Appeal No. UKEAT/0288/16/RN

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

	At the Tribunal
	On 21 & 31 March 2017

Before
THE HONOURABLE MR JUSTICE KERR
(SITTING ALONE)

MR M BALSON	APPELLANT

FORAY MOTOR GROUP LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR ADAM ROSS
(of Counsel)
Bar Pro Bono Scheme	
For the Respondent	MR JULIAN ALLSOP
(of Counsel)
Instructed by:
Paris Smith LLP Solicitors
1 London Road
Southampton
SO15 2AE

SUMMARY
DISABILITY DISCRIMINATION - Disability related discrimination
PRACTICE AND PROCEDURE - Appellate jurisdiction/reasons/Burns-Barke

Although there were linguistic deficiencies in the reasons for the Employment Tribunal’s Decision and the reasoning could have been expressed more clearly, the reasoning was adequate and, on a fair reading of the Decision in the context of the cases being advanced by the parties, sound and not such as to disclose any error of law that would justify the Appeal Tribunal interfering.

THE HONOURABLE MR JUSTICE KERR

1.	In this appeal leave to proceed on one amended ground only was granted by Lady Wise.  Leave had initially been refused on the papers by Langstaff J.  Lady Wise allowed the single amended ground to go forward, and that ground is as follows:
“The Employment Tribunal misdirected itself by failing to consider the impact of the Claimant’s disability.  In particular it failed to consider what effect it had (a) upon his ability to carry out his work; (b) upon the redundancy process and his participation within it; and (c) upon the decision-making by the Respondent.  This misdirection amounted to an error of law.”

2.	The Respondent is a franchised car dealership employing about 450 employees in Poole.  The Claimant (the Appellant in this appeal) worked in tele-sales for the Respondent, as did his comparator - a Ms Julia Moors - and other staff.  The Claimant started working for the Respondent in April 2010.  A redundancy situation arose in October 2014.  In December 2014 the Claimant, who was one of those at risk of redundancy, went off sick as a result of stress and anxiety.

3.	The Claimant was eventually selected for redundancy after a scoring exercise in which he narrowly lost out to Ms Moors.  That was an outcome confirmed, after his internal appeal against dismissal, on 19 February 2015.  The criteria and scores were altered during the appeal, but the outcome remained that Ms Moors scored a little more highly and was preferred, and the appeal therefore failed.

4.	The Claimant brought a claim before the Tribunal, which heard the matter over four days in February 2016.  The Tribunal comprised Employment Judge Bridges sitting with Mr Bird and Mr Stewart.  Their Reserved Judgment and Reasons were dated and sent to the parties on 1 March 2016.  Among various other claims that are not directly relevant to the sole remaining ground of appeal, they determined claims for direct disability discrimination under section 13 of the Equality Act 2010 (“the 2010 Act”) and discrimination because of something arising in consequence of a disability under section 15 of the 2010 Act.

5.	There was an extensive agreed list of issues, to which the Tribunal referred at length in its Judgment and Reasons.  The only part of it that remains material relates to the section 15 claim.  It was recorded in the list of issues that the unfavourable treatment relied upon was the scoring in the redundancy exercise received by the Claimant and his selection for redundancy; and that it was asserted by the Claimant that the scores against certain criteria amounted to unfavourable treatment because of something arising in consequence of his disability.

6.	The Claimant’s disability was depression.  In the same list of issues, it was recorded that the Claimant suffered symptoms of depression, namely increased levels of sickness, levels of concentration adversely affected along with memory, ability to communicate, confidence, difficulty making decisions, being withdrawn, feeling anxious and worried, lacking motivation, loss of self esteem, feeling lethargic and feeling over emotional.  The list of issues went on to refer to the criteria adopted by the Respondent in the redundancy exercise.  It also recorded that the Respondent advanced a defence of lack of knowledge of the disability at the relevant time, and a justification defence.

7.	The Tribunal went on to set out the statutory provisions and the burden of proof provision in section 136 of the 2010 Act.  As I have said, the findings of fact relevant to this appeal focused mainly on the two scoring exercises in the selection process, as between the Claimant and Ms Moors.  One was to be made redundant; the other was to fill a new part-time role in the marketing department following the outsourcing of the tele-sales function.
8.	In the first exercise, completed on 29 December 2014, the Claimant’s score against 12 criteria was 74 points; Ms Moors’ slightly better, at 82 points.  The criteria and the scoring system had been changed a number of times at the request of the Claimant.

9.	After he was selected for redundancy and had appealed, his appeal proceeded on various grounds, including the issue as to whether he had been discriminated against.  At that stage, the Tribunal noted at paragraph 47 of its Decision, the Claimant was not suggesting that the discrimination was on the basis of his disability or because of something arising in consequence thereof; rather, he complained that the criterion of “flexibility” was being interpreted in a manner that discriminated against him on the ground of his age, because he had children of school age and consequent corresponding commitments.

10.	After the appeal hearing the appellate decision maker, a Mr Yoxon, reviewed the selection criteria and adjusted them, but Ms Moors remained the highest scorer, with 63 points to the Claimant’s 61, resulting in the appeal failing, as the Tribunal found at paragraph 48 of its Decision.

11.	The present appeal was mounted as a challenge both to the Tribunal’s decision on direct discrimination brought under section 13 of the 2010 Act and to its decision on the claim under section 15 for discrimination because of something arising in consequence of a disability.  The former basis for the appeal has been abandoned, and what remains therefore is the issue of whether the Tribunal went wrong in law in the manner in which it approached and determined the claim under section 15.

12.	Determination of that issue requires an examination of the Tribunal’s Decision read as a whole; but in particular I must examine the reasoning in the paragraphs specific to section 15, which are paragraphs 55 to 64.

13.	Mr Ross, who ably presented the appeal pro bono on behalf of the Claimant and to whom I am very grateful for his submissions, pointed out that the case advanced on behalf of the Claimant, both in his witness statement and in the written submissions, included various references to the symptoms of depression from which he suffered, the medication he was on to treat those symptoms and the side effects of that medication; all of which, submitted Mr Ross, contributed adversely, on the Claimant’s case, to his ability to score well against the criteria adopted.

14.	Mr Ross submitted that there was a very strong case before the Tribunal, with which it did not adequately deal, that the disability and its symptoms had adversely affected the Claimant’s performance in the scoring exercise and thereby led to his selection for redundancy.  He asserted that the Tribunal had failed to conduct an adequate objective analysis of the link between the disability and its adverse impact on his performance in the scoring exercise, which was “something arising” from his disability, within section 15.

15.	Mr Ross accepted that the initial paragraph setting the legal scene for consideration of this issue (paragraph 55) was adequate.  In that paragraph, the Tribunal noted that the Claimant’s case was that he relied on unfavourable treatment in his scoring exercise and ultimate dismissal and that his ability to score well against the criteria adopted was “adversely affected by his depression”.

16.	Mr Ross did not suggest that the Tribunal had misunderstood the law, or the correct approach as established in case law, required to determine the issues under section 15(1).  He accepted that the two causative stages of the exercise were, more or less, correctly expressed at paragraph 62 of the Decision; but he contended that the analysis of the factual matters in the Decision, set out at paragraphs 56 to 61 of the Decision, was inadequate and not properly reasoned.

17.	Specifically, he criticised the Tribunal for stating its finding that they preferred the testimony and explanations of Mr Black, the Respondent’s witness and the Claimant’s manager, who took part in the scoring exercise and worked in close proximity to the Claimant.  Mr Ross said the Tribunal had failed to ask itself properly what the reason was for the Claimant’s inability to focus on daily tasks; and what was the reason for other factors that contributed adversely to his scores, such as that he was said to spend too much time by the vending machine - a point Mr Ross noted that the Claimant attributed to a dry mouth because of the medication he was on.

18.	Mr Ross also criticised the Tribunal for taking account of what he said were irrelevant considerations: such as that the Claimant was regarded overall as a good performer at work and that he had raised the issue of difficulties in focusing at a late stage and had not, until the redundancy exercise started, sought to attribute his difficulties in focusing to his depression.

19.	Mr Allsop, for the Respondent, submitted that it was necessary to view the Judgment in the round, as a whole.  This was a claim in which many causes of action were relied upon and an extensive agreed list of issues was before the Tribunal, which had clearly identified the issues correctly, had understood the law correctly and set it out correctly in its Decision, whose structure was sound.

20.	Mr Allsop submitted that the Claimant’s critique of the Decision was “pernickety” and that the most that could be said by way of criticism of the Decision was that it may have suffered from less than total linguistic clarity, rather than anything worse such as misdirection.

21.	It was not suggested, Mr Allsop pointed out, that the reasons were other than compliant with the standard set in Meek v City of Birmingham District Council [1987] EWCA Civ 9.  Mr Allsop reminded me that there had been no medical expert evidence in the case.  The Tribunal was required to decide the issues on the evidence that it had before it, which materially came from the Claimant himself and, on the Respondent’s side, Mr Black and another employee of the Respondent, as Ms Glasby.  He also pointed out that it was the Claimant’s task to shift the burden of proof if he could.

22.	Mr Allsop submitted that the Tribunal was perfectly entitled to find the Claimant to be an unsatisfactory witness and that its reasoning in relation to all the causative steps involved in the section 15 analytical exercise was unassailable, even if expressed with less than total lucidity.  He pointed out that the Claimant’s attribution of his low scores to disability was a very incomplete account of the full thrust of his case before the Tribunal.  That case was not about reasonable adjustments as such, nor disability discrimination as such; the thrust of the case was that the Claimant regarded himself as hard done by because he said and believed he was the best performer, in particular by reference to his sales figures, and that the disability discrimination claim, even though it is all that is now left of the claim on this appeal, was subsidiary to that broader case.
23.	In my judgment, weighing those rival contentions, the starting point should be that the Claimant was running quite a broad case that was factually founded on his sales record and sense of unfairness that Ms Moors had outscored him overall and was preferred.  He put that case on various bases.  He did indeed outperform Ms Moors on sales performance and on knowledge of the job, but he was let down by his timekeeping and, in a contest that was a narrow one in which both contestants were good and valued employees, it was that timekeeping issue that gave Ms Moors the edge and finally determined the exercise in her favour even though the Claimant’s sales figures were superior.

24.	It seems to me, looking at this Decision as a whole and, as part of that whole, paragraphs 55 to 62 dealing with the section 15 claim, that the reasoning might well have been better expressed.  It would have been preferable for the Tribunal not to have expressed its findings in language such as that which stated a preference for Mr Black’s testimony over that of the Claimant.

25.	However, when one looks at the findings in detail, avoiding any temptation to apply too harsh a linguistic and grammatical standard, that on a fair reading of the Decision and reasoning, what the Tribunal was intending to convey was that they preferred the case for the Respondent on the basis of Mr Black’s evidence, to that of the Claimant on the basis of the Claimant’s evidence.  If one disregards mere linguistic infelicities, it seems to me clear that that is the real thrust of what the Tribunal is saying in those paragraphs.

26.	Mr Allsop is right that the Tribunal was entitled and indeed required to decide the issues on the evidence before it.  The contest was, broadly, between the Claimant’s version of events, which was that he had been discriminated against by reason of various protected characteristics including disability, and the defendant’s, which was that he been outscored on a genuine and objective comparative assessment.

27.	The Claimant did indeed advance as part of his case that his scores were adversely affected by symptoms of his depression.  The Tribunal begged to differ, and it seems to me that if one analyses fairly the way in which it dealt with that factual case, the paragraphs criticised in Mr Ross’ submissions really do no more than explain the Tribunal’s rejection of that asserted causative link.

28.	I am therefore not persuaded that there is anything legally wrong with the reasoning of the Tribunal in those paragraphs, although it would have been better if they had expressed themselves in different language.  The appeal is therefore not well founded and does not succeed.

29.	Although I do not decide the appeal on any other basis than that which I have already stated, I would have been strongly inclined to refuse to remit the matter in any event, even if I had held the ground of appeal well founded, on the basis that the justification defence, had it been considered, was overwhelmingly strong and virtually certain to succeed; but I do not need to, and do not, decide the appeal on that basis.  The appeal fails and is dismissed.