Appeal No. UKEAT/0216/11/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 October 2011

Before
THE HONOURABLE MR JUSTICE LANGSTAFF
DR K MOHANTY JP
MR B M WARMAN

MR G BUTLER	APPELLANT

(1) MELLONS LTD
(2) MR G R MELLON	RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR MICHAEL DUGGAN
(of Counsel)
Instructed by:
John Fowlers LLP
Town Hall Chambers
St Runwald Street
Colchester
Essex
CO1 1DS

	
For the Respondents	MS ALICE MAYHEW
(of Counsel)
Instructed by:
Messrs Winckworth Sherwood Solicitors
Minerva House
5 Montague Close
London
SE1 9BB

SUMMARY
UNFAIR DISMISSAL – Constructive dismissal
DISABILITY DISCRIMINATION – Disability
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke

The Tribunal assumed in its decision that if it decided there had been no discrimination on disability grounds that it followed that there had been no breach of the implied term of trust and confidence.  It failed to apply tests for determining each which were distinct, and misunderstood the issues which it had been argued were for determination.

THE HONOURABLE MR JUSTICE LANGSTAFF
Introduction
1.	The facts of this case give pause for thought for Employment Tribunals who have to consider, and for parties who draft, lists of issues.  Unless care is taken to avoid ambiguity, an Employment Tribunal may be seduced into error.  The facts of this case may also demonstrate the inadvisability of a Claimant, who is claiming constructive dismissal, alleging a breach of the implied term of trust and confidence, where the facts he alleges permit more specific contractual breaches to be alleged.

2.	The case is an appeal against a decision of the Employment Tribunal at Bury St Edmonds, written Reasons for which were given on 25 January 2011.  The Claimant had claimed that he had been unlawfully constructively dismissed, and that he had been discriminated against by reason of his disability.  That included allegations that he had been directly discriminated against, that his employer had failed to make reasonable adjustments, that he had been subject to unlawful harassment and that his employer had victimised him for raising issues in respect of his disability.

The facts
3.	The essential facts, put briefly, are these.  The Claimant had, for 23 years prior to his leaving, been employed by the Respondent, latterly as a manager of a store which the Respondent, a small family concern, had at Halstead in Essex.  In April 2008, he became sick.  He was suffering from what proved to be a very severe depression.  He took time off work.  

4.	By 14 January 2009 he was, according to his consultant psychologist, ready to return to work.  He complained that, thereafter, his return to work was delayed (he did not begin until 2 April, with a phased return to his former duties), that he had been denied pay for the period after he had indicated that he was ready, willing and able to return to his duties, as well as denied work, and that when he was forced to raise the pay issue with his employer through solicitors, his employer complained about the stance those solicitors had taken.

5.	Then, at the time which he concluded his phased return to full duty on 22 May, after building up his duties from 2 April onwards, he discovered that Mr Burton, who had previously been the manager of the only other store which his employer had (at Witham in Essex), had been appointed general manager of the whole firm’s operations.  He, the Claimant, had not been considered for, nor had he been offered the opportunity of seeking, the post, nor had he been appointed.

6.	On 31 May 2009, he raised a formal grievance about that and a number of other factual matters in respect of his employer’s conduct toward him.  He complained, in his claim to the Employment Tribunal, about the way in which that grievance had been conducted.  It had been too slow.  The staff, generally, treated others as being in control when it should have been him.  He complained about the way in which his employer, Gill Adams being their representative for these purposes, had reduced what were a number of complaints to consider them under three broad headings, which he felt did not properly represent his complaints; and he objected to the fact that he was unable, by reason of his illness, from attending personally to advance his grievance, being portrayed as a deliberate choice by him to abandon what was described as his right to answer questions.  He complained also about the aggressive approach which had been taken toward him by others in the process before Ms Adams came to consider the matter.  

7.	On 13 August 2009, the grievance was rejected by Ms Adams.  The Claimant had a right to appeal.  On 29 September, that appeal was rejected.  Mr Glynn, who rejected the appeal, did not when doing so deal with the grounds of appeal which the Claimant had put forward.  

8.	The Employment Tribunal rejected the complaints made in respect of direct discrimination, in respect of a failure to make reasonable adjustment and in respect of harassment, in terms which have not been criticised before us.  Its judgment on those matters was lengthy, careful, considered and descended to detail.  It appears to us to show signs of being obviously even-handed in that the Tribunal was perfectly happy to criticise the employer on a number of issues, though finally resolving those issues in favour of the employer Respondent.  

9.	On the matters which we have mentioned as being the principal heads of complaint, the Employment Tribunal found that the delay in return to work was caused by what it described as a prudent referral of the Claimant to occupational health.  It had nothing to do with his disability.

10.	The decision not to pay, once a medical certificate showing that the Claimant was now fit to work had been produced, would have been taken in anyone’s case.  There was a reason for it, which had nothing to do with the Claimant’s disability.  The failure to appoint the Claimant as the general director, or to consider him for appointment, was not direct discrimination.  The Tribunal expressly found that the reason for the appointment, set out at paragraph 40, was that the appointee was the only person within the firm who could do the job.  The Tribunal concluded that the failures to uphold the grievance and the appeal were because the employer honestly thought that the grievance was not made out.

11.	It rejected the claim that the duty to make reasonable adjustments had been broken on the facts.  It rejected it because the Tribunal did not accept what the Claimant contended were the provisions, conditions or practices which it was essential to identify before such a claim could succeed.  It was rejected as causing him no disadvantage or it was, in some cases, rejected on a combination of those reasons.  

12.	As to harassment, in summary, the Tribunal found that the 22 separate matters of which the Claimant had complained were matters which did not violate his dignity.  They had neither the purpose, nor the effect, of doing so.  It did not accept many of the facts as alleged by the Claimant.

13.	Pausing there, by the stage the Tribunal had come to paragraph 57 (of what was a 60 paragraph Judgment) it had taken each of the allegations of disability discrimination and had rejected them, except for the allegation in respect of victimisation.  It had, summarising, rejected each on the facts or as not causing less favourable treatment to someone in the same relevant material circumstances, who was not disabled, or it had found that the treatment complained of was not caused either consciously or unconsciously by the disability.

14.	The Tribunal then turned to deal in two short paragraphs with the claim in respect of victimisation and unfair dismissal.  These paragraphs need to be set out in full.

“VICTIMISATION
58.	We accept that the letters from the solicitors alleging breach of the Claimant’s rights amounted to a protected act but, as we have found that the Claimant did not suffer the detriments of direct discrimination, failure to make reasonable adjustments and harassment, it follows that such detriments did not arise as a result of the Claimant carrying out a protected act.  As we have rejected the allegations of disability discrimination, the allegation against the Second Respondent as aiding and abetting the unlawful discrimination falls away and the claim against the Second Respondent is dismissed.”
DISMISSAL
59.	As the allegations of disability discrimination form the basis for the Claimant’s constructive unfair dismissal claim, it follows that the Respondent has not acted without reasonable and proper cause in breach of the implied term of trust and confidence to entitle the Claimant to resign.  The claims of dismissal by way of disability discrimination or unfair dismissal therefore also fail.”

15.	The Tribunal added a further paragraph, which before us is also controversial:

“60.	 In conclusion, we should say that in reaching our decision we have taken account of the adverse inference which we have drawn from the incorrect answers to some of the questions in the Disability Discrimination Act questionnaire.  In our judgment the inaccuracies arose from incompetence and/or poor advice, rather than any deliberate intention to mislead.”

The appeal
16.	The appeal in form raises some seven issues, but they are centred upon what is said to be the inadequacy of the reasoning or the expression of that reasoning, in paragraphs 58 and 59.  It is pointed out by Mr Duggan, who appears before us though he did not appear below, that each of paragraphs 58 and 59 contain two critical words: “it follows”.  He argues that victimisation cannot be resolved by asking whether there has been disability discrimination which is direct, or whether there has been a failure to make reasonable adjustments, or whether there has been no harassment.  The test for each is different.

17.	He is plainly right that the approach in statute is different.  Victimisation is defined by s.55 of the Disability Discrimination Act 1995, as occurring when:

“(1)	[…] a person (“A”) discriminates against another person (“B”) if-
(a) he treats B less favourably than he treats or would treat other persons whose circumstances are the same as B's; and
(b) he does so for a reason mentioned in subsection (2).
(2)	The reasons are that-
(a) B has-
(i) brought proceedings against A or any other person under this Act; or
(ii) given evidence or information in connection with such proceedings brought by any person; or
(iii) otherwise done anything under [or by reference to] this Act in relation to A or any other person; or
(iv) alleged that A or any other person has (whether or not the allegation so states) contravened this Act; or
(b) A believes or suspects that B has done or intends to do any of those things.”

18.	The victimisation arises, therefore, not because someone is disabled directly, not because there has been a contravention of the specific provisions of the 1995 Act in respect of direct discrimination, or a failure to make reasonable adjustments, or harassment, but because there has been a complaint.  It is no answer to a claim for victimisation to show that there has been no underlying discrimination caught by other sections of statute.  The focus here is whether there has been treatment because of two matters which were complained about, namely an allegation that treatment given to the Claimant, to his disadvantage, occurred because he instructed his solicitor to correspond with his employer regarding his rights as a disabled person, and/or because he had raised grievances regarding his rights and treatment as a disabled person.

19.	The argument of Mr Duggan continues, in similar vein, to deal with the way in which the Tribunal dealt with the case in respect of constructive dismissal by reason of breach of an implied term.  Where there is an allegation of discrimination in the context of disability, whatever its precise nature, it is the link with disability which creates the unlawfulness.  The implied term of trust and confidence, however, does not require any causative input from discrimination in order to be made out.  In essence, the approach is to ask whether the employer has conducted himself without reasonable and proper cause in a manner calculated or likely to destroy or damage the relationship of trust and confidence between employer and employee.  That looks at the employer’s acts and their effect, objectively considered, but it does not look at whether those acts have any relationship with disability or with discrimination.  Accordingly it could not be said, as a proposition of law, that to dismiss allegations of disability discrimination would have the consequence that it followed that there was no breach of the implied term of trust and confidence, such as to enable the Claimant to resign.  

The Respondent’s answer
20.	Those arguments are powerful arguments but the answer, which is given by the Respondent in this case, is also a powerful one.  Ms Mayhew, who appears for the employer as she did below, points to the well-known principle that a point cannot be taken on appeal if it has not been taken below.  The Tribunal had before it a list of issues.  That list was one drawn up by the Claimant.  It set out, under the heading “constructive unfair dismissal” (see page 263 of our bundle), the relevant questions:

“1.	Was there a repudiatory breach of the Claimant’s contract of employment by the First Respondent?
2.	Did the Claimant resign in response to the breach?  If so;
3.	Did the Claimant delay too long before terminating the contract of employment in response to the repudiatory breach?  If not;
4.	What was the reason for the Claimant’s dismissal?
5.	Did the first Respondent act reasonably in all the circumstances in treating the reason for dismissal as sufficient.”

21.	Significantly, however, in brackets and italics underneath the first of those questions, “was there a repudiatory breach”, were these words:

“[The Claimant alleges a breach of the implied term as to trust and confidence between the First Respondent and the Claimant, full particulars of which are set out in paragraphs 7, 8, 9 and 10 below]”

22.	It is plain that this document was intended to set out full particulars, not least because those words were used but because it came to the Tribunal under cover of a letter of 26 March 2010 from the Claimant’s solicitors, which gave further particulars of the list of issues in two respects, one of them being in respect of victimisation.  We shall return to that in due course.

23.	At paragraph 7, which contained the first of the “full particulars”, there are five matters set out under the general question, “Did the first Respondent directly discriminate against the Claimant?”  These are all allegations of various acts said to amount to direct discrimination against the Claimant.  Similarly, at paragraph 8, there is a total of ten matters in respect of which the Claimant averred that the employer had failed to comply with its duty to make adjustments.  Under paragraph 9, there were 22 matters which were relied on by the Claimant as demonstrating that the employer had engaged in unwanted conduct with the purpose of effect of violating his dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

24.	Under paragraph 10, were the allegations of victimisation.  These, which were added as showing the protected acts and the detriment, given the letter of 26 March 2010, and as fully particularising or providing further particulars of them, read as follows:

“10.
The Claimant avers that the following were protected acts:
(i) Instructing his solicitor to correspond with the Respondents regarding the Claimant rights as a disabled person; and/or
(ii) Raising grievances regarding his rights and treatment as a disabled person.”

And it then averred that the particulars were to be found in paragraphs 7, 8 and 9.  Therefore, in that somewhat circular way, the matters relied upon as “full particulars” of the breaches of contract giving rise to the alleged constructive dismissal, were to be found in paragraphs 7, 8 and 9; 10 adding nothing except by referring back to 7, 8 and 9, though indicating, perhaps, that if victimisation were found then that would be a breach of the implied term relied on.

25.	What is said by Ms Mayhew is that the list of issues thus showed that the Claimant was relying upon establishing his claim in respect of discrimination in its various aspects, in order to establish the breach of the implied term which gave him the right to resign.  That explains the opening words of paragraph 59. It explains why the Tribunal should think that it “followed” - not as a matter of law or close analysis of the different legal provisions, but because that was the very way in which the Claimant had actually advanced his case.  In effect he had been saying, “if you find for me on my allegations of discrimination, as you should, then you must also and inevitably find for me on my allegations of constructive unfair dismissal”, and the converse was also, she submitted, to be understood.

Discussion
26.	We consider that the Tribunal had, as Tribunals do, to identify what were, in truth, the issues before it.  If it had set out in its Judgment what those issues were at the outset, a court such as this could see, and the parties might understand, why it had reached the conclusion it did.  It could also see whether that was the way in which the claim was advanced.  As the argument progressed it occurred to us, and Mr Duggan invites us so to find, that there was something of an ambiguity in the words used in respect of constructive unfair dismissal that were in brackets and italics.

27.	Was the Claimant saying that the full particulars were, and included, the allegation that there had been discrimination in each of the aspects referred to in paragraph 7, 8, 9 and 10?  Or, did he intend to refer comprehensively to the facts which were said to give rise to the different heads of action?  If the former, then a finding that there was no discrimination would simply answer the unfair dismissal claim.  Tribunals are used to such cases, given the almost invariable rule that where there is shown to be unlawful discrimination, it will be also a breach of the implied term of mutual trust and confidence.

28.	But if one focused upon the factual allegations, albeit located under the different headings, then the Tribunal would need to go further.  It would require to make findings as necessary about each of the matters, if it were to answer the question whether that particular issue was one which on its own, or taken collectively with all the other matters the Tribunal found to be established, constituted a breach of the implied term.

29.	An example was shown to us, during the argument, as to the way in which there might be a difference of approach.  Thus, at paragraph 41 of the decision, the Tribunal were exploring the way in which the employer had dealt with the Claimant’s grievances.  It said that the failure to uphold the grievances was based upon the honest perception, by those determining the grievances, that the facts were not made out.  It was satisfied that those considering the grievances had formed their views honestly on the evidence, that is, the decision was not in any sense caused by, consciously or unconsciously, the disability from which the Claimant suffered.

30.	If this issue and its effect upon the implied term was, because of the way in which the Claimant was advancing his case and had put the issues which the Tribunal adopted, to be resolved by simply asking “was there discrimination or wasn’t there?”, then those findings would mean that the Claimant could not rely upon them.  His case that there had been discrimination, therefore that there was a repudiatory breach by his employer, would not succeed on that basis.

31.	However, the Tribunal went on to say that Mr Glynn’s handling of the appeal was flawed, in that he did not concentrate on the grounds of appeal.  (Put shortly, what we understood to have happened was that Ms Mills, hearing the grievance, had reduced what were a number of grievances to subheadings.  She failed to deal individually with certain allegations.  The Claimant objected to that way of dealing with the grievance.  He appealed.  In part, his appeal argued that Ms Mills was simply not entitled to deal with matters in the way that she had.  Mr Glynn did not deal with those grounds of appeal.)

32.	The fact that the employer did not discriminate in doing so, does not answer the question whether it might have been in breach of contract in failing to do so.  If the contract is seen as entitling an employee to an appeal and to have that appeal properly and impartially considered, it may be seen as a breach of that contract, or unreasonable behaviour, for the employer not to deal with his grounds of appeal at all.  To be told one has a right of appeal, and then to be asked to formulate grounds, for the employer simply to ignore them, may be seen as conduct which is in breach of the implied term, at least in that respect.

33.	Thus, it mattered what the approach was that the Tribunal should have taken.  Mr Duggan showed us that in the witness statement of the Claimant prepared for the Tribunal, he dealt with his claim in respect of unfair dismissal.  In summary, in the closing words of paragraph 89 and the opening words of paragraph 90, he said (as to 89) that none of the issues raised in his letter of appeal had been dealt with in the letter dismissing the appeal, which he had received from Mr Glynn.  Instead, it was merely repetitive of the letter which he had earlier had.  The claimant then said:

“As a result of wholly unreasonable and discriminatory behaviour by the Respondents, my trust and confidence in the First Respondent as my employer had been completely destroyed.”

34.	Mr Duggan argues that that had two strands to it.  It was not simply saying that the behaviour was discriminatory.  It was unreasonable and discriminatory.  This showed that what the Claimant had in mind, by his list of issues, was applying the conventional legal test, summarised in the context of constructive dismissal to which s.98 of the Employment Rights Act 1996 applies in the five propositions which the Tribunal had set out to the factual allegations which were contained as part of the suggestions that they also were discriminatory in the various aspects mentioned at paragraphs 7, 8 and 9 of the list of issues.  He argues that that also should have emerged from the way in which the Claimant was putting his closing arguments to the Tribunal, inviting the analysis which is conventional in constructive dismissal cases, rather than simply saying it all depended on what was made of the discrimination claims.

Conclusion
35.	We have come to the view that Mr Duggan’s approach to this is to be preferred to that of Ms Mayhew, who asks us to see that each and every one of the relevant facts is set out and answered by the Tribunal in the course of their decision.  As we have already indicated, if the contractual analysis is to be applied to the example of the way in which the employer handled the grievance procedure (and it is we think the only example which has been advanced to us), then further facts would require to be found by the Tribunal before it could reach the conclusion that the constructive dismissal claim was to be dismissed.

36.	We consider that the Employment Tribunal, here, is entitled to considerable sympathy.  We can understand from the way in which the decision is drafted, and the way in which the words “it follows” are used, that the Tribunal was, in the particular circumstances of this case, thinking to itself that to answer the questions in respect of discrimination in all aspects referred to in 7, 8 and 9, would also, and thereby, answer the questions arising in the contract claim.  It did so because of the way in which, as we see it, the list of issues was neither comprehensively nor carefully drafted and because of the misunderstanding that was likely to arise, because of the way in which the constructive unfair dismissal simply referred on to “full particulars” in identified later paragraphs.

37.	We do, however, think that there was sufficient to show us that the case, as put before the Tribunal, was not understood by the Claimant as being tied inexorably to the decision in respect of discrimination, and the Tribunal should not have assumed it to be so.  The answer given by Ms Mayhew, that this is an issue advanced on appeal which was not advanced below, and should be dismissed on that basis is not made out.

38.	This then requires us to ask whether, on this head of the appeal, the answer given by the Tribunal was plainly and obviously right, notwithstanding the error.  As to that, we say this.  The findings of fact made by the Tribunal deal with a very large number of matters which the Claimant was arguing, singly or together, justified him in regarding the employer as in breach, and leaving their employment.  To that extent, even if the Tribunal had made a mistake (as we hold it did) in its overall approach, there would be no basis on its findings of fact for a finding that there had here been a repudiatory breach by the employer.  But, we note that taking the approach of asking whether the conduct either singularly or overall amounted to a repudiatory breach, being a breach of the implied term of trust and confidence, an Employment Tribunal would be entitled to take into account, first, the delay that there was in the return to work. That in itself, the Tribunal thought, was a delay which was prudent and therefore it could not, and would not, be of itself a breach of the implied term of trust and confidence, for it would be with good reason.  But it was allied to a delay in payment.  If that delay in payment was without contractual cause, that is, if the Claimant were contractually entitled to be paid during that period of time (a matter which his employer, ultimately and reluctantly, came to accept, as seems to be the case) then the Claimant might be entitled to have cause for complaint.

39.	He returned to work.  He might be said, thereby, to have affirmed the contract and it is open to a Tribunal to hold that he did.  But it is also open to a Tribunal to see the failure to pay as part of the context within which the Claimant regarded the failure to deal with his Notice of Appeal, as he had drafted it, in the grievance procedure as a serious breach.  If, put together, a Tribunal were to conclude that it demonstrated a failure of the sort which would amount to a breach of the implied term, then if the Claimant (either wholly or in material part) resigned in reliance upon it (and would not otherwise have resigned), there would be a right to claim constructive unfair dismissal and compensation consequent upon it.  This is a possibility.

40.	We do not consider that we, not having seen the witnesses, not having heard the Claimant, not having evaluated the facts at first hand, are in a position to say with any confidence that the decision the Tribunal made would necessarily (though it may well) have been precisely the same as it was.  Accordingly, as it seems to us on this aspect of the case, the matter will have to be remitted to a Tribunal.

Victimisation
41.	We turn now to the argument in respect of victimisation.  Here, again, the battle lines are drawn by reference to the way in which the list of issues dominated the proceedings.  The only aspect of victimisation which was live, given the findings of fact of the Tribunal, is that in respect of 10(1) of the list of issues: instructing the solicitor to correspond with the Respondent regarding the Claimant’s rights as a disabled person.

42.	Here the facts are that there was a string of correspondence which began with a letter of 6 March 2009, which is not obviously open to criticism for its content, through to a letter from the employer of 3 April 2009.  Victimisation, insofar as relevant to this case, arises where the alleged discriminator treats the Claimant less favourably than he treats (or would treat) other persons, whose circumstances are the same, for a protected reason.

43.	Mr Duggan, in the course of his submissions, accepted that there is a distinction to be drawn between complaining to an individual about the fact that he has made a complaint of discrimination, or which is related to discrimination on the one hand, and the way in which his complaint is made on the other.  If, for instance, an employee were aggressively and with violence to insist upon his rights, using vernacular epithets in what might colloquially be described as “construction site language” to do so, it is not difficult to see that, in responding to such a complaint an employer might be motivated not by the fact of complaint but by the manner of it.

44.	In the exchange of correspondence, the last letter from the employer said this, in its last two significant paragraphs:

“We would have settled amicably with [the Claimant] had it not been for your firm’s over aggressive and unnecessarily contentious handling of this whole matter.
In fact, your very aggressive stance in this matter may have potentially soured and even damaged relations between Mellons and [the Claimant] and has caused a good deal of harm and distress to other directors.”

45.	The first of those two sentences might be seen as saying that the Claimant had suffered a disadvantage, which he would not have suffered, had it not been for what was described as the “firm’s over aggressive and unnecessarily contentious handling” of the whole matter.  That, it seems to us, requires analysis by a Tribunal, who were invited to consider these particular words by the parties, into whether this was a response which, indicating that the Claimant would earlier have had a “amicable settlement” and, because that was delayed, suffered a detriment; whether he had been treated in that way because he had complained or because of the way in which he did it.

46.	Having reviewed the correspondence we cannot accept that we, in this appeal Tribunal, could determine one way or the other which is right.  We consider that taking the approach we have to constructive unfair dismissal, and the way in which the list of issues is to be interpreted, it was not a sufficient and adequate answer to the Claimant’s claims to say, as briefly and concisely as the Tribunal did, that “it followed” that the detriments did not arise as a result of the Claimant carrying out a protected act.  We emphasise that, by using that language, the Tribunal appear to be having regard to the covering letter of 26 March 2010, to the list of issues which gives further particulars on victimisation of (i) the protected acts; and (ii) the detriment.

47.	Accordingly we consider, though not without some hesitation, that in this respect too the issue must be remitted.  However, we do so noting that in all the findings of fact in respect of discrimination in its direct form, its adjustment form and its harassment form, the Tribunal has identified (and identified clearly) the reason why particular acts were done.  It is only in respect of the matter which we have identified, as to the potential delay in payment, that we have been shown a matter which is not answered by the facts already found by the Tribunal.  We shall hear counsel in case we have missed anything which ought to be remitted, but otherwise it would seem to us that on the issue of victimisation and the issue of dismissal, the appeal should be allowed and the matter remitted to the Tribunal to deal with the outstanding issues, that is, those not resolved by the findings of fact otherwise reached.

48.	For completeness, we should deal with the complaint which is made at paragraph 60.  There, the Tribunal recognise that an adverse inference was to be drawn from what it describes as incorrect answers to some of the questions in the Disability Discrimination Act questionnaire.  As to this, what Mr Duggan argues was that there was no proper evidential foundation for a conclusion that the answer to the questionnaire arose from incompetence and/or poor advice.  Accordingly, he submits this is a finding which must fall.

49.	In answer, Ms Mayhew points us to notes of evidence which she has had leave to submit.  In cross-examination of Gill Adams, she accepted that part of the material in the questionnaire - which asserted that the reasons for non-engagement of the Claimant as the general manager - was (and again we summarise, we hope, not unfairly) because of the effects of his illness and difficulties with communication.  She accepted that that was probably a complete fabrication. 

Asked: “Do you know who compiled the answers to the questionnaire?”
She said: “It would have been advice from [she identified human resources consultants employed by the employer] and we would have been involved.”
Question: “Did you help?”
Answer: “Yes.”
Question: “Was anyone else involved?  Probably the other directors?”
Answer: “Yes.”

50.	She was re-examined.  She was asked who Winckworth Sherwood were, whose name appeared on the face of the questionnaire.  “Our solicitors”, she answered.  She identified the signature as being somebody who worked for the solicitors.  Could she tell the Tribunal how the document was compiled?  No she could not.  Who contributed to it?  She did not know.

51.	It seems to us that there is, there, some material upon which the Tribunal could conclude that the human resources consultant (or the solicitors) had given poor advice and/or were incompetent, as they held.  They plainly took a view of Ms Adams which was that, in the main, she was a truthful and honest witness.  We cannot, having had regard to the totality of the Tribunal’s decision, conclude that the adverse inference which was drawn from the fact that the question was incorrect should, in those circumstances, necessarily have led to the inference that there had here been disability discrimination.

52.	In particular, we accept Ms Mayhew’s point that the reason for the treatment, said to be discrimination, is in most cases clearly identified by the Tribunal.  Reasons are given which are simply not discriminatory.  There is no force, it seems to us, in that ground of appeal.  Nor do we accept that there is any force in the ground of appeal, which seeks to argue that the decision in respect of disability discrimination is flawed because of the comparators adopted.

53.	Whatever the force, or the correctness of the identification of comparators, the treatment was clear here; that was the non-appointment of the Claimant as general manager.  The reason for that was, as we have already identified, clearly identified by the Tribunal.  There is, therefore here, no scope for any mistake if there was one (and we do not say there was in respect of comparators) to have affected the conclusion.

54.	In conclusion, therefore, we allow the appeal upon the basis that the Tribunal has insufficiently set out its reasoning in paragraphs 58 and 59.  It has failed to approach the question of constructive unfair dismissal upon the basis it should, being (as we see it) seduced into thinking, because of the list of issues, that it was sufficient simply to identify whether there had or had not been discrimination.

55.	We shall hear counsel as to whether remission, on the limited basis which we have identified, should (a) be expanded; and in any case (b) go to the same Tribunal, or to some different Tribunal.

Remission
56.	Two issues arise.  First, the scope of the remission.  Second, the question whether the remission should be to the same or to a different Tribunal.  As to the scope of remission, we have been invited by Mr Duggan to invite the Tribunal on remission to look at issues beyond the issue which we have identified in our principal Judgment.  He invites us to add the refusal to allow return to work immediately, the refusal to pay during that period of time, as well as the issues which arise from the nature of the correspondence, and the relationship of the correspondence to pay.

57.	We have considered those.  We accept that in paragraphs 41 and 56 (see the last two sentences of 41, and the last sentence of 56) there are findings of motivation and reason for particular conduct which do not persuade us that the issue of remission should be any wider than the issue we identified in our principal Judgment.  On that point, therefore, it will be limited to that.

Constructive unfair dismissal
58.	It is accepted that the question: “is the significance in contractual terms of the panel adopting what is recognised to be a flawed process on appeal”, and the questions which (under Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27) arise as a consequence of that, but that has to be seen in the context, and the context is plainly the whole of the context, that is not to invite re-litigation of matters but merely that other matters may be referred to, and we had in mind during the Judgment, in particular, the absence of money which the Claimant suffered for some three months (in a significant sum) between January and April 2008.

59.	As to a Tribunal, we are invited by Mr Duggan to remit to a different Tribunal, by Ms Mayhew to the same Tribunal.  Mr Duggan submits that the Claimant is distrustful of the Tribunal, that it will not reach the same decision, largely and simply because it has already indicated a decision on its approach to the facts.  Secondly, that to hear the matter in Bury St Edmonds is inconvenient for him.  It would be more convenient to hear the matter in east or central London.

60.	Ms Mayhew responds that no suggestion that the geographical location was misplaced was made in respect of the original Tribunal.  She objects that, on the grounds of costs, proportionality and the fact that there has been no criticism of the way in which the Tribunal approached the Claimant’s case (so as to indicate any form of bias), we should on accepted principles remit to the same Tribunal.

61.	We direct ourselves by reference to paragraph 46 of the decision in Sinclair Roche & Temperley v Heard & Another [2004] IRLR 763.  That sets out six particular considerations though, of course, all relevant factors must be considered.  But the factors most likely to be relevant are first, proportionality, which it is said must always be relevant.  Here we accept that proportionality would argue that on a claim which is very important to the Claimant, but in relative terms is limited in its financial scope, that the same Tribunal should hear the matter.  It would save cost and it would save time, which is the second matter referred to specifically in the Judgment of Sinclair Roche.  Three factors deserve further consideration. 

Bias or partiality
62.	Here there is no apparent bias, nor partiality, subject to what might be called the “second bite” point, and whether a decision is totally flawed, in which case it should not go back.  This decision, as we have indicated, is not totally flawed because we have seen the result as a product of that which the Tribunal thought they were being invited, effectively by the parties, to decide.  

Second bite
63.	There must be a careful consideration of what Lord Phillips in English, at paragraph 24, called a “second bite of the cherry”:

“If the Tribunal has already made up its mind, on the face of it, in relation to all the matters before it, it may well be a difficult if not impossible task to change it: and in any event there must be the very real risk of an appearance of pre-judgement or bias if that is what a Tribunal is asked to do.  There must be a very real and very human desire to attempt to reach the same result, if only on the basis of the natural wish to say “I told you so”.  Once again the appellate tribunal would only send the matter back if it had confidence that, with guidance, the Tribunal, because there were matters which it had not, or had not yet, considered at the time it apparently reached a conclusion, would be prepared to look fully at such further matters, and thus be willing or enabled to come to a different conclusion, if so advised.”

Professionalism
64.	The last matter is said to be Tribunal professionalism.  This is the counter point which Ms Mayhew relies upon to answer the second Bite point, which Mr Duggan relies upon.  The concluding words in that respect, of paragraph 46 of Sinclair Roche are these:

“46. It follows that where a Tribunal is corrected on an honest misunderstanding or misapplication of the legally required approach (not amounting to a ‘totally flawed’ decision…) then, unless it appears that the Tribunal has so thoroughly committed itself that a rethink appears impracticable, there can be the presumption that it will go about the tasks set them on remission in a professional way, paying careful attention to the guidance given to it by the appellate tribunal.”

65.	Those last words are, we think, appropriate here.  In our view, this is not a case in which, although the Tribunal has found against the Claimant on his heads of claim, they have done so in a way which indicates a predisposition or pre-judgment, which would mean that it would be wrong to give a “second bite of the cherry”.   Though we fully understand the feeling of the Claimant, as expressed to us, that the judgment he has received here might be pyrrhic if the Tribunal adheres to its original decision, we have confidence (and in the light of what was wrong with the Judgment, and why, we feel we have to have confidence) in the professionalism of this Tribunal.

66.	Its members will realise from this decision that the approach of simply asking “was there discrimination: if yes, breach of contract, constructive dismissal; if no, not”, was incorrect and not that which they were being enjoined to do.  We see no reason why they cannot properly apply the law and come to whatever conclusion is correct, whether it be in favour of the Respondent or in favour of the Claimant.

67.	That has the advantage here, as we have indicated, of cost, and of proportionality.  It is our decision therefore that the matter will be remitted to the same Tribunal.  We should add that matters should be relatively fresh in the Tribunal’s mind since it was only in January of this year that it gave its decision.

68.	Accordingly, the appeal is allowed, the matters identified remitted to the same Tribunal in accordance with our judgment.