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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hutchison 3G UK Ltd v. Mason [2003] UKEAT 0369_03_1607 (16 July 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/0369_03_1607.html Cite as: [2003] UKEAT 0369_03_1607, [2003] UKEAT 369_3_1607

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APPEARANCES

 

For the Appellant: Hutchison 3G UK Ltd	Mr Nicholas Randall instructed by Messrs Allen & Overy, 1 New Change, London EC4M 9QQ
For the Respondent: Tobias Mason	Mr James Holmes-Milner instructed By Messrs Pannone & Partners, 123 Deansgate, Manchester M3 2PU


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT):

1. This was the hearing of an appeal by Hutchison 3G UK Ltd (the Respondent below), a company which provides services in relation to mobile phone technology, against the unanimous decision of the Employment Tribunal at London Central after a hearing on 16 to 18 October 2002, promulgated on 27 March 2003, that Mr Tobias Mason, the Applicant, was unfairly dismissed, and discriminated against contrary to section 4 of the Disability Discrimination Act 1995 ("the 1995 Act").
2. The Tribunal made findings as to the reason for the Respondent's dismissal of the Applicant as of 31 December 2001, namely (by paragraph 73 of its Decision) that the "principal reason for the dismissal was that the Applicant had been absent from work from July 2001 and had then revealed that he would be absent for a further period of several months due to ill health". The Tribunal found that the secondary cause of the dismissal was that Mr Webster of the Respondent believed that the Applicant had misled him as to the nature of the ill health, and in particular that the Applicant had lied to him and to Miss Morris of the Respondent at meetings in August 2001, in particular in suppressing that he was severely affected not only by clinical depression but also by cocaine addiction.
3. The Tribunal concluded, by reference to the principal reason for dismissal which it had found as above, that the dismissal was unfair. It further found, in paragraph 81 of the Decision as follows:

"Even if we had found that the principal reason for the dismissal was the telling of an untruth, then we would still have found that the dismissal was unfair by reason of the Respondent not having followed a fair procedure."

4. An important matter is that the Tribunal did not decide or foreclose the question of whether, absent an unfair procedure, the dismissal would have been unfair, or that there could otherwise have been a finding of no loss or of a deduction by reference to Polkey v AE Dayton Services Ltd [1988] AC 344: nor indeed did it decide any question of contributory fault by the Applicant. This was conceded before us, and is clear in any event from the following passages of the Decision:

"13. … I did suggest during initial discussions that it may be appropriate in connection with the unfair dismissal claim to hear evidence to enable us to determine whether any defect n procedure would have made any difference to the Decision of the Respondent to dismiss the Applicant. However, as we heard more evidence it became apparent to us that it would be artificial and inappropriate to make any such findings. This hearing was therefore limited to the merits of the two claims.

82. … We must make it clear that we are not finding that a dismissal following a proper and fair procedure would necessarily have been unfair."

5. As to the disability discrimination, this was inevitably closely interconnected with the finding of unfair dismissal, because the less favourable treatment, which alone the Tribunal found, was the dismissal. The Tribunal found that the Appellant was suffering from a disability of depression and (paragraph 90 of the Decision) that "the Applicant was less favourably treated than a person who was not suffering from a disability of depression would have been in that he was dismissed." The Tribunal considered the question of justification, in respect of which the burden was upon the Respondent, and concluded (finding for such purpose that there was a breach of duty by the employer under s6 of the 1995 Act) that (at paragraph 98 of the Decision) "we are not satisfied that the Respondent has shown that the dismissal of the Applicant (being the less favourable treatment) would have been justified even if the Respondent had complied with the duty under section 6 which we have found to be applicable."
6. It is necessary to set out a short history of the material facts, with particular reference to the medical history and record of the Applicant. He was employed by the Respondent only from September 2000, being from November 2000 a Strategic Investment Manager in the Commercial Department of the Respondent. The Applicant, who was then 28, completed a medical questionnaire on 21 September 2000 in which, notwithstanding that there were questions relating to both his own medical condition and any significant medical condition of any of his family, he failed to disclose what in fact is clear from the psychiatric report of Mr Rowlands which was before the Employment Tribunal, namely that both his father and paternal grandmother had suffered from severe recurrent depression (he thus having a "high genetic loading for endogenous mental disorder"), and that he himself had suffered major episodes of depression both when he was thirteen, lasting a year, and when he was at university. Having started work in September 2000, he worked only until 11 July 2001: and, unknown to the Respondent, he attempted suicide on 15 July 2001. He did not return to work thereafter.
7. The significant medical events, prior to the meetings in August 2001 to which we have referred in paragraph 2 above, appear first from a note made by his GP Dr Moghassi on 3 May 2001 referring to the greater frequency of his use of cocaine. By letter dated 25 May 2001 from Dr Moghassi to the Consultant Psychiatrist at the Tavistock Clinic he referred to the Applicant's problems "which revolved around an acute usage of recreational drugs, but most came about because of the long history of recurrent depressive illness". A note made at his GP surgery records that he is "very depressed and communicated at risks thoughts to self: resorted to drug taking in the previous week": Dr Moghassi himself notes on 19 July 2001 "in depression thoughts of self harm; … in cocaine". On 20 July Dr Moghassi makes a note "? glandular fever" and signs off the first of the relevant Med 3 forms, for the purpose of statutory sick pay, with an identical such note. Dr Moghassi notes on 1 August 2001, on another visit, that the Applicant "used cocaine while in Cornwall". On the same date he signs off another Med 3 form which read "? Glandular fever". On the next day however Dr Moghassi records in his notes (and we have a separate record so confirming) that a substantial number of blood and serum tests, taken for the apparent purpose of checking the existence of glandular fever, were all normal: the note records "Tell patient normal". On 14 August 2001 Dr Moghassi signs a new form of Med 3, namely "post-viral fatigue": on the next day however, 15 August 2001, he writes to the Consultant Psychiatrist at Grovelands Prior Hospital: "Many thanks for seeing this gentleman who presented with a recurrent depressive illness; what came out of the woodwork was an agenda of cocaine abuse … He has been referred for an assessment at the Tavistock Clinic and he is awaiting an appointment with a psychiatrist at UCH, but in the meantime his thoughts of self-harm and his destructive behaviour, manifest themselves with binges of cocaine, followed by periods of withdrawal and 'numbing'".
8. It is against that background that the Applicant applied to the Respondent for an extension of his contractual entitlement to sick pay, which, by Clause 10.2 of his employment contract, was, in the case of someone who had been employed less than one year, an aggregate, in a 12-month period, of sick pay for a maximum of 20 working days. The Applicant disclosed to the Respondent neither the clinical depression nor the cocaine addiction. The Applicant's own witness statement read in material part as follows:

"9. My medical notes show that I was again prescribed anti-depressants no later than 10 May 2001. At that time I had been heavily involved in drug use. I had been a recreational user of drugs – and in particular cocaine – for some time, but I had been in the past able to control my drug use. On this occasion, my drug use got out of control, as I tried to use it to lift my mood as my depression became ever more severe. On 15 July 2001 I attempted suicide, by taking what I thought was a lethal dose of cocaine, alcohol and pain killers. As it turned out, I vomited violently during the course of the night, and thereafter went into severe convulsions. In the period immediately leading up to my suicide attempt, I had not been fit for work …

10. It was very clear to me that I was urgently in need of on-going medical assistance to combat my now chronic depression and also my drug use … I was very mentally ill at this time and was also taking a lot of drugs. I did not hide this from the people treating me. At this point, my drug use – particularly my use of cocaine – was compulsive – and I simply could not stop. I became more and more ill, both mentally and physically. I spent several weeks in bed, I was unable to move … I was comatose during this period, either asleep or incapable of doing anything. By this stage, cocaine was being delivered to my house, setting up a vicious circle of compulsive drug use and deepening depression.

11. … I required intensive inpatient treatment at a specialist clinic known as Farnham Place. I was told the treatment there would last for eight weeks. … I met with Andrew Webster and Mandy Morris on 22 August 2001, and explained that I was about to start a period of inpatient care. … The meeting was very amicable, though my mental condition was such that I do not recall all of the details of it. I definitely said at the meeting that I was taking anti-depressants and I also probably did say that I was suffering from a post-viral infection. This is possibly true, and the diagnosis of the viral infection has frequently been made in connection with my various depressive episodes. Indeed I understand that it is very common for severe clinical depression to be associated with post-viral fatigue syndrome, or other viral infections. However I think that I would have to concede that at the meeting, I did not go into every detail of my illness. Like many people suffering from severe depression and addictive behaviour, I was very insecure about my position, and felt ashamed. I do recall being fearful that if the full circumstances of my illness were known, I might lose my job."

9. The findings by the Tribunal are as follows:

"30. The Applicant was entitled under his contract to 20 days sick pay in his first year of employment. Mr Webster wished to try to have this extended and visited the Applicant at his flat in August 2001. The Applicant told Mr Webster that his doctor thought that he was suffering from post-viral syndrome/ME but was not certain exactly what the illness was. Mr Webster said that he would try to have the sick pay period extended and that the Respondent would require a medical report in order to provide a prognosis.

31. On 22 August 2001 there was a meeting of the Applicant, Mr Webster and Miss Morris to discuss pay … All three witnesses agreed that the Applicant said that he was having to be treated in a clinic as an inpatient. Miss Morris said the reason given was to have physiotherapy for post-viral fatigue syndrome. Mr Webster said in his witness statement that the treatment was to be for 'his condition', and in cross-examination Mr Webster told us that the Applicant had said that his GP thought that the condition was post-viral fatigue. The Applicant agreed that he did not go into great detail at that meeting about his illness. In particular he agreed that there was no mention of drug or any other addiction. We find that the Applicant did make reference his being depressed but that the exact nature of the ailments was not the subject of the meeting, and consequently the exact clinical details were not discussed further. We further find that he stated that the reason for going into the clinic was because of his chronic fatigue. He told us that post-viral fatigue and depression are closely linked, and he insisted that he had told Miss Morris and Mr Webster that he was taking Prozac. We accepted that evidence, but cannot conclude from it that necessarily therefore the Respondent knew that the Applicant was clinically depressed. It is apparent to us that the Applicant did not go into every detail concerning his current illness and the past history, because the meeting was in the context of the possibility of the extension to the sick pay period. We find that the Respondent had no reason at that stage to believe that the Applicant was suffering from clinical depression as opposed to simply feeling low."

10. The result of this interview, and the statements made by the Applicant, was that he was given an extension to the sick pay period.
11. Dr Moghassi makes a note on 3 September 2001: "cocaine addiction; needs treating first". Yet a colleague of Dr Moghassi, no doubt in his absence, a Dr Halvorsen, signs a Med 3 form on 10 September 2001, legitimising statutory sick pay for two months with the annotation "post-viral illness? Stress/depression with anxiety".
12. He was admitted to Farm Place, a centre which is described as being "internationally renowned for its expertise in treating alcohol and drug dependence" on 12 September 2001, with an admission form indicating "Present Problem: cocaine addiction and depression" with a further annotation "Notes: cocaine user and alcohol/fit – but depressed." Yet on the same day a Dr Brener, Medical Director of the Priory Hospital in North London writes to Dr Moghassi a letter which states: "Following my conversation with Mr Mason on 12 September, this is a letter to state that Mr Mason is not well enough to attend work at the present time as he is suffering from a "post-viral illness" and is going to need a period of recuperation. I hope this is satisfactory". It is not made clear what is said to be "satisfactory" by reference to this letter. On the next day, the Nurse in Charge at Farm Place writes to Dr Moghassi a letter dated 30 September 2001 to confirm that the Applicant was admitted the day before "for treatment for his chemical dependency". Not the least extraordinary of the medical documentation, in those circumstances, is the letter dated 21 September 2001 written by Dr Moghassi to Miss Morris at the Respondent:

"I have been treating Toby, as you know, over the last few months for various problems and while there was a suggestion that he might be able to work part time while convalescing, it now seems apparent that he will need a period of time in hospital as an inpatient.

That admission has been expedited and I am hopeful that this intense intervention over the next two months may actually resolve his problems and enable his rapid recovery, which would otherwise have been long and drawn out, as is often the case with post-viral type illnesses."

13. The explanation for Dr Brener's letter, to which we have referred above, is perhaps indicated by the fact that a copy of it was enclosed with Dr Moghassi's letter to the Respondent with the comments "I think you will find [it] self-explanatory". It is not perhaps surprising in the circumstances that, as appears from paragraph 43 of the Decision, the medical request form which was completed by the Respondent's HR Department on 6 November 2001 for the purpose of obtaining a medical report on the Applicant, to which he had consented on 20 October 2001, stated that the reason for the Applicant's absence was "post-viral fatigue". The events, to which we will refer, of 11 November 2001, which revealed the real medical condition, before any such medical report could be obtained, clearly overtook that request.
14. The last material event before 11 November 2001 was that by an email dated 8 November 2001 Ms Felton, the Applicant's girlfriend, sent an email to Ms Miles of the Respondent saying:

"I saw Toby yesterday, he is doing well but he has now confirmed with his psychiatrist that he will definitely not be able to return to work for another 4 months, possibly 6 months. Let me know if you need a letter confirming this."

15. Mr Webster's account of 11 November is set out in paragraph 22 following of his witness statement:

"22. I received a telephone call from the Applicant on 11 November 2001. The Applicant said he was out of the rehabilitation centre/clinic for one day only … and then he would be returning immediately to another clinic. The Company had been unable to contact the Applicant whilst at his previous clinic and he told me this would continue at the next clinic.

23. The Applicant told me that he had not previously told the truth about his condition. He admitted he had been dishonest and said the real position was that he had in fact been diagnosed as having a compulsive addictive nature and was addicted to cocaine, alcohol and sex. This was the first time he had ever mentioned this to me. He did not mention suffering from any form of depression during the phone call.

24. I was completely shocked by what the Applicant said. I had absolutely no idea that he was suffering from these problems … I said to the Applicant that I would discuss what he had said with Keith Bradley … The Applicant then commented that he would understand if the Company decided to terminate his contract of employment with immediate effect. It was clear to both of us that this was a very serious matter and that his dishonesty could result in his dismissal.

26. … I felt completely let down. I had spent time and effort trying to get the Applicant extended sick pay, as I felt genuinely sorry for him and wanted to help him … I felt badly let down by his dishonesty and the fact that he gained an extension to his sick pay by virtue of it."

16. The Applicant's witness statement at paragraph 13 was as follows:

"On 11 November I rang Andrew Webster on his mobile telephone to keep him updated. I knew at this stage from my discussions with Dr Rowlands and with others that it was anticipated that I would require a further four to six months of intensive treatment … The call took between 30 minutes and one hour and I remember prefacing it by saying that 'I need to tell you the full story'. I said that I had been seriously ill, and that I had been suffering from depression. I went on to say that I had self-medicated my depression with drugs and alcohol. I also told him that I suffered from a number of addictive behaviours … It was a very friendly conversation. At the end of the telephone conversation Andrew said he would need to speak to Keith Bradley … I do not recall saying to him that I would understand it if the Company terminated my employment straight away. However it is the sort of thing I might possibly have said."

17. The Tribunal's findings were as follows:

"44. On 11 November 2001 … the Applicant rang Mr Webster and had a long conversation with him … The Applicant had left Farm Place and was about to be admitted to the Coach House. Mr Webster said that the Applicant admitted that he had not previously been truthful about his condition, that he had been dishonest, and that the real reason for his being in a clinic was because of his compulsive addictive nature, resulting in an addiction to drugs and other matters. He said that the Applicant did not mention depression at all. He agreed however that the Applicant told him that he had earlier tried to commit suicide. Mr Webster also said that the Applicant said he would understand if the Respondent terminated his employment. Finally Mr Webster said that the Applicant said that he was going into another clinic and would not be contactable for 6 months …

45. The Applicant told us that he told Mr Webster that he had been seriously ill with depression, which he had self-medicated with drugs and alcohol and that he suffered from other addictions. His evidence was to the effect that Mr Webster already knew about the post-viral fatigue and depression, but had not been told of the addictions. He went into some detail about those addictions. He did not recall making reference to dismissal, but agreed that that was the type of comment that he may have made at that time, because his self-esteem was so low. He denied saying that he would be uncontactable, because he had mobile phones which could be used for text messages, or an answerphone … He said that he had told Mr Webster that the treatment would be for a period of between 4 to 6 months and not for 6 months.

46. It is difficult to find facts about that conversation… We have considered very carefully the evidence of both parties to the conversation, and the context in which the call was made.

47. We find that during that conversation the Applicant was very open and frank with Mr Webster and that he told Mr Webster information not previously communicated to him concerning his addiction. On a balance of probabilities we find that the Applicant did not specifically say to Mr Webster that he had lied to him, or not told him the truth. We consider it more likely (and so find) that the Applicant stated that he wanted to disclose to Mr Webster more details of his illness than he had previously done at those meetings, but did not go so far as to state specifically that he had lied. He did then disclose details of his illnesses and the treatment that he was to undergo. In particular he stated for the first time that he was suffering from various addictions. We also find that the Applicant did make mention of the possibility of his being dismissed by the Respondent. We do not accept Mr Webster's evidence that the Applicant specifically and categorically told him that he would not be contactable for either four or six months. We do accept that Mr Webster understood that contact would be difficult, but we note that there was already a channel of communication via Ms Felton …"

18. The next day, 12 November, he was admitted to the Coach House, and the admission form records that he was admitted for cocaine addiction.
19. When the Applicant was seen by Dr Rowlands on 21 November 2001, he described his depression as "OK". By this time a further Med 3 form, signing him off for eight weeks for depression, had been completed by the Horley Health Centre on 19 November 2001. It is to that Health Centre (presumably the convenient one for the Coach House in Redhill), to which Dr Rowlands wrote his letter dated 23 November 2001, reporting the Applicant's intensive six-week admission to Farm Place for treatment of his cocaine dependency, and his underlying affected disorder, which concluded:

"I will liaise with his employers about his return to work arrangements, which should be in the spring of 2002."

20. In fact the decision had been taken by the Respondent to dismiss the Applicant, and Mr Bradley wrote a letter to the Applicant dated 13 December 2001 in which he terminated the Applicant's employment "on medical grounds with effect from 31 December 2001", but with three months' notice pay. Miss Morris said that this wording was out of a desire to be "as humane as possible". The Tribunal recorded in paragraph 58 of its Decision that "Miss Morris stated in evidence that she had lied in the dismissal letter in stating that the reason for the decision was on medical grounds. The reason she gave to us was that she wanted to assist the Applicant in his recovery." As set out above, the Respondent's case, put forward by Mr Randall of Counsel, who appeared below and before us on the Respondent's behalf, was that (paragraph 64 of the Decision) "the real reason for the dismissal related to the conduct of the Applicant. He said that the Applicant had been dishonest at the meeting on 24 August 2001, and in doing so had procured an extension of his [sick pay] beyond his contractual entitlement."
21. The Applicant was discharged from the Coach House on 10 December 2001, and started treatment as a day patient at another clinic specialising in drug addiction.
22. A number of specific matters appear to us to arise out of this narrative:

(i) The medical profession does not come well out of this. Leaving aside of course entirely the role of Dr Rowlands, it is surprising to us that a number of communications, official or otherwise, known and intended to be relied upon by the employer, were issued and sent by doctors whose contents were apparently inconsistent with medical information known and available, and with their internal records.

(ii) The Tribunal appears to us to have taken an unnecessarily charitable view of the Applicant's conduct. It was ready to record the Respondent's lie in relation to the dismissal letter, but not to condemn or criticise the conduct of the Applicant, as we conclude it should have done:

a. At paragraph 72 of the Decision the Tribunal states as follows:

"There is a considerable difference between an employee positively going out of his way to lie to his employer about the reason for his absence, and one who for the first time discloses many more details than had previously been contained in the forms Med 3. We consider as a general principle that an employee is entitled simply to provide a Med 3 to his employer, and need not expand on the contents of them unless and until the employer seeks more information."

That may well be, if the employee has no reason to believe that the Med 3 is inaccurate or misleading. It is plain, quite apart from ordinary principles, that an employee owes a reciprocal obligation to his or her employer to act in good faith: that the implied term of trust and confidence in a contract of employment is mutual is illustrated by Briscoe v Lubrizol Ltd [2002] IRLR 607 (especially at para 113), a case to which the Tribunal's attention was drawn.

b. In any event in this case the significant evidence did not relate to the production of the Med 3 forms, but to the meetings in August 2001, at which the Applicant obtained a pecuniary advantage as a result of what he said (and/or did not say) about his medical condition; namely the extension, beyond his contractual entitlement to sick pay of an aggregate total of 20 days in his first year, to what might have been a substantial entitlement. That he misled the Respondent is clear from the very findings of the Tribunal itself. As appears from paragraph 31 of the Decision, which we have set out in paragraph 9 above, he disclosed none of the matters which we have set out in paragraphs 7 and 8 of our judgment above, and the Tribunal itself finds that the Applicant made the plainly false statement that "the reason for going into the clinic was because of his chronic fatigue". We do not see how it can be doubted that his conduct in August 2001 was dishonest, nor can we understand how it can be an answer, as the Tribunal put it, that "the exact nature of his ailments was not the subject of the meeting and consequent to the exact clinical details were not discussed further" or in particular that "the Applicant did not go into every detail concerning his current illness and the past history because the meeting was in the context of the possibility of an extension to the sick pay period". On the findings of the Tribunal at paragraph 47 of its Decision (whether or not the Applicant "specifically [said] to Mr Webster that he had lied to him or not told him the truth") only then did he disclose that he had clinical depression and was suffering from cocaine addiction, and that that and not chronic or post-viral fatigue which had caused and was continuing to cause the need for in patient treatment at clinics.

23. However so far as unfair dismissal is concerned the central findings by the Tribunal were:

(i) That the principal reason for dismissal was not (as the Respondent asserted) the dishonesty – this was only a subsidiary reason, but his absence from work.

(ii) The Tribunal further finds that whether the reason for dismissal was as the Tribunal found it to be (by reference to paragraphs 77 to 80 of the Decision) or for the reason of dishonesty (by reference to paragraph 81 of the Decision), the dismissal would be unfair by reference to the unfairness of the procedure (or lack of it) adopted. Mr Randall sought to persuade us that the Tribunal's approach to the seriousness of the dishonesty and/or of the nature of the Applicant's conduct was so flawed that it casts doubt upon the conclusion by the Tribunal as to the reason for dismissal. But as Mr Holmes-Milner for the Applicant pointed out, the Tribunal could perfectly well have concluded that the reason for the dismissal was the employer's opinion of the Applicant's conduct even if the Tribunal did not share the Respondent's view of that conduct, and yet it did not. We are heavily influenced by the common ground referred to in paragraph 4 above between the parties that issues relating to the conduct of the Applicant still remain live on the remedies decision, particularly as we are satisfied that we are able on this appeal to correct what is in our judgment an erroneous conclusion in law by the Tribunal as to the nature and seriousness of that conduct. We are satisfied, as an appellate tribunal, that there is no basis in law upon which we can or should interfere with the finding by the Tribunal either as to the principal reason for dismissal or as to the fairness of the procedure, and that we therefore would not disturb the conclusion of unfair dismissal.

24. We turn to the issue of disability discrimination. The Tribunal was prevented by Regulation 3 of the Disability Discrimination (Meaning of Disability) Regulations 1996 from concluding that the Applicant was disabled by virtue of his cocaine addiction. Regulation 3(1) reads in material part:

"… Addiction to alcohol, nicotine or any other substance is to be treated as not amounting to an impairment for the purposes of the [1995] Act."

25. Given that the Tribunal found that the reason for the Applicant's dismissal was his absence from work, the less favourable treatment for the purpose of s5 of the 1995 Act was, as the Tribunal found, his dismissal, and the dismissal resulted from his absence from work. What was the cause of that absence from work?
26. The Tribunal concludes in paragraph 90 of the Decision that the "Applicant was less favourably treated than a person who was not suffering from the disability of depression would have been in that he was dismissed". It does so by reciting what appear to us to be two very surprising findings in the light of the evidence, in particular the evidence of his admission to clinics on the grounds of his cocaine addiction which we have rehearsed above, both set out in paragraph 91 of the Decision:

(i) "If the Applicant had not been suffering from the disability of depression then we are satisfied that he would have been present at work, and would not have been dismissed by reason of his absence."

(ii) "There was no evidence to persuade us on a balance of probabilities that the addictive personality disorder on its own was such as would have meant that the Applicant would not be present at work."

27. Quite apart form the fact that the second proposition is in any event not relevant or necessary for the Tribunal's consideration, neither of these propositions as they stand seem to us to be supportable. Mr Randall bases himself upon the unsupportability of these propositions and further submits that the Tribunal has erred in its approach towards Regulation 3. It has, he submits, not only accepted that it cannot rely upon the cocaine addiction as a disability, but has gone further, and, in fact has favoured the Applicant, by putting the cocaine addiction entirely out of its mind.
28. Notwithstanding our agreement so far as the two propositions is concerned, we do not agree with Mr Randall. Mr Holmes-Milner has drawn our attention to Power v Panasonic UK Ltd [2003] IRLR 151, in which the applicant was both depressed and drinking heavily, and the employment tribunal was held to have erred in not considering the issue of whether, irrespective of the alcoholism and the fact that the addiction to alcohol might have been causative of the depression, nevertheless the depression itself should have been considered as a potential disability. It is plain that there was evidence before the Tribunal, in the shape of Dr Rowlands' report, which entitled the Tribunal to conclude that the Applicant had, irrespective of the cocaine addiction, a depressive disorder, which was sufficiently causative of the absence from work that the dismissal because of such absence from work related to such disability.
29. Accordingly Mr Randall's challenge to the Tribunal's finding in this regard fails. As to justification, Mr Randall launches what is effectively a perversity challenge. He in any event submits, and Mr Holmes-Milner to a substantial extent concedes, that the conclusions of the Tribunal are opaque. Certainly paragraphs 94-98 of the Decision are not easy to follow, and in particular Mr Holmes-Milner concedes that there are infelicities in paragraph 96 – it is the reasons for the failure, not the failure of the Respondent itself, which must be material and substantial. Nevertheless in general terms the approach of the Tribunal is correct:

(i) It addresses first s5(3) of the 1995 Act.

(ii) It then turns to consider whether there is a breach of s6 of the Act, because, if there is, there must then be justification under s5(4), and by s5(5) an unjustified breach of s6 must then be taken into account before a conclusion can be reached on the question of justification within s5(3).

30. The only breach of s6 which the Tribunal find is by reference to s6(3)(f), namely:

"The following are examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1) … (f) allowing him to be absent during working hours for rehabilitation, assessment or treatment."

31. Its conclusion is thus set out in paragraph 95 of the Decision:

"We find that it would have been reasonable for the employer to have contacted the Applicant to consider the question of a phased return to work. No attempt was made to put a phased return to work into place. We have considered whether the duty under s6 obliges the employer to make enquiries to determine what steps could be taken, in addition to the taking of such steps. We consider that it must be interpreted so as to require the employer to make such enquiries. We therefore find there has been a breach of a section 6 duty."

32. The Tribunal then concludes that "the failure to make such enquiries and consider such a regime for return to work is beyond what is reasonable". Then returning to s5(3), the Tribunal states as follows in paragraph 98:

"We have to consider what would have happened if the Respondent had complied with the section 6 duty. We are here in the realms of speculation. The Applicant gave evidence as to his health following his dismissal. To use a general phrase, he has had ups and downs. He has attributed the deterioration of his condition, at least in part, to the fact of his dismissal. We simply do not know what would have happened if the Respondent had complied with its duty and the Applicant had been offered the opportunity to return to work on a phased basis. We are not satisfied that the Respondent has shown that the dismissal of the Applicant (being the less favourable treatment) would have been justified even if the Respondent had complied with the duty under section 6 which we have found to be applicable."

33. This of course correctly recites the onus as being on the Respondent: namely to show that consideration of the opportunity to return to work on a phased basis would have availed nothing. This is of course a different question from that which will have to be decided in the context of consideration of whether compensation is payable under s8 of the 1995 Act, where the onus of proof will be on the Applicant to show that he would have been in a position to return to work, had further enquiries been made and he been given such opportunity. This will have to be considered particularly in the light of the letter dated 23 November 2001 from Dr Rowlands, the relevant passage of which we have quoted in paragraph 19 above: and of course as appears from paragraph 13 of the Decision, one of the reasons why it was concluded inappropriate to deal with remedies for the Applicant at the hearing was because "both sides may wish to obtain further medical reports". At that stage the impact of the cocaine addiction will be particularly significant. However, given that, in relation to the issue of justification, the onus of proof was, as the Tribunal correctly stated, upon the Respondent, i.e. to justify the lack of enquiries, we are unable to accept that the decision of the Tribunal was perverse, or that the Tribunal erred in its approach to its task of establishing liability for discrimination, once it had made its findings as to the dismissal, as set out in paragraph 23 above.
34. In those circumstances, but subject to the guidance we have given, this appeal is dismissed.