Appeal No. UKEAT/0032/12/JOJ

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

	At the Tribunal
	On 5 October 2012

Before
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
MS K BILGAN
MRS M V MCARTHUR BA FCIPD

NOTTINGHAM CITY TRANSPORT LTD	APPELLANT

MR ANTONY HARVEY	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR SMAIR SOOR
(of Counsel)
Instructed by:
Freeth Cartwright LLP
Cumberland Court- 80
Mount Street
Nottingham
Nottinghamshire
NG1 6HH	
For the Respondent	MRS S PARKES
(Representative)

SUMMARY
DISABILITY DISCRIMINATION – Reasonable adjustments

Employee unfairly dismissed, because the employer did not conduct a reasonable investigation nor consider mitigating circumstances when disciplining a disabled employee. It also considered a claim for failure to make reasonable adjustments where the employee had a disability. It thought the PCP was the application of the employer’s disciplinary procedures, which would reasonably have been adjusted by investigating reasonably and considering personal mitigation arising out of disability, and not dismissing him. It was conceded on his behalf that there was no evidence before the ET that the employer’s practice was to ignore mitigation or to fail to carry out a reasonable investigation. The ET erred in identifying as a “practice” that which was not, and in failing to address the questions in Rowan.

Appeal allowed. The matter was remitted because the employee had put forward possible PCPs that the ET had not resolved, given its (erroneous) view that the application of a flawed disciplinary procedure on the one occasion relating to the Claimant could qualify: the ET needed to resolve whether they did give rise to liability.

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
Introduction
1.	An Employment Tribunal in Nottingham, for reasons given on 20 September 2011 that themselves incorporated earlier findings set out in reasons dated 16 December 2010, held that the Respondent employer had failed to make a reasonable adjustment to prevent the Claimant, who was disabled, being placed at a substantial disadvantage. On 16 December 2010 and, as will become apparent, for essentially identical reasons as were later to apply to the alleged failure to make a reasonable adjustment, the Employment Tribunal held that the Claimant had been unfairly dismissed.  The employer appeals the finding of discrimination but not that of unfair dismissal. The consequence of a finding of discrimination is both financial – there will be an award for injury to feelings, as there is not for unfair dismissal, and the total extent of any award will not be subject to the statutory cap – and reputational: so far as the employer is concerned, in being found guilty of discrimination, and for the Claimant providing vindication to his sense of identity if it should be said that he was badly treated by reason of his disability and not for some other reason. Thus the outcome is of some importance to the parties.

The facts
2.	The Claimant had worked as a cleaner for the Respondent from 2001.  He had depression; that was his disability. It caused him to be absent from work such that he had a very poor attendance record. That culminated in his being off work for 20 weeks ending on 13 July 2009. After that he was to be eased back into full‑time work by working initially for four hours per day, from 6.00pm until 10.00pm. As it happened, after two weeks he was dismissed by reason of alleged misconduct – as it turned out, unfairly – essentially for having left work early, failed to clock off and having compiled timesheets suggesting that he had been at work for the entire period, though there were some other subsidiary matters taken into account too. Whereas those offences might in many circumstances be sufficient to justify a dismissal, the Tribunal’s findings of fact make clear why it was that the Claimant here was in an exceptional position.  

3.	Though promised support for any problems during the return to work, that promise was not wholly honoured and the support did not wholly materialise. A problem did develop over car parking in the staff car park. The gate, to be opened by a swipe card, was supposed to be closed by the driver after entry. Failure to do so led to the card being deactivated and the user effectively barred from further use of the park. This system was new to the Claimant. He failed to close the gate after him. He was barred on 21 July, but he was not told that this was the case until a week later. Anxious, because of what seemed to be the malfunctioning of the system, as to how he would get away of an evening (it should be noted that he claimed to be agoraphobic, though the employer did not know of that at the time), he left before 10.00pm on some three occasions, respectively 7, 15 and 19 minutes early. He did not clock out. He did, however, hand in a timesheet showing that on each occasion he had worked until 10.00pm. The last of those three occasions was 27 July.

4.	The following day he was due to have a meeting to review the progress with his return to work. On that morning, when, again, he could not gain access to the car park, he began kicking at the gate. This was seen on CCTV. At work he went straight into a meeting with a manager.  The manager had two purposes in mind: first, to review how the return to work was progressing; and secondly, to deal with the fact that had come to light that the Claimant had left work early on the night before. The Claimant, who, in accordance with what was usual practice, had had no warning of the investigative aspect of the meeting, flared up when it was raised and walked out. He was, however, pursued, calmed down, and that meeting ended with handshakes all round.

5.	Although the Claimant thought that was the end of it, the next day he was called to another investigatory meeting concerning his early leaving, his failure to clock off and the inaccuracy of his timesheets. In each of those respects the facts were not in dispute to the extent that he had left early, had failed to clock off and had submitted inaccurate timesheets.  Mr Ward heard the disciplinary meeting and he dismissed the Claimant from employment for those offences. The Employment Tribunal held that that was unfair because the employer had not held a reasonable investigation here really into why the Claimant had behaved as he did and whether his disability had any significant effect on what had taken place. The Employment Tribunal thought that the facts clearly linked the behaviour of the Claimant in what he did and what gave rise to the charges back to his not being told of the problem with the car park; that was management’s fault. In the light of the Claimant’s disability, the failings deriving as they did from that source would not have been sufficient for any reasonable employer to have dismissed the Claimant.

6.	When the Tribunal came to consider the second aspect of the claims put to it, that of disability discrimination, it held that there was no case that the Claimant had been discriminated against directly on the ground of his disability. It decided, however, that it ought to hear further argument about whether it would have been a reasonable adjustment to have carried out a proper investigation and a reasonable adjustment to have properly taken into account mitigating factors, particularly those relating to the Claimant’s disability, in the course of the disciplinary hearing.

7.	The Tribunal had had some difficulty identifying the basis for a claim for failure to make a reasonable adjustment. The statute, the Disability Discrimination Act 1995 (DDA), provided by section 4A(1) under the heading “Employers: duty to make adjustments” as follows:
“Where—
(a) a provision, criterion or practice applied by or on behalf of an employer […]
places 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 such steps as it is reasonable in all the circumstances of the case for him to have to take in order to prevent the provision, criterion or practice […] having that effect.”

8.	It noted that Mrs Parkes, not a professional lawyer but who represented the Claimant to the best of her ability (he, it should be added, not being able either to write or read), had been, said the Tribunal (paragraph 36 in the first Judgment):
“[…] struggling to deal with bringing this claim within the ambit of the Disability Discrimination Act and we have sympathy with her.”

9.	She had identified three matters as possibly coming within the heading “provision, criterion or practice”. The first was a failure to have adequate systems in place to ensure that information was passed in good time to an employee, this in relation to the car park. The second was a failure to inform the Claimant that the investigatory meetings were in fact investigatory meetings, which the Tribunal regarded as an application “of the ordinary practice that employees are [the word “not” is missing but plainly meant to be included] forewarned that they are being called to an investigatory meeting”. The third was a failure to put in place on returning to work management instructions for a manager to be available to the Claimant to assist him with his employment needs. The Tribunal said in respect of those three at the conclusion of paragraph 37 of the first Judgment that:
“This third matter, like the previous two, is very much a signpost to the actual problems that arose in the application of the disciplinary process rather than a free‑standing identification of a provision, criterion or practice properly so called.”

10.	The Tribunal thus appeared to suggest that none of the three matters identified by Ms Parkes could properly be called a provision, criterion or practice. It wished to consider what it said had been signposted by those three matters; whether the application of the disciplinary process in Mr Harvey’s case was a provision, criterion or practice that came within section 4A of the 1995 Act.

11.	It was on that basis that the Tribunal adjourned for further argument, since it recognised that the parties had not come to the hearing ready to deal with that particular suggestion. It appears to have been a suggestion of the Tribunal’s own making. But in adjourning the matter the Tribunal did not come to any conclusion upon any of the three matters identified by Mrs Parkes unless it is, as we infer, that it did not think that they could realistically be called provisions, criteria or practices within section 4A.

12.	When the Tribunal returned then to the distinct issue of alleged failure to make a reasonable adjustment, it concluded as follows in the Judgment of 20 September:
“14.  As was set out in paragraph 39 of the reasons for our original decision, as it transpires the principal provision, criterion or practice which is relied upon as giving rise to a failure to have made reasonable adjustments is that the application of the Respondent’s disciplinary process, particularly as it was applied and understood by Mr Ward of whom we made a number of criticisms at the last hearing, placed the Claimant as a disabled person, that is somebody known to be suffering from depression and anxiety, at a substantial disadvantage.  That is because it failed to address any of the issues that may have exonerated him and failed to give sufficient credence to any mitigating factors.  Notwithstanding the concession that Mrs McLister quite properly made to allow Mrs Parkes as a lay person from outside the company to assist Mr Harvey as his representative, there is still nothing that we have heard today that meets that criticism.  Not only is that failure to carry out the investigation in a reasonable manner an unfair dismissal, but it also therefore in the context of the Claimant’s disability and his known susceptibility to react to external stress factors, a failure to make a reasonable adjustment.  That is in relation to the way the whole process was conducted from the outset, the investigative meeting when he was unaware that an investigation was to take place.  He may therefore have responded inappropriately in what he said […] specifically in the comments to Mr Smith […].  That is on top of the fact that it is quite apparent to us that the whole incident stems from a reaction to an external stress – the problem with access to a car park, that clearly manifested itself in outwardly observable behaviour on the part of Mr Harvey in kicking at the gate.

15. In all the above circumstances we still consider that the way which Mr Ward conducted the disciplinary process is the application of a provision, criterion or practice which placed a disabled person susceptible to stresses at a substantial disadvantage.  It could have been reasonably adjusted by making allowance for that fact by conducting an investigation into the exonerating as well as the incriminating factors and ultimately by not applying the mechanistic approach that Mr Ward did to a breach of clocking in rules.  The ultimate reasonable adjustment, we are satisfied, would have been not to have dismissed in these circumstances.
16.  For the above reasons we conclude that there has not only been an unfair dismissal but the essence of that unfairness also amounts to an unreasonable failure to make adjustments in the context of Mr Harvey’s known and admitted disability.”

Submissions
13.	Mr Soor, for the Appellant, argues that there was here no provision, criterion or practice properly so called, that a one‑off flawed disciplinary process could not be said to be the application of a provision, criterion or practice such as envisaged by the DDA, and that there was no material to suggest that the procedure being flawed in the respects identified by the Tribunal could have caused any disadvantage to the Claimant, though being disabled, any more than it would to someone who was not disabled but in respect of whose disciplinary case there had been a failure to make a reasonable investigation or a failure to listen to anything that might be said in mitigation.

14.	He relies upon the by now well‑known words of this Tribunal, presided over by HHJ Serota QC, in Environment Agency v Rowan [2008] ICR 218, where at paragraph 25 this Tribunal said:
“An employment tribunal considering a claim that an employer has discriminated against an employee pursuant to section 3A(2) of the Act by failing to comply with the section 4A duty must identify: (a) the provision, criterion or practice applied by or on behalf of an employer […] and (d) the nature and extent of the substantial disadvantage suffered by the Claimant […].  In our opinion an employment tribunal cannot properly make findings of a failure to make reasonable adjustments under sections 3A(2) and 4A(1) without going through that process.  Unless the employment tribunal has identified the four matters we have set out above [we interpose to say that two, (b) and (c), are not material to the present case, hence their omission] it cannot go on to judge if any proposed adjustment is reasonable.  It is simply unable to say what adjustments were reasonable to prevent the provision, criterion or practice […] placing the disabled person concerned at a substantial disadvantage.”

15.	Those words have been echoed in decisions of this Tribunal since, for instance that in Royal Bank of Scotland v Ashton UKEAT/0542/09. He complains that here in paragraph 14 the Tribunal did not clearly identify the provision, criterion or practice.

16.	For the Claimant responding to this appeal Mrs Parkes argued that every case was individual and of different circumstances, and argued that the way in which Mr Ward had conducted the disciplinary process, condemned as it was by the Tribunal in its first Judgment, was the application of a provision, criterion or practice that placed the disabled person susceptible to stress and at a substantial disadvantage. Thus the conclusion to which the Tribunal came was justified. In response to questions, however, she very fairly conceded that what was in issue here in paragraph 14 of the second decision could not be said to be a disadvantage arising from a provision or a criterion, and, so far as practice was concerned, she accepted that there was no evidence that it was the practice of the employer to hold a flawed disciplinary hearing or, to be more particular, a disciplinary hearing at which there was no reasonable investigation and in respect of which the hearing did not properly consider mitigating circumstances. She accepted, as Mr Soor pointed out, that there was actually some evidence in the first decision that went the other way. In paragraph 33 there was reference to the employer having taken into account matters of mitigation in the case of another employee.  

Discussion
17.	In applying the words of the DDA, and we have little doubt in cases in future dealing with the successor provisions under the Equality Act 2010, it is essential for the Tribunal to have at the front of its mind the terms of the statute. Although a provision, criterion or practice may as a matter of factual analysis and approach be identified by considering the disadvantage from which an employee claims to suffer and tracing it back to its cause, as Mr Soor submitted was indicated by Maurice Kay LJ in Smith v Churchill’s Stairlifts PLC [2005] EWCA Civ 1220, it is essential, at the end of the day, that a Tribunal analyses the material in the light of that which the statute requires; Rowan says as much, and Ashton reinforces it. The starting point is that there must be a provision, criterion or practice; if there were not, then adjusting that provision, criterion or practice would make no sense, as is pointed out in Rowan. It is not sufficient merely to identify that an employee has been disadvantaged, in the sense of badly treated, and to conclude that if he had not been disabled, he would not have suffered; that would be to leave out of account the requirement to identify a PCP. Section 4A(1) provides that there must be a causative link between the PCP and the disadvantage. The substantial disadvantage must arise out of the PCP.

18.	In this case it is common ground that there was no provision that the employer made nor criterion which the employer applied that could be called into question; the issue was the practice of the employer. Although the Act does not define “provision, criterion or practice” and the Disability Rights Commission’s Code of Practice: Employment and Occupation 2004 deals with the meaning of provisions, criteria and practices by saying not what they consist of but what they include (see paragraph 5.8), and although those words are to be construed liberally, bearing in mind that the purpose of the statute is to eliminate discrimination against those who suffer from a disability, absent provision or criterion there still has to be something that can qualify as a practice. “Practice” has something of the element of repetition about it. It is, if it relates to a procedure, something that is applicable to others than the person suffering the disability. Indeed, if that were not the case, it would be difficult to see where the disadvantage comes in, because disadvantage has to be by reference to a comparator, and the comparator must be someone to whom either in reality or in theory the alleged practice would also apply. These points are to be emphasised by the wording of the 1995 Act itself in its original form, where certain steps had been identified as falling within the scope to make reasonable adjustment, all of which, so far as practice might be concerned, would relate to matters of more general application than simply to the individual person concerned.

19.	Given the fact, as it is conceded by Mrs Parkes to be, that there was no evidence here that the employer made a practice of holding disciplinary hearings in a way that eliminated consideration of mitigation or in a way in which there was no reasonable investigation, it seems to us that there was no sufficient evidence to show that the application of the Respondent’s disciplinary process in the case of the Claimant was a provision, criterion or practice. It was something that represented unfair treatment of him, as the finding by the Tribunal in respect of unfair dismissal recognises, but not all unfair treatment involves a failure to adjust that which is a provision, criterion or practice.

20.	We turn to paragraph 14 and the central reasoning of the Tribunal. The words used are that the practice was “the application of the Respondent’s disciplinary process”. A one‑off application of the Respondent’s disciplinary process cannot in these circumstances reasonably be regarded as a practice; there would have to be evidence of some more general repetition, in most cases at least. However, making due allowance for the words used by a Tribunal, whose Judgments, we must remember, should not be analysed as if they were the finest products of elaborate and accurate legal draughtsmanship, what appears missing is a clear identification of what the practice was, which caused disadvantage that was substantial to the Claimant in respect of which there might have been a reasonable adjustment; rather, the paragraph suggests that as a matter of desirability the employer might have behaved by taking into account mitigation and conducting a reasonable investigation.

21.	Given that and our acceptance of the submissions made by Mr Soor, it seems plain to us that the Tribunal erred in law by identifying the particular flawed disciplinary process that the Claimant underwent as being something that fell within the heading “provision, criterion or practice”, and, as Mr Soor points out, as showing that because of his disability those aspects caused a disadvantage over others who were not disabled, when it may seem obvious that a failure to consider mitigating circumstances and a failure reasonably to investigate is likely to cause misery whoever is the victim. Accordingly, as it seems to us, the appeal must be allowed.

Consequences
22.	We will remit the matter to a Tribunal. We shall hear from Mrs Parkes and from counsel as to whether it should be the same or a different Tribunal at the conclusion of this Judgment.  Remission is not resisted by Mr Soor; Mrs Parkes would ask for it. There is a very real reason why it would be just in this case that there should be such remission. If the Tribunal had not wrongly thought that the application of the disciplinary process could represent a PCP in this case, on the evidence before it, it would have had to make findings in respect of the matters identified by Mrs Parkes. Although it inclined to be dismissive of those three matters as giving rise to PCPs, we do not think that the first two of them can be so easily dismissed, and Mr Soor is inclined to accept that. If there was a practice of not having managerial control over communications about, for instance, barring from the car park, and if, as a consequence of that practice, someone with the disability from which Mr Harvey suffered was placed at a disadvantage that was substantial by comparison to others who did not have his disability, then it is theoretically open to argument that a reasonable adjustment in his case might have been to provide managerial support. Whether that would be reasonable would be a matter for assessment by the Tribunal; it cannot be assumed that any adjustment is necessarily reasonable.

23.	Similarly, the practice, as the Tribunal found it, of not telling someone that there was to be an investigatory meeting arguably caused disadvantage to Mr Harvey; that disadvantage was arguably substantial given his disability if a Tribunal could conclude that because of his disability he was more likely to react as in fact he did and as reported in the first Judgment.  Whether it would be reasonable to make an adjustment by, in his case, forewarning him that there was to be an investigative meeting or telling him that the meeting was such a meeting at the outset, and whether that would be reasonable, seems to us a matter of factual decision by a Tribunal. These matters and their consequences in terms of compensation, if found proved, seem to us to be at least open to a Tribunal, and in a remitted hearing the Tribunal would consider those issues.

Conciliation
24.	We have therefore allowed the appeal. It is likely that one practical effect of our decision is that if – and it is by no means a foregone conclusion – a Tribunal or this Tribunal were to decide that one or other or both of the first two matters identified by Mrs Parkes gave rise to a need to make reasonable adjustments that were not in fact made, then the compensation for injury to feelings and for any consequent losses cannot, as we see it, be of a very great order given that the Tribunal will also be considering what sum it awards in respect of the unfair dismissal, much of the background to which, it must be said, overlaps. If we are right in thinking that the sums in issue are not great, we note also that as things stand at present the Respondent employer is not found guilty by any court of any discrimination. So far as the declaratory advantages to Mr Harvey of a Judgment are concerned, the decision of the Tribunal on his claim for unfair dismissal is clear; he was unfairly dealt with by his employer. Accordingly, there is less of substance, perhaps, between the parties as a consequence of our Judgment than there might have been, and the gap, we would have thought, ought in these circumstances to be capable of resolution by the parties; if they have a mind to it. We recommend conciliation. Formally, however, our order is for remission.

Disposal
25.	In this case, it seems to us that the well-known paragraph 46 in Sinclair Roche & Temperley v Heard [2004] IRLR 763 gives guidance. The first particular matter to bear in mind is proportionality. Here, as we have indicated in the course of our Judgment, the amount at stake is not great, and the costs of a renewed hearing in its entirety before a different Tribunal, in terms of time and inconvenience let alone actual cost, completely outweigh that; it is much more sensible, it seems to us, that a Tribunal that knows and is familiar with the facts should hear it again. There is no question here of a totally flawed decision; the Tribunal was doing its best in circumstances in which it was attempting to assist a lay representative and fell into error in the way we have identified, which is not, in our view, to render the Judgment a totally flawed one. We do not think that this is a case in which the Tribunal will necessarily come to the same conclusion merely because it is determined to do so, which is obviously an element of the disquiet that Mr Soor has expressed, because we are confident in the general professionalism of Tribunals and see no reason to think this one is not professional, albeit that the appeal has been allowed, and we take into account in particular what is said in paragraph 46.6 of Sinclair Roche.

26.	In consequence, therefore, the matter will be remitted, to the same Tribunal for it to consider the case, unless the parties otherwise compromise it in the light of our Judgment.