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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Smith v W M Martin & Co (Marine) Ltd [2003] UKEAT 0061_02_0406 (4 June 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/0061_02_0406.html Cite as: [2003] UKEAT 61_2_406, [2003] UKEAT 0061_02_0406

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APPEARANCES

 

For the Appellant	Mr W Kane, Representative 29 Douglas Gardens Uddingston GLASGOW G71 7HB
For the Respondents	Mr C Phillips, Solicitor Of- Messrs Mackay Simon Employment Division Maclay Murray & Spens 3 Glenfinlas Street EDINBURGH EH3 6AQ


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This has been the hearing of an appeal by Mr Brian Smith against the unanimous decision of the Employment Tribunal at Glasgow, after a hearing on 27, 28, 29, and 30 August 2001 and 4, 5, 6, and 7 February 2002, that he was not unfairly constructively dismissed by the Respondents, William Martin & Co (Marine) Ltd and that the Respondent did not discriminate against him contrary to the Disability Discrimination Act 1995 ("the Act").
2. The decision of the Employment Tribunal was given in a lengthy and cogently reasoned decision by the Chairman, Mr H J Murphy, which ran for 61 pages. Although it did not have contained within it consecutive paragraph numbering, as I understand has been the practice, one which I hope may be reconsidered, we have numbered the paragraphs ourselves, since both for ease of reference in the Notice of Appeal and Skeletons and, further, during the course of oral submissions, reference to paragraph numbers is so much easier: when numbered there were 249 paragraphs, which covered in full detail the facts, the allegations and the law.
3. The Applicant was represented both below and before us by Mr William Kane, who himself has certain health problems, but before us surmounted them and performed an admirable job as advocate. It appears to us that his fluency as an advocate exceeds his clarity as a draftsman of documents, for it was only in the course of oral argument, and when questioned and pressed by the Tribunal, that the nature of his arguments became entirely clear, and it is to that extent perhaps unfortunate that he chose, at his own instance, not to make oral, but only written, submissions before the Tribunal below. Nevertheless it is clear to us that the Chairman in his decision dealt thoroughly, although obviously not, in the event, to Mr Kane's satisfaction, with all the submissions which Mr Kane made on the Applicant's behalf. Although Mr Kane included in his Notice of Appeal and in his Skeleton Argument certain broad allegations of bias by the Chairman below, which were not in any way supported by affidavit or otherwise pursuant to the Practice Direction 2002 and the relevant authorities, in the event at the hearing he disavowed and did not pursue such a case, limiting himself to a reservation that if he should be successful in the appeal he would ask for the matter to be remitted to a different Tribunal. Mr Phillips, the solicitor for the Respondent, represented the company both before us and before the Tribunal.
4. The Respondent carries on the business of shipping agents, engaged in importing and exporting on behalf of clients, from two sets of premises in the Glasgow area. The Applicant has been respectively referred to as a freight agent and an import clerk, and commenced working in November 1990. Although when he commenced work with the Respondent he suffered from a serious kidney condition, it was only from 1994 that his condition became such that he had to undergo dialysis every day. Prior to October 1998 he was the highest paid of the Respondent's import clerks. His health appears to have deteriorated at or about that time and he was off work between 7 October 1998 and 17 March 1999: he had multiple brain surgery, and was classified as an epileptic. He returned to work in March and, with some absences, particularly in June and July, remained at work until 24 July 1999, whereafter he had renal transplant surgery and was off work sick for a further five months, returning to work, certified fit for full time employment, on 6 January 2000. He resigned by letter dated 6 March 2000, giving notice to expire one month later. He claimed that such resignation was a justifiable acceptance of repudiatory breach by the Respondent, i.e., constructive dismissal, and hence issued an originating application for unfair dismissal. He also alleged that the Respondent was guilty of disability discrimination by virtue of a course of conduct culminating in the constructive dismissal.
5. The structure of the Tribunal's decision was to set out and make findings as to the facts from 1990 but primarily from 1998 until such resignation, in the paragraphs which we have numbered as 1 to 123. The Tribunal then turned to consider the question of constructive dismissal, which it approached first by addressing and reaching conclusions, by reference to the way in which Mr Kane had made his submissions, first as to six allegations of breaches of express terms of the contract of employment by the Respondent, (paragraphs 126 to 140), finding, in respect of each alleged breach, that such was not proved: and then turning to deal with Mr Kane's submission that the Respondent was in breach of the implied term of trust and confidence, addressing first separately the ten matters upon which Mr Kane relied as establishing such breach, and then looking at the question of breach of the term in the totality. In paragraphs 141 to 149 the Tribunal sets out its approach to consideration of the breach of the trust and confidence term, in paragraphs 150 to 179 the Tribunal deals separately with each of the matters alleged against the Respondent said to constitute the breach, giving reasons in each case, after carefully considering the facts for rejecting the allegations made, save in respect of two specific items, which they then reconsider in greater detail in viewing the facts, as they have found them to be, in totality, in paragraphs 180 to 184. In paragraph 180 they state:-

"The Tribunal then reviewed all the evidence in order to ascertain whether, viewed collectively, all of the matters proven against the respondents could support the inference that they were in breach of the trust and confidence term."

And then in paragraph 184 the Tribunal concludes:-

"It will be clear from the foregoing that we are not satisfied that the respondents were in breach of the trust and confidence term. At best - from the point of view of the applicant - the respondents took a robust view of his failings and communicated this view to him in plain and simple language. Even if we make the assumption, favourable to the applicant, that the communications were such that they were calculated and likely to damage the relationship of trust and confidence between the parties, the applicant has not demonstrated that they were made without just and proper cause. Accordingly, we are not satisfied that the respondents were in breach of the trust and confidence term, and it follows that the claim that the applicant was unfairly dismissed must fail."

6. The Tribunal then turned to the discrimination case, and set out the relevant statutory provisions and made reference to the leading authorities, King v The Great Britain - South China Centre [1991] IRLR 513, Zafar v Glasgow City Council [1998] ICR 120 and Anya v University of Oxford [2001] IRLR 377. The Tribunal introduces its consideration of discrimination in paragraph 189 as follows:-

"We mention in passing that in relation to many of the events said to constitute discrimination there was no dispute of primary fact. In relation to yet others there was no dispute concerning the reason for that treatment. Only in one or two cases was there a dispute concerning whether the alleged treatment of the applicant had actually taken place. In these circumstances, our approach to the matter has been thus. Where the fact of the treatment accorded to the applicant was not in dispute, but the reason for the treatment was said by the applicant to be related to his disability, and the respondent disputed any such relationship, we have considered whether the facts are more, or equally, consistent with the hypothesis that the treatment was accorded to the applicant for a legitimate, commercial reason, in which case, we are satisfied that there should be no room for us to draw an inference favourable to the applicant in relation to the treatment concerned. Equally, however, we took the view that, were we to be satisfied that treatment accorded to the applicant could not, or was not, accorded to him for a legitimate commercial reason, the door was open to allow us to drawn an inference of unlawful discrimination. We emphasise, however, that our approach was not piecemeal. In other words, we did not consider each of the allegations made by the applicant in isolation from the other, though, for the purpose of exposition of our reasoning the approach is necessarily analytical. In other words, we bore in mind the need to look at the totality of the treatment accorded to the applicant, and were acutely conscious of the fact that, were we to be satisfied in a specific instance either that the respondents had discriminated against the applicant unlawfully, or that a series of marginal decisions had "gone against" the applicant in circumstances such that there was too much of a coincidence, we were free to draw an inference favourable to the applicant."

The Tribunal then considers separately each of the allegations upon which the Applicant relied separately or cumulatively as amounting to discrimination in paragraphs 190 to paragraph 235.

7. Finally the Tribunal addressed the Applicant's case that there was breach of section 6 of the Act by way of a failure to make adjustments. In paragraph 236, the Tribunal introduced and addressed the eight adjustments which the Tribunal recorded as having been identified by the Applicant as being adjustments which "the respondents could reasonably have been expected to adopt." Two of these matters gave the Tribunal cause for concern, and for separate reconsideration in paragraphs 246 to 248 of the decision, but having considered those matters again, the Tribunal dismisses the claim.
8. Such was the structure of the lengthy decision of the Tribunal. Whereas, there was, as we have indicated above, no similar structure in the Notice of Appeal or Skeleton Argument of Mr Kane, with encouragement he was able to identify and expound upon his heads of argument orally, and we shall now deal with them in turn by reference to the three main issues.

Constructive Dismissal

9. The first case which Mr Kane put forward was that the Tribunal had erred in its approach with regard to constructive dismissal. The Tribunal had correctly directed itself that the speech of Lord Steyn in Malik & Mahmud v BCCI [1998] AC20 contained the most recent helpful guidance on the issue of breach of the term as to mutual trust and confidence. The Tribunal plainly informed itself by reference to his speech at 45F in which he says:-

"For convenience I will set out the term again. It is expressed to impose an obligation that the employer shall not: "without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee:" see Woods v W.M. Car Services (Peterborough) Ltd [1981] ICR 666-670 (Browne-Wilkinson J) approved in Lewis v Motorworld Garages Ltd [1986] ICR 157…"

Mr Kane points out that this phraseology has been adopted in terms by the Tribunal, in that on no less than three occasions in the course of a lengthy judgment, in paragraphs 146, 147(3) and 184, the Tribunal refers to, "calculated and likely". Mr Kane points out that this formulation must be erroneous, when it is compared with Lord Steyn's own reformulation of the questions later in his own speech, i.e., at 46G at (3) "that such conduct must be calculated to destroy or seriously damage the trust between the employer and employee": at 47B, in approving the formulation by Mr Douglas Brodie of Edinburgh University in an article "… what is significant is the impact of the employer's behaviour on the employee rather than what the employer intended. Moreover, the impact will be assessed objectively," and at 47E "The implied obligation extends to any conduct by the employer likely to destroy or seriously damage the relationship of trust and confidence between the employer and employee." Thus, submits Mr Kane, conduct which amounts to a breach of the implied term, and thus automatically repudiatory of the contract, does not have to be calculated in the sense of intended but can, in the alternative, by virtue of its objective effect on the employee, have such a repudiatory consequence even if it is not intended but simply likely (or calculated in a different sense). The answer is in fact a simple one. It would appear that either Lord Steyn, or the transcriber of his speech, simply permitted a misprint at 45F. In Transco Plc v O'Brien [2002] ICR 721 at paragraph 12, Pill LJ pointed out, in relation to the passage in Lord Steyn's speech: "The second "and" in that passage is a misprint. The word used by Browne-Wilkinson J in Woods is "or"".

10. The issue consequently raised by Mr Kane is whether, by virtue of the triple repetition of what is either a misprint or a mischaracterisation of the implied term, indicates that the Tribunal adopted an incorrect approach, addressed only the question as to whether there was a deliberate (calculated in that sense) assault on the mutual trust and confidence between the parties, without considering the alternative case that there might be a similar repudiatory breach of the term as a result of conduct by the employer, albeit that it was not intended to have that effect but merely likely (or calculated in that sense) to do so.
11. It was unquestionably Mr Kane's case,on the Applicant's behalf, and indeed, it is plain, on express instruction from the Applicant because such was his own belief, as found by the Tribunal (see for example paragraph 123 of the Decision), that the Respondent did set out on a deliberate campaign to be rid of the Applicant; and that was plainly the Applicant's primary case, as put to the Tribunal, with which the Tribunal needed to deal, and which, in the event, it rejected. If there was such a plan of campaign, then it would plainly fall within the first of Lord Steyn's two possibilities, i.e., it would be intended, or calculated, to destroy the trust and confidence between the parties. The following paragraphs of the Tribunal's decision are material in this regard:-

"142 "At page three of his submission Mr Kane lists ten actings or omissions of the Respondents said to constitute the breach [of the implied term as to trust and confidence]. It is not altogether clear to us whether it is suggested that each and every one of these matters constituted a breach of the trust and confidence term, or if it is suggested that cumulatively (but possibly in combination with other circumstances …) the said factors constituted such a breach. Before proceeding further, it is as well for us to make clear our own approach to the matter. One theme in evidence underpinned and connected all of the matters complained of, namely, the alleged fact that the Respondents had made up their mind to get rid of the Applicant. The suggestion was not only that the Respondents were determined to be rid of the Applicant, but also that they were determined to be rid of him by fair means or foul. See, for example, the submissions at page 3 line 40 where Mr Kane suggests that the Respondents were guilty of "bullying and harassment," pages 11, line 20 where Mr Kane suggest that the issue [the document] D1 was a "known pretext," page 23, line 20, where Caroline Barr and the said Hanlon are accused of planning "to obstruct the Applicant," and the Applicant's own evidence that he was "fitted up" by the Respondents). Indeed, we have expressly found as a fact that it was the Applicant's belief that the Respondents wanted rid of him, and that they set out to demoralise him, to "sicken" him and that that belief caused him to resign. Although Mr Kane does not put it thus, we take it to be his case that the Respondents were in breach of the trust and confidence term in that, having conceived a desire to be rid of the Applicant, they formed a plan or conspiracy to demoralise the Applicant with the object of inducing him to resign, and pursuant to that plan or conspiracy singled him out for special treatment, denying him bonuses and pay rises, subjected him to unjustified and harsh disciplinary procedure, harassed him in an endeavour to persuade him to resign; that is they carried out the act said by the Applicant to have been carried out by the Respondents on page 3 of the submission.

143 This formulation has important consequences for the Applicant's case, because, in order to succeed, he must show that the Respondents were indeed guilty of what he believed them to be guilty, and that that of which he believed them to be guilty constituted a breach of contract. In other words, the Applicant must prove that the Respondents were as a matter of fact in breach of contract in the manner in which he believed them to be in breach - that is in the manner that we have outlined."

12. The Tribunal when setting out its approach, later in the decision, states as follows:-

"147(5) "The law does not generally concern itself with motive or intention in questions involving breach of contract, but in the context of a question concerning the possible breach of the trust and confidence term, the motive or intention of the employer [may] [our underlining] be crucial, because conduct possibly trivial enough in itself may be deemed to be more serious, if the employee rightly perceives that the conduct is executed with the intention of hurting him, or is "aimed at" him personally. For intention to be relevant in this way, there must be some wrongful conduct on the part of the employer rendered all more serious by the intention of the employer … a malicious intention can convert a trivial breach into a fundamental one.

147(6) The intention may be relevant in a second sense. Even if the employer does something which he is entirely entitled to do in terms of the contract, he may still be in breach of the trust and confidence term, if he acts spitefully, and if that spite is communicated to the employee directly, or perhaps, "leaked" to the employee concerned."

13. Finally, in dealing with the Applicant's case in respect of the document D1, referred to above (and to which we will make further reference below), a critical memo sent by Mr Hanlon to the Applicant dated 4 June 1999, the Tribunal deal with Mr Kane's case on the Applicant's behalf and indeed the Applicant's own evidence, by concluding, in paragraph 157 of the Decision:-

"157 We reject utterly any suggestion by the applicant that D1 was issued as part of a Machiavellian plot to get rid of him in which the said Hanlon deliberately set out to record that the applicant had received training that he had not received with a view to founding on that record in any subsequent question concerning the applicant's continued employment."

14. It is plain therefore that the Tribunal dealt in terms, as it was required to do, with the primary case put forward by the Applicant and on his behalf, which, if established, would indeed have proved a breach of the implied term, howsoever formulated, and in particular, even if and as formulated as "calculated and likely to destroy the relationship of confidence and trust." However, it is also plain that the Tribunal not only is conscious of the fact that such deliberate intention (i.e. being "guilty") of such conduct is not necessary, in order for a breach of such implied term to be proved, and it deals in turn with the alternative (but so far as Mr Kane and the Applicant is concerned, very much fall back) case. Immediately after paragraphs 142 and 143 of the decision, which we have set out above, follows paragraph 144:-

"In case, however, we erred in our formulation of the applicant's case, we also examined each and every one of the respects in which it is suggested that the respondents were in breach of the trust and confidence term in order to see if any such breach was disclosed in any particular instance."

After paragraphs 147(5) and (6), which themselves disclosed that the Tribunal appreciated that the issue it was addressing was whether intention could transform an otherwise harmless act into a breach, and just prior to the conclusion in paragraph 157 in great detail that the sending of D1 was not part of a ("Machiavellian plot"), the Tribunal considered the sending of D1 in paragraphs 153 to 155, and concluded as follows in paragraph 156:-

"156 We quite accept that the receipt by the applicant of D1 damaged the applicant's morale. For present purposes we accept that it was foreseeable that the issuing of D1 would damage the applicant's morale, and even dent his trust and confidence in the respondents. We also accept that an employer who damages an employee's morale, or his trust and confidence may be in breach of contract, but only if he does so "without reasonable and proper cause," and the applicant has not shown that the respondents acted without reasonable and proper cause, and the onus of proof is squarely with him."

15. In those circumstances we are satisfied that notwithstanding the use of the words "calculated and likely", the Tribunal addressed the issue as to whether there was a breach of the term as to trust and confidence adequately and correctly, and it came to a conclusion that cannot be challenged, after very careful consideration, in paragraph 184 of its decision, which we have recited above.
16. The second head of argument which was put forward by Mr Kane before us, was that, contrary to Lewis v Motorworld Garages Ltd, the Tribunal did not look at the whole picture in reaching its conclusion that there was no repudiatory breach. It is of course never easy for a Tribunal faced with a substantial number of alleged individual breaches to know how to set about its approach. If its deals in detail with every breach it is at risk of being accused of a piecemeal approach: and if it does not descend into detail in relation to each breach then it can be accused of taking too much of an overview and not condescending to sufficient particularity in its findings. We are satisfied that this Tribunal both looked at the matters individually and also in their totality. The criticism which Mr Kane makes is of paragraph 180 of the Decision, which commences "The Tribunal then reviewed all the evidence in order to ascertain whether viewed collectively all of the matters proven against the Respondents could support the inference that they were in breach of the trust and confidence term." He submits that because they only looked at the matters "proven", they cannot be said to have looked at the matter in the totality. The fact remains however, that what they had done, and very thoroughly, was to examine each item separately, and found that none of them merited criticism of the Respondent with the exception of the two matters to which they returned in paragraph 180 following. They signalled this approach in advance of their consideration of each individual matter alleged in paragraph 149 of their decision, as well as returning to it at paragraph 180. It is quite apparent that when they launched into the exercise they were going to be (as they announced in paragraph 149) collecting up any item about which they were not satisfied for a final overall review. We are entirely satisfied from our own review of the Tribunal's decision that they did not leave out of their "totality review" anything which in the light of, or notwithstanding, their own findings, ought to have been addressed when they came to the totality.
17. The Applicant's third case on appeal was that two findings of the Tribunal were perverse:-

(i) Mr Kane alleged that the conclusions which the Tribunal reached in paragraphs 152 to 158 as to the sending of the memo D1 were conclusions to which no reasonable Tribunal could come. Apart from its conclusion that the sending of D1 was not "part of the Machiavellian plot", the Tribunal in terms made findings about it. They include the following:-

"154 …(It is far from clear to us even that the word "criticism" in connection with the document D1, is appropriate - at least in the sense of suggesting unfavourable comment concerning the applicant's work. Rather D1 is a statement of objectives, but we proceed on the assumption - favourable to the applicant - that D1 contains negative criticism of his work.) The applicant has most certainly not demonstrated that he was in any way singled out. Another employee received a letter in very similar terms. The applicant did not suggest that any criticism of his work made in the course of the discussions which preceded the issuing of D1, or implicit in D1 itself, was made in bad faith or in the sense that the respondents did not genuinely believe in the truth of the criticisms - merely that the respondents over reacted…

155 The applicant can only succeed, if he can demonstrate that no reasonable employer could have taken the view that the criticisms were valid ones. The applicant has wholly failed in this connection. The respondents were entitled to take the view of the applicant's performance that they did. Nor can we agree that the issuing by the respondents of D1 is an over reaction."

(ii) The second matter in relation to which Mr Kane alleges perversity by the Tribunal is in regard to the meeting of 14 February 2000, shortly before the Applicant's resignation, of which there is a short typed transcript of the handwritten notes of the meeting. The Tribunal deals with this in paragraphs 82 to 97 by way of findings of fact, and in paragraphs 172 to 179 by way of conclusions in respect of breach. Its conclusions include the following:-

"89 Our finding on this matter is best summed up by saying that we are satisfied that the said Hanlon conveyed to the applicant in clear terms that he was dissatisfied with his performance and further that he doubted his capacity to do the job. He also spoke to the applicant in such a way as to convey to the applicant that he should consider carefully whether he should continue in the employment of the respondents, that he should talk matters over with his wife and that he should consider whether he ought to take another job within the organisation. We are also, however, satisfied that he advised the applicant that, no matter what decision he reached, the company would support him and provide him with suitable training.

90 After the meeting the applicant was demoralised. We are satisfied that the said Hanlon spoke to the applicant in plain terms. We are not satisfied, however, that the said Hanlon's purpose in speaking to the applicant was anything other than to improve his performance, and to induce the applicant to think seriously about his performance and his future role within the company. In particular we emphatically reject any suggestion that the said Hanlon was in any way maliciously inspired, or that he derived any improper pleasure from the meeting. We are quite satisfied that the views expressed by the said Hanlon were honestly held, that there was material upon which he could reasonably reach the conclusion that he did, and that, unpleasant though the experience may have been from the applicant's point of view, (and that of Hanlon) the views were not immoderately or "nastily" expressed.

92 We are also satisfied … that in the course of the discussion, the applicant said that his stamina waned during the day and that the said Hanlon expressed admiration for the applicant in staying at work. He also said that the respondents would support the applicant no matter what decision he reached.

176 …We also hold that in the course of the conversation of 14 February the said Hanlon advised that the applicant that, no matter what decision he reached, the respondents would support him and provide him with requisite training."

18. Although Mr Kane made submissions in that part of his Skeleton in which he would have alleged (but, as we have indicated, subsequently withdrew) allegations of bias, that the Tribunal incorrectly approached the question of credibility (they set this out in paragraph 5 of the decision in a wholly clear and unexceptionable way), we have heard nothing from Mr Kane to suggest that there was not evidence upon which the Tribunal was entitled (though in Mr Kane's view wrong-headed) to reach the conclusions it did, with regard both to the sending of D1 and the meeting of 14 February 2000. The test of perversity is, as was recently made clear in Yeboah v Crofton [2002] EWCA Civ 794, [2002] IRLR 634, a very restricted one, and in our judgment Mr Kane comes nowhere near being able to establish it in this case.
19. Finally there are two short passages in the Tribunal's decision to which Mr Kane takes some exception. At paragraph 43 the Tribunal concludes that a conversation between Mr Hanlon and the Applicant's wife in June 1999 was "largely irrelevant", because she did not pass on to the Applicant the contents of that conversation. Secondly he takes issue with the statement, in paragraph 120, by which, in the last sentence of the paragraph, the Tribunal records that the Applicant "did not however resign at once". Both these matters appear to us to be immaterial in the total picture of events. The Tribunal recorded and concluded, as to the first, that the conversation, not passed on to the Applicant, was of no materiality of itself to the issue as to whether the relationship of trust and confidence between the employer and employee was caused to break down, given that he knew nothing of what was said, and as to the latter, the Tribunal in fact made no finding as to any suggestion that if there was a fundamental breach, it was waived, but was simply recording a fact.
20. The Tribunal concluded that the Applicant's resignation was one which was neither engineered by the Respondent nor justified as a response to a repudiatory breach, or set of repudiatory breaches, by the Respondent, having analysed in very great detail what occurred between 1998 and 2000. The Respondent did not escape criticism by the Tribunal (for example in paragraphs 180 to 183 of the decision) but the Tribunal did not find the Applicant's case of unfair constructive dismissal proved, and we are not persuaded that the Tribunal erred in law.

Disability Discrimination

21. The primary attack by Mr Kane was on paragraph 224 of the decision, which reads as follows:-

"In the course of the hearing, however, there was a suggestion that the applicant was disciplined for a reason related to his disability supported by different reasoning The suggestion was that in the early part of 2000 the applicant's condition was such that he tired very easily and was fatigued. The errors that he made were exactly the kind of errors to be expected of a man who was fatigued. There was also the suggestion that the medication taken by the applicant affected his performance. Accordingly, we should infer that errors made by the applicant were the result of fatigue or the medication that he was taking. On either view the errors made by the applicant were related to his disability, and, accordingly, the respondents had discriminated against him. Although we recognise the logic of the argument, it fails on the facts. The onus of proving that he was disciplined for a reason related to his condition clearly lies with the applicant. No expert medical or pharmacological evidence was led to persuade us that the applicant's errors were the result of his condition, or the medication that he was taking: we are satisfied that the applicant was prone to making careless errors at a time when there is no suggestion that his performance was affected either by his condition, or the medication that he subsequently took. In the absence of expert evidence, which could easily have been obtained and led, we would have been reluctant to hold that the applicant's errors were the result of his condition or medication, but in the light of the fact that we hold proven that the applicant made careless errors at a time when there is no suggestion that his performance was affected by his condition or medication, we are not prepared to hold any link established and the case must fail on the facts."

22. In this context, Mr Phillips drew our attention to a passage in the findings of fact by the Tribunal in paragraph 78 of its decision, relating to a conversation with Caroline Barr of the Respondent concerning the Applicant's progress, where the Tribunal record:-

"We have no doubt that many of the errors discussed were administrative errors, not related to any lack of computer skills, and that it was clearly understood that greater attention to detail was the remedy."

23. Mr Kane made three interrelated submissions in relation to this important part of the decision with regard to disability discrimination. First, he submitted that the findings were perverse. The Applicant had been prior to October 1998 the highest paid of the import clerks, as we have recorded, and it stands to reason that his poor performance in 2000 must have been due to his medical condition and or to his medication. This is obviously a submission which he will have made to the Tribunal, and clearly carries and must have carried some force. Nevertheless Mr Phillips plainly submitted below and before us the contrary, and the passage from the Tribunal's decision which we have read is very clear. Once again set against the difficulty of establishing perversity in an Employment Appeal Tribunal and more certainly so in the absence of any Notes of Evidence, Mr Kane has not been able to persuade us that the conclusion to which the Tribunal there came is one to which no reasonable Tribunal could have come.
24. We turn to Mr Kane's second and third submissions. He refers to Clark v TDG Ltd T/a Novacold Ltd [1999] ICR 951 and H J Heinz & Co Ltd v Kenrick [2000] IRLR 144 and to the words of section 5(1) of the Act, namely, :-

"(1) For the purposes of this Part, an employer discriminates against a disabled person if-

(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply;"

He submitted that the Tribunal erred in respect of both its approach to causation and its treatment of the comparator (to which we will refer in a moment), by reference in the judgment in Clark of Mummery LJ at 962D:-

"The causal link between the reason for the treatment and the disability is not the reason for the treatment. It is not included in the reason for the treatment. The expression "which relates to the disability" are words added not to identify or amplify the reason, but to specify a link between the reason for the treatment and his disability which enables the disabled person (as opposed to an able-bodied person) to complain of his treatment. That link is irrelevant to the question whether the treatment of the disabled person is for a reason which does not or would not apply to others."

25. The failure by the Tribunal and the Employment Appeal Tribunal in Clark, which was highlighted by Mummery LJ, is that comparison was drawn between the employer's treatment of a disabled person who was absent from work with a non-disabled person who was absent from work for a non-disablement reason. The comparator in this case was the other employee (referred to in the passage from paragraph 154 of the Decision, which we have quoted above) who was sent a letter in very similar terms to D1, i.e., (on the Applicant's case) critical of his work, and who was not disabled. Mr Kane submitted that the comparison was inapt, because the Applicant was disabled and the other employee was not.
26. We are satisfied that neither of these two complaints are made out, in the light of the findings of fact by the Tribunal:-

(i) On the basis of the findings of fact (which we are satisfied cannot be shown to be perverse) in paragraph 224, reference to the other employee is to an appropriate comparator, once the finding is made by the Tribunal that the Applicant was committing errors which were not due to his disability. If and insofar as the Tribunal so found, then the comparison would be between the Applicant being criticised for errors which had nothing to do with any disability and another employee being criticised for errors nothing to do with any disability (as he was not disabled). There is no Clark v Novacold error in those circumstances.

(ii) Although it appears clear to us that this is not the way that the matter was put by Mr Kane below (the nature of his submission is clearly set out in paragraph 224 itself, namely that the errors were "the result of fatigue or the medication that he was taking"), nevertheless during the course of argument it appeared to the Tribunal that Mr Kane might have been able to put forward, and he did adopt from the Bench, an argument that it ought, pursuant to section 5(1)(a) of the Act, to have been concluded that, or at any rate, considered whether, the treatment by the employer i.e., his criticism, was indeed for a reason "which relates to the disabled person's disability"; not because the errors were due either to the Applicant's condition or to his medication (as to which there was the clear finding of fact) but due to his absence from work, which was itself a result of his disability. If that were the case then there would be both an arguable breach of section 5(1)(a) and the use of an inappropriate comparator. We are satisfied however that this point, which did not in any event, as we have indicated, originate from Mr Kane, cannot be supported (even if it would be proper to allow it to be run on appeal). Reference to paragraph 78, which we have quoted above, to which Mr Phillips took us, makes it plain that the errors of which the Tribunal were speaking were not errors resulting from lack of training due to his absence from work, but were "administrative errors not related to any lack of computer skills": and in any event we are not satisfied that, when the Tribunal concluded that the errors were not a result of his "condition", it was not fully taking into account that that condition had in fact led to his absence from work.

27. The other submissions of Mr Kane can be taken quite shortly:-

(i) He made the same case in relation to discrimination as he had made in relation to the approach of the Tribunal with regard to constructive dismissal by virtue of his criticism that, notwithstanding their reference to Anya they did not consider the discrimination allegation on the basis of totality, but only piecemeal. He is certainly right that they did consider, piecemeal, each of the allegations made by the Applicant, as must be the case where specific events are relied upon, in paragraphs 190 through to 235, but we are satisfied that in addition they "bore in mind the need to look at the totality of the treatment accorded to the Applicant" as they set out in terms before they launched on the process, in paragraph 189.

(ii) Mr Kane made the same case in relation to the perversity of the Tribunal's conclusions in relation to D1 and 14 February 2000 in relation to disability discrimination as he made with regard to constructive dismissal, inasmuch as they fall to be considered on both aspects; and for the same reasons we reject the allegation of perversity.

(iii) Mr Kane criticises the Tribunal for not addressing the issue of justification. But, as he accepted during a course of oral submissions, as the Tribunal did not conclude that there was prima facie discrimination, it did not need to consider the question of justification.

28. Underlying Mr Kane's attack on the question of disability discrimination, was his complaint that the Tribunal did not set out in detail its conclusion as to the existence of disability. He referred to what the Tribunal said, in very short form, in paragraph 10 of its decision:-

"The Applicant is a person with a disability within the meaning of the Disability Discrimination Act 1995 section one. It is not necessary for us to enter into the detail of the Applicant's condition nor of the treatment received by him. That detail is more than adequately set out in the productions."

Those productions included a letter from a Doctor Colville which began as follows:-

"Undoubtedly Mr Smith suffered severe and continual physical impairment from his chronic renal failure from 1996 onwards. Chronic renal failure is a progressive condition, as lack of renal function means that toxins build up in the body and generally runs the patient down. In addition, normal renal function is required to produce healthy circulating red blood cells to carry oxygen to the tissues, and Mr Smith kidneys were unable to perform this function. Consequently, Mr Smith was clinically very anaemic and tired extremely easily."

He had a renal transplant operation, as we have set out, in the summer of 1999 which, according to the same letter from Dr Colville dated 16 June 2000 has "produced a marked improvement in Mr Smith's quality of life, but the transplanted kidney is only working at roughly 60% of normal function".

29. It is of course not at all unusual for there to be no issue about the existence of a disability, and for a case to revolve, as this one did, wholly around the question as to whether there was discrimination and/or justification for such discrimination, if it existed. This was not a case in which the Respondent had admitted the existence of a disability prior to the start of the hearing. Nevertheless there is, in our judgment, nothing at all to be criticised in the Tribunal, in its extremely lengthy decision, not having set out the nature of that disability at length, when its nature was entirely clear from the detailed findings of fact which they subsequently made. Mr Kane pointed to the case of Cosgrove v Caesar & Howie [2001] IRLR 653, in which the error of the Employment Tribunal related to its failure to consider the question of the correct point of time at which the disability needed to be adjudged, and their further errors led on from there. Mr Kane submits that had the Tribunal set out at greater length the nature of the Applicant's disability, it would not have been led into its findings that there was no unfavourable treatment, i.e., the allegedly perverse or incorrect findings to which we have referred above. We are satisfied, as we have set out, that there was no error in law by the Tribunal, that the Tribunal was entitled not to set out its findings as to disability at any greater length, and the fact that it did not set them out at greater length did not lead it into any consequential error. We conclude that the Tribunal's findings in relation to discrimination cannot be challenged in law.

The Duty to Make Adjustments

30. Mr Kane relied on Cosgrove also for his primary attack on the Tribunal's conclusions in relation to this final issue. He pointed to the following statement of Lindsay P in paragraphs 6 and following of his judgment:-

"The Tribunal jumped from the evidence given at the Employment Tribunal that Ms Cosgrove's general practitioner and she herself could not think of any useful adjustment to the conclusion that no useful adjustment could be made … In the circumstances there was, in our judgment, a second material error of law, namely in regarding Ms Cosgrove's views and those of her general practitioner ass decisive on the issue of adjustments, where the employer himself had given no thought to the matter whatsoever."

31. In this case the context was not that no such adjustments could be thought of or were addressed. Eight adjustments were considered in detail by the Tribunal, and as a result of that careful consideration the Respondent was not found to be in breach. There appears to us to be a substantial difference between a case in which an employee can think of no adjustments, and as a result a Tribunal (erroneously as found in Cosgrove) finds that the respondent was not in breach, and a case in which eight adjustments are suggested (albeit adjustments which were not suggested at the time, by the respondent or the applicant, but were now suggested by the applicant and carefully tested in evidence) and a Tribunal, having considered them all, concludes that in relation to none of them was the respondent in breach. Mr Kane only criticises the specific conclusion of the Tribunal in relation to one of these eight adjustments, to which we shall return, but the nature of his challenge is that, irrespective of, and additional to, the conclusion by the Tribunal that in respect of none of the specified adjustments was the Respondent in breach, there were other adjustments which the Respondent could or should have considered and implemented. Of course what underlies Mr Kane's case is that the Respondent introduced no adjustments. But what must inevitably lie behind the case of Cosgrove is that the fact that the Applicant or his advisers cannot at the time or even subsequently suggest any adjustments does not mean that (either emerging from the Tribunal itself or otherwise) some adjustment cannot be discussed and investigated at the hearing, the non-provision of which renders the employer in breach. Given that the onus of proof is upon the Applicant to establish the breach, there must be some material upon which the Tribunal can act in order to conclude the employer to be in breach. Thus it is that, after the consideration of the eight adjustments has been exhausted, Mr Kane can only now suggest three further matters:-

(i) The first relates to the respect in which he takes issue with the conclusion of the Tribunal. The third suggested adjustment was that the Applicant should have been permitted to return to work in Martin House (one of the Respondent's premises), on a part time basis, in January 2000. This is dealt with in paragraph 241 of the Tribunal's decision. Mr Kane criticises the opening of that paragraph:-

"The third suggestion fails on the facts. We are most certainly not satisfied that there was any request by the applicant to be permitted to return to work at Martin House or on a part-time basis. This finding is fatal to this branch of the Applicant's case."

He submits that of itself is insufficient, because it ought not to be up to the Applicant to make the suggestion: so he pursues his case that there was an adjustment, namely the introduction of such a part time arrangement, which the Respondent ought to have adopted. But Mr Kane ignores the balance of this very paragraph of the Tribunal's decision for it continues:-

"We are satisfied that in December 1999 the applicant gave the impression to the respondents that he was fit and enthusiastic about return to work. We are satisfied that he produced to the respondents a medical certificate that confirmed that he was fit to return to work. We are satisfied that the respondents had not the remotest reason to doubt the validity of that certificate, or to go behind it. In these circumstances, in the state of knowledge that they had there was no obligation on them to raise with the applicant the question of the applicant working elsewhere or on a part-time basis."

We are satisfied that the Tribunal considered, and was entitled to reject, the suggestion that the Respondent was in breach in this regard.

(ii) Mr Kane then makes two further suggested adjustments, with which the Tribunal did not deal in terms. The first is that there ought to have been a provision for the Applicant to visit an occupational health adviser. The second is that the Applicant should have been established in a vacant room next door to Mr Hanlon. We do not conclude that the Tribunal erred in law in failing to consider these two further suggested adjustments before concluding that the Respondent was not in breach of duty. As to the first, as Mr Phillips has submitted, it is difficult to see what more could have resulted from the visit to the occupational therapist, but other than the suggestion of one or more of the adjustments which have already been separately considered by the Tribunal. As to the vacant room, as Mr Phillips has submitted it is wholly unlikely that this would have led anywhere. It was common ground that what the Applicant needed was training, and on the findings of the Tribunal the Respondent was ready to supply it, together with adequate supervision.

32. We are satisfied that the Tribunal gave very careful consideration, in the totality, to the question of whether the Respondent was in breach of duty under section 6, and, albeit that they did not spell out each single suggested adjustment, we are satisfied, whether by reference to Cosgrove or otherwise, that the Tribunal did not err in law.
33. In those circumstances this appeal must be dismissed.