Appeal No. UKEAT/0723/04/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 March 2005
Judgment delivered on 12 May 2005

Before
HIS HONOUR JUDGE PETER CLARK
MRS M V MCARTHUR
MS B SWITZER

ALLIANZ CORNHILL ENGINEERING	APPELLANT

MR A FIDLER	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MISS KATHARINE NEWTON
(of Counsel)
Instructed by:
Messrs Beachcroft Wansboroughs Solicitors
100 Fetter Lane
London
EC4A 1BN	
For the Respondent	MR NIGEL GINNIFF
(of Counsel)
Instructed by:
Messrs Hopkins Solicitors
Waverley House
37 West Gate
Mansfield
Nottinghamshire
NG18 1SH	

HIS HONOUR JUDGE PETER CLARK

1.	On 18 March 2005 we heard an appeal by the Respondent employer, Allianz Cornhill Engineering Ltd, and a cross-appeal by the Claimant, Mr Fidler, against the Decision of the Sheffield Employment Tribunal promulgated with Extended Reasons on 29 July 2004, following a nine day hearing. We allowed the appeal and dismissed the cross-appeal. Our reasons for doing so now follow. We shall describe the parties as they appeared below. 

Background
2.	The Claimant, born on 30 December 1960, is dyslexic. He commenced employment with the Respondent on 21 January 1991. His job title was Engineer Surveyor (Lifts and Cranes).

3.	On 15 June 2001 he presented his first Originating Application to the Tribunal complaining of disability discrimination; on 5 March 2002 he presented a second complaint. Those proceedings were compromised between the parties through their solicitors in the form of an ACAS Conciliated COT 3 Agreement dated 31 May 2002. That Agreement (the COT 3 Agreement) contained the following provision:

“1.	The Respondent acknowledges that by reason of his dyslexia the Applicant [Claimant] is a disabled person within the meaning of the Disability Discrimination Act 1995. The Respondent will in consultation with the Applicant and expert in adult dyslexia and skills development take such steps by way of training, modification of its systems and other adjustments as are reasonably required to remove the disadvantage at which the Applicant is placed by reason of is disability.”

On that basis the Respondent withdrew disciplinary proceedings then in train against the Claimant; the Claimant withdrew his two complaints to the Tribunal; the Respondent agreed to pay fixed sums to the Claimant in respect of his legal costs and medical expenses incurred with a Mr Peter Prebble and finally, by clause 6:

“Both parties agree that the existence and terms of this agreement shall remain confidential to the parties to the agreement and shall not be disclosed to any third party save as required to be disclosed by law or to obtain professional advice thereon and in particular shall not be disclosed to any current or former employee of the Respondent.”

4.	On 27 February 2003, whilst still in the Respondent’s employment, the Claimant presented a third Originating Application to the Tribunal alleging disability discrimination. Full particulars of that complaint were attached; the claim was for alleged breach of the terms of the COT 3 Agreement; failure to make reasonable adjustments section 6 DDA in breach of 
section 5(2) of the Act and for compensation and for a recommendation to be made by the Tribunal for the purpose of obviating or reducing the adverse effect on the Claimant of his dyslexia.

5.	That claim was resisted. By their Notice of Appearance, lodged on 24 March 2003, the Respondent contended first that the complaint was presented out of time and was statute-barred; alternatively, that reasonable adjustments had been made for the purposes of their admitted duty owed to the Claimant under section 6(1) DDA. 

6.	On 25 July 2003 the Claimant presented his fourth Originating Application to the Tribunal, again alleging disability discrimination contrary to section 5(2) DDA. The specific complaint here raised related to his non-receipt of performance related pay (PRP) which he attributed to the Respondent’s failure to make reasonable adjustments, so as to as to remove the material disadvantage which he claimed to have suffered within the meaning of section 6(1) DDA. That claim was also resisted. 

7.	Finally, on 10 November 2003, he presented a fifth Originating Application to the Tribunal, following his resignation from the employment effective on 1 November 2003. On that occasion he complained of disability discrimination, victimization under section 55 DDA and constructive unfair dismissal. Those claims too were resisted. Further, in reply to the Respondent’s request for written answers dated 19 January 2004, the Claimant specifically alleged that the Respondent discriminated against him under DDA by dismissing him. It is and was common ground before the Tribunal that this allegation amounted to a complaint of direct disability discrimination contrary to section 5(1) DDA.

8.	Those last three Originating Applications were combined and came on for hearing before the Tribunal on 1-5 March, 14-17 June and 5 July 2004. The Tribunal had before them substantial documentation (we note, in the Tribunal’s Reasons, reference to a report from the Respondent’s expert, Mr Baldwin at pages 845-852 of the documents) and heard from a 
number of witnesses. The Claimant and his wife gave evidence as did an expert, 
Professor David McLaughlin, Education and Occupation Psychologist called on his behalf. Statements from the Claimant’s friends, Mr and Mrs Grain, were read. The Respondent called Ceri Jones, Human Resources Manager; Peter Hildreth, the Claimant’s direct line manager; Jennifer Bridge, Procurement Controller responsible for the Respondent’s fleet of vehicles; Allen James, Area Technical and Operations Manager; Martin Banasick, Principal Engineer (Lift and Crane) and Mr George Crowther, the Respondent’s Psychologist and expert relied upon in the proceedings. 

9.	That evidence occupied the full nine days of hearing before the Tribunal. As a result Counsel appearing below as they do before us, Mr Ginniff for the Claimant and Miss Newton for the Respondent, lodged written closing submissions. In all three rounds of submissions were received by the Tribunal. They are pages 361-438 of our bundle. We have read them all. They provide, if we may say so, a valuable insight into the issues which were raised for determination by the Tribunal. 
The Issues
(1) Section 5(2) Disability Discrimination Act 1995
10.	This complaint featured in each of the three Originating Applications on which the Tribunal was required to adjudicate. In his closing submissions dated 17 June 2004 Mr Ginniff identified 12 numbered allegations of steps which it was said that the Respondent ought to have taken to remove the section 6(1) disadvantage suffered by the Claimant but which they had failed to take. They included the important allegation that Mr Crowther was not a relevant expert within the description contained in clause 1 of the COT 3 Agreement; failure to investigate the Claimant’s complaint of bullying by P. Hills arising out of the Claimant’s dyslexia; delay in appointing an expert; failure to provide a level supply of work as advised by a suitable expert, or a laptop computer with suitable software, or a dedicated typist as a temporary measure and ensure that such provision did not cause embarrassment to the Claimant from colleagues, nor an effective retraining system; allegations concerning the Claimant’s level of pay, breach of the COT 3 Agreement; the imposition of an unnecessary test by Mr Crowther, causing the Claimant to suffer illness and the Respondent’s refusal to accept that Mr Crowther’s report contained irrelevancies and ought not to be relied upon by the Respondent.

11.	In response, the Respondent took issue with each of the alleged breaches of its duty to make reasonable adjustments and in the alternative pleaded justification as defined in 
section 5(4) DDA as an answer to the section 5(2) complaint. The Tribunal was referred by Counsel to the observations of the Court of Appeal in Collins v National Theatre Board Ltd [2004] IRLR 395, in that connection.

 (2) Section 5(1) discrimination
12.	As we have earlier observed, Miss Newton accepts that the Claimant had raised the issue as to whether he alleged constructive dismissal amounted to unlawful discrimination under section 5(1) DDA. It is now settled that dismissal for the purposes of the DDA includes constructive dismissal. Catherall v Richelin Tyres plc [2003] IRLR 61.

(3) Constructive Dismissal
13.	It followed that the question whether or not the Claimant resigned in circumstances amounting to constructive dismissal was relevant both to the section 5(1) complaint and that of unfair dismissal.

14.	As to that, the Claimant contended that the 12 matters raised in support of the 
section 5(2) of failure to make reasonable adjustments, taken together amounted to a repudiatory breach of the implied term of mutual trust and confidence, the “last straw” being Mr Crowther’s inclusion of irrelevant matters in his report and the Respondent’s refusal to accept that they were irrelevant.

15.	In answer the Respondent took a number of points. First, Miss Newton contended that the Claimant was estopped from relying on matters which preceded the COT 3 Agreement by virtue of that agreement, which compromised all claims raised in the first and second Originating Applications; second, issues were taken with the Claimant’s reason for resigning; thirdly, it was submitted that absolute privilege attached to Mr Crowther’s report and the Respondent could not be fixed with liability for the acts of its independent expert; fourthly, there was no breach of the implied term of mutual trust and confidence on the part of the Respondent; fifthly, that the Claimant delayed his resignation such as to waive any earlier fundamental breach by the Respondent.
(4) Unfair dismissal
16.	The Respondent denied dismissal for the reasons mentioned above. However, in the alternative, it was contended on behalf of the Respondent that if the Claimant was dismissed, the reason for dismissal was a potentially fair reason, namely some other substantial reason (Employment Rights Act 1996 section 98(1)(b)) and dismissal for that reason was fair (Respondent’s closing submissions. 23 June 2004. Paragraph 40).

(5) Victimization
17.	It was accepted by the Respondent that the Claimant had done a protected act or acts for the purposes of section 55 DDA. He had brought earlier proceedings under the Act prior to his resignation. The first act of victimization (less favourable treatment) complained of is set out at paragraph 8 of the Particulars served with the fifth Originating Application as follows:

“Contrary to the provisions of DDA s55 the Respondent has victimised me for having announced my intention of bringing these proceedings and/or for having brought all the earlier proceedings by refusing to sell me my Company car. After I had given notice to terminate my employment to the Respondent, I approached the Respondent and enquired at what price it would be prepared to sell the car to me when I left. I was quoted a price of £6,000.00, but shortly afterwards the Respondent’s Purchasing Controller Ms. J. Bridge withdrew the offer to sell the car to me. On 21st October, 2003 I wrote to Ms. Bridge complaining of victimisation. I sent a copy of my letter to the Respondent’s HR Manager Mr. R. Humphries, but the Respondent has not reconsidered its decision to refuse to sell me the car.”

18.	A further act of victimization complained of at paragraph 9 of those particulars related to the Claimant’s alleged entitlement to a refund in respect of a contribution made to the purchase of the Company car which was assigned to him. That allegation is no longer pursued and therefore does not concern us. 

19.	The Claimant alleged that the Respondent’s decision not to sell him the Company car which he used following his resignation given on 30 September was by reason of his having done the protected act.
20.	The Respondent contended that that decision, taken by Ms Bridge, had nothing to do with the protected act and was merely a standard operation of the Company car policy. Further, that decision was taken by Ms Bridge at a time when she had no knowledge of his having done the protected acts. 

The Tribunal Decision
21.	The Tribunal upheld the Claimant’s complaints of disability discrimination under section 5(2) DDA and constructive unfair dismissal. They dismissed his complaint of victimization. Against the former findings the Respondent appeals; against the latter the Claimant cross-appeals. How the Tribunal reached those conclusions must now be explored in the context of both appeal and cross-appeal.

The Appeal
22.	Although resisted initially in the hearing before us, following the short adjournment and the opportunity to discuss the matter with his team, Mr Ginniff indicated to us that he no longer felt able to resist the appeal on the assumption that the whole matter was then remitted to a fresh tribunal for rehearing. The EAT will not, as a matter of practice, allow an appeal (or cross-appeal) against a reasoned decision of an employment tribunal by consent and remit the case for rehearing, in whole or in part, unless we ourselves are satisfied that there are good reasons for so doing. In the case of the first four issues before the Tribunal we were so satisfied for reasons we shall shortly develop. However, we required full argument on the cross-appeal.

23.	The principal ground of complaint raised in the appeal related to the Tribunal’s alleged failure to engage properly with the first third and fourth issues which we have earlier identified. We regret to have to say that we accept that submission, with a necessary corollary that for the most part this case must be re-run before a different tribunal at considerable expense and stress to the parties and their witnesses. In particular; 

Section 5(2) disability
24.	Having heard the evidence and considered the detailed written submissions of Counsel the Tribunal was required to consider the alleged breaches of the Respondent’s section 6 duty separately in relation to each of the three Originating Applications, as well as cumulatively as they were advanced on the Claimant’s behalf, in order to determine whether any and if so what breaches were made out as at the date of the relevant Application. That in turn required them to make all necessary findings of fact on the specified complaint; to identify the relevant disadvantage suffered by the Claimant under section 6(1) DDA; to decide, on their findings of fact, what adjustments had been made by the Respondent and when and to determine what adjustments which were reasonable had not been made prior to the relevant Applications. Insofar as they found that the Respondent had failed to make reasonable adjustments, they were then required to consider the justification defence raised by the Respondent in the light of the guidance provided by the Court of Appeal in Collins (explaining the earlier Court of Appeal decision in Jones v The Post Office [2001] IRLR 384, in relation to justification under 
sections 5(1) and (3) DDA, as opposed to section 5(2) and (4)).

25.	It is apparent on the face of the Tribunal’s Reasons that this necessary process has not been carried out. Indeed, paragraph 37 of the Tribunal’s Reasons begins with the sentence:

“This is not a case of our deciding what is or is not a reasonable adjustments”

In fact, that is the starting point for this part of the exercise faced by the Tribunal. It has not, as they acknowledge, been carried out.

26.	We do not propose to comb the Tribunal’s narrative in this judgment, seeking to identify which parts of the Claimant’s case has and has not been dealt with. One example will suffice. His fourth Originating Application alleged that the Respondent had failed to comply with its section 6 duty in relation to aspects of his pay. That claim simply has not been addressed, save to identify the Claimant’ subjective impressions (Reasons. Paragraph 36).

27.	As to the Respondent’s case, they called an expert, Mr Crowther, who had concluded, we see from his witness statement, paragraph 24, that the Respondent had made reasonable adjustments to accommodate the Claimant’s dyslexia so that he was not disadvantaged relative to the Company’s other engineer surveyors. The Claimant also called an expert, 
Professor McLaughlin. His report is not before us, and no mention of his evidence, other than the fact that he gave evidence, appears from the Tribunal’s Reasons. We are not told why Mr Crowther’s opinion was rejected, and, if it was, Professor McLaughlin’s accepted. No analysis of the respective expert opinions has been attempted by the Tribunal. See Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377. The Claimant contended that Mr Crowther was not a suitable expert, that he had produced a report containing irrelevancies and had required him to undergo a wholly inappropriate test which resulted in him becoming ill. These important allegations (potentially relevant also to the issue of constructive dismissal) were not dealt with by the Tribunal head-on. Instead, they criticize the instructions given to Mr Crowther by the Respondent (Reasons paragraph 37) and then add that they are not suggesting that Mr Crowther was himself “contaminated” by that. What do they mean? Were they accepting that he was a suitable expert who produced a balanced, professional report or not? We cannot even guess.

Section 5(1) discrimination
28.	Quite simply, the Tribunal did not address this complaint at all. They make no findings on the claim made by the Claimant that his dismissal (as they found it to be) was itself an act of discrimination.

Constructive Dismissal
29.	The Tribunal’s general conclusion, itself not based on any proper analysis of the 12 specific complaints raised by the Claimant, was that that Claimant rightly believed that his employer was prevaricating in implementing the COT 3 Agreement terms and had lost all trust and confidence in the Respondent. That finding does not address, it seems to us, the various points raised by the Respondent and listed earlier.

30.	Miss Newton invited us to decide the question of estoppel and absolute privilege raised below and not dealt with by the Tribunal. We shall not do so. In the light of Mr Ginniff’s concession we did not receive full argument on these points, which ought to be dealt with against the factual matrix found by the next employment tribunal.

31.	Finally, on the appeal, we should record that Miss Newton advanced further argument in relation to the issue of constructive dismissal based on the perversity ground. That is a high hurdle. Yeboah v Crofton [2002] IRLR 634. In the absence of proper fact-finding by the Tribunal we shall not embark on what effectively is an attempt to find the facts for ourselves.

32.	It follows that we shall allow the appeal and remit the first four of the five issue earlier identified for rehearing by a fresh employment tribunal.

The Cross-Appeal
33.	The claim of victimization raised a narrow point for determination by the Tribunal. Did the Respondent refuse to sell the Claimant his Company car by reason of the fact that he had done a protected act? The relevant decision within the Respondent was made by Ms Bridge. The Claimant so alleged in his fifth Originating Application. She gave evidence on the last day of hearing. We have a note of what she said. First, that the decision was made in accordance with standard Company policy; secondly, she was then unaware of the Claimant’s previous complaints of disability discrimination. Having heard her evidence the suggestion that she had victimized the Claimant was withdrawn, Mr Ginniff tells us. That was the end of the matter, as the Tribunal found (Reasons paragraph 28.7).

34.	The cross-appeal raises three specific points. First, that the Tribunal ought to have considered whether Ms Bridge had “constructive knowledge” of the Claimant’s earlier claims of disability discrimination. That contention does not appear from any of the three sets of closing submissions advanced on behalf of the Claimant below and cannot be raised for the first time on appeal. Even if it could it would be doomed to failure; either Ms Bridge had knowledge of the protected act or she did not. The second point also was not taken below. It is suggested that the Tribunal ought to have made findings as to whether Ms Bridge’s decision ought to have been reviewed after the Claimant complained to her of victimization. Thirdly, it is suggested that having found that Ms Bridge did not victimize the Claimant, the Tribunal ought to have looked for another employee, such as Ms Jones or a Mr Thompson, who had knowledge of the protected acts and who had an intention to discriminate against the Claimant in relation to the sale of the Company car. Again, this is a new point and one we shall not entertain for the first time on appeal.

35.	Finally, in oral argument, Mr Ginniff developed a further point. That at paragraph 31 of their Reasons the Tribunal rejected the Claimant’s suggestion that the Respondent sought to exact some form of revenge by depriving him of the opportunity to purchase his Company car whilst adding, in parenthesis, “understandable though his perceptions may have been from his own standpoint”. He submits that the Tribunal failed to give reasons for this conflict in their findings. We find no conflict; the objective finding by the Tribunal that the non-sale was in accordance with Company policy and decided by a person without knowledge of the earlier protected acts is not inconsistent with the Tribunal’s acknowledgement of the Claimant’s subjective and understandable, if mistaken, state of mind.

36.	In these circumstances we can see no basis for allowing the cross-appeal. It is dismissed and this Tribunal’s decision to dismiss the victimization complaint must stand.