Appeal No.UKEAT/1223/02/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 April 2004
Judgment delivered on 20 July 2004

Before
HIS HONOUR JUDGE MCMULLEN QC
MRS C BAELZ
MR R LYONS

MS YAEL KAHN 	APPELLANT

(1) THE UNIVERSITY OF WARWICK
(2) PROFESSOR ABDUL PALIWALA
(3) PROFESSOR MIKE McCONVILLE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS K MONAGHAN
(of Counsel)
Instructed by:
Messrs Lewis Silkin
Solicitors
Employment Department
12 Gough Square
London EC4A 3DW	
For the Respondent	MS J JONES
(of Counsel)
Instructed by:
Messrs Martineau Johnson
Solicitors
St Phillips House
St Phillips Place
Birmingham B3 2PP

SUMMARY

Sex Discrimination - 
and
Disability Discrimination 
Victimisation

The ET gave no weight to relevant admissible probative evidence because of a misapprehension of the circumstances of its being adduced. Its Decision is set aside and remitted to a fresh tribunal as a fair trial was not held. The ET also failed to apply correctly the principles in Morse relating to the duty to make reasonable adjustments. Its finding of bad faith, though not an issue at the hearing, did not vitiate its rejection of the victimisation claims. Its award of costs of £10,000 fell with the substantive decision.

HIS HONOUR JUDGE McMULLEN QC
1	This case is primarily about Employment Tribunal procedure in the treatment of evidence from a person who had died by the time of the hearing.  It arises out of and involves the correct test to be applied in claims of victimisation and discrimination on the grounds of having complained of sex and disability discrimination, and allegations of sex discrimination by all three Respondents, together with a claim of constructive unfair dismissal.  The judgment represents the views of all three members.  We will refer to the parties as Applicant and Respondents.
Introduction
2	It is an appeal by the Applicant in those proceedings against the Decision of an Employment Tribunal, sitting for eight days in Birmingham, Chairman Mr B Dimbylow, registered with Extended Reasons on 7 August 2002.  The Applicant represented herself and is now represented by Ms Karon Monaghan of Counsel.  The Respondents were represented there and here by Ms Jennifer Jones, of Counsel.

3	The Applicant claimed unlawful disability discrimination by all three Respondents; that she had been victimised for having submitted a grievance making allegations of sex and disability discrimination, as against all three Respondents; that she was constructively unfairly dismissed by the First Respondent, and that it was in breach of her contract.  The Applicant withdrew a claim of sex discrimination.  The Tribunal summarised the claims thus: 
“4. In short summary, the Applicant complained of a course of harassment/ discriminatory treatment following a prolonged period of absence in consequence of a road traffic accident; of a failure to investigate properly her grievances; of the suspension of her; of disciplinary action taken against her; of causing her to be arrested and of her home to be searched. The Applicant alleged that the aforesaid treatment was on the grounds of her sex and/or related to her disability and/or amounted to victimisation …. 
5. In addition, the Applicant complained that the suspension of her, with the acts  complained of both preceding and subsequent to that suspension, constituted a fundamental breach of contract entitling her to resign and complain of a discriminatory and unfair constructive dismissal (reference).”
4	The Respondents’ case was as follows:

“7. By their Notice of Appearance the Respondents resisted the Applicant's claims. In so doing they asserted that the Applicant’s complaints did not 'constitute unfavourable treatment' (paragraph 7.4, p 36) and denied certain of the factual assertions underpinning the Appellant's complaints. Importantly the Respondents admitted that: 
(a) The Applicant had lodged a formal grievance regarding the alleged detrimental treatment of her (which grievance made complaint of sex and disability discrimination - see reference to the same, ET Decision paragraph 4, p 52); 
(b) The Applicant appealed against the dismissal of her grievance; 
(c) The Committee hearing the Applicant's appeal 'recognised that attempts of reconciliation had been made but that these had been rejected by the Applicant.  It was of the view that there had been an irretrievable breakdown in the working relationship between the [Applicant] and the Second Respondent’ … and that in light of the same and ‘given that the [Applicant’s] grievance …. had not been upheld …. the First Respondent …. decided to suspend the [Applicant]’….
8. The Respondents denied that they had discriminated against the Applicant or that their treatment of her amounted to a fundamental breach of contract. Further (notwithstanding that all the Respondents were represented by the same representatives) the First Respondent relied upon the statutory defence under Section 41 (3) of the Sex Discrimination Act 1975 ('SDA') and Section 58(5) of the Disability Discrimination Act 1995 ('DDA')”

The issues
5	The Tribunal described the issues in these terms:
“ The Issues 
2 ' These were many and varied. We cannot say precisely what they were very succinctly because the definition of them has varied according to what the applicant has told us at different stages in the proceedings. Certainly at the outset of the hearing, the people against whom she was seeking a remedy were different very slightly to those that she described in her closing submissions. This is characteristic of the way in which the applicant conducted her case. However, to do justice to the applicant, the tribunal have dealt with all the issues (save for direct sex discrimination) raised by her in her form IT1, which was drafted by solicitors for her, as expanded upon when she opened her case. 
3 The applicant says that she received discriminatory treatment following a road traffic accident which had occurred on 29 April 1998.  The applicant says that this treatment would not have happened had she not been disabled.  There was also a failure to make adjustments on the part of the first respondent and in proper time.  There was a parallel claim for sex discrimination which the applicant withdrew, but on more than one occasion in the proceedings said that the matters of complaint had happened and that she had only withdrawn the allegations so as to make the case easier for her to handle. The applicant had previously made a complaint about Professor Paliwala at the university about his sexist behaviour but again that was withdrawn. 
4 Having raised an internal grievance about the conduct of her colleagues in relation to sex and disability discrimination, she was unsuccessful in that grievance and then complained that the handling of such grievance amounted to both sex and disability discrimination by way of victimisation. She told the tribunal that both her claims for victimisation on the grounds of sex and disability were against all three respondents.  The university’s registrar decided to suspend the applicant to give some breathing space and to decide how the relationship should continue in the future.  The applicant regarded that as further victimisation.  The applicant resigned on 8 March on the basis that cumulatively all these three things amounted to a breach of the implied term of mutual trust and confidence applicable to her contract of employment.  A disciplinary hearing was due to take place with the applicant on 9 March.
5	The respondents denied any responsibility for the matters complained of and asserted that the applicant resigned rather than face the disciplinary proceedings which were due to commence the next day.  These followed the events of the night of 24 February 2000 and the early hours of 25 February at the university premises when the applicant entered and removed a personal computer belonging to the university and deleted some information held on computer at her workplace. This entry was contrary to instructions given to her by Professor McConville. The police were then involved at the request of the university.”

The Decision
6	The Tribunal dismissed all of the Applicant’s claims.  In addition she was ordered to pay the Respondents’ costs to be assessed by way of a detailed assessment.  The schedule produced by the Respondents amounts to £126,000. 

7	It was common ground that the Applicant was disabled within the meaning of the Disability Discrimination Act 1995.  
“10  We turn to the issue of disability.  The Tribunal find that the applicant is disabled within the meaning of the Disability Discrimination Act 1995 in that she has a physical impairment following a road traffic accident in April 1998 when she sustained soft tissue injuries to her lower spine and probably aggravated a pre-existing degenerative problem.  The impact is long-term and substantial and has an adverse effect upon her ability to carry out normal day to day activities, mainly surrounding her mobility.  She cannot sit to work and has to stand most of the time and move about to alleviate the level of pain that she feels.  Furthermore, she cannot lift objects weighing more than half a kilo without adverse effect.  The respondents agreed that the applicant was disabled within the meaning of the Act.”

8	Thus there was not, and is not now, any issue as to the fact of the Applicant’s disability.  

The Appeal and its Case Management
9	Taking an astringent approach to the many strands of the various Notices of Appeal, the essential grounds argued before us following clear directions are: 
a)	The Tribunal failed correctly to construe the meaning of victimisation under section 55 of the Disability Discrimination Act 1995 and section 4 of the Sex Discrimination Act 1975.  In addition, a procedural point is taken that the Tribunal wrongly dealt with the issue of good faith when this had not been raised under either section by the Respondent.
b)	It wrongly construed sections 5(1), 5(2) and 6(1) of the 1995 Act.
c)	It gave inadequate reasons for its decision.
d)	It made a fundamental mistake of fact, which led to criticisms of the Applicant’s credibility, in dealing with the evidence of a deceased witness, Mr John Bennett.
e)	The decision to award costs was perverse and wrong in principle.
f)	The Tribunal was biased, or gave the appearance of bias, against the Applicant.  

10	His Honour Judge Peter Clark gave directions, sending this case to a preliminary hearing on 25 October 2002.  When it came on before myself and two members on 7 March 2003, it had to be adjourned because the Applicant had produced voluminous papers, in breach of Judge Clark’s directions, and she sought an adjournment in order properly to instruct solicitors whom she had recently retained.  It was ordered that I would deal with any further applications and directions. The costs order for detailed assessment in the county court was stayed.

11	The Applicant, in due course, obtained legal representation and over the course of the following twelve months, about thirty applications were made, principally by her and occasionally by the Respondents, leading to about ten further Orders of the EAT.  During the latter stages, the Applicant changed solicitors and those solicitors very quickly instructed Ms Monaghan.  We have to say that the course of the preparation for this case changed markedly, for the better.  At a meeting for directions, the parties accepted my suggestion that the bias issues be stayed until the conclusion of the substantive hearing.  A number of adjournments of the full hearing were allowed, following applications by both the Applicant and the Respondents for a variety of reasons. It is hoped that that brief summary explains, to some extent, the substantial delays in bringing this case to a full hearing. No party today takes any point about the delay.

The Facts
12	The Applicant was born in 1953.  English is her second language. She was employed by the University as an electronic journal developer on the Electronic Law Journal Project (ELJ).  This was a joint project between the University and the University of Strathclyde Centre for Law and Computer Technology.  The purpose was to develop electronic journals for law.  There was limited funding.  The Applicant was engaged on 1 September 1995 on a one year contract for fifteen hours a week at a monthly salary of £838.  Subsequently, the contract was renewed on an annual basis.  

13	The project manager, Professor Abdul Paliwala, was the Applicant’s line manager, and he in turn was line-managed by Professor Mike McConville. Professor Paliwala was based in the Law School, teaching family law and economic relations.  Professor McConville was head of the Law School but prior to the hearing had moved on a placement to Hong Kong.  The project was to deliver a journal called The Journal of Information, Law & Technology (JILT).  

14	The findings of the Tribunal were summarised and cited in part by Ms Monaghan, to which no objection was taken and we adopt them as follow:  
“a.  As to the statement of Mr Bennett, “The copy submitted to the Tribunal had various handwritten notes and markings upon it and we were not told whether or not they were by Mr. Bennett. In view of the circumstances and timing of the signature ...we attach very little weight to it (paragraph 7, p 53); 
b. The Applicant had been ejected from the hospital at the request of Mr. Bennett's now widow the day before he died. This was when his signature to his statement was being sought (paragraph 14, p 57). 
c. The Applicant suffered an accident in April 1998 and was off work until September 1998. She returned to work part time and "all of the steps taken by the Respondents were reasonable" (paragraph 18, p58). 
d. Arrangements were reasonably put in hand by the University to assess the Applicant's requirement for physical adjustments and there is nothing to suggest that these things were not done other than in a timely way (paragraph 19, p 58). 
e. The conclusion of the grievance (conducted by the Third Respondent) was that the Applicant "believes herself to be the subject of unfair treatment [though] there is no objective foundation for this view and the ET concurred with this assessment” (paragraph 21, p 58). 
f. The grievance was motivated and driven by malice against the Second Respondent personally (paragraph 21, p 58). 
g. The belief that she was unfairly treated and discriminated against was not honestly or reasonably held. It was spiteful and vindictive (paragraph 21, p 58). 
h. The Applicant's appeal against the finding of the grievance was rejected 'not surprisingly' and the procedure used in the conduct of the appeal and findings of it were fair and reasonable (paragraph 23, p 59). In particular there was 'no victimisation nor any breach of contract established by the Applicant in relation to the appeal'. 
i. The Registrar of the First Respondents decided that the Applicant be suspended in order to review where things were to go in the future as the relationship had irretrievably broken down on the face of it (paragraph 23, p 59). 
j. 'Unfortunately, some correspondence erroneously refers to "Professor McConville's decision to suspend [the Applicant]"' (paragraph 23, p 59). 
k. 'At first glance when reading the papers, this decision seemed a little odd to the Tribunal. However, having seen and heard the [Applicant], it was a most reasonable way of proceeding' (paragraph 23, p 59). 
l. The Applicant thereafter entered the university premises and deleted a quantity of information from the computer system of the University and removed a computer with the help of another ... academic member of staff. These things amounted to dishonest activity (paragraphs 24 and 25, p 59). 
m. These matters were reported to the police (paragraph 25, p 59). n. The Applicant was written to regarding a disciplinary hearing (paragraph 26, p 60). 
o. The Applicant resigned by letter dated 8 March 2000 claiming constructive unfair dismissal: 'Having been called to give account in the disciplinary process she instantly goes on the offensive, distorting the facts, claiming to be the victim and avoiding having to answer what would have been very difficult questions for her' (paragraph 26, p 60).”

15	That summary corresponds with the order of treatment of the evidence by the Tribunal.  As can be seen, it places, prominently at the forefront, the evidence of Mr Bennett.  As will be seen, we too regard it as an important matter.

The Legislation
16	The Applicant's claims fell to be considered under Section 4 with Section 6(2)(b) of the Sex Discrimination Act 1975 (SDA) and Sections 5(1) and (2) and Section 6(1) read with Section 4(2)(d) of the Disability Discrimination Act 1995 (DDA). 

17	In addition the Applicant's claims of unfair dismissal and breach of contract fell to be considered under the Employment Rights Act 1996 s.98, and the Employment Tribunals Extension of Jurisdiction Order 1994 (SI 1994/1623). 

18	Section 4 of the SDA defines 'victimisation' for the purposes of the unlawful acts created by the SDA and provides that 
'(1) A person ('the discriminator') discriminates against any other person 
('the person victimised') in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstance he treats other persons, and does so by reason that the person victimised has - 
" (c) otherwise done anything under or by reference to this Act... in relation to the discriminator or any other person, or 
(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act ..., 
or by reason that the discriminator knows the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them. 
(2) Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation is false and not made in good faith.' 
19	Section 55 of the DDA makes similar provision to Section 4 SDA. 
20	Section 63A of the SDA shifts the burden of proof to a Respondent in a claim of discrimination (including victimisation) under Part II of the Sex Discrimination Act 1975 in certain circumstances. 
21	‘Discrimination' for the purposes of the DDA is defined by Sections 5 and 6(1) of the DDA. Two forms of disability discrimination are outlawed: less favourable treatment and a failure to make reasonable adjustments. 
22	Section 5 provides : 

"(1) For the purposes of this Part, an employer discriminates against a disabled person if- 
(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and 
(b) he cannot show that the treatment in question is justified.
 (2) For the purposes of this Part, an employer also discriminates against a disabled person if- 
(a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and 
(b) he cannot show that his failure to comply with that duty is justified. 
(3) Subject to subsection (5), for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial. 
(4) For the purposes of subsection (2), failure to comply with a section 6 duty is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial. 
(5) If, in a case falling within subsection (1), the employer is under a section 6 duty in relation to the disabled person but fails without justification to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 6 duty." 
23	The duty to make reasonable adjustments is imposed by Section 6 which provides as follows:
“ '(1) Where- 
(a) any arrangements made by or on behalf of an employer, or
(b) .. 
place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect.
(2) Subsection (1)(a) applies only in relation to -
(a) …….
(b) any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded.  
(3) The following are examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1) -
….
(b) allocating some of the disabled person’s duties to another person;
…..
(f) allowing him to be absent during working hours for rehabilitation, assessment or treatment; 
(g) giving him, or arranging for him to be given, training; 
(h) acquiring or modifying equipment; 
(i) modifying instructions or reference manuals; 
(j) modifying procedures for testing or assessment; (k) providing a reader or interpreter
…..
(l) providing supervision.
(4) In determining whether it is reasonable for an employer to have to take a particular step in order to comply with subsection (1), regard shall be had, in particular, to- 
(a) the extent to which taking the step would prevent the effect in question; 
(b) the extent to which it is practicable for the employer to take the step; 
(c) the financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his activities;
(d) the extent of the employer’s financial and other resources;
(e) the availability to the employer of financial or other assistance with respect to taking the step.
This subsection is subject to any provision of regulations made under subsection (8).”

24	In determining whether an employer has complied with its Section 6 obligation, a Tribunal must undertake a real enquiry into what steps an employer could have taken and reach its own decision on them. The test is objective with the ET conducting a fresh enquiry (Morse v Wiltshire CC [19981 1RLR 352; Beart v HM Prison Service [20031 IRLR 238). 
25	By Section 6(2)(b) of the SDA and Section 4(2)(d) of the DDA it is unlawful to discriminate against a person, within the meaning of the SDA and DDA, by "subjecting him to any ... detriment"

Preliminary Applications
26	Applications were made by both Counsel during the course of the hearing to raise new points.  We heard argument on both the right to raise points, and the substance of the points themselves.  We have decided to refuse to allow both points to be raised.  It must be borne in mind that no case, in our experience, has had more case management than this one.  What stands before us as the working grounds of appeal, and the response to it, are the product of many months of crossfire and, it has to be said, changes in position by the Applicant.  It is not in the interests of justice that there be a further delay of this case to enable the parties to deal with each other’s points.

27	On behalf of the Applicant it was contended that the Tribunal had failed correctly to apply the burden of proof inserted as section 63A of the Sex Discrimination Act, and as interpreted in Barton -v- Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332 (EAT).  The substance of this, as appears from Ms Monaghan’s Skeleton Argument, is that the Respondents, in the context of the claim for victimisation were not required to show that they:
 “had discharged the burden upon them in establishing that there had been “no discrimination whatsoever” ”.

28	On behalf of the Respondents, it was contended that this was a new point which had not been raised in the working grounds of appeal, or at any stage prior to the Applicant’s Skeleton Argument.  Applying the principles in Kumchyk -v- Derby County Council [1978] ICR 1116  the Applicant should not be allowed to raise it at the EAT unless exceptional circumstances applied.  The Respondents had not engaged upon a debate relating to the burden of proof, so they were genuinely taken by surprise by this allegation.  It was contended that the Respondents would be prejudiced by the point being raised now: notes of the hearing would be required to understand to what extent, if at all, the burden of proof was discussed in open tribunal.  The Amended Notice of Appeal will require an amendment in accordance with paragraph 2(3) of the Practice Direction.  

29	In our judgment, it would be wrong to allow the point to be raised and to give permission for an amendment to the working grounds of appeal, and for the case to be adjourned so that the Respondents could deal with it.  This is not an exceptional circumstance within the principles in Kumchyk.  In any event, two further matters of substance arise.  First, Ms Monaghan, on behalf of the Applicant, accepts that Barton was correctly decided and guideline 10, which contains the quotation cited above, is binding.  However, a different division of the EAT, upon which I sat, has decided (in a judgment given after the oral hearing in our case) that guideline 10 in Barton required an adjustment, as it overstated the legal requirement, once the burden had transferred.  See Chamberlin Solicitors -v- Emokpae [2004] EAT/0989/03.  If we were to decide this as a matter of substance, rather than of procedure, we would have invited the parties to makes submissions upon it.  As it is, it simply strengthens our view of the procedural point.  

30	Secondly, we would have rejected the contention that in any event the Tribunal did get the burden of proof wrong.  The Tribunal asked whether the Applicant had “made out” her claims.  We were told by Ms Monaghan that a year after the change in the burden of proof was effected in the legislation in the UK, Employment Tribunals were not applying it and had to be directed to the new provision insofar as it affected direct discrimination and victimisation.  We would be surprised to hear that Tribunals had not taken on board the change in the burden of proof.  Ms Jones cannot recall whether, or to what extent, there was discussion before the Employment Tribunal of the burden of proof.  Certainly there appears to be no direct mention of it in the written submissions of herself or of the Applicant, a lay person.  In these circumstances, judging by the Tribunal’s reasons, we cannot say with certainty that it fell into error by failing to address the burden of proof.  

31	We reject the contention that this is not a new point, and that the Tribunal was bound itself to take the point and cite the burden of proof.  However, as we say, this is a new point, requiring further investigation and adjournment and there are no exceptional reasons for allowing it to be taken at this stage.

32	Turning then to the application made on behalf of the Respondents, our approach is the same.  Ms Jones sought permission at the hearing to amend the working grounds of resistance, so as to contend that the Tribunal wrongly engaged in a finding relating to section 5(2) (and 6(1) ) of the DDA, i.e. “reasonable adjustments”, as they have come to be known.  It is contended that this was not an issue included within the depiction of issues by the Tribunal, and it ought not to have made findings adverse to the Respondents on this subject.  This application was resisted on the grounds that it had not hitherto been raised and permission should be refused in the interests of justice.  Further, it was contended as a matter of substance that “reasonable adjustments” was an issue before the Tribunal. 

33	Dealing with the matter procedurally, pursuant to Kumchyk, we refuse permission for the reasons given by the Applicant.  However, since the matter was fully argued before us, it is right to say that we find no substance in the point either.  In her Originating Application, the Applicant (paragraph 3) contended:
 “there was no discussion or any suggestion of a reduction in her responsibilities”.  
The Amended Grounds of Resistance before the Tribunal specifically refers to:
 “adjustments would be able to be made to the Applicant’s contract of employment if necessary … her duties had to be adapted ….” 
	[7.4.1, 7.4.2].
There is an express denial:
“The Respondents deny that they have discriminated against the Applicant by failing to make reasonable adjustments. ….”
	[7.15]
There is an express cross-reference to paragraph 7.3 which talks about “necessary adjustments to her working arrangements” following the Applicant’s injury.  

34	Paragraph 1 of the Applicant’s written Skeleton Submission dated 24 June 2002 before the Tribunal criticises the Respondents’ failure “to establish reasonable adjustments to physical working conditions”.  Thus, when the Respondents contended, in their closing submissions, that the Applicant did not raise the issue, they are mistaken.  The Respondents say as follows:
“…. although the Applicant has spent much time in her case before the Tribunal referring to “reasonable adjustments”, her pleaded case …. Relates to direct discrimination …..”.  
It will be recalled that the Tribunal set out its classification of the issues, and any challenge to that would require further comments by the Tribunal Chairman.  

35	As a matter of discretion, we will refuse to allow the amendment to be made to include paragraphs 19 to 22 of the Respondents’ Skeleton Argument in the working grounds of resistance.  If we are wrong in the exercise of that discretion, it is a submission doomed to failure, for the reasons we have given above.

36	Having finally dealt with all interim applications, we will now deal in turn with the submissions made by both sides and draw our conclusions on each.

The Bennett Evidence
37	John Bennett was employed by the University and worked in the library.  He was a representative of the AUT.  He knew nothing of the Applicant until he became involved in March 1999, when the Applicant sought assistance from her union.  He was due to give evidence for the Applicant. Sadly, he died on 10 May 2002, after a short illness.  Ms Monaghan contends that his evidence was “highly material”.  It is not necessary for us to make a judgment about that, for it seems to us it is only necessary for the Applicant to say that it was relevant to her case. Having read the evidence which he was due to give, it plainly was. 

38	The total content of the Tribunal’s Reasons, in relation to this evidence is as follows:
“7 …..We also received a witness statement in writing from John Bennett dated 2 May 2001 and signed by him.  Unfortunately, Mr Bennett died before the hearing and his evidence was ordered to be admitted at an earlier interlocutory hearing …… 
This is a suitable point to mention the weight that we give to the statement of Mr Bennett.  The copy submitted to the tribunal had various handwritten notes and markings upon it and we were not told whether or not they were by Mr Bennett.  In view of the circumstances and timing of signature (about which we say more later) we attach very little weight to it.”
….
14  The Tribunal found that the applicant harassed people she worked with …… The applicant … had been ejected from the hospital at the request of Mr Bennett’s now widow the day before he died.  This was when his signature to his statement was being sought.”

39	The treatment of this evidence has been shown to us by affidavit evidence.  The Chairman was referred to Mr Bennett’s statement, but indicated that little attention would be given to it.  

40	The impression given by these findings is that the Applicant was seeking to extract a signature from an unwilling Mr Bennett in hospital, the day before he died.  However, it is common ground that he had affixed his signature to his statement, as indeed the Tribunal found, a year before his death, when he was in good health.  A copy of that signed statement had been sent to the Respondents at that time.  In October 2001, and as late as 25 March 2002, there is evidence of Mr Bennett seeking to assist the Applicant in her preparation for, and his evidence for, the Employment Tribunal.  We accept the submission that the implicit finding of the Tribunal was that Mr Bennett was unwilling to assist the Applicant and she coerced him

41	Armed with that implicit finding, the Tribunal attached little weight to the evidence.  That finding is based on a misapprehension of the facts.  Generally speaking, an error of fact will not give grounds for an appeal unless perversity is alleged.  But a fundamental misapprehension of the evidence is a ground of appeal: Noorani v Merseyside TEC Ltd [1999] IRLR 184 CA.  Here a fair reading of the Tribunal’s Reasons indicates that it was a year out in its view of Mr Bennett’s statement.  That error affected the Tribunal’s view of the Applicant’s credibility.  However, it must be said there was abundant evidence relating to the Applicant’s credibility.  A previous Tribunal had ordered Mr Bennett’s evidence to be admissible. Given, as we have found, that it was relevant, as must be the case if it was admissible, the Tribunal ought to have considered it and not dismissed it, as we find it did, because of the imputation that it had been extracted on Mr Bennett’s deathbed.  A tribunal is not required to admit all relevant evidence: see Henry LJ in Noorani at para 36, with whom Thorpe and Beldam LJJ agreed. But once relevant evidence is admitted it must be considered.  The Tribunal also erred in failing to hear evidence as to the circumstances in which Mr Bennett’s evidence had been acquired.  If it had, it would not have made the serious mistake of fact which it did.  

42	Again, generally speaking, a criticism that a Tribunal has placed too little weight on certain evidence will not be a ground of appeal.  But if the premise upon which weight is attributed is proved to be incorrect, the Tribunal makes an error of law.  It failed to give any weight to Mr Bennett’s evidence because of its distaste as to what appeared to it to be the circumstances in which it had been adduced.  

43	What follows from this conclusion?  Ms Jones submits that we should substitute our own judgment and decide, on reviewing the material, that its inclusion before the Employment Tribunal would have made no difference to the result.  Certainly there is force, as we have indicated above, in the submission that the Tribunal made powerful findings against the Applicant relating to her credibility.  Mr Bennett’s evidence does support the Applicant’s case.  It is relevant and probative and the Tribunal has erred in law in its downgrading of this material, based upon its misunderstanding of how it arose.  The evaluation of this evidence, in the context of all of the evidence before the Tribunal, is something which we cannot ourselves replicate.  The practical effect is that the Applicant did not have a fair hearing because in effect this material was excluded on grounds that were misplaced.  The Decision will be set aside and remitted to a freshly constituted Employment Tribunal to hear the case again.  

44	In the light of that conclusion, it is strictly unnecessary for us to reach conclusions on the other submissions, but out of deference to the full argument placed before us, we will give a brief conclusion.  

The definition of victimisation
45	It was not disputed before the Employment Tribunal that the Applicant had done a “protected act”, pursuant to section 4 of the SDA and section 55 of the DDA.  This consisted in lodging grievances regarding the treatment of which she complained.  She alleged that such treatment was discriminatory under both the SDA and the DDA.  The Applicant was suspended following the lodging of the grievance.  It was indeed the Respondents’ case that the Applicant had been suspended in consequence of the grievance, and it will be noted that it was accepted that suspension in such circumstances is exceptional.  

46	The sole question for the Tribunal to answer was whether the Applicant had been treated “less favourably” following the registering of the grievance “by reason that” she had done so.  Part of that question is easy to answer, for it is conceded by the Respondents that less favourable treatment has the same meaning as it does in direct discrimination and includes any “disadvantage”: Chief Constable of West Yorkshire Police -v- Khan [2001] IRLR 830 HL.  That less favourable treatment was in fact caused by the Applicant’s lodging of her grievance.  This led to what the Respondents regarded as an irretrievable breakdown in the working relationship.  On that finding there is no scope for deciding the degree of influence of the protected act upon the suspension, for it was the cause. Generally speaking, it will be unlawful if there is a “significant influence”: Nagarajan -v- LRT [2000] AC 501 per Lord Nicholls and Lord Steyn, paragraphs 19 and 35.  In relation to those facts, and those statutory definitions, the Tribunal was required to come to a conclusion.  It found against the Applicant’s case in a shorthand form on what appears at first sight to be an erroneous test, for it said this: 
“As to victimisation by the university and the two professors on the grounds both of disability and sex, the claims are not made out on the same test applicable.  We then have to ask ourselves the question, was the applicant treated less favourably than others who had not done the protected act or acts? “

47	The Tribunal is to be excused for using shorthand in respect of the first sentence in the paragraph, for it is accepted that the formulation in the last words of that extract is correct.  It follows that we reject the Applicant’s submission that the Tribunal misdirected itself, and this ground is dismissed.

48	However, allied to this ground is a contention that the Tribunal made an auxiliary finding as follows:
“We find that the allegations were not made in good faith and so again the two victimisation claims fail because of that fact as well.”.

49	On behalf of the Respondents, it is accepted that no express contention was made in the written statements of case relying on this ground.  The Respondents had carefully set out in their Amended Grounds of Resistance provisions of the statutes upon which a specific defence could be based.  For example, at paragraph 7.1.7 the University argues that if there was discrimination by the Professors, the University took all steps as were reasonably practicable to prevent it.  This would be the place to argue for a specific defence under both anti-discrimination statutes for respondents facing claims made in bad faith.  True it is that the Decision is replete with findings about the campaigns of the Applicant against the Respondents based on malice, but these findings are not grounded upon either section 4 of the SDA or of section 55 of the DDA.  Bad faith simply was not an issue in the classification of issues relating to victimisation before this Tribunal and the Tribunal ought not to have made a finding on it.  

50	In any event, the Applicant has a further point that what condemned her was a finding which was incomplete, for what is required under both relevant sections is not only a finding of bad faith but that the allegations were made falsely.  There is no specific finding on this under the sections.  Yet, again, the Reasons abound with findings which would correspond to a finding that the material was false. Given that there are elsewhere in this Decision, particularly in relation to costs, firm adverse findings about malice and falsity, it may seem pedantic to criticise the tribunal for failing specifically to relate them to the victimisation defences. If we are wrong, and a realistic approach is taken, the victimisation claims would fail anyway. Our conclusion however is that on procedural grounds the Tribunal was not entitled to make findings against the Applicant based on the absence of good faith in the victimisation claims, since it was not an issue, and if it were, the finding is incomplete in the absence of a specific decision on falsity.  

51	Having said that, this cannot rescue the Applicant from our holding that the first part of the Tribunal’s Decision was based on a correct direction.  The finding about bad faith is a separate finding. Since it should not have been made without it being cited as an issue by the Respondents, it can be detached without corrupting the primary finding which was made, as we have said, upon a correct self-direction. She lost the claims, without the Respondents having to resort to the statutory defence of bad faith. We would dismiss this ground of appeal.  

Discrimination under Section 5(1) DDA
52	In the first of its paragraphs dealing with conclusions and reasons, the Tribunal said this:
“….. The applicant was not discriminated against on the ground of her disability by any respondent.” (emphasis added)

This is repeated, as we have indicated above, by the contention that there were “grounds both of disability and of sex”.  In our judgment, this is an error of law, as it appears in paragraph 29.  

53	Section 5(1) provides a more generous basis for a finding in favour of a disabled person, since the treatment of her must be “for a reason which relates to the disabled person’s disability” [emphasis added].  As the Court of Appeal made clear in Clark -v- TDG Ltd t/a Novacold [1999] IRLR 318, this is a wider test than “on the grounds of” or “by reason of”.  In our judgment, this has a practical effect because a number of the incidents relied on by the Applicant might be said to “relate to” her disability, whereas they may not have been “on the grounds of” her disability. 

54	Once it had misdirected itself as to the statute, the Tribunal failed to consider whether or not there was justification for such treatment as was, at least in part, admitted by the Respondents.  In these circumstances, we cannot see how the Tribunal made a clear finding under section 5(1) which would be bound to include findings on “less favourable treatment” “related to” disability and not “justified”.  This ground of appeal would succeed.

Reasonable adjustments
55	We have decided above that the issue of reasonable adjustments under section 5(2) and 6(1) of the DDA was properly before the Tribunal.  It is contended on behalf of the Applicant that the Tribunal’s approach to this topic constituted a misdirection.  The sole conclusion is summarised as follows:
“29 ….. Reasonable adjustments were considered and undertaken in reasonable time and the duties imposed by the 1995 Act and Code were observed. …All of the steps taken by the Respondents were reasonable …”
.
56	The Tribunal was directed to Morse -v- Wiltshire County Council [1998] IRLR 352 and it noted that it contained guidance to Tribunals (paragraph 28).  However, in our judgment it failed to determine whether any duty arose to make adjustments within the meaning of 6(1) and consequently failed to decide whether or not any such duty was discharged.  It is clear from Morse that a Tribunal should consider the steps set out in Morse (although it will not be an error if it fails to consider each one), but it must turn its attention to whether the requirements of section 6(1) have been satisfied by the Respondent.  In this case the Tribunal failed to consider whether there was a duty and whether it had been discharged.  In so doing it would be bound to consider what steps had been taken by the Respondent and whether they were sufficient to discharge the duty.  

57	The brief description of the Tribunal’s approach above shows inadequate reasoning and this ground of appeal succeeds.  

Inadequate reasons
58	It was submitted that the Tribunal had failed to make its decision, Meek-compliant, Meek -v- City of Birmingham City Council [1987] ICR 250, as it is now generally summarised. Since Ms Monaghan contended that grounds 5 to 7 of the Working Grounds of Appeal closely relate to those grounds already disposed of, she took the matter no further.  Nor do we.  

Costs
59	As we have decided that the Decision of the Tribunal must be set aside, and have given further reasons should our primary ground be incorrect, it is not strictly necessary for us to deal with the issue of costs.  This separate decision was plainly founded upon the Tribunal’s substantive decision and once that goes, so must the costs order.  We do, however, make one or two comments about it.

60	The power of an Employment Tribunal to make an order of costs is now extremely potent.  It can itself make an assessment of up to £10,000.  Whether or not a majority lay bench has sufficient experience and training to deal with a detailed schedule of costs is a matter which may be addressed elsewhere.  However, since an order for costs is an exceptional order, clear reasons must be brought forward for making it.  In this case, the decision was made that the Applicant had behaved unreasonably and with malice.  That would plainly be a basis on which costs could be awarded under Rule 14(3) of the 2001 Regulations.  This includes cases where a person has behaved “vexatiously, abusively, disruptively or otherwise unreasonably” or has brought proceedings which have been misconceived.

61	It was submitted by Ms Monaghan that in the Employment Tribunal, an otherwise cost-free environment, “costs are of a punitive nature”.  This cannot be right.  Costs can be awarded where the appropriate circumstances exist.  They are designed to compensate a party who has incurred costs in circumstances covered by the Regulations.  The reference to a detailed assessment plainly subjects a tribunal’s order to the CPR regime.  Under the CPR a statement of costs must be signed by the appropriate solicitor who thereby certifies that the costs have been incurred for the purposes of the case and are due from the client for work properly done. When awarded, costs are compensatory; they may be pejorative but they are not punitive, even when they are awarded on the indemnity basis.

62	Secondly, it was contended by Ms Monaghan that where a party is legally represented and the other is unrepresented, there is always a duty to give notice in writing to such a party against whom costs are sought.  We reject that contention, too.  We have been told in other cases that a threat to claim costs against an unsuccessful applicant, regardless of the exceptional requirements of the Regulations, is now routine. Such an approach is wholly wrong. As a matter of fact in this case the Applicant was warned about her conduct possibly attracting an application for an order for costs on two occasions.  Had an adjournment been sought for her to consider the statement of costs of the Respondents and to make appropriate responses, she could have applied for it.  The proper time to make such an application is at the hearing.  The costs regime in the Employment Tribunal is not precisely the same as under the CPR but good practice would require notification of the fact and the amounts sought prior to the application being made, but notice of this kind must be regarded as highly exceptional and sparingly used.  

63	It would be invidious for us to decide whether or not the order was correctly made in this case, given the misdirections in law which we have found in the Tribunal’s Reasons.  We cannot say whether its criticisms of the Applicant survive any or all of the misdirections, i.e. whether her conduct was, irrespective of the outcome of the Applicant’s case in any respect, pejorative in the way envisaged by the Regulations.  One aspect of the Reasons, however, does give us some concern.  It is submitted by the Applicant that some four pages of the Tribunal’s Reasons consist of a description of her conduct and demeanour at the hearing.  This is, it is suggested, is unfair.  These criticisms principally relate to what would otherwise be described as bizarre behaviour by the Applicant at a hearing.  Given that the Applicant was acknowledged to be disabled and found difficulty in concentration and in physically conducting herself for long periods of time at a hearing, the Tribunal need only to have made the reasonable adjustments, which we find it did, in order to accommodate her difficulties.  In the “findings” there is a long description of the conduct of the Applicant. There is here, we accept, at least a trace of criticism of her which lays a trail to its finding that she behaved unreasonably.  

64	In the EAT, at various hearings, we have made adjustments for the Applicant’s disability, both when she was representing herself and when she has been represented.  These adjustments are simply a way of ensuring that the Applicant has a fair hearing and all judicial bodies should be required to make those adjustments without burdening the judgment with further comment.

65	As we have said, it is not necessary for us to make a judgment about the correctness of the costs Decision in the light of our judgment to set aside the Tribunal’s Decision.  

Disposal
66	We would like to thank both Counsel for their focused arguments which have given proportion to the hearing of this procedurally protracted appeal. The grounds of appeal, presently stayed, relating to allegations of bias and apparent bias are now live.  In the absence of any application by the Applicant for further directions, these grounds will be dismissed fourteen days from the seal date of this order. The appeal is allowed and the case will be remitted for rehearing to a freshly constituted Employment Tribunal.