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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Cave v Goodwin & Anor [2001] EWCA Civ 391 (14 March 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/391.html Cite as: [2001] EWCA Civ 391

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Wednesday 14 March 2001

1. LORD PHILLIPS, MR: Lord Justice Peter Gibson will give the first judgment.
2. LORD JUSTICE PETER GIBSON: This appeal gives rise to the familiar question whether an appellate tribunal was entitled to interfere with the conclusions reached by the tribunal of fact, although the context in which the issue arises, a claim under the Disability Discrimination Act 1995 ("the Act"), is one which is, as yet, relatively new.
3. This is an appeal by Mr and Mrs Glyn Goodwin ("the employers") who are the former employers of the respondent, Darren Cave, from the order made on 2 February 2000 by the Employment Appeal Tribunal ("the EAT"). By that order the EAT, by a majority, allowed Mr Cave's appeal from the decision promulgated on 24 October 1998 of an Employment Tribunal ("the tribunal") sitting in Abergele. Thereby the tribunal unanimously dismissed Mr Cave's complaint against the employers of disability discrimination. The employers appealed to this court with the permission of the EAT.
4. The backgrounds facts, in summary, are these. The employers own a residential home, Canterbury House, Rhyl, for the elderly, mentally infirm. Mr Cave was employed as a care assistant from June 1996 until his dismissal on 15 October 1997. The home accommodates 40 residents who are attended by 45 members of staff, some part-time. At the beginning of October 1997 an incident occurred in a resident's room where two female residents were receiving attention. Present were three members of staff, Mr Cave, Ann-Marie Jones and Adam Griffiths. It was said against Mr Cave that he pulled Miss Jones' head towards his groin.
5. On the morning of 14 October Mr Cave was handed a letter of suspension by Stephen Price, the manager of the home. This stated:

"NOTICE OF SUSPENSION AND DISCIPLINARY ACTION

You have been suspended from duty with immediate effect, as a serious complaint has been made about your behaviour....

It has been alleged that during a recent night shift you acted in a vulgar manner towards a female member of staff. The information I have seems to indicate that this was an act of gross misconduct.

A disciplinary meeting at Canterbury House has been arranged for Wednesday 15 October 1997 at 11.00 am which you are required to attend. (You may ask a person, who must be an employee of this nursing home, to be with you at the meeting."

6. Mr Cave wanted a friend, Derek Hurst (who did not work at the nursing home) to act for him at the hearing. But what he was told by the letter is in conformity with the employers' rules which only allow a working colleague to accompany a person, against whom a charge has been made, at a disciplinary hearing. The hearing was conducted by Mr Price, with Renée Condé also attending at his request.
7. The allegation made against Mr Cave, and what occurred at the hearing as seen from the employers' perspective, were set out in a letter dated 16 October 1997 and signed by Miss Condé over Mr Price's name. The letter was in these terms:

"A serious allegation was made against you. I understand that an incident took place during a recent span of night duty. Apparently, you behaved in an extremely vulgar manner towards a female colleague. This was witnessed by a male colleague, and took place in the presence of a female client. I felt that this allegation may constitute an act of gross misconduct, and you were instructed to attend a disciplinary meeting on 15th October 1997.

The people present were Darren Cave, Stephen Price, Colin Parry and Renée Condé. You had invited Mr Parry to attend with you as I had refused to allow your friend Mr Hurst to accompany you as he is not employed by Canterbury House. You had also asked Miss Amanda Foreman to be with you, but she informed me earlier that she was unable to be present. I asked if Ms Condé could be present and you agreed.

We discussed the allegation at some length. The main issue centred around whether you had pulled a female carer's head between your legs. You admitted that this had taken place, but stated that you had pulled her head against your lap. When asked for an explanation your reply was that you got 'carried away' and 'I didn't know what I was doing - it's the way I am'.

My understanding is that the female colleague involved was distressed at this and reacted by verbally challenging your actions and by kicking you.

It was put to you that it has previously been necessary to speak to you about your attitude and behaviour towards female colleagues. This alleged incident suggests that you have chosen to disregard my warnings.

Having considered the circumstances surrounding the allegation and your admission that the incident took place I have decided that you will no longer work at Canterbury House. My decision is based upon the following points.

Your behaviour was offensive and beyond what I consider acceptable in the workplace.

Your actions caused distress to a female colleague.

The incident took place in a client's bedroom. I feel you showed a lack of respect of consideration for the female occupant.

I now feel unable to trust you to work with vulnerable clients.

I am not convinced at your assurance that an incident of this nature will not happen again."

8. Mr Cave was advised of his right to appeal to the employers; he availed himself of that right. He was accompanied by another person at the appeal hearing before the employers on 31 October 1997. At that hearing Mr Cave challenged the account given in the letter of 16 October in a number of particulars, one of which was that he said that he did not pull Miss Jones' head down between his legs; he said he was sitting at the time and put her head on his lap. The ground on which he wished to appeal was that the penalty was too severe and that he wanted a second chance. The employers dismissed the appeal saying in a letter dated 6 November 1997:

"With our clients' welfare first and foremost, we are not prepared to take the risk of a similar incident occurring in the future."

9. An alternative position suggested as a possibility by the employers was not acceptable to Mr Cave.
10. Mr Cave applied to the tribunal on 7 January 1998 complaining of unfair dismissal. In their notice of appearance the employers pointed out that Mr Cave had not been employed long enough to have the right to complain of unfair dismissal. However, by a letter of 19 January 1998 Mr Hurst, for Mr Cave, asked that the case be changed to one of disability discrimination which led to Mr Cave being unfairly dismissed.
11. At this point it is convenient to refer to the relevant statutory material. Section 1 of the Act provides:

"(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

(2) In this Act 'disabled person' means a person who has a disability."

12. Schedule 1 contains provisions supplementing section 1 by expanding on the terms used in the section.

Part II of the Act deals with employment. Section 4 sets out the circumstances in which it is unlawful for an employer to discriminate against a disabled person. The relevant provision is in subsection (2) which reads:

"It is unlawful for an employer to discriminate against a disabled person whom he employs-

....

(d) by dismissing him, or subjecting him to any other detriment."

13. Section 5 gives the meaning of 'discrimination'. By section 5(2):

"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."

14. Section 6 is headed "Duty of employer to make adjustments". Section 6(1) provides so far as material:

"Where

(a) any arrangements made by or on behalf of an employer,

....

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 such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements .... having that effect."

15. By section 6(2):

"Subsection (1)(a) applies only in relation to-

(a) arrangements for determining to whom employment should be offered;

(b) any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded."

16. It is accepted that arrangements relating to disciplinary hearings are arrangements on which employment is afforded.
17. Subsection (3) gives a number of examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1). They include:

"(j) modifying procedures for testing or assessment;

(k) providing a reader or interpreter;

(l) providing supervision."

18. Subsection (4) sets out the matters to which regard shall be had in determining whether it is reasonable for an employer to have to take a particular step in order to comply with subsection (1). By subsection (5) 'the disabled person concerned' means a disabled person who is an employee of the employer concerned.
19. Section 6(12) reads:

"This section imposes duties only for the purpose of determining whether an employer has discriminated against a disabled person: and accordingly a breach of any such duty is not actionable as such."

20. By section (8)(1):

"A complaint by any person that another person has discriminated against him in a way which is unlawful under Part II may be presented to a tribunal."

21. To sum up the effect of the Act thus far, a disabled person can bring a complaint of unlawful discrimination to a tribunal. Discrimination under section 5(2), by virtue of a failure to comply with a duty under section 6, is not enough for such complaint because it must be shown that the discrimination is unlawful under section 4. If there is discrimination under section 5(2) and section 6, but, for example, that has nothing to do with the dismissal or other detriment to which the disabled person is subjected (if section 4 (2)(d) be the provision on which reliance is sought to be placed), then the disabled person has no sustainable complaint.
22. By section 53(1):

"The Secretary of State may issue codes of practice containing such practical guidance as he considers appropriate with a view to-

(a) eliminating discrimination in the field of employment against disabled persons."

23. Section 53(4) provides that:

"A failure on the part of any person to observe any provision of a code does not of itself make that person liable to any proceedings."

24. By subsection (6):

"If any provision of a code appears to a tribunal or court to be relevant to any question arising in any proceedings under this Act, it shall be taken into account in determining that question."

25. A code coming into force on 2 December 1996 was issued under section 53(1)(a). Two provisions of the code are relevant. Paragraph 4.17, under the heading "What disadvantages give rise to the duty", states:

"The Act says that only substantial disadvantages give rise to the duty. Under section 6(1) 'substantial disadvantages' are those which are not minor or trivial."

26. By paragraph 8.3, headed"Do existing grievance and disciplinary procedures need changing?", it is stated:

"Where grievance or disciplinary procedures are in place, the employer might wish to review, and where necessary adapt, them to ensure that they are flexible enough to be used by disabled employees. Where a formal grievance (or disciplinary) procedure operates, it must be open, or applied, to disabled employees on the same basis as to others. Employers will have to ensure that grievance (or disciplinary) procedures do not, in themselves, discriminate against disabled employees and may have to make reasonable adjustments to enable some disabled employees to use grievance procedures effectively or to ensure disciplinary procedures have the same impact on disabled employees as on others."

27. Then an example is given:

"An employee with a learning disability has to attend an interview under the employer's disciplinary procedures. The employee would like his guardian or a friend to be present. The employer agrees to this but refuses to rearrange the interview to a time which is more convenient to the guardian or friend. The employer may be in breach of the duty to make a reasonable adjustment."

28. The claim of disability discrimination came before the tribunal. It was based on two matters: (i) the letter of suspension of 14 October 1997, and (ii) the fact that Mr Hurst was not allowed to accompany Mr Cave at the disciplinary hearing. Mr Hurst is not a lawyer but he represented Mr Cave before the tribunal.
29. In its extended reasons the tribunal set out in full and careful detail the points which arose for decision and its reasons for its conclusions. The first question it considered was whether Mr Cave had a disability within the meaning of the Act. The tribunal said that it had referred to section 1 of, and schedule 1 to, the Act and to the Code of Practice in some detail. It considered two aspects of disability, viz epilepsy and learning disability, and found that Mr Cave did have a disability within the meaning of the Act under each head. I need say nothing more about epilepsy as it was not suggested that Mr Cave's epilepsy played any relevant part in his case.
30. The tribunal examined in great detail Mr Gave's learning disability. In paragraph 5 of its decision, it said:

"Turning to the question of learning disability, the position is less straightforward. Essentially what it comes to is that the applicant has poor standards of literacy. He is not a good reader, he is not a good writer. On the other hand, it certainly cannot be said that he is illiterate. The applicant demonstrated to us, with some confidence we may say, during the course of giving evidence what he was able to read and his limitations in reading. He was quite able and willing to say when he needed some assistance and to carry on when he did not, so that he is not a person who cannot read, but we accept what he says that he is a poor reader and he feels restricted in some ways by the inadequacy of his reading."

31. In paragraph 7 the tribunal said:

"....the applicant is by no means an extreme case and we are sure that in many circumstances where he was not called upon to display literacy, or numeracy or other of the things he has difficulty with, people in his company might not realise that he has learning difficulties. He is not an extreme case by any means, but neither can we say that his learning disability is minor or trivial: it is certainly something more than minor, something more than trivial, and we do think that it does come into the category of a substantial adverse effect although on the scale of such substantial effects it may not rate at the very top end....memory learning, and understanding are the areas where the applicant's impairment plainly does have a substantial effect."

32. Having found that Mr Cave had relevant disabilities, the tribunal then considered the second question: whether the employers discriminated against Mr Cave. The complaint was that they failed to comply with their duty under section 6(1). The tribunal set out what is contained in section 6(1) and referred to the arrangements about which Mr Cave made complaint. They referred to the letter of suspension which was given in writing to Mr Cave despite his known difficulties in reading and to his allegation that Mr Price had declined to read the letter to him.
33. The second matter was the employers' refusal to allow Mr Cave the advocate of his choice, Mr Hurst, to attend and represent him at the disciplinary hearing. The tribunal referred to the employers' explanation that it was part of their rules that only a work colleague might accompany a person in disciplinary hearings. It commented:

"That is not an unusual rule by any means, indeed it is probably more usual than the contrary. That is not to say that such a rule might not have the effect of placing a disabled person at a substantial disadvantage, that is certainly possible. Therefore we think it would be wise for this respondent and indeed all employers to bear in mind, at any stage where they have a rule, whether the application of that rule might place a disabled person at a substantial disadvantage. If it did so, then they would have a duty to take some other steps such as were reasonable to prevent that effect. It is not enough to say, 'We have a rule, we applied it and that's the end of the matter'. When an employer is dealing with a disabled person he has to consider the question of making adjustments to avoid substantial disadvantage."

34. The tribunal then asked the question, "How did that affect this applicant?"It considered each complaint in turn in the light of the evidence which it had heard. It said of the suspension letter:

"It is a letter which the applicant for the most part was able to read to us in his evidence, although he did have difficulty with some of the longer words, and we accept the applicant's evidence that, even though he may be able to read something aloud, it does not necessarily follow that he is able to take in everything that is meant by the letter, and he really needed some explanation as well as just having the letter read to him."

35. The tribunal pointed out that it was not concerned with matters which related to the complaint of unfair dismissal. It accepted Mr Cave's evidence that when Mr Price handed him the letter of suspension he did not give Mr Cave details of the allegations against him. The tribunal said in paragraph 11:

"We do not think there was a full explanation from Mr Price relating to all of the circumstances of the allegation, but there was plainly, as the applicant admitted, some conversation between him and Mr Price, when the letter was handed over, about what it contained."

36. However the tribunal found that there was another way by which Mr Cave knew what was being alleged against him. It said in paragraph 12 that two other members of staff, Amanda Foreman and a female by the name of Sian, had discussed the case with him on his way home on 14 October. They had told him what the case was about. The tribunal referred to Mr Cave's own evidence and said:

"That piece of evidence from the applicant plainly tells us that there was no mistake about what incident was being referred to, there is enough detail there to make it quite clear that he knew from Amanda and from Sian what was being referred to."

37. The tribunal also referred to a telephone conversation between Mr Cave and Mr Hurst when the contents of the suspension letter were discussed. The tribunal said in paragraph 13:

"Thus in the result the applicant was told by those various people what was going on and was not in any doubt about the allegation. We have to say that we do not think it was wise of Mr Price to hand a formal letter of such importance as a letter of suspension to the applicant, someone whom he knew to have considerable reading difficulties, without ensuring that there was an opportunity for the applicant either to read it or to have it read to him and without satisfying himself that that had been done properly and thoroughly before proceeding the following day with the disciplinary hearing. But, as I have said, more by luck than by good judgment, it so happened that others, particularly Amanda Foreman and Sian, were able to make good that deficit and to fill in from their own knowledge the details which the applicant otherwise might not have had. Had he been in his position, confronted with a letter, evidently in writing, and had he not had the opportunity to get information from others to fill in those gaps, it may well be that he could have been at a substantial disadvantage when it came to the hearing the following day. But, as we say, by good fortune rather than anything else, that did not turn out to be so. As things happened, the written suspension letter did not place the applicant at a substantial disadvantage because by the time he came the following morning to the disciplinary hearing he knew what was in it because it had been read by others and explained to him, and he also knew more than what was in it, he knew details of the incident being referred to, although they were not in the letter, because they were told to him by Amanda and Sian."

38. Of the refusal by the employers to allow Mr Cave the advocate of his choice, the tribunal said in paragraph 14:

"Here we have to bear in mind our finding that, whilst the applicant, as we have found, has a disability, nevertheless his is not an extreme case. We have heard the applicant giving evidence for several hours and being cross-examined at some length. We have heard him being tested, to some extent, on his reading ability and we were impressed at the way he conducted himself. He did not appear to be overawed by the surroundings in the tribunal at all, certainly less so than many other people we see from time to time. The applicant, we are sure, is quite capable of expressing himself in words. He has no oral difficulties of communication. His learning difficulties affect his written communication - his reading, his writing and very probably his numeracy - but when it comes to speaking and expressing himself he is quite forthright, quite able to express himself, quite able to say and confident enough to say when he does not understand something, which may be as important as anything else, so that things are explained to him."

39. The tribunal also referred to the notes of the disciplinary hearing, which made clear to the tribunal that Mr Cave did express his views. The tribunal further referred to the fact that when Mr Cave was told that the result of the hearing was that he would not remain employed at the employers' home, he was able to suggest that there might be some advantage to him in being allowed to resign rather than being dismissed.
40. The tribunal commented that all that made it quite clear that this was not an applicant who was not able to speak on his own behalf, not an applicant who was not able to understand what was going on. Further, he was accompanied, although not by the advocate of his choice.
41. The tribunal concluded in paragraph 18:

"We bear in mind the weight and the meaning of the word 'substantial' in Section 6(1) of the Act. It is not just that the applicant might have liked things to be otherwise, but that the arrangements made by the respondent caused him a substantial disadvantage, that is what is required. We cannot see in this case any evidence of the applicant, although he had a disability, being placed at a substantial disadvantage by reason of the arrangements which this respondent made for the disciplinary hearing on 15 October."

42. Accordingly the tribunal dismissed Mr Cave's case.
43. Mr Cave then appealed. His appeal was allowed to go to a full hearing of the EAT. The President, Lindsay J, in an ex tempore judgment, set out the views of both the majority and the minority. The majority accepted the submissions of Miss Hewson, who appeared for Mr Cave, as she does before us today, that there was no sufficient comparison under section 6(1) of Mr Cave's position and that of persons who were not disabled, taking the view that an able-bodied person would have been told, in a dismissal case depending on a disciplinary hearing, the nature of the case against him and would have required that to be made plain before the disciplinary hearing began.
44. The majority further accepted a submission by Miss Hewson that the employers, in effect, rode rough shod over Mr Cave's request that Mr Hurst should attend the disciplinary hearing. The majority found an error of law in this, and the majority also found that the tribunal failed to go through the required processes as indicated in Morse v Wiltshire County Council [1998] IRLR 352. In that case, the EAT held that the tribunal should decide (a) whether section 6(1) imposed a duty on the employer in the particular circumstances; (b) if so whether the employer had taken reasonable steps to prevent the arrangements which the employer had made having the effect of placing the disabled person at a substantial disadvantage; and (c) if the employer had not done so, whether it had shown that its failure to do so was justified.
45. The majority found that the tribunal's decision was flawed, the employers having declined to make any adjustment in Mr Cave's favour for his disabilities. The fact that Mr Cave learned in any sufficient detail the nature of the charge against him was by luck and that was an unsatisfactory way of apprising an employee of the serious charge laid against him. The majority therefore took the view that the tribunal's decision should be set aside and the case remitted to a fresh tribunal.
46. On this appeal Mr Benson, appearing for the employers, submitted that the majority of the EAT erred in substituting their own views of the facts relevant to the issues for those of the tribunal. Those issues were (i) what arrangements had been made by the employers in relation to the disciplinary procedure, involving Mr Cave; (ii) whether those arrangements placed Mr Cave at a disadvantage compared with persons who were not disabled; and (iii) whether any disadvantage was substantial. He stressed that it was only if Mr Cave was placed at a substantial disadvantage in comparison with able-bodied persons by the employers' arrangements that the duty under section 6 arises.
47. Mr Benson accepted that the tribunal did not expressly refer to a comparator who is not disabled, but he said that the whole tenor of the decision indicated that the tribunal had in mind that whether Mr Cave was at a substantial disadvantage entailed a comparison with someone who did not suffer from Mr Cave's disability. He said that whether Mr Cave was placed at substantial disadvantage was a pure question of fact for the tribunal. He argued that was no error of law.
48. Miss Hewson submitted that the tribunal did err in law and that the majority in of the EAT were right so to hold. She submitted that:

(1) the tribunal failed to apply the test of substantial disadvantage in assessing the impact on Mr Cave of the employers' refusal to allow Mr Hurst to represent him, and that the tribunal appears to have thought that "substantial" meant "major";

(2) the tribunal failed to apply the right comparator (that is, persons who are not disabled) and did not address its mind to the question whether Mr Cave was at a more than trivial disadvantage in being thrown into a disciplinary hearing without a friend to help him, the tribunal concentrating only on Mr Cave's performance as a witness before it;

(3) the tribunal failed to take into account paragraph 8.3 of the code which provided an example particularly relevant to this case, in that it envisaged that it was reasonable for a learning disabled employee to have a friend present and that employers should accommodate such a request, and the failure by the tribunal to advert to that example in the code indicated that it was left out of account; and

(4) the tribunal should have adopted the analysis in Morse and there was nothing to indicate that the tribunal had made any real inquiry into the steps which the employers might have taken to enable Mr Cave's request to be met or the reasons why his request could not be met.

49. The jurisdiction of the EAT is limited to questions of law. It has been stated repeatedly in this court that the EAT cannot interfere with findings by the tribunal so long as there is material on which its findings could properly be made, there is no misdirection in law and the findings are not perverse. The fact that, for example, a provision in a Code of Practice is not mentioned expressly by the tribunal in its decision, does not mean that the tribunal has overlooked that provision or has made any error of law (see Retarded Children's Aid Society Ltd v Day [1978] ICR 437 at page 443D-E per Lord Denning MR).
50. In the present case it has not been suggested by Miss Hewson that the tribunal's findings were perverse, but only that it misdirected itself in law. Further, Miss Hewson has not addressed oral argument to us in support of the conclusion of the majority of the EAT that there was some error of law relating to the letter of suspension. I think that she was right not to do so. In my judgment, the majority failed to identify any error of law. The employers' arrangements in relation to the letter are certainly open to criticism. It might be possible to argue that an employer who sends a letter giving notice of a serious charge to a person with reading difficulties, and who does not arrange for an adequate oral explanation of the charge, does place the disabled person at a serious disadvantage at the disciplinary hearing in comparison with non-disabled persons. But in the present case, in the events that have happened as found by the tribunal, any breach of duty under section 6(1) was not causative of the dismissal relied on as the detriment. Accordingly, there was no unlawful discrimination on this account. I need say no more on this point.
51. I agree with Mr Benson that the question whether or not a disabled person, by not being allowed the advocate of his choice, has been placed at a substantial disadvantage in comparison with persons not disabled, is a question of fact for the tribunal. Like the minority member of the EAT, I am unable to detect any error of law by the tribunal on this point. The decision of the tribunal seems to me to evince proper sympathy with Mr Cave suffering from his disabilities. The tribunal has given full consideration to the facts and to the application of the law to the facts. It recognised in paragraph 9 of its decision that a disabled person could be placed at a substantial disadvantage by a rule excluding anyone not a working colleague from attending at a disciplinary hearing with the disabled person, and that if the disabled person was so placed the employer would be under a duty to take reasonable steps to prevent that effect. But, correctly, the tribunal went on to ask how that affected Mr Cave, and to answer that, it proceeded to look at the particular evidence which it had heard.
52. I see no basis for saying that the tribunal treated the meaning of "substantial" as "major". On the contrary, when dealing in paragraph 7 with the meaning of "substantial" in section 1, it made plain in the passage which I have already cited from that paragraph that, because the effects of Mr Cave's disability were something more than minor and more than trivial, the adverse effect was substantial even though not at the very top end of the scale. There is no reason to infer that the tribunal treated "substantial" as having a different meaning in section 6(1). It said that it bore in mind the weight and meaning of "substantial" in that subsection. It had looked at the code and I have already referred to the meaning given in paragraph 4.17 which is consistent with the meaning which the tribunal gave to it in paragraph 7.
53. Nor can I accept that the tribunal failed to apply the right comparators. At the outset of the tribunal's consideration of the second question, it had set out section 6(1) in full. That indicates expressly what comparison is to be made. It would be wrong to infer from the absence of further mention of the statutory comparators that the tribunal proceeded to ignore them. The very word "disadvantage" implies that a comparison is to be made. To put it another way, I am not aware of any instance of the use by the tribunal of the phrase "substantial disadvantage" which is inconsistent with that being shorthand for substantial disadvantage in comparison with persons who are not disabled. To my mind it is implicit throughout that the tribunal was comparing Mr Cave with non-disabled persons, and it was finding that he compared more than adequately. In my view, the tribunal was entitled to use the evidence of its own eyes and ears as to how Mr Cave coped as a witness before it, particularly when it also could see from the note of the disciplinary hearing what Mr Cave had then been saying.
54. I also cannot accept Miss Hewson's point on paragraph 8.3 of the Code. The tribunal said that it had referred to the Code in some detail. The fact that paragraph 8.3 is not expressly mentioned does not lead to the conclusion that the tribunal failed to take it into account. Paragraph 8.3 does not say that when a person with learning disabilities is denied the presence of a friend of his choice at a disciplinary hearing the employer is in breach of the duty under section 6(1). It merely says that the employer may be in breach. Thereby, as it seems to me, it is recognised that there could well be circumstances when the duty did not arise because the disabled person was not placed at a substantial disadvantage. Whether the employer is in breach is a question of fact for the tribunal of fact to determine.
55. As for the alleged failure to adopt the analysis in Morse, unless the duty under 6(1) arose there was no need for the tribunal to consider what steps should be taken to prevent the arrangements of the employers placing the disabled person at a substantial disadvantage. As the tribunal properly found that Mr Cave was not placed at a substantial disadvantage, the duty never arose and it was accordingly unnecessary for the tribunal to follow the subsequent steps which are envisaged in Morse.
56. It would appear that the majority of the EAT disagreed with the tribunal over the merits of the case, having regard to the inadequacies of the employers' behaviour before and in the conduct of the disciplinary hearing. That, in my judgment, is not a proper basis for interfering with the tribunal's decision in the absence of any error of law. As I have said, I can detect no such error.
57. For these reasons, therefore, I would allow this appeal, set aside the order of the EAT and restore the decision of the tribunal.
58. LORD JUSTICE LATHAM: I agree.
59. LORD PHILLIPS, MR: I also agree.
Order: Appeal allowed with costs to be paid by the Respondent who was in receipt of funding by Legal Services Commission. Respondent's liability assessed at nil (Section 11). Order of the EAT to be set aside and decision of the Tribunal restored.