) clearly explains an Employment Tribunal when deciding whether or not there has been discrimination by a sole decision maker is not concerned with the motivation, intention and knowledge of others being imputed to the decision maker but with the actual motivation, intention and knowledge of that decision maker.  In the instant case, the Cadney Tribunal was entitled to conclude that because Mr Davison had no actual knowledge of the Appellant’s disability and there was no evidence that his decision to dismiss was because of an intention or motivation stemming from the Appellant’s disability, discrimination on that ground was not a consideration.  That approach betrays no misdirection or error of law.

 

60.              In any event, I accept the submissions of Ms Grennan as to the evidential state of affairs at the Cadney Tribunal hearing.  There was no challenge to, or investigation of, the evidence of either the managers involved in the disciplinary procedure and its aftermath or of the members of the deputation, who were called to give evidence.  As to the latter, CLFIS clearly establishes that unless this was a decision in which they were jointly involved, which it was not on the evidence, their state of mind and motivation would be irrelevant.  But in fact their evidence, like that of the managers, went unchallenged so that their state of mind and motivation, even if they had been relevant, were not known.  To paraphrase the words of Underhill LJ the Cadney Tribunal cannot be blamed for not dealing with a case never advanced to it.

 

61.              Disability discrimination not relating to the dismissal was considered by the Cadney Tribunal at paragraph 44 and 45 of the Reasons.  It is not put in question by the amended grounds of appeal and therefore I cannot consider it.  As a result of the Appellant’s submissions and his persistence, however, I propose to say only this about it; firstly, the refusal to do a risk assessment seems to have occurred before the Appellant became disabled; secondly, if it is to be accepted that there was a continuing state of affairs in relation to risk assessment, whilst the Cadney Tribunal does get itself involved in a rather convoluted argument about the Appellant as his own comparator, it seems clear from paragraphs 44 and 45 that the Cadney Tribunal concluded there was no less favourable treatment of the Appellant, something which they articulate, and that he suffered no detriment, something which is not articulated but seems an implicit premise of the argument.  Thus, had this been within the scope of this appeal, it seems to me that it would have failed on the facts as found by the Cadney Tribunal.

 

62.              As to the reversal of the burden of proof, I accept Ms Grennan’s submission that this point fails both evidentially and in principle.  The Appellant relied upon Birmingham City Council v Millwood and The Solicitors Regulation Authority v Mitchell both of which make a valuable contribution to consideration of what more might be required than simply a difference in status and a difference in treatment before the burden of proof can be regarded as having shifted.  But ultimately all such cases are exemplary; if there is a principle it is that explanations exposed as lies are likely to shift the burden of proof.  But cases depend upon their own facts.  That there has been a dishonest explanation will not necessarily shift the burden of proof in any particular case.  The instant case is an example of that.  Lies may be told to cover up a perfectly innocent explanation.  In effect, this is what the Cadney Tribunal has found in this case and in my judgment that conclusion involves no issue of law let alone any error of law.

 

63.              Nor do I think that any of the collection of complaints about the statutory questionnaire or the Code of Practice or other matters should have made any impact of the burden of proof.  To my mind it is very debatable whether these factors were in play at the Cadney Tribunal.  But, even if I am wrong as to that, it does not seem to me that any of them were of any significance and I do not think that the Cadney Tribunal made any error by not dealing with them specifically, even if they had been addressed to it.

 

64.              The second ground of appeal in the amended grounds of appeal relates to reasonable adjustments but in two very specific ways.  The first thing to recognise is that the non-dismissal reasonable adjustments case was all dealt with by the Cadney Tribunal in the alternative.  The primary position was that none of it was relevant having regard to the findings of the Cadney Tribunal as to the date of knowledge of disability.  That being so these criticisms fail at the outset[6].  But if that is the wrong approach on ground 2(a) I accept the submissions made by Ms Grennan that the Cadney Tribunal was quite correct to conclude there had been no evidence placed before it.  The skilfully drafted ground of appeal gives the impression that this was an overly technical and unjust exclusionary approach by the Cadney Tribunal but the reality is that there was every opportunity for the Appellant to advance this case at the hearing.  I think Ms Grennan is correct when she says, in effect, that he spurned that opportunity.  He never explained evidentially what he had set out in the original ET1 form nor did he raise this criticism with any of the witnesses involved in the disciplinary process called by the Respondent.  If this matter had been properly before me I would have reached the conclusion that the Cadney Tribunal, far from reaching a technical and nitpicking conclusion, was entirely correct as a matter of both procedure and substance to take the view that this matter could not be decided without evidence.  The Appellant repeatedly pointed to his limitations as a litigant in person but all litigants in person must be expected to bring forward their case.  The Appellant did not do that and the responsibility for that failure cannot be shifted to the Cadney Tribunal.  I repeat Employment Tribunals should not be criticised for not dealing with cases that have not been deployed before them.

65.              As to ground 2(b) it seems to me this too is misconceived.  The remarks made by the Cadney Tribunal at paragraph 43 of the Reasons are plainly an alternative to the lack of evidence point I have just addressed.  The issue raised by these remarks has been approached by Ms Grennan as one of principle, namely whether a PCP can be confined to a single event.  She relies on paragraph 21 of the Judgment in Nottingham City Transport Limited v Harvey and also on paragraph 19 of the Judgment in Carphone Warehouse Ltd v Martin.  Whilst I accept that word “practice” suggests repetition I am wary of accepting that must always be so and equally wary of applying the same approach to the two preceding words “provision” and “criterion”.  Whether anything is either a “provision”, a “criterion” or a “practice” seems to me to be less likely to be a question of principle but rather a fact/context sensitive issue not susceptible to general statements of principle.

 

66.              Before this matter could be addressed it seems to me necessary to be able to identify both what the PCP is in terms of factual description and which one or more[7] of the three potential categories it falls into.   But in the instant case at paragraph 43 of the Reasons the Cadney Tribunal never reached any conclusion about any of those matters.  To my mind that simply illustrates just how tentative and provisional the reservation about a “one off failure” actually was and that it was not intended to be any sort of conclusion on the issue.  Therefore, although were it necessary to do so I would be reluctant to accept that it has been decided as a matter of principle that a single event cannot amount to a PCP, I do not think the statement made by the Cadney Tribunal represents more than an alternative observation without any decisive consequence.  Accordingly this ground of appeal is not confronting the giant of principle but merely tilting at a windmill of comment and it need not be considered further.

 

Disposal and Permission to Appeal

67.              Having regard to the conclusions set out above it follows that the appeal must be dismissed.

 

68.              At the close of the hearing on 25 February 2016 the Appellant made submissions as to permission to appeal my earlier Judgment refusing him permission to further amend the grounds of appeal.  He had indicated on 14 January 2016 that he would wish to see a transcript of the oral Judgment before deciding whether to seek permission and having regard to what he had said then about his difficulties in absorbing matters without seeing a written text, I agreed to allow him to wait until a transcript was to hand before he made an application.  I did require him, however, to make his application at the end of the hearing on 25 February 2016 when he submitted that he should have been permitted to make the amendments because he believed the Cadney Tribunal had failed to conduct the hearing in accordance with the terms and the spirit of the remission by the Court of Appeal.  Whilst he was not criticising counsel, he now knew that he should never have withdrawn the previous grounds and he argued that I had been wrong to refuse to reinstate them because that was unjust.  My decision to refuse his application for further amendment was made in the exercise of a judicial discretion and I do not think it is reasonably arguable that I exercised it unlawfully or was otherwise wrong.  Accordingly, I refuse permission to appeal and the Appellant must renew his application at the Court of Appeal but I will extend the time for doing so.

 

69.              Whilst matters cannot be allowed to drag on it seems to me sensible for both matters to be considered together.  In order to avoid inconvenience and cost, I will direct that the Appellant must apply for permission to appeal against this Judgment, stating his reasons in writing within 21 days of the date of the handing down of this Judgment.  In the event that I refuse permission to appeal he must make any application to the Court of Appeal for permission within 21 days of the seal date of any Order refusing permission and I will extend the time limited for filing any application for permission to the Court of Appeal in respect of the refusal of the further amendment to the amended grounds of appeal to 21 days after the seal date of any Order refusing permission to appeal or, in the event that he does not seek permission to appeal against this Judgment to 35 days from the seal date of the Order made consequent upon the handing down of this Judgment.

 



[1] See pages 186 and 187 of the appeal bundle.

[2] These were not in any bundle and had to be obtained from the appeal file held by this Tribunal.

[3] See the passage from the ET’s Reasons quoted at paragraph 5 of the judgment of the EAT; it is not exactly how Mummery LJ expressed himself in his judgment at paragraph 66 of the judgment of the Court of Appeal in Mararassy v Nomura International [2007] ICR 867 but his words there are probably the origin of the phrase.

 

[4] See paragraphs 40 to 56.

[5] CLFIS is a pre-Equality Act 2010 age discrimination case but I regard principle to be a universal application at all kinds of disability both pre-and post the Equality Act.

[6] The grounds of appeal being a threshold I would be tempted to say “in limine” if that was still permitted.

[7] It seems to me perfectly possible for a factual situation to be capable of being aptly described as within more than one of the categories.


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