Appeal No. EAT/0363/03 ILB

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 October 2003
Judgment delivered on 3 December 2003

Before
HIS HONOUR JUDGE PETER CLARK
MR S M SPRINGER MBE
MR R N STRAKER

GREATER LONDON AUTHORITY	APPELLANT

MR S J LEACH	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR IAN SCOTT
(of Counsel)
Instructed by:
Greater London Authority
Legal Services Department
City Hall
The Queen’s Walk
London EC1 2AA	
For the Respondent	MR BEN COOPER
(of Counsel)
Instructed by:
Messrs Thompsons Solicitors
Congress House
Great Russell Street
London WC1B 3LW	

HIS HONOUR JUDGE PETER CLARK

1	This is an employer’s appeal against the decision of an Employment Tribunal sitting at London (South), under the chairmanship of Mr R W Rideout, promulgated on 26 February 2003, upholding the employee’s complaint of unfair dismissal and disability discrimination contrary to both section 5 (1) and (2) of the Disability Discrimination Act 1995 (“DDA”).  The parties below were Mr S J Leach, Applicant and the Greater London Authority, Respondent.  We shall use that description of the parties in this judgment.

Background

2	We take the outline facts principally from those found by the Employment Tribunal at paragraphs 1-15 of their Reasons under their heading ‘The Facts’.  In so doing, we observe that in their recitation of the facts the Tribunal, from time to time, record the evidence given by witnesses.  Unless the context otherwise indicates, we shall take it that the Tribunal accepted that evidence.

3	The Applicant was employed by the Respondent and its predecessors as a Systems Administrator, for some 18 years prior to his dismissal effective on 17 December 2001.

4	In 1989 he received a written admonition to follow proper procedures regarding absence from work and in February 1990 was instructed to call the office on each day he was absent sick.

5	For a period of 6 months prior to September 1994 the Applicant complained of abdominal pain and diarrhoea.  His General Practitioner then sent him to a specialist gastro-enterology clinic.  He was there found to be fit and given dietary advice.  In May 1995 his then employers Occupational Health Department (“OHD”) referred him to a specialist who diagnosed probable post-infective Irritable Bowel Syndrome (“IBS”), possibly exacerbated by separate psychiatric problems.  That specialist’s report was followed up by the OHD but the Applicant failed to keep appointments to discuss the position.  Later in 1995 dietary regimes were recommended but the Applicant again failed to keep at least one appointment with the dietician.

6	The Applicant’s record of uncertified absences continued after 1995 but documentary reference to his medical condition did not recur until disciplinary proceedings were commenced by the Respondent in 2001.

7	When the Applicant did produce medical certificates or a self-certification the reason was sometimes given as ‘stomach upset’ and, as frequently, some unrelated condition.  The Tribunal found that from 1995 onwards the Applicant was in the habit of virtual self-selection of the times at which he worked and that a considerable part of his working time was spent working from home.

8	There was a dispute as to the system in place for permission to work from home.  The Tribunal concluded that there was considerable laxity in following what were said by the Respondent to be established procedures for both working at home and for the taking of leave.  However, the Applicant took much greater advantage of this laxity than did other employees.

9	That laxity was tightened when the present Respondent took over in 2001 and Ms Ibrahim became the Applicant’s line manager in succession to Mr Beddard.  She did not give evidence before the Tribunal; Mr Beddard did.

10	Ms Ibrahim complained to Mr Lewis, Director of Corporate Services, in April 2001, about the Applicant’s alleged rude, condescending and generally confrontational attitude to colleagues.  Mr Lewis interviewed the Applicant about this matter on 3 May and claimed to have given him a clear written warning, although no document was produced.  The Tribunal found that there was thereafter some improvement in the Applicant’s attitude to colleagues.

11	On 16 October 2001, when the Applicant returned from sick leave, Ms Ibrahim brought to Mr Lewis’ attention what was described by Mr Beddard as a massive deficit in the hours worked by the Applicant, based on his time-sheets.  He was employed to work 35 hours per week on a flexitime basis.  Also on 16 October the Applicant registered a lengthy grievance against Ms Ibrahim.  On 17 October Mr Lewis informed the Applicant that he was under investigation following serious allegations concerning his attendance, performance and attitude at work.  That investigation was to be conducted by Ms Ibrahim; meanwhile, the Applicant was suspended on full pay.  Both the Applicant and his trade union representative expressed concern about the role of Ms Ibrahim in the conduct of the investigation.  Ms Ibrahim nevertheless conducted that investigation, including an interview with the Applicant and presented a full report to Mr Lewis.

12	Mr Lewis conducted a disciplinary hearing on 30 November, 5 and 12 December 2001.  The Applicant faced three charges:

(i)	unexplained absences totalling 46.5 days since April 2001;
(ii)	failure to complete key tasks allocated to the Applicant.  The most specific of these related to work over the weekend of 1 and 2 September 2001, when it was contended that the Applicant had absented himself from work for two periods of two and four hours, one of which was apparently to watch the England v Germany World Cup football match;
(iii)	a poor attitude to colleagues in that he was rude and aggressive and failed to take instructions from, or report to, Keith Beddard.

13	Mr Lewis treated those potential offences as amounting, if proved, to gross misconduct within the Respondent’s disciplinary procedure.  The Tribunal was equivocal in its reasoning as to whether those charges might amount to gross misconduct; none fell within the categories of gross misconduct listed in the Respondent’s disciplinary code, however they thought it was possible to contend that the list was ‘non-exhaustive’.

14	The disciplinary hearing encompassed four witnesses on either side, Ms Ibrahim presenting the management case.

15	The Tribunal found that, having considered the matter, Mr Lewis genuinely and honestly rejected the explanation given by the Applicant for his absences, namely bowel disorder dating back to 1995.  He took the view that that was not the principal cause for the Applicant’s absences from work.

16	Mr Lewis concluded that the Applicant was in the habit of attending work “as and when he liked”.  A considerable amount of working time was unaccounted for.  The Applicant’s erratic attendance meant that he could not be relied on to be available when required and that he failed to keep reasonable records of his working time.  He found that there was no valid agreement for the Applicant to work at home and that the first charge, amounting to gross misconduct, was made out.  He rejected the second charge and the allegation of rudeness to colleagues, however he upheld the charge of insubordination, which he found did not itself amount to gross misconduct.  Having considered the appropriate penalty, a final warning or dismissal with pay on lieu of notice, Mr Lewis decided to impose the latter.  In rejecting the final warning option, he concluded that such a warning would not have the desired effect of improvement in the Applicant’s attendance, since his acceptance of the need for improvement was hedged by the Applicant with what Mr Lewis described as ‘caveats’.

17	An appeal by the Applicant against the decision to dismiss him was dismissed by a panel consisting of the Chief Executive of the Respondent and its Director of Finance and Performance, following a hearing held on 29 January 2002.  That was not a rehearing in the view of the Tribunal.

Unfair Dismissal

18	Although the Tribunal makes no formal finding that the Respondent’s reason for dismissal related to the Applicant’s conduct, a potentially fair reason, we think that is the proper inference to draw from the Reasons as a whole, particularly the Tribunal’s acceptance of Mr Lewis’ evidence as to his reasoning in reaching the decision to dismiss the Applicant, to be found at paragraph 13 of the Reasons.  That is common ground between Counsel.

19	In these circumstances, the questions posed by section 98 (4) of the Employment Rights Act 1996 (“ERA”) for determination by the Employment Tribunal were these (see Post Office v Foley [2000] IRLR 827):

(1)	Did the Respondent have reasonable grounds, based on a reasonable investigation, for their genuine belief that the Applicant was guilty of the misconduct found?  The Burchell test.

(2)	Was the dismissal procedurally fair or unfair?

(3)	Did the sanction of dismissal fall within the range of reasonable responses open to the employer?  In answering that question it is not for the Employment Tribunal to substitute their own view for that of the employer.

20	To some extent those questions may overlap.  In the present case the Tribunal found the dismissal unfair for these reasons:

(a)	Ms Ibrahim, who, as Department Head would normally carry out the investigation into the conduct of a member of her department, which might lead to disciplinary proceedings, plainly should not have done so because she was herself the subject of a grievance taken out by the Applicant (which she investigated) and thus she could not be seen to conduct an impartial enquiry.  Secondly, she was the principal witness, enquirer and prosecutor in the disciplinary proceedings.  These findings, it seems to us, go both to the reasonableness of the employer’s investigation and the procedural fairness of the dismissal; and

(b)	dismissal was not a reasonable response to the situation with which the disciplinary proceedings were dealing.

21	Taking the first finding by the Tribunal, we know of no authority, nor was any cited to us, for the proposition that an investigation carried out by an employer into the employee’s alleged misconduct will be flawed because the investigating manager has an appearance of bias, based on the fact that she is herself the object of a grievance taken out by that employee, as opposed to the apparent lack of impartiality on the part of the disciplining manager.  In this case, there is no suggestion in the Tribunal’s reasons that Mr Lewis approached his task other than genuinely and impartially.  Mr Cooper submits that it was unnecessary for the Tribunal to conclude that the disciplinary decision was in fact skewed by the investigation carried out by a manager with the appearance of bias.  It is enough that the disciplining manager was dependent on the investigating officer to reach a fair conclusion.

22	We cannot accept that submission.  It seems to us that, even if Ms Ibrahim was tainted by the appearance of bias, the question for the Tribunal was whether the investigation was reasonable in all the circumstances (Sainsbury v Hitt [2003] IRLR 23).  That question is not conclusively answered, as this Tribunal appears to have thought, by the mere fact that the investigating officer was herself the subject of a grievance raised by the Applicant.

23	Secondly, the finding that dismissal was not a reasonable response by the employer.  Here, Mr Scott submits that the Tribunal has fallen into error by substituting its own view for that of the employer.  Having carefully considered paragraphs 39-41 of the Tribunal’s Reasons, we accept that submission.  It seems to us that, having accepted (Reasons paragraph 14) that Mr Lewis carefully considered the sanction to impose for the misconduct found, dismissal or a final warning, the Tribunal embarked on its own exercise to determine which penalty was appropriate, rather than applying the correct test which allows of the possibility that across the range of reasonable responses some employers might reasonably dismiss whilst others impose a sanction short of dismissal.

Disability Discrimination

24	The Tribunal found that the Applicant was suffering from a disability within the meaning of section 1 of the DDA, that is IBS.  There is no challenge by the Respondent to that finding in this appeal.

Section 5 (1) DDA

25	The questions raised by section 5 (1) DDA are:

(i)	what was the reason for the Applicant being treated as he was, namely for him being dismissed?
(ii)	was the material reason one which related to his disability?
(iii)	would the employer have dismissed some other employee to whom that material reason would not apply?

See Cosgrove v Caesar Howie [2001] IRLR 653, paragraph 5, per Lindsay P, applying Clark v Novacold [1999] IRLR 318 (CA).  If those three questions are answered in favour of the Applicant then, subject to the Respondent establishing the defence of justification as defined in section 5 (3), unlawful discrimination will be established.

26	The Tribunal set out their conclusions on this part of the case at paragraphs 46-49 of their Reasons.  They found:

(1)	that the material reason was a combination of ‘logistical absences’, not related to his disability and absences on medical grounds;

(2)	that the reason therefore related in part to his disability and in part to his unauthorised absences from work.

27	Mr Scott submits and Mr Cooper acknowledges, that the Tribunal did not answer the third question posed above; would the Respondent have dismissed some other employee to whom the disability-related reason did not apply?  Mr Cooper submits, by reference to paragraph 52 of the Reasons that the answer to that question is ‘no’.  At paragraph 52 the Tribunal found that but for his disability-related absences the Applicant would not have been dismissed; that is not, in our judgment, the same as saying that a non-disabled employee would not have been dismissed for the Applicant’s levels of unauthorised absences, as to which no clear finding of fact was made, particularly in circumstances where the Tribunal qualified their finding as to the probable non-dismissal of the Applicant by reference to adjustments which could have been made in his case by giving him standing permission to work at home when incapacitated by his medical condition, that is IBS.

28	Even if the Tribunal were entitled to conclude that prima facie discrimination under section 5 (1) (a) DDA had been made out, Mr Scott further attacks the Tribunal’s reasoning as to the defence of justification under section 5 (3) DDA, dealt with briefly by the Tribunal at paragraph 48 of their Reasons.  This brings us back to the Respondent’s reason for dismissal.  The question for the Tribunal was whether the Applicant’s level of unauthorised absences was a reason that was both material and substantial and was a reason for dismissal which fell within the range of reasonable responses open to the employer.  Jones v Post Office [2001] IRLR 384.  In our judgment, the Tribunal’s reasoning at paragraph 48 simply does not demonstrate that they have considered and answered that question, subject to Mr Cooper’s argument that it was not open to the Respondent to justify prima facie discrimination under section 5 (1) (a) due to the effect of section 5 (5).

Section 5 (2) DDA

29	Section 5 (2) creates a separate head of unlawful disability discrimination where the employer fails to comply with a section 6 duty imposed on him in relation to the disabled person and where he cannot show that his failure to comply with that duty was justified.

30	Turning to the Respondent’s section 6 duty, the first question is whether the Respondent knew or could reasonably be expected to know that the Applicant had a disability.  If not, then the section 6 duty to make reasonable adjustments does not arise (section 6 (6)).  On this aspect we accept Mr Cooper’s submission that, at paragraph 44 of their Reasons, the Tribunal made a clear finding that, at its lowest, the Respondent should have known of the Applicant’s disability.  That is sufficient to engage section 6.

31	The next question, assuming that the Applicant was placed at a substantial disadvantage in comparison with those not disabled by arrangements made by the Respondent, is what reasonable adjustments ought to have been made to overcome that disadvantage?

32	The Tribunal’s findings on this part of the case are at paragraph 51 of their Reasons.  Mr Scott attacks the finding that it would have been reasonable for the Respondent to give the Applicant general permission to take time away from the office and work from home when he was unwell.  Part of the basis for that finding was evidence given by the Applicant in cross-examination, that it was now possible to meet with people electronically and to rectify computer faults remotely from the Respondent’s own computer.  Those propositions were not put to the Respondent’s witnesses, but the Tribunal accepted them, based apparently on their own knowledge and experience.

33	Mr Scott submits that in relying upon answers given by the Applicant in cross-examination and their own experience, without giving the Respondent’s witnesses an opportunity to deal with the point, the Tribunal took an impermissible approach.  Mr Cooper, by reference to the observations of Keith J in Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566, paragraphs 15-17, argues to the contrary.

34	We prefer the submissions of Mr Scott.  Although, as Keith J pointed out, a proper assessment by the employer of what is required to eliminate the disabled person’s disadvantage is a necessary part of the duty imposed by section 6 (1) on the employer, the point here taken by Mr Scott is one of natural justice.  Whilst the members of the Tribunal are generally entitled to taken into account their own experience when assessing the evidence in a case, it is dangerous to do so where that evidence comes only from one side, the other side having had no opportunity to deal with the point in their own evidence.  In our judgment, since the Tribunal’s acceptance of the Applicant’s evidence given in cross-examination was relevant to a material finding in the case, the Respondent ought to have been given the opportunity to deal with it, if necessary, by recalling witnesses.  It was wrong, in our view, to make the finding without giving that opportunity to the Respondent.
Conclusion

35	In summary, we conclude that the Tribunal fell into error in a number of respects, viz:

(1)	Unfair Dismissal

(a)	They were wrong to conclude that the Respondent failed to carry out a proper investigation solely on the basis that the investigating officer, Ms Ibrahim, was tainted by the appearance of bias in that the Applicant had taken out a grievance against her;

(b)	They failed to properly apply the range of reasonable responses test to the sanction of dismissal.

(2)	DDA

	Section 5 (1)

(a)	They failed to ask themselves and answer the question as to whether the employer would have dismissed some other employee to whom the disability related part of the reason for dismissal did not apply.

(b)	They failed to demonstrate how they reached their conclusion that the Respondent had failed to make out the defence of justification.  Any implicit finding that the defence was not made out by virtue of the provisions of section 5 (5) is subject to their findings under section 6, as to which:
	Section 5 (2)

(a)	They failed to give the Respondent an opportunity to deal with the material evidence given by the Applicant in cross-examination which, coupled with their own experience, led them to make a significant finding as to what were reasonable adjustments for the purposes of section 6;

(b)	For completeness, we should record that it is common ground before us that the defence of justification was not separately raised by the Respondent under section 5 (2) (b).

36	In these circumstances we have concluded that the proper course is to allow the appeal and to remit the whole matter for rehearing before a freshly-constituted Employment Tribunal.