Appeal No.	 EAT/812/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                  At the Tribunal
	           On 11 October 2002
Judgment delivered on 29 November 2002

Before
THE HONOURABLE MR JUSTICE WALL
MR D CHADWICK
MR K EDMONDSON JP

BAX GLOBAL LIMITED	APPELLANT

MRS F FRENCH	APPELLANT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS NAOMI ELLENBOGEN
(of Counsel)
Instructed by:
Messrs Mayer Brown Rowe & Maw
Solicitors
11 Pilgrim Street
London EC4V 6RW	
For the Appellant	MISS ELAINE BANTON
(of Counsel)
Instructed by:
Messrs Levenes
Solicitors
Grove House
140/142 The Grove
Stratford
London E15 1NS	

MR JUSTICE WALL

1	This is an appeal by Bax Global Ltd (the Appellant) against the Decision of the Employment Tribunal held at London South on 31 May and 1 June 2001, followed by deliberations in chambers on 8 June 2001, with the Decision entered on the register and copies sent to the parties on 5 July 2001.

2	The unanimous Decision of the Tribunal was that;
(a) the Appellant had dismissed the Applicant (Mrs Frances French) by reason of redundancy;
(b) that dismissal was unfair; and 
(c) the Appellant had discriminated against Mrs French, contrary to section 4(2)(d) of the Disability Discrimination Act 1995, by dismissing her.  Subject to the outcome of this appeal, a remedies hearing is due to take place on  18 and 19 December 2002.

The facts
3	Mrs French, who is now forty eight, was continuously employed by the Appellant as an Executive Assistant between 5 June 1989 and 21 November 2000.  The Appellant is a global transportation and logistics company, and in January 2000, she was working at its premises in Feltham, which accommodated the Appellant’s United Kingdom headquarters and its regional office, in which altogether were employed some two hundred people.  The Tribunal found that Mrs French had a very good work record.  As from September 1999, she and one Ms  Teresa Randall, another Executive Assistant, provided support for six Executives in all, and would cover each other’s work in case of absence.  Unfortunately, however, Mrs French  did not enjoy a good relationship with Ms Randall.  

4	On 29 March 2000, following what Mrs French described as “incidents of bullying and harassment” by a member of the Appellant’s staff, Mrs French went sick, and was diagnosed both by her General Practitioner and by Dr Britton of the Occupational Health Department at St Peter’s Hospital in Chertsey, as suffering from depression.  The latter confirmed the diagnosis to the Appellant’s Human Resources Director for Europe, the Middle East and Africa, 
Mr Greaves in a letter dated 14 June 2000.  The Tribunal also had before it an undated psychiatric report from Dr Neil Brener of the Priory Hospital in North London (written  following an examination of Mrs French on 2 May 2001) which stated in terms that Mrs French was suffering from a  “major depressive illness, moderate to severe in severity, as defined as ICD 10”.  She scored 45/63 on a well known standardised questionnaire (the Beck Depressive Inventory) which, Dr Brener says, placed her in the “severe depressive range”.  It was clear to him that her life had been debilitated by her depressive illness; that it could be defined as “long term” and that she was clearly not well enough to work.  

5	In these circumstances, the Appellant rightly acknowledged before the Tribunal, and did not dispute before us,  that Mrs  French was a “disabled person” within Part 1 of the Disability Discrimination Act 1995.

6	On 31 August 2000, one of the Executives for whom Mrs French provided support, Mr C Wheeldon, (Vice-President Global Sales) left the Appellant’s employment.  He was replaced, but not in the United Kingdom.

7	By September 2000, the Tribunal accepted the Appellant’s evidence that it was not performing well financially, and that as a consequence it  decided to abolish some management posts in the United Kingdom.  The post of Regional Sales Director (Ms C Essex) another of the Executives for whom Mrs French had been working, was abolished, and in September the Appellant decided that there was no longer any need for two Executive Assistants (the posts held by Mrs French and Ms Randall).

8	In these circumstances, the Appellant selected Mrs French for redundancy.  One of the principal reasons appears to have been that it had been discovered the Ms Randall had linguistic abilities in French, Italian and Spanish, something which it was said was very useful to the Appellant.  

9	The manner in which the selection process took place so far as Mrs French was concerned was as follows.  She met Ms Denison (the Appellant’s Human Resources Director for the United Kingdom) in late September, when the matter was mentioned to her informally.  On 5 October 2000, Mr Greaves had a meeting with Mrs French at her home, at which he told her she was redundant.  He confirmed this by letter dated 6 October.  By a subsequent letter dated 27 October, he sent a list of vacancies in the Appellant’s United Kingdom workforce to Mrs French, and also mentioned a possible new job involving desk top publishing, in which Mrs French had some experience.  The letter asked Mrs French to notify her interest (if any) by 3 November 2000, but Mrs French did not do so.  In subsequent correspondence, Mrs French told Mr Greaves that she did not feel well enough to make a decision about work, and on 14 November 2000, Mr Greaves asked for any further expressions of interest in redeployment, stating that if Mrs French did not pursue these matters by 20 November, her contract of employment would be terminated on the grounds of redundancy.

10	On 17 November 2000, in a letter relied on by Ms Ellenbogen for the Appellant, Mrs French made it clear that she did not feel well enough to contemplate employment with the Appellant “or anywhere else at the present time” and stated in terms that she did not wish Mr Greaves to “offer” her an alternative role with the Appellant.  She added:
“The thought of returning to work at BAX Global after the treatment I have received is why I am finding it so difficult to overcome my depression.  How can you possibly expect me to return to work at a company where I received no support from my superiors when I desperately needed someone to listen to me?  I would find the whole ordeal too humiliating and degrading.
I am still finding it hard to believe and to come to terms with that after eleven years loyal service that past events have been allowed to happen and nothing was done.”

11	On 20 November 2000, Mr Greaves replied as follows: 
“I refer to my letter to you of 10th October where I confirmed that your position with BAX Global was to be abolished.  Since that letter we have exchanged correspondence and your most recent letter, dated 17th November, indicated that you do not wish to be considered for redeployment into a mutually suitable alternative role.  It is therefore with regret that I must confirm that your contract of employment with BAX Global is terminated on the grounds of redundancy with effect from 21st November 2000.”

12	The Tribunal found that by February or March 2001, the Appellant’s business had improved and that another Executive Assistant was appointed with the same telephone extension number as that which Mrs French had had at work.  

The conclusions of the Tribunal
13	Having set out in some detail the rival submissions of both parties and the law relating to both unfair dismissal and disability discrimination, the Tribunal concluded that in relation to Mrs French’s complaint of unfair dismissal it was for the Appellant to show the reason or principal reason for the dismissal, whereas in the complaint of disability discrimination, it was for Mrs French to make out her case of unjustified, less favourable treatment for a reason relating to her disability.  The first two questions determined by the Tribunal were (1) was Mrs French dismissed by the Appellant? and (2) was she a disabled person within the meaning of that term in the Disability Discrimination Act 1995?.  The answer to both questions was in the affirmative.  In particular, the Tribunal decided that from March 2000 Mrs French was suffering from a mental impairment (clinical depression) which had a substantial and long term adverse effect on her ability to carry out normal day-to-day activities:- see sections 1 and 3 of the Act, together with paragraphs 1(1), 2 and 4(1)(g) of Schedule 1 to the Act, and the Guidance.  

14	The Tribunal then turned to consider whether or not there was a “redundancy situation”.  The Tribunal decided, on the evidence, that the requirements of the Appellant’s business for employees to carry out work of a particular kind at Feltham had diminished (section 139(1)(b)(ii) of  ERA 1996, and that Mrs French had been dismissed by reason of redundancy.  

15 	The Tribunal then turned to consider whether the dismissal was fair or unfair.  Basing itself on Williams -v- Compair Maxam [1982] ICR 156, the Tribunal held that the steps which needed to be taken by an employer in respect of an impending redundancy were (1) to warn; (2) to consult properly; (3) to use objective selection criteria (applying them fairly and reasonably); and (4) to make reasonable attempts to find alternative employment.  

16	The Tribunal found that in the instant case Mrs French was given no prior warning, and was consulted only in respect of redeployment.  The Tribunal did not consider that this was an extreme case in which the Appellant could properly argue that taking such steps would genuinely have been fruitless, and would thus have made no difference to the outcome, as identified in  Polkey -v- Dayton Services Ltd [1987] IRLR 503.  The Tribunal pointed out that discussion about the existence and nature of the job which (it found) was to replace the two jobs formerly performed by Mrs French and Ms Randall, might have yielded suggestions as to the possible suitability of Mrs French for that post.  In accepting that the Appellant’s selection criteria for the replacement post were linguistic abilities, qualifications or ability to perform the functions of the job and “seniority” (in the sense of experience and the type of work) the Tribunal concluded that the post which remained after the redundancy was in fact a new post.  Linguistic abilities had not been a requirement when the original job had been applied for by Mrs French and Ms Randall.

17	The Tribunal held there was procedural unfairness in the redundancy process.  Mrs French had not been made aware of the fact that linguistic abilities were required, and had therefore been unable to discuss them with the Appellant.  Furthermore, Mrs French had far more experience of carrying out the other functions of the post than Ms Randall, but simply did not have the opportunity to emphasise her experience and expertise in the redundancy process.  Whilst the Appellant had given her a list of other vacancies in the organisation, and in particular had mentioned a new post involving desk top publishing, the Tribunal considered it unfair to deprive Mrs French of the chance of learning about and discussing the new post.  Furthermore, the Appellant had failed to set out the selection criteria - or indeed anything about the redundancy process - in writing and this had not assisted Mrs French, the selection process itself, or indeed the Tribunal.  In all the circumstances, the Tribunal came to the conclusion that the dismissal was unfair within section 98(4) of ERA 1996.  

18	Finally, the Tribunal found that the Appellant had discriminated against Mrs French by reason of her disability.  She had been away from work since March 2000, and was away when the redundancy situation arose.  The Tribunal found that it was because she was absent, owing to her disability, that the Appellant failed to discuss the redundancy situation with her.  Had she been at work and in contention for the post, she would not have lost the chance of consultation and discussion.  On the facts found, the Tribunal inferred that Mrs French was less favourably treated (because she was away from work on account of her disability) than the Appellant would treat others who were not away from work because of disability.  The Tribunal took the view that no justification for this less favourable treatment has been put forward and accordingly decided that the Appellant had discriminated against Mrs French within section 5(1) of the 1995 Act by failing to give her the opportunity of contending for the new post, with the consequence that she was dismissed.

The arguments for the Appellant
19	For the Appellant, Ms Naomi Ellenbogen attacked the Tribunal’s Decision in a number of ways.  Firstly, in relation to disability discrimination, she submitted that in the context of its  findings that there had existed a genuine redundancy situation, and that Mrs French had been dismissed as redundant following the application by the Appellant of genuine selection criteria, it was inconsistent of the Tribunal to have gone on to find that the dismissal had constituted an act of disability discrimination.  The only act of discrimination alleged was the dismissal itself, and accordingly, unless there was an inexorable causal link between the failure on the part of the Appellant to have consulted with Mrs French prior to having implemented the dismissal and the dismissal itself, Mrs French’s claim had not been established.

20	Furthermore, Ms Ellenbogen argued that the Tribunal had made findings of fact in the Appellant’s favour on three aspects namely: (a) that the Appellant had demonstrated a genuine requirement for linguistic skills in the newly created post; (b) that Mrs French lacked such linguistic skills; and (c) that Ms Randall (to whom the new post had been awarded) had possessed such linguistic skills. Ms Ellenbogen submitted that the inevitable consequence of these findings was that no amount of consultation would have avoided Mrs French’s dismissal or, at the very least, that the Tribunal’s conclusion to the contrary called for a detailed explanation, which the Tribunal had not provided.  

21	Ms Ellenbogen also argued that it was Mrs French’s decision to have removed herself from any process of consultation, and in these circumstances the absence of consultation could not properly be considered as less favourable treatment of her by the Appellant for the purpose of section 5(1)(a) of the Disability Discrimination Act.  Ms Ellenbogen also complained that the Tribunal should not have reached its conclusion on this point in the absence of submissions from the parties in relation to it.  

22	On the issue of unfair dismissal, Ms Ellenbogen once again relied upon Mrs French’s letter to Mr Greaves dated 17 November 2000 to the effect that there were no circumstances under which she would have returned to work for the Appellant in any capacity or in any event.  In these circumstances, Ms Ellenbogen argued that it was Mrs French’s own act which brought about the alleged “procedural unfairness” which could, as a consequence, not be laid at the Appellant’s door.  If there was no procedural unfairness, then on the facts of this case, the dismissal must have been fair.  In the alternative, since no consultation would have made any difference to the ultimate outcome, Mrs French, in removing herself from consideration of any form of employment by the Appellant, contributed to her own dismissal by 100%, or at least by a very high percentage.

23	Finally, Ms Ellenbogen argued that the Decision was not Meek compliant, that is to say the Tribunal’s Decision was not sufficiently clear to enable the Appellant to understand why it had lost.  Furthermore, since the issue of contributory fault had been raised at the hearing, the Tribunal was bound to have recorded its findings on that issue and to have given its reasons for any such findings.  

24	For Mrs French, Ms Elaine Banton sought to uphold the Tribunal’s findings.  She began with the concession by the Appellant that Mrs French was disabled within the meaning of the Act.  She submitted that it was, accordingly, open to the Tribunal to find on the evidence that the Appellant’s dismissal of Mrs French was an act of discrimination, and that the Tribunal had given adequate reasons for reaching that conclusion.  Ms Banton referred us to a number of authorities.  For the correct approach to the question, she relied on Clark -v- TGG Ltd trading as Novacold [1999] IRLR 318, which was the first case to come before the Court of Appeal under the Disability Discrimination Act 1995.  At paragraph 89-92 of his judgment, Mummery LJ summarises the law in the following way:-
“In brief, the legal position is that:
(1) Less favourable treatment of a disabled person is only discriminatory under s.5(1) if it is unjustified.
(2) Treatment is less favourable if the reason for it does not or would not apply to others;
(3) In deciding whether that reason does not or would not apply to others, it is not appropriate to make a comparison of the cases in the same way as in the 1975 and the 1976 Acts.  It is simply a case of identifying others to whom the reason for the treatment does not or would not apply.  The test of less favourable treatment is based on the reason for the treatment of the disabled person and not on the fact of a disability.  It does not turn on a like-for-like comparison of the treatment of the disabled person and of others in similar circumstances.
(4) The act of dismissal from employment falls within s.5(1), but not within s.5(2) and s.6; but an employee who has been dismissed may bring a case under s.5(2) for pre-dismissal discrimination involving a breach of a s.6 duty.  
(5) A s.5(2) claim for a breach of a s.6 duty is not dependent on successfully establishing a claim under s.5(1).  They are different causes of action, even though, as recognised by s.(5)(3), they may overlap.  
(6) The question whether treatment has been shown to be justified is a question of fact to be determined on a proper self direction on the relevant law.  Such a self-direction includes taking into account those parts of the Code of Practice which a reasonable tribunal would regard as relevant to the determination of that question.”  

25	In amplification of her argument on this point, Ms Banton submitted that Mrs French’s case was on all fours with that of the Applicant in Cosgrove -v- Caesar & Howie [2001] IRLR 653.  Ms Cosgrove had been employed as a legal secretary by a firm of solicitors.  She was absent from work for a year from December 1997 to December 1998, suffering from depression.  She was dismissed in December 1998.  Her claim that she had been discriminated against on the grounds of her disability was rejected by the Employment Tribunal, which held that there was no evidence to suggest that her employers would have treated anyone else differently who had been absent from work for over a year.  Such a lengthy absence without a proper basis justified her dismissal.  

26	The EAT allowed her appeal, and determined that she had been discriminated against, and remitted the case to the Tribunal for a hearing on remedy.  Applying the threefold test laid down in Clark -v- Novacold, the EAT held that the material reason for the dismissal was the applicant’s absence on medical grounds, which amounted to a disability, and there would have been no reason to dismiss someone else to whom that reason would not apply.

27	Furthermore, the EAT found that the Tribunal had erred in finding that the employers were not in breach of a duty to make reasonable adjustments under section 6 of the Act on the basis that neither the Applicant nor her General Practitioner could think of anything that would have represented a satisfactory adjustment, in circumstances in which the employers themselves had given no thought to the matter.  At paragraph 7 of the judgment, the President, Lindsay J, stated:
“There will, no doubt, be cases where the evidence given on the applicant’s side alone will establish a total unavailability of reasonable and effective adjustments.  But it does not seem to us to follow that because a former secretary, long absent from the firm and clinically depressed to the point of disability, and her general practitioner also (the latter at least being unlikely to know what office or other practicabilities were open to the employer) could postulate no useful adjustment, that the section 6 duty of the employer should, without more, be taken to have been satisfied.  Indeed, in the course of argument before us, Mr Millar accepted that the doctor and the applicant were not the most appropriate persons to be asked as to what adjustments could be made.”

28	The EAT in Cosgrove then went on to suggest a number of adjustments that could have been made.  It recognised that none of the adjustments might have worked; nonetheless there was no assurance that they would not have worked and they should have been considered by the employer at the time of the dismissal and the Tribunal at the time of the hearing.  Ms Banton submitted that the instant case was indistinguishable from  Cosgrove -v- Caesar & Howie, and that the Tribunal was accordingly correct to find that the Appellant had subjected Mrs French to less favourable treatment in that it dismissed her by selecting her for redundancy because she was off work due to her disability.  Furthermore, the Tribunal was correct to find that the Appellant had clearly failed to consider reasonable adjustment, and had never suggested any to Mrs French.  

29	Ms Banton also submitted that the Tribunal was entitled to disagree with the Appellant’s proposition that this was a Polkey case.  Mrs French did not remove herself from the consultation process.  The evidence before the Tribunal was that she did not indicate to the Appellant that she did not want work for it before her letter of 17 November 2000.  Such indication followed the fact of the Appellant informing Mrs French on 5 October (without warning or consultation) that she was to be made redundant.  The Tribunal was, furthermore, entitled to find - as it did - that Mrs French had no notice of the redundancy criteria, and was consulted only in respect of redeployment.

Conclusions
30	The  appeal was fully and carefully argued on both sides.  At the end of the argument, however, we were satisfied that the Tribunal was entitled to reach the conclusions which it did, and that no error of law had been demonstrated.  There was, in our judgment, material upon which the Tribunal could properly reach each of its three conclusions.  Furthermore, we see nothing inconsistent between the findings that Mrs French was dismissed by reason of redundancy and that the dismissal was both unfair and discriminatory consequent upon Mrs French’s disability.

31	We see no reason to disagree with the Tribunal’s conclusion that there was a redundancy situation resulting from the downturn in the Appellant’s work and the diminution in the number of Executives to whom Mrs French and Ms Randall were to work.  Furthermore, the evidence plainly entitled the Tribunal to find that the redundancy process was procedurally and substantively unfair so far as Mrs French was concerned, given the failure to consult her and the presentation of what was, in effect a fait accompli.  The Appellant rightly conceded that Mrs French was disabled, and we can see no error of law in the Tribunal coming to the conclusion that she was discriminated against by the act of dismissal.  

32	In our judgment, the Polkey point, if it applies, goes to remedy not to substance.  However, by the time Mrs French wrote the letter of 17 November 2000, on which Ms Ellenbogen relies, the damage had been done.  We agree with Ms Banton when she submits that it would not be just to permit the Appellant to rely on the terms of that letter since it followed the Appellant informing Mrs French on 6 October, without warning or consultation, that she was to be made redundant, and had furthermore been wholly excluded from the consultation process regarding her post.  As Ms Banton points out, she had not even been informed of the selection criteria and the only “consultation” which remained, related to redeployment.  By that stage, as Ms Banton points out, it was plain on the facts as found by the Tribunal that Mrs French had not been treated fairly.

33	In all these circumstances, and persuasively as the appeal was argued on the Appellant’s behalf, we are unable to fault the Tribunal’s conclusions, and the appeal will be dismissed.

The Cross-Appeal
34	Mrs French cross-appeals from the Tribunal’s finding that the redundancy was a genuine one.  The Tribunal’s finding at paragraph 29 was in the following terms:-
“29  The Appellant said that the Applicant had been dismissed by reason of redundancy: the Applicant said there was no redundancy situation and she had been dismissed because of her disability, having been away from work because of her depression since March 2000.  The Tribunal turned to the actual dismissal and considered whether or not there was a redundancy situation.  By September 2000 the Appellant, by reason of some business difficulties, needed to cut costs; it was decided that at the Appellant’s office at Feltham, the work previously carried out by the Applicant and Ms T Randall had diminished and that only one person was required instead of the previous two.  The Tribunal decides that the requirements of the Appellant’s business for employees to carry out work of a particular kind at Feltham (where the Applicant was employed) had diminished (Section 139(1)(b)(ii) of the Employment Rights Act 1996); the tribunal decides that the Applicant was dismissed by reason of redundancy.”

35	Ms Banton argues that a finding that the redundancy was genuine was contrary to the weight of the evidence before the Tribunal: secondly that the use of a linguistic criteria, which was never a feature or a specification of Mrs French’s job suggested that the process of redundancy selection was a sham to get rid of Mrs French due to her disability.  Thirdly, Ms Banton points to the Tribunal’s failure to consider the Appellant’s argument of how costs could be cut, when the Appellant was not currently paying Mrs French.

36	Ms Banton also points to the fact that in March 2001 Mrs French was replaced by a Ms Spencer, who had the same job title, telephone number extension and department as Mrs French.  She argues that the Appellant did not produce any documentary evidence to support a diminution of business, and that the Tribunal’s findings in this respect are unspecific.  Ms Banton also relies upon the “unusual” discovery that linguistic skills became a criterion of the job, something which was incompatible with its historical nature and, she argues, incompatible with a true redundancy situation.  She also submits that it is significant that other features point to the redundancy being a sham, not least that the need for Mrs French’s post to be made redundant was identified only after she had been off work with depression. 

37	Ms Banton submits that the Tribunal’s Decision that the redundancy was genuine was perverse and wrong in law.  She submits that the only inference to be drawn by a Tribunal properly directing itself on the point was that the redundancy was unfair because it was also not genuine.

38	It will be apparent from our previous findings that, in our judgment, the Tribunal was entitled to find, as it did, that by September 2000 the Appellant found itself in a “redundancy situation” due to business difficulties, and the need to cut costs.  The reduction in the number of Executives meant that Mrs French’s and Ms Randall’s work had diminished, and that only one person was required instead of the previous two.  This was, in our view, a finding well within the Tribunal’s discretion on the evidence, and cannot in any sense be described as perverse.  

39	The cross-appeal will, accordingly, also be dismissed.