Appeal No. UKEAT/0016/16/JOJ

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

	At the Tribunal
	On 25 April 2016

Before
HIS HONOUR JUDGE DAVID RICHARDSON
(SITTING ALONE)

VODAFONE LTD	APPELLANT

MR A WINFIELD	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR MOHINDERPAL SETHI
(of Counsel)
Instructed by:
Osbourne Clarke Solicitors
2 Temple Back East
Temple Quay
Bristol
BS1 6EG

For the Respondent	MR STUART BRITTENDEN
(of Counsel)
Instructed by:
CWU
150 The Broadway
Wimbledon
London
SW19 1RX

SUMMARY
JURISDICTIONAL POINTS - Extension of time: just and equitable
UNFAIR DISMISSAL - Reasonableness of dismissal

The Employment Tribunal did not err in law in its application of section 123(1) of the Equality Act 2010.  It did not err in law, nor was it perverse, in deciding that the Claimant was unfairly dismissed.

HIS HONOUR JUDGE DAVID RICHARDSON

Introduction
1.	By a Judgment dated 27 April 2015 the Employment Tribunal sitting in Birmingham (Employment Judge Findlay, Mr Bell and Mr Murphy) upheld three complaints that Mr Andrew Winfield (“the Claimant”) had brought against Vodafone Ltd (“the Respondent”).  Two complaints concerned failure to make reasonable adjustments for his disability; the third was a complaint of unfair dismissal.  The Respondent appeals against that Judgment.

2.	Following a hearing under Rule 3(10) of the Employment Appeal Tribunal Rules 1993 three grounds of appeal have been permitted to proceed to this final hearing.  The Employment Tribunal had found that the two complaints of failure to make reasonable adjustments had been brought out of time, but it found also that it was just and equitable to extend time.  The first two grounds of appeal relate to these decisions to extend time.  The third ground of appeal relates to the unfair dismissal claim.

The Background Facts
3.	The Claimant was employed by the Respondent with effect from 1 June 1999.  At all material times he worked as a sales adviser in a call centre in Stoke-on-Trent.  He has suffered from diabetes for over 20 years and is insulin dependent.  In recent times he has suffered from an associated condition, retinopathy, which has significantly affected his eyesight.  These conditions are disabilities for the purpose of the Equality Act 2010 (“EqA”).  The Respondent has always been aware that the first condition was a disability.  It became aware shortly after it was diagnosed in January 2014 that the second condition was a disability.  The Claimant was dismissed, after warnings, because he did not meet a “conversion target” set by the Respondent; that is to say, a target for turning calls into sales.

4.	The Claimant had for some years worked fixed shifts, but in August 2009 these were taken away and replaced with flexible shift working.  He complained about this, with significant support from Occupational Health reports.  He said that it impacted on his ability to meet targets.  His manager, Mr Khan, did not return him to fixed shifts and behaved insensitively to him.  It was not until March 2012 that the Claimant was once again placed on fixed shifts.  By this time he was subject to disciplinary proceedings for failing to meet targets.  He was suffering from stress at work and was on antidepressants in response to the treatment he had been receiving.  He set out a grievance, which, the Employment Tribunal found, was poorly dealt with.  On 24 August he went off sick with work related stress.  His grievance was still not dealt with properly.  Not surprisingly, the Employment Tribunal said, he lodged his first claim on 28 November 2012.

5.	When the Claimant returned to work, the Respondent rejected his grievances and continued to press him to meet his targets.  Occupational Health advice continued to say that consideration to adjusting his targets would be of benefit to him.  Although some adjustments were made, on the Employment Tribunal’s findings they were insufficient.  When his retinopathy was diagnosed, he was eventually given a larger screen.  He was dismissed for failing to meet his targets.

The Employment Tribunal’s Reasons
6.	The Employment Tribunal found that it would have been a reasonable adjustment to give the Claimant fixed shifts throughout the whole period from August 2009 until March 2012 (see paragraphs 6.13 to 6.23 of its Reasons).  The Employment Tribunal found that the time limit of three months for bringing this claim expired on 30 April 2012 (see paragraphs 6.8 and 6.11 of its Reasons).  There is no appeal against that finding.  It found that it was just and equitable to extend time until 28 November so that the claim was brought in time.  In reaching this finding the Employment Tribunal built upon findings of fact that it made in paragraphs 6.1 to 6.7 of its Reasons.  It set out legal considerations relating to the calculation of the time limit but did not refer expressly to any law relating to the power to extend time.  It set out its essential conclusions in two paragraphs:
“6.9. It is apparent that by January 2012, however, the claimant was beginning to be affected by work-related stress and was receiving antidepressant medication.  We accept his evidence that he told Carol Monk that, although he had felt well in November 2011 having had a break from work, the effect of the previous 2 years of shift changes and the stress this had generated as a result had begun to affect him again by December 2012.  The claimant had explained clearly to Mr Fundell in April 2012 that the incidence of hypos had increased, and that this was affecting his mental processes.
6.10. Taking account of that, and also of the pressure the claimant was under to achieve targets, due to the repeated performance disciplinaries, which placed him under further stress, of his lengthy period of inability to work due to work related stress from August to December 2012 and also of the fact that he attempted to resolve his issues without recourse to the Tribunal by taking a grievance which was then very poorly handled by the respondent, we do consider that it would be just and equitable to extend time as set out above.  Although Mr Whitcombe suggests that, because of the delay in bringing the proceedings, it was then difficult for the respondent to find records of the shifts the claimant had actually been working, had Mr Wareham simply responded to the claimant’s grievance in the way that he should have when the claimant first saw him in June 2012, he would have been able, on the evidence we have before us, to have checked the shift patterns for 2 years prior to that - that is back to the middle 2010, which would have given the respondent a good evidential basis in respect of the shifts that the claimant actually worked whilst managed by Mr Khan.  We cannot see why MrWareham did not do so given the nature of the claimant’s grievance, as is clearly set out at page 216.  Even if the respondent had checked its systems in November 2012, it should have been able to see around 10 months’ worth of shift patterns whilst the claimant was managed by Mr Khan, and we do not understand why it did not do so.”

7.	The Employment Tribunal also found that it would have been a reasonable adjustment to give the Claimant a permanent performance target of 90 per cent from at latest March 2012.  The Employment Tribunal found that the time limit of three months for bringing this claim ran from 31 July 2012 and expired on 31 October.  There is no appeal against this finding.  So, this claim was just under a month out of time.  The Employment Tribunal found that it was just and equitable to extend time until 28 November.  The Employment Tribunal dealt briefly with this question of extension of time.  It said, plainly referring back to its earlier reasons (paragraph 9.9):
“9.9. Assuming compliance with the target is measured at the end of the month, time then ran from 31 July 2012 so the claim in this respect is about a month out of time.  Considering the other factors referred to above, however, we do consider it just and equitable to extend time until the first claim was actually lodged given the claimant’s state of health and the stress he was under and his attempts to resolve matters through the grievance procedure, and also the dilatory and unsatisfactory way in which the respondent handled his grievance.”

8.	The Employment Tribunal found that there was a continuing failure up to the point of dismissal to make the requisite reasonable adjustment to the Claimant’s performance target.

9.	As to unfair dismissal, the Employment Tribunal found that the dismissal was unfair for reasons set out in paragraphs 10.3 to 10.9 of its Reasons.  These reasons were largely related to the failures that the Employment Tribunal had found relating to the making of reasonable adjustments.  But not entirely so.  The Employment Tribunal also found that there were relevant procedural failings and that dismissal was premature (see paragraphs 10.8 and 10.9).  It is not necessary to set out these passages in full.  However, in order to understand one part of Mr Sethi’s submissions, it is necessary to set out paragraph 10.5.  This provides as follows:
“10.5. In our view, having received the report of 13th of March 2012, no reasonable employer would have failed to adjust the claimant’s performance targets, including the conversion target to a reasonable level.  The respondents [sic] own witness accepted that 90% was the kind of level which is usually considered to be reasonable.”

Statutory Provisions
10.	Section 123(1) EqA 2010 governs the time limit for the making of discrimination claims to the Employment Tribunal:
“(1) Proceedings on a complaint within section 120 may not be brought after the end of -
(a) the period of 3 months starting with the date of the act to which the complaint relates, or
(b) such other period as the employment tribunal thinks just and equitable.”

11.	Section 98(4) of the Employment Rights Act 1996 sets out the test that the Employment Tribunal had to apply in deciding whether the dismissal was unfair:
“(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -
(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.”

Submissions
12.	In his submissions on the Respondent’s behalf Mr Sethi first argued that the Employment Tribunal did not engage in sufficient analysis of the question of whether it was just and equitable to extend the time limit.  This required a threefold approach: first, whether it was just and equitable at all to extend the time limit; secondly, if it was, whether it was just and equitable to extend it for the requisite period required to institute the proceedings; and only if these tests were separately analysed and the proceedings found to have been brought within the time limit would the Employment Tribunal’s analysis be sufficient.

13.	Mr Sethi then examined the Employment Tribunal’s conclusions in relation to the first adjustment.  He submits that the Employment Tribunal did not engage in the necessary analysis of the evidence underlying the Claimant’s argument that time should be extended.  If it had asked whether the claim could have been brought within the primary three month limitation period, it would have appreciated that only two of its reasons - stress and pressure to achieve targets - applied to that primary three month limitation period at all.  Those factors had not prevented him working; how, then, could they have prevented him commencing his claim?  He submitted that the Employment Tribunal should specifically have asked why the Claimant did not bring his proceedings in time or indeed until November.  He submits that if the Employment Tribunal had specifically asked whether the factors on which the Claimant relied were causative of his failure to bring proceedings until November it would inevitably have concluded that it was not just and equitable to grant the extension.  The Claimant, he points out, was not unfit to work until August; even after this time he could, and did, deal with the grievance that he was putting forward.  The fact that the Claimant was pursuing a grievance did not mean that it was just and equitable to extend time.

14.	Mr Sethi turned his attention then to the second, much shorter, extension required for the other adjustment.  Essentially, he put forward the same arguments.  There was no actual impediment to presenting a claim form.  It was, he submitted, difficult to see why any extension of time should have been granted at all.

15.	Mr Sethi also argued that the finding of unfair dismissal was perverse or insufficiently reasoned.  He took two points.  First, he submitted that in essence the Employment Tribunal had not looked independently at the test under section 98(4).  It had assumed that its finding of a failure to make reasonable adjustments would lead to an adverse conclusion under section 98(4).  This, he submitted, would be an error of law (see H J Heinz Co Ltd v Kenrick [2000] IRLR 144 at paragraphs 6 to 9).

16.	Secondly, he submitted that the finding of the Employment Tribunal was in an important respect perverse.  The Employment Tribunal had placed considerable importance on its finding that there should have been an adjustment down to 90 per cent in the conversion target (see paragraph 10.5, which I have already quoted).  Mr Sethi took me through Occupational Health records and findings of the Employment Tribunal to establish that the Respondent, in dealing with Occupational Health advice in 2012, had put in place an adjustment whereby the Claimant could mark against telephone calls an icon that indicated that he was having a hypoglycaemic attack at the time of the call in question.  Since that had been done, and since, Mr Sethi submitted, that was a reasonable course for the Respondent to take, the Employment Tribunal’s section 98(4) analysis was not open to it.  He went so far as to say if necessary that the analysis was perverse.

17.	Mr Brittenden has prepared for me a helpful skeleton argument setting out the background and supporting the Employment Tribunal’s Reasons.  He took me to passages in the Employment Tribunal’s Reasons dealing specifically with the perversity ground on which Mr Sethi relied.  I did not call on Mr Brittenden in other respects.

Discussion and Conclusions
18.	In Robertson v Bexley Community Centre [2003] IRLR 434 Auld LJ encapsulated in paragraphs 24 to 25 the essential task of the Employment Tribunal in deciding whether it is just and equitable to extend time and the task of the Employment Appeal Tribunal when deciding whether to interfere with an Employment Tribunal’s decision:
“24. The tribunal, when considering the exercise of its discretion, has a wide ambit within which to reach a decision.  If authority is needed for that proposition, it is to be found in Daniel v Homerton Hospital Trust (unreported, 9 July 1999, CA) in the judgment of Gibson LJ at p.3, where he said: 
‘The discretion of the tribunal under s.68(6) is a wide one.  This court will not interfere with the exercise of discretion unless we can see that the tribunal erred in principle or was otherwise plainly wrong.’
25. It is also of importance to note that the time limits are exercised strictly in employment and industrial cases.  When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion.  Quite the reverse.  A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time.  So, the exercise of discretion is the exception rather than the rule.  It is of a piece with those general propositions that an Appeal Tribunal may not allow an appeal against a tribunal’s refusal to consider an application out of time in the exercise of its discretion merely because the Appeal Tribunal, if it were deciding the issue at first instance, would have formed a different view.  As I have already indicated, such an appeal should only succeed where the Appeal Tribunal can identify an error of law or principle, making the decision of the tribunal below plainly wrong in this respect.”

19.	The Employment Appeal Tribunal’s role is limited to questions of law by section 21(1) of the Employment Tribunals Act 1996.  It is well established that the Employment Appeal Tribunal should not take a pernickety or unduly technical approach to the Reasons of an Employment Tribunal.  It should remember that the Reasons are likely to be responsive to the particular points that were pressed upon it at the hearing.  It should not assume that an Employment Tribunal has forgotten a point or left it out of account merely because it is not given specific treatment in the Reasons.  It is sufficient that the Reasons should explain why the Employment Tribunal reached its conclusion sufficiently for the parties and any appellate court to understand the reasoning and see whether any question of law arises.  Again, appeals on perversity grounds will seldom give rise to any real question of law.  The leading case is Yeboah v Crofton [2002] IRLR 634 at paragraph 93.  Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision that no reasonable Tribunal on a proper appreciation on the evidence and the law would have reached.

20.	I deal firstly with the time limit points.  While the Employment Tribunal did not specifically cite section 123(1), there is no doubt that it was applying the provision.  It made careful findings as to the expiry of the primary time limit and reference to the just and equitable test, which make it plain that it had the terms of section 123(1) well in mind.  To my mind, the Employment Tribunal was not required by section 123(1) to carry out the exercise by reference to the kind of analysis that Mr Sethi recommended.  At times his submissions were redolent of the kind of approach that might be required if the test were one of practicability or reasonable practicability.  It is not.  The Employment Tribunal must apply its collective mind to the words of the statute.  But the test is then a broad one.  If the claim was not brought within three months, was it brought within such further period as it is just and equitable to allow?
21.	I accept that it might have been better if the Employment Tribunal had expressly said why the Claimant did not bring proceedings earlier.  Plainly, the reason why the Claimant did not bring proceedings earlier is a relevant matter for it to consider.  I am not, however, persuaded that it left this matter out of account.  I think its reasoning sufficiently appears from paragraphs 6.1 to 6.9.  The Claimant was increasingly unwell during the period in question.  He was under stress by virtue of performance targets.  He tried to resolve the matter, making use eventually of grievance procedures, but was in the end frustrated by the Respondent’ obdurate approach to those procedures.  Particularly in the case of a long-serving employee with an acknowledged serious health condition, it is not surprising that the Employment Tribunal gave weight to these factors in its determination.  The Respondent, on the other hand, could point to little prejudice from an extension of time other, of course, than the prejudice of having to meet the claim.  The Employment Tribunal, I have no doubt, dealt in its Reasons with the specific points that were made so far as prejudice to the Respondent is concerned.

22.	It was not, to my mind, an error of law for the Employment Tribunal to take into account the grievance and the Respondent’s attitude to it in the way it did.  The weight to be given to the fact that a grievance process is being followed will vary from case to case.  On the one hand, there will be employees who make repetitive use of grievances and appeals when they should long since have realised that the time for such procedures was over and it would be unfair to allow them to bring proceedings out of time.  On the other hand, an employee may make rational and sensible use of a process intended to promote conciliation and settlement.  Nothing in section 123 requires an Employment Tribunal to treat these cases the same.  The Employment Tribunal in this case was entitled to bring into the equation on the Claimant’s side his attempt to make use of the grievance procedure and the Respondent’s disappointing attitude towards it.  I see nothing perverse in the conclusions of the Employment Tribunal on the time limit points.  I do not see any want of reasoning in the Employment Tribunal’s decision.  It was not required to go through a list of criteria.  This is plain from well known Court of Appeal authority (see London Borough of Southwark v Afolabi [2003] IRLR 220 and Apelogun-Gabriels v London Borough of Lambeth [2002] IRLR 116).

23.	I turn to the unfair dismissal claim.  It would be an error of law if the Employment Tribunal had assumed that the unfair dismissal claim would succeed merely because of a failure to make a reasonable adjustment.  However, I am sure that the Employment Tribunal did not fall into this error.  Its reasoning in paragraph 10 specifically considers the standard of reasonableness to be required by the application of section 98(4).  Nor do I think that there is anything in the perversity point that Mr Sethi put forward.  The Employment Tribunal was aware that an adjustment had been made by permitting the Claimant to mark telephone calls as affected by his hypoglycaemic attack.  The Employment Tribunal did not consider this sufficient (see paragraphs 7.46, 7.54 and 7.56 of its Reasons, which set out why the Employment Tribunal considered a percentage adjustment to be required).  The Employment Tribunal noted in paragraph 10.5 of its Reasons that the Respondent’s own witness accepted that a 90 per cent level was the kind of level usually considered to be reasonable.  There is no error of law in the Employment Tribunal’s reasoning in this respect, and I cannot see how the reasoning can be said to be perverse.

24.	It follows that the appeal will be dismissed.