Bolton St Catherine's Academy V Ms G O'Brien (Unfair Dismissal : Reasonableness of dismissal) [2015] UKEAT 0051_15

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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Bolton St Catherine's Academy V Ms G O'Brien (Unfair Dismissal : Reasonableness of dismissal) [2015] UKEAT 0051_15_1809 (18 September 2015) URL: http://www.bailii.org/uk/cases/UKEAT/2015/0051_15_1809.html Cite as: [2015] UKEAT 0051_15_1809, [2015] UKEAT 51_15_1809

HIS HONOUR JUDGE SEROTA QC

Introduction

1. This is an appeal by the Respondent from the decision of the Employment Tribunal at Manchester, sent to the parties on 6 November 2014. The Employment Tribunal was presided over by Employment Judge Porter, who sat with Mr M C Smith and Mrs C A Titherington.

2. The Employment Tribunal upheld the Claimant’s claim that she had been unfairly dismissed and that she had suffered unlawful discrimination within the meaning of sections 15 and 39(2) of the Equality Act 2010. The Claimant had been treated unfavourably because of something arising in consequence of her disability (long-term sickness absence) and the Respondent had failed to show that the treatment was a proportionate means of achieving a legitimate aim. It was also found that there had been a breach of contract on the part of the Respondent by making a payment in lieu of notice (“PILON”) at the time of dismissal of the Claimant when there was no contractual right to do so.

3. The Employment Tribunal rejected claims that the Claimant had been subjected to a detriment within the meaning of section 47B of the Employment Rights Act 1996 and that her dismissal was unfair within the meaning of sections 100, 103A and 104 of the Employment Rights Act.

4. The Employment Tribunal also rejected a claim that prior to her dismissal the Claimant had been treated unfavourably because of something arising in consequence of her disability under section 15 Equality Act 2010. A claim for accrued holiday pay was dismissed. The Employment Tribunal directed that there should be a Remedy Hearing.

5. The appeal is principally directed at the finding that the dismissal of the Claimant was not a proportionate means of achieving a legitimate aim and at the findings of discrimination under section 15 Equality Act and of unfair dismissal.

6. The appeal was referred to a Full Hearing by HHJ Shanks on 5 March 2015.

Factual Background

7. I take this largely from the Decision of the Employment Tribunal.

8. It is not easy to summarise the factual background as in my opinion the claim was overloaded by the Claimant and the Employment Tribunal dealt with all matters raised meticulously in a very detailed Judgment of 66 closely spaced pages running to 213 paragraphs. I will therefore, concentrate as far as possible, on the facts that are relevant to the grounds of the appeal.

9. I note that the Claimant is also pursuing a civil claim against the Respondent for personal injuries. The Employment Tribunal was concerned not to make findings as to the causation of the Claimant’s disability so as not to embarrass the civil proceedings and cause a possible stay of the Employment Tribunal proceedings. The question whether or not the Respondent is responsible for the Claimant’s disability (although this may have been of relevance when considering issues of reasonableness of the dismissal) has consequently not been canvassed before me.

The School

10. The Respondent is a publicly funded independent school with approximately 1,200 pupils aged eight to 18. The school was formerly known as Withins when it was administered by the local authority. The school had been on special measures (I believe on more than one occasion). It achieved academy status in 2009 and changed its name to the present. It is an “urban” school and evidently has a number of problems. Its catchment area includes deprived areas, and the make-up of the school is reflected in the fact that over 50% of its pupils have entitlement to free school meals. It is well recognised that many pupils displayed aggressive and challenging behaviours. The school had a succession of poor academic results.

11. It is important to point out that there was a significant change in the exclusion policy before and after the school achieved academy status. Prior to achieving academy status the school’s ethos or policy was the traditional one of excluding pupils who had displayed aggressive and challenging behaviours. After achieving academy status (paragraph 33 of the Judgment):

“33. … The school adopted an ethos whereby there could be a fixed period of exclusion. It was recognised that for a lot of the students the school presented their only life opportunity, that permanent exclusion led to a detrimental impact on the student and should be avoided. The ethos of the school was to work hard to explore alternative strategies to support and keep its hard to reach and vulnerable students engaged in their learning and go the extra mile in providing the necessary assistance to help young people achieve. This was a shift from the predecessor school which took a much harder line with students who chose not to engage.”

Persons Involved

12. Mrs C Wilkinson, formerly the Business Manager of Withins, and latterly, when academy status was achieved, the HR Director of the school, was responsible for all HR matters. She would take advice when necessary from RBS Mentor Services. Prior to achieving academy status the school had the benefit of HR services of the local authority. Mrs Wilkinson introduced a sickness absence policy.

13. As part of her responsibilities she would report to the Governors and the Assets and Finance Standards subcommittees on the level of staff sickness, absences (in a generic way rather than by reference to specific individuals) and the cost and effect of absences on the running of the school. The Employment Tribunal noted that, during the period of the Claimant’s sickness absence, no satisfactory evidence had been adduced of the information given to the school about the cost and effect of sickness absences.

14. Mr C Hopkinson, a Governor and Chair of the medical incapacity hearing.

15. Mr J Wallington, formerly a Governor and Chair of the Appeals Panel that heard the Claimant’s appeal against her dismissal.

16. Mr P Watts, solicitor and employment law HR consultant for RBS Mentor Services.

The Claimant

17. The Claimant’s employment commenced in September 2000, I assume within the Bolton educational system, so that she retained her continuity of employment when she joined Withins in 2005 as Head of Information and Communication Technology (“ICT”). When the school achieved academy status in 2009 she was Director of Learning ICT and responsible for leadership and development of the ICT Department. She also had a responsibility for teaching ICT. The Employment Tribunal say that she was a well-regarded member of staff with a clean disciplinary record and no history of unacceptable sickness absence.

18. The relevant contractual provisions are to be found in the Sickness Absence Policy, which has special provisions for reporting stress-related conditions to HR, provisions for dealing with short-term absences including a formal medical incapacity hearing, which might lead to dismissal on grounds of medical incapacity, and long-term absences and consideration of medical incapacity.

19. The Claimant’s contract was subject to the terms of the National Conditions of Service (“The Burgundy Book”). These included special provisions relating to absence by reason of an accidental injury or assault, an appeals procedure that provided for a review not a re-hearing and a policy on the management of violence to employees. Sickness absence resulting from assault was to be regarded as an industrial injury and absence and periods of absence for this reason were not to count against entitlement to sick pay.

Chronology

20. I now turn to deal briefly with the relevant chronology. On 25 March 2011 the Claimant was assaulted by a pupil referred to as KB, who had previously assaulted another member of staff. The Claimant suffered injuries to her hand and stomach and a significant stress reaction.

21. The Claimant was dissatisfied with how the Senior Leadership Team dealt with the situation. The Claimant wanted KB permanently excluded and the police involved. The Claimant did attend school for several days in the week following the assault, but after meeting Mrs Wilkinson on 30 March 2011, Mrs Wilkinson considered the Claimant was unfit to continue working by reason of stress and she was advised to go home and see her GP. She took one week’s sick leave by reason of stress and stomach pain.

22. The Claimant asked Mrs Wilkinson to record the injury as an industrial injury and she agreed to do so.

23. The Claimant also made clear her views that KB should be permanently excluded and the police involved. Mrs Wilkinson did not in fact record the Claimant’s absence as being due to an industrial injury or an injury arising out of employment. She had referred to the rules requiring a report pursuant to RIDDOR (Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995) to the HSE, believing she could only do so if the absence was for three or more consecutive days (the Claimant had returned to work the following week). Mrs Wilkinson also believed that work-related stress was not reportable.

24. I am now going to quote from paragraph 38 (page 14 of the Decision of the Employment Tribunal):

“38. … Mrs Wilkinson held the honest and genuine belief that this incident was not reportable to HSE under RIDDOR, and therefore should not be classified as an industrial injury. In recording the absence for the purpose of the respondent’s sickness absence procedures, Mrs Wilkinson confused the reporting under RIDDOR and the internal reporting under the internal sickness absence procedure. She applied her understanding of RIDDOR reporting to both. She did not therefore record the absence in March/April 2011 as an industrial injury, or as an injury arising during employment for the purposes of section 9.1 of the National Conditions …”

Although this matter was highly contentious at one time, it plays no part in this appeal and I do not need to say anything further about it.

25. On 11 April 2011 the Claimant returned to work and the school provided her with counselling. After her return to school following the Easter break the Claimant met Mrs Wilkinson and complained that she felt unsafe and that the school’s system was not protecting employees. She also suggested that the Head of the school received a bonus for not excluding pupils. I assume that this suggestion may not have been well-received by the school and the truth of the suggestion was rejected by the Employment Tribunal.

26. The Claimant worked through the summer of 2011 with adjustments to her duties so she was not responsible for supervision during breaks or before school because she felt vulnerable in the open body of the school. Neither did she attend staff briefings, which entailed walking down the main school corridor. The Claimant wanted the school to return to its policy of permanent exclusion of aggressive pupils and the permanent exclusion of KB in particular. Although Mrs Wilkinson was sympathetic, the Respondent was unwilling to change its ethos and policy.

27. 20 July 2011 was the last day of the summer term. The Claimant saw KB at school; this distressed the Claimant greatly because she believed that KB had been excluded from school that day. The Claimant’s distress was such that she was “knocked for six”.

28. The Claimant met Mrs Wilkinson again and raised her concerns. She was offered assistance through Occupational Health but she did not take this up pending discussion with her GP. The Claimant worked for the remainder of the summer term and the autumn term, but on 9 December 2011 she went off sick suffering with stress and never returned to work.

29. The Claimant accessed cognitive behavioural therapy (“CBT”) and she was reported as suffering from depression and stress by both her GP and Occupational Health. As the reason for the sickness absence was stress that had arisen many months after the original incident, Mrs Wilkinson:

“52. … honestly and genuinely thought that it should not be reported to HSE under RIDDOR, should not be recorded internally as absence due to industrial injury …”

On 16 March 2012 Mrs Wilkinson made a referral to AXA, the Respondent’s Occupational Health service provider, for advice relating to the Claimant’s sickness absence and her ability to return to work and also whether her current absence should be regarded as absence due to industrial injury as opposed to sickness absence.

30. AXA reported on 19 April 2012 that the Claimant was on long-term sick leave by reason of anxiety and stress-related symptoms which related directly to the incident on 25 March 2011. The report stated that the disability provisions of the Equality Act were likely to apply. The report (quoted extensively by the Employment Tribunal) went on to say that, given the degree of ongoing symptoms, it was unlikely that the Claimant would be able to make any return to work in the next couple of months or so. No adjustments or restrictions were identified as being necessary to expedite this:

“… Indeed, given the duration and severity of her symptoms, it is possible that no return to teaching, certainly at her current school, may be possible. Considerable work will need to be undertaken to resolve ongoing anxieties and concerns regarding the support offered and the perception that she has of being inadequately supported. Because of this, it is difficult to state with confidence whether [the claimant] should be capable of providing regular and effective service in future. If the above concerns can be addressed and resolved, then she should be able to return to work. If not, then I suspect that no such return will prove possible. …” (paragraph 59 of the Decision)

31. Occupational Health advised that the Claimant’s illness should be seen as an industrial injury and reported under RIDDOR. Mrs Wilkinson contacted the author of the report, Dr Weadick, to discuss her understanding of the RIDDOR reporting procedure. Following the discussion:

“60. … it remained Mrs Wilkinson’s honest and genuine belief that the incident on 25 March 2011 was not reportable under RIDDOR and that the sickness absence should not be recorded as an industrial injury.”

32. The Employment Tribunal noted that from the date of receipt of the OH report in April 2012 the Respondent was aware of the Claimant’s disability. The Employment Tribunal did not accept the Claimant’s contention that the date of knowledge was prior to receipt of the OH report. Mrs Wilkinson made a further referral to AXA on 12 June 2012, and on 19 July 2012 the Claimant was examined by Dr Doherty, who reported on 21 August 2012 and expressed doubts as to whether the Claimant in fact suffered from post-traumatic stress disorder. He opined:

“… it seems likely that there will not be a medical solution to this matter. Rather there seems to be a growing need for mediation to resolve the matter: until the claimant can achieve some satisfaction for the matter it seems unlikely that her condition will improve. Until this resolution proves possible, it is unlikely that she will be capable of providing regular and effective service in future. …” (paragraph 68 of the Decision)

33. There followed correspondence between the Respondent and the Claimant’s trade union (the NUT). The Employment Tribunal noted that the NUT asserted that the Claimant’s sickness absence related to an industrial injury and requested, therefore, that she should be paid sick pay in accordance with the terms of the Burgundy Book by giving the Claimant six months on full pay together with 100 working days on full pay and 100 days of half pay if required; it was also noted that no complaints were raised of discrimination under the Equality Act nor was it asserted the Claimant was disabled within the meaning of the Act. On 23 July 2012 the Claimant presented a claim in relation to wrongful deduction from her wages. The Employment Tribunal again note there was no reference in the claim to disability or discrimination. I am not concerned with the claim in this appeal. I note, however, the Claimant continued to be signed off in August for two months and in October for three months by reason of PTSD.

34. On 16 October 2012 Mrs Wilkinson informed the Claimant that in line with the Managing Sickness Absence Framework she had arranged for a welfare meeting to take place on 31 October 2012; the letter was copied to the Claimant’s trade union representative who was unable to attend the meeting on 31 October, which was moved to 1 November 2012. The Claimant, however, made clear she did not wish to attend the welfare meeting because she felt she had nothing more to say and that the meeting would upset her and not do her any good. Mrs Wilkinson explained that the Claimant had been off work for nearly a year and the organisation needed to understand from the Claimant whether a return to work was likely or whether there were any adjustments which could be made to facilitate her recovery. The Claimant’s trade union representative, Mrs Simpkins, asked if the Claimant could provide the information in writing. There was then correspondence with a view to taking up the suggestion that the Claimant might provide information in writing, but the Claimant did not respond to a letter with a number of questions. The Claimant’s eventual responses were somewhat unhelpful and she suggested that the Respondent’s doctor should contact her GP. The Claimant’s response was sent through by Mrs Simpkins on 19 November 2012. In answer to a question whether she agreed with the AXA report of 21 August 2012, the Claimant responded that she relied on the advice of her own doctors and the question required a medical opinion that she was not qualified to give.

35. In answer to other questions including “please can you describe your symptoms for us?”, “has your GP referred you for specialist review?”, “has your condition improved since last December? If so in what way?”, “what do you believe are the barriers to you returning to work?”, “do you feel that you will be able to return to work at some point in the future and if so what are the likely timescales?”, the Claimant’s response to all those questions was to refer to the answer she had given to the first question, which I have set out above. It is fair to say that the Claimant was being uncooperative.

36. Eventually, the questions were submitted to the Claimant’s GP, who responded shortly before the Christmas break in the following terms:

“The doctor is unable to answer your questions. She feels the Academy would need to speak to (the claimant) directly.” (paragraph 80 of the Decision)

37. The letter was seen by Mrs Wilkinson after the Christmas break, and on 9 January 2013 she contacted the NUT to advise of the content of the GP’s letter and that the Academy would need to consider what the next steps might be given the Claimant’s reluctance to respond to requests and engage in discussions about her continued employment.

38. The Employment Tribunal find (paragraph 86 of the Decision):

“86. Mrs Wilkinson was clearly frustrated by the failure of the claimant and her GP to cooperate with obtaining up-to-date medical information about the claimant’s health and the prognosis for her return to work. She contacted Mentor for advice and made the decision to proceed to a Medical Incapacity hearing, knowing that a possible outcome was the termination of the claimant’s employment. Mrs Wilkinson did not contact AXA for a further up-to-date occupational health report.”

39. On 10 January 2013 the Claimant was invited to a medical incapacity hearing for 28 January 2013. It was made clear to her that the purpose of the meeting was to discuss her ongoing employment. She would have a final chance to put forward any update on her situation and to make any further representations and the potential outcome of the meeting could be termination of the employment on the grounds of capability due to long-term incapacity.

40. The meeting took place on 28 January 2013. Mrs Wilkinson presented the management case and prepared a chronology of the timeline and facts and confirmed, having regard, inter alia, to the letter from the Claimant’s GP, that the Academy:

“… would need to consider what the next steps might be, given the claimant’s reluctance to respond to requests and engage in discussions about her continued employment. …” (paragraph 92 of the Decision)

The Employment Tribunal observed that the truth of that statement was not challenged at the medical incapacity hearing or before the Employment Tribunal. The Employment Tribunal also note that the chronology “did not comment on the effect of the Claimant’s absence on the business.” Points to note about this meeting are as follows:

(i) Mrs Wilkinson had by now, so the Employment Tribunal found, decided that dismissal of the Claimant by reason of long-term absence was the best course of action for the school.

(ii) The Claimant informed the meeting that although PTSD had not been diagnosed she was being treated for PTSD and it had made a big difference.

(iii) The Claimant was hopeful of being able to return to work by the end of April 2013 although her therapist had said she would be in a better position to advise after seven sessions to be completed in approximately three months but was reluctant to confirm that the Claimant would be able to return after those sessions.

41. No questions were raised as to the impact on the “business” of the continued absence of the Claimant; the Claimant did not seek an adjournment to enable her to present further medical evidence.

42. When the Claimant was asked by Mr Hopkinson if she returned to school and similar incidents took place, what did she believe would happen, the Claimant responded by saying she could not say. At paragraph 94 the Employment Tribunal said:

“94. The panel retired to reach a decision. Mrs Wilkinson played no part in the decision-making process. The Panel considered all the evidence before them before reaching its decision. The Panel acted independently. It did not merely rubber-stamp a decision made by Mrs Wilkinson. In reaching its unanimous decision the panel noted that the claimant was unable to say when she would be able to return to work and there was no medical information to assist on that point. The panel decided independently as governors that termination of employment was appropriate based on:

· Firstly, the length of the absence which was continuing with no fixed date of her return,

· secondly, that there was no sign of improvement in the claimant’s condition to enable her to return to the school in April 2013, and

· thirdly, that they had concerns of the likelihood of a similar or other incident re-occurring and this resulting in a further period of absence. …”

43. The Employment Tribunal at paragraph 95 found that the panel, in reaching its decision, did not consider the impact of the Claimant’s absence on the business, did not weigh up the effects of terminating the Claimant’s employment against the prospect of having to incur further expense, disruption and asking colleagues to provide extra support for a further three months.

44. I do not have the Employment Judge’s notes and counsel have not agreed their notes. However, I have seen the notes of both Ms Banton and Mr Legard. Mr Hopkinson was cross-examined by Ms Banton and explained that the panel decided to proceed and that it had enough information to make the decision to dismiss. Ms Banton’s note is as follows:

“Given it had been 14 months we had to balance … at the end of the day the governors have huge obligation to ensure the educational need of the students. At the end of the day it was a value judgment. Unanimous decision, spent a full hour on debate. Difficult to remember how we perceived it at the time.”

45. Mr Wallington was also cross-examined by Ms Banton and her note reads:

“As already in 17 months of absence another report would have delayed matters further.”

Mr Wallington expressed the view that three months absence in its own right was a long-term absence and that it was not reasonable to allow the Claimant another 2-3 months because it was prolonging the whole event out of proportion. The Employment Tribunal was critical of Mr Hopkinson’s evidence as inconsistent. The Employment Tribunal found it was clear from the dismissal letter and from the minutes of the medical incapacity hearing that the effect of the Claimant’s absence on the business was not discussed. Mr Hopkinson’s evidence of the discussion between panel members as to the effect of the Claimant’s absence on the business “was vague, referring to a high obligation to give the student’s educational needs top priority”, his awareness of a “challenging situation”, his understanding that not having a head of a very important department was going to impact on the student’s education. The Employment Tribunal was satisfied that Mr Hopkinson’s knowledge of the actual effect of the Claimant’s absence on the business was raised for the first time during questions raised by the Tribunal and he confirmed the panel did not receive any information about the impact of the Claimant’s absence on the school. But he again raised matters relating to the educational needs of the students, a requirement for consistency in teaching and gave evidence “for the first time” that he had regular meetings with the principal and quizzed him about the lack of a head of ICT in the last six months. That evidence contradicted his earlier evidence that he did not know about the Claimant’s absence. The medical incapacity hearing was reconvened and the Claimant advised of the decision to dismiss and her right of appeal, which were confirmed by the letter of 29 January 2013, which set out three reasons for the decision to dismiss: “the length of time of work to date with no substantive progress of condition”, “no prognosis that indicates return to work likely in the near term”, and “concern that incidents that precipitated your condition could occur again in the school environment”.

46. As the Claimant was entitled to 12 weeks’ notice of termination she was told she would be paid in lieu and that the effective date of termination was 31 January 2013.

47. I agree with the submission that the Employment Tribunal’s principal concern appears to be the absence of any consideration by the panel of the effect of the Claimant’s absence on “the business.”

48. The Claimant raised various matters in her grounds of appeal including, inter alia, that the panel failed to obtain an up-to-date medical report. She did not raise the issue of any failure to consider the impact of her long-term absence (nor had she given any evidence in relation to the impact of her absence before the medical incapacity hearing). The Respondent provided a written response to the grounds of appeal for consideration by the appeal panel. This maintained that the Claimant was not dismissed because of any disability:

“… but because of the length of your absence, the financial cost to the Academy, the effect that your absence had on colleagues, the length of time you felt it would take before you were able to return to work and the reliability of the prognosis you put forward (in light of the medical evidence). … The Panel believed that the length of time you had been off … since [December] 2011 combined with no certain return date (at best a phased return at the end of April 2013) which represented approximately 17 months was unacceptable. The Panel had to weigh up the effects of terminating your employment against the prospect of having to incur further expense, disruption and asking colleagues to provide extra support for a further 3 months (on top of the previous 14 months) all of which represented a ‘best case scenario’ that was not based on any firm medical opinion.” (paragraph 102 of the Decision)

49. The Claimant presented a “fit” note to the appeal panel suggesting that she would be able to return to work on 9 April 2013. However, although she had a medical report from her GP dated 8 April 2013, this was not disclosed to the appeal panel. The Claimant confirmed there were no adjustments that could have been made in January to expedite her return to work before April 2013 and that until she had completed her treatment and recovered from her ill-health, nothing else could have been done to aid her return to work. She was now fit to return to work full-time and no adjustments were needed for her medical condition. The Employment Tribunal, at paragraph 103.13, had this to say:

“103.13. no evidence was led, no questions were asked by the claimant or the panel, as to the impact of the claimant’s absence to date, or her continued absence, on the running of the school or the standard of teaching.”

The appeal panel rejected the appeal.

50. The appeal panel considered the medical evidence and that there was inconsistent information and that the prognosis shown in every doctor’s report was not good in that the Claimant’s return to work was uncertain. It concluded that the “fit note” of 9 April 2013 was an attempt by the Claimant to get back to work before her condition was fully treated. The appeal panel took into account the ethos of the academy not to permanently exclude pupils and they were aware of the risk to staff from students coming from a violent background and they shared the dismissing panel’s concern that, if the Claimant was attacked again, there would be a relapse. Then one finds this:

“in deciding whether the respondent had waited long enough decided that an absence of 14 months, which was likely to last 17 months (to April 2013) was too great a burden on the Academy its staff and pupils bearing in mind the respondent’s obligation to provide a consistent programme for its pupils” (paragraph 104 of the Decision)

51. At paragraph 105, one finds this:

“105. There was no evidence before the Appeal panel as to the affect the claimant’s absence had had on the business, no evidence as to the burden, expense, disruption or extra support provided by colleagues arising from the claimant’s absence. The Appeal panel, in reaching its decision, did not, as asserted in the letter confirming the decision … weigh up those factors against the effects of terminating the claimant’s employment.”

52. At paragraph 109 the Employment Tribunal find that:

“109. The respondent had adduced no satisfactory evidence as to

· how the work of the claimant, as Head of ICT, was dealt with during her absence;

· how the claimant’s long term sickness absence affected the running of the school, the education of the students, the workload of other members of staff;

· what steps the school took after the claimant’s dismissal in relation to her position as Head of ICT.”

53. There are further findings that the Employment Tribunal found in the rest of its Decision as part of its consideration of the law and finding of facts. These include a finding that:

· The reason for the dismissal of the Claimant was her long-term sickness absence.

· The Claimant was guilty of uncooperative behaviour whereas Mrs Wilkinson had always displayed a caring and sympathetic attitude towards the Claimant.

· The calling of the Claimant to the incapacity meeting in January was a reasonable response.

· In dismissing the Claimant, the Respondent had the legitimate aim to protect the efficient running of the school and reduction of costs and the need to provide a good standard of teaching; I note that the Claimant’s basic salary was in excess of £58,000 per annum.

· The Employment Tribunal, however, insisted that the Respondent had failed to adduce satisfactory evidence in relation to the disruption caused by the Claimant’s absence including the cost of covering her absence. A less discriminatory way of achieving the Respondent’s objective would have been for the dismissal panel to wait a little longer, perhaps a further 3-4 months.

· The appeal panel should have obtained a further report and no final decision should have been taken pending an up-to-date medical report. The failure of the Respondent to conduct a balancing exercise under section 15 Equality Act rendered the dismissal unfair substantively, although otherwise the dismissal was procedurally fair.”

The Decision of the Employment Tribunal

54. I wish to make it clear that the Decision of the Employment Tribunal is both full and careful. It contains detailed consideration of the facts and comprehensive self-direction as to the law. There is no issue as to the self-direction by the Employment Tribunal as to the law, as opposed to its application to the facts. The Judgment is 66 closely typed pages and 213 paragraphs in length.

55. The Employment Tribunal set out the facts above and the list of issues. It then went on to give itself a self-direction as to the law, referring to the relevant provisions of the Equality Act 2010 and cases on detriment including Shamoon v Chief Constable of the RUC [2003] ICR 337 and the EHRC Code of Practice on Employment in relation to the definition of “detriment”. It went on to refer to section 136 of the Act and the reverse burden of proof and sections 13 and 23 and authorities relating to comparators including Shamoon and Law Society v Bahl [2003] IRLR 640. A direction was given in relation to cases on the reverse burden of proof such as Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332, Igen Ltd v Wong [2005] IRLR 258 and Madarassy v Nomura International plc [2007] IRLR 246. Consideration was given to the EHRC Code of Practice, and to the provisions relating to reasonable adjustments, none of which are relevant for the purposes of this appeal. As allegations were made in relation to alleged harassment, victimisation and there were issues as to protected acts or protected disclosures, the Employment Tribunal gave itself an appropriate self-direction as to the law; these matters are not relevant to the appeal. I do not need to consider them further. The Employment Tribunal considered the well-known principles in relation to fairness of dismissals and the reasonable range of responses including Iceland Frozen Foods v Jones [1983] ICR 17 and Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23. It reminded itself that, in dismissals by reason of capability on the grounds of disability, the Tribunal had to address three questions; namely whether the Respondent genuinely believed in the stated reason, whether the reason was reached after reasonable investigation and whether it had reasonable grounds on which to conclude as they did. The Tribunal reminded itself that the issue was whether a reasonable management could find, from the material before them, that the Claimant was not capable of returning to his or her post and it was not for the Tribunal to substitute its own view for that of the reasonable employer. It also reminded itself of the decision of the Court of Session in BS v Dundee City Council [2013] CSIH 91 that in a case where an employee has been absent from work for some time owing to sickness:

“… it is essential to consider the question of whether the employer can be expected to wait longer.”

56. Although not a point argued before it, it reminded itself of the decision in Royal Bank of Scotland plc v McCadie [2008] ICR 1087 that, where a Respondent is responsible for the sickness of the employee, a reasonable employer might wish to go “the extra mile” before deciding to dismiss because of long-term sickness absence caused by their own failure. As I have already explained, this point has not been argued. At the beginning of this Judgment I referred to those claims by the Claimant which were rejected and I do not propose to repeat myself.

57. The Employment Tribunal (see paragraph 192) found that the reason for dismissal was long-term sickness absence and that Mrs Wilkinson acted reasonably and the decision to call the medical incapacity hearing was a reasonable response to what was clearly uncooperative behaviour on the part of the Claimant.

58. The Employment Tribunal was satisfied however that the dismissal of the Claimant amounted to unfavourable treatment by reason of her disability and was not a proportionate means of achieving a legitimate aim.

59. The Employment Tribunal identified the legitimate aim as being the efficient running of the school, the reduction of costs and the need to provide a good standard of teaching to the students. The Employment Tribunal went on to consider whether the dismissal was a proportionate means of achieving that legitimate aim and had conducted a balancing exercise weighing the discriminatory effect of the treatment of the Claimant against the employer’s reasons for the treatment. It noted, in particular, that Mrs Wilkinson had not provided the medical incapacity hearing with evidence as to the effect of the Claimant’s absence on the running of the business nor of the effect of the Claimant’s continued absence. The position was the same at the appeal.

“199.2. The Governors at the Medical Incapacity Hearing did not, in reaching their decision to dismiss, consider the affect of the claimant’s absence on the running of the school. This was not rectified at the appeal stage, at which the panel considered only that the claimant’s absence was “too great a burden” without establishing the extent or nature of that burden.

199.3. That has not been rectified before the tribunal. …”

It was said that, again, vague assertions have been made as to need for consistency in teaching, but that aim, that requirement, and the effect of the Claimant’s absence on it has not been explained. The Respondent has not adduced satisfactory evidence, has not provided a satisfactory explanation as to:

“199.3.1. the disruption caused by the claimant’s absence, the nature of the support provided by colleagues, the cost of covering her teaching duties, the effect of the claimant’s absence on the running of the school and/or the standard of education provided to students. Mr Kemp covered the claimant’s teaching duties. It is not known for what period and at what cost and to what extent, if any, that affected the standard of teaching.

199.3.2. what steps had been taken to cover the remainder of the claimant’s duties during her absence, that is, her position as head of ICT. Mr Hopkinson expressed concern about the absence of a Head of Department. No satisfactory evidence has been led as to how that adversely affected the business or the standard of education provided.

199.3.3. why the claimant had to be dismissed at that point, how any continued absence would have affected the business and the standard of teaching, and how the dismissal of the claimant was intended to rectify any such adverse effect.

199.3.4. what the respondent did to cover the remainder of the claimant’s duties after her dismissal, what steps, if any, the respondent took after the dismissal of the claimant to rectify the asserted adverse impact on the business of the claimant’s absence. Mr Hopkinson expressed concern about the absence of a Head of Department. No evidence has been led as to how that was rectified following the dismissal.”

60. I note at this point in time the concentration by the Employment Tribunal on the failure of the Respondent to adduce evidence of the impact of the Claimant’s absence on the running of the school. I also notice at this point in time that there is no attempt by the Employment Tribunal to use its own experience and appreciate the obvious and consider, as part of the balancing process, the likely effect of the absence of a senior member of staff with a leadership as well as a teaching role for over a year with a minimum period after which she might return to work of a further three months; the effect of having to make payment to Mr Kemp - a teacher who did not work full time but for the duration of Ms O’Brien’s absence was engaged to work full time to cover some or all of her teaching; and the fact that the school was also required to provide cover from existing resources for the Claimant’s leadership and administrative roles. One does not have to employ a management consultant to be able to appreciate that there was likely to be a significant impact; I will return to this matter later. The Employment Tribunal does not appear to have received evidence from the Claimant suggesting otherwise.

61. I note that the parties had agreed not to consider whether the Respondent was responsible for the Claimant’s disability and although in the bundle of authorities I have not been referred to the case of McAdie v Royal Bank of Scotland.

62. I also note that the Employment Tribunal recognised that dismissal in consequence of disability may be justified as being a proportionate means of achieving a legitimate aim, even though that evidence was not specifically relied upon at the time of dismissal and appeal.

63. In the circumstances the Employment Tribunal concluded that, although the dismissal was not procedurally unfair it was unfair substantively:

“200. … the evidence produced at this tribunal must be satisfactory, must be more than mere generalisations. The respondent has failed to produce satisfactory evidence to support its assertion that the claimant’s continuing absence had an adverse effect on the running of the business and/or the standard of teaching provided to the students.

201. Dismissal was the most discriminatory means of achieving the aims. A less discriminatory way of treating this case was, at the time of the dismissal, to wait a little longer, to establish whether the claimant was, as she asserted at the Medical Incapacity hearing, able to return to work in the near future, whether the new treatment with a therapist would assist a return to work. There is no satisfactory evidence as to any adverse effect on the running of the business and/or the standard of the teaching by waiting a little longer. No satisfactory evidence has been provided as to why the respondent decided that the inability of the claimant to provide a definite date for return to work by the end of April 2013 adversely affected the business or the standard of teaching, why a total of 17 months absence was wholly unacceptable compared to an absence of say 20 or 21 months.”

64. At paragraph 202 the Employment Tribunal noted that at the appeal hearing the Claimant provided a fit note to say she was fit to return and medical evidence from Mrs Welden, which reported that after treatment the Claimant would be expected to return to her pre-trauma functioning. That was consistent with the Claimant’s assertion at the appeal hearing that, as she had completed the treatment, she could return to school knowing that, with amendments to the policies and procedures, incidents would likely be fewer and she was better able to deal with them. The Employment Tribunal accepted the Respondent was entitled to review all the medical evidence and the Claimant’s evidence before reaching their decision. It also recognised an employer owed a common law duty of reasonable care to the employee and in cases such as the present was entitled, but not obliged, to make his own assessment of the risk of a further absence from work caused by a recurrence of the employee’s ill-health. Referring to the Schenker Rail case (to which I will refer later in this Judgment) the Employment Tribunal accepted that any assessment by an employer will normally be informed by the content of an expert report or reports:

“202. … In these circumstances if the Appeal Panel doubted the veracity of the fit note, or Mrs Welden’s report, if they doubted the effectiveness of the treatment on the claimant and her assertion that she was now fit enough to return to work and was now better able to cope with any incidents, because it conflicted with the earlier Occupational Health reports, then a less discriminatory action would have been to seek clarification of the medical condition, to obtain a further OH report before making a final decision. Part of the reason for dismissal, and part of the reason for the upholding of that decision on appeal, was because the respondent was concerned that a recurrence of an incident would lead to further absence. That reason was founded on an assumption made by both panels about the claimant’s ability to cope with incidents with threatening/abusive students. This was a matter arising in consequence of the claimant’s disability. In effect the [panel] decided that because the claimant was sick after the incident on 25 March 2011, she was likely to be sick after any further incidents. That assumption was contrary to the report of Mrs Welden, who stated that she would expect the claimant to return to her pre-trauma functioning within 10-12 sessions. Clearly the OH reports were not helpful on this point. They did not address the question of likelihood of recurrence after the claimant regained her health and went back to work. A less discriminatory response would have been to postpone the decision pending up to date medical evidence on that point, that is, the claimant’s ability to cope with similar events in the future. There is no satisfactory evidence as to any adverse effect on the running of the business and/or the standard of the teaching by waiting a little longer after the Appeal hearing to acquire the appropriate medical evidence.

203. In all these circumstances we find the respondent has failed to show that the unfavourable treatment, that is, dismissal, was a proportionate means of achieving a legitimate aim. The claim under s15 Equality Act is well-founded.”

65. The Employment Tribunal went on to consider the question of unfair dismissal. It found (paragraph 205) that the reason for dismissal was capability and that the Respondent held the honest and genuine belief that the Claimant was medically incapable of returning to work following a long sickness absence:

“205. … Capability is a potentially fair reason for dismissal …

206. We have considered all the circumstances of this case, including those matters referred to in s98(4) Employment Rights Act 1996, to determine whether, in all those circumstances, the dismissal of the claimant for the reason stated was fair or unfair. In deciding whether the decision to dismiss was fair or unfair we remind ourselves it is not for us to substitute our view for that of the employer. The question is did the respondent act fairly within the band of reasonable responses of a reasonable employer in dismissing the claimant. We note that this is a different test from that which we have applied in determining the claim under s15 Equality Act 2010.

207. Any reasonable employer would have conducted the appropriate balancing exercise required of it under s15 Equality Act before reaching the decision to dismiss, before upholding that decision on appeal. Both panels, at the Medical Incapacity Hearing and at the Appeal hearing, failed to carry out that balancing exercise. The respondent was well aware that the claimant was a disabled person within the meaning of the Act. In all the circumstances we find that dismissal fell outside the band of reasonable responses because it was a discriminatory act.

208. The dismissal was substantively unfair.”

66. Viewed overall the Employment Tribunal concluded the Respondent had followed a fair disciplinary procedure. It noted that the Claimant did not raise any matters relating to “the affect” of her absence on the business. The Employment Tribunal then went on to deal with other matters that are not relevant to this appeal.

Grounds of Appeal and Respondent’s Submissions in support

67. Ground 1: The Employment Tribunal was wrong to find the dismissal was not a proportionate means of achieving a legitimate aim.

68. Ground 2: The finding of the Employment Tribunal that the Respondent unlawfully discriminated against the Claimant by failing to conduct “a balancing exercise required of it under section 15 Equality Act” was wrong in principle and an error of law; I note that Mr Legard has maintained that this infects the entire Judgment.

69. Ground 3: The Employment Tribunal is said to have erred in law by concluding that dismissal was disproportionate in the circumstances where the Respondent could reasonably have been expected to “wait a little longer”.

70. Ground 4: The Employment Tribunal erred in applying the test of justification to circumstances prevailing at the date of the appeal rather than the date of the dismissal.

71. Ground 5: The Employment Tribunal erroneously conflated unfair dismissal and section 15 Equality Act jurisdictions.

72. Ground 6: The Employment Tribunal concluded there was an unfair dismissal without considering the authorities on dismissals on the grounds of capability and health.

73. Ground 7: In finding that the Claimant was unfairly dismissed the Tribunal fell into error by substituting its view for that of the dismissing employer.

74. Ground 8: In relation to the findings of unfair dismissal and discrimination under section 15 Equality Act the Judgment was not “Meek”-compliant nor compliant with the Employment Tribunal Rules of Procedure Rule 62(5) by providing adequate reasons in support of the same. I will deal with this ground now because it seems to me there is nothing in it. This was a very full and detailed Judgment; whatever faults the Judgment may have, lack of detailed reasons is certainly not one of them.

Ground 8

75. Mr Legard made some introductory submissions on the question of proportionality. He submitted that the approach of the Employment Tribunal to the question whether the dismissal of the Claimant was a proportionate means of achieving, what was found by the Employment Tribunal to be, a legitimate aim was wrong. The test for determining whether the dismissal was proportionate to this aim is objective. It was not relevant whether or not the Respondent had given specific attention to questions of proportionality at the time of dismissal. It was an error of law for the Employment Tribunal to take the failure of the Respondent to get to grips with the Claimant’s asserted disability as a reason on its own to reject the justification defence. He referred to the decision in HM Prison v Johnson [2007] IRLR 951 to which I will refer in due course. Mr Legard correctly pointed to the decision of the ECJ in the case of Bilka-Kaufhaus GmbH v Weber von Hartz [1986] IRLR 317, cited with approval by the Supreme Court in Homer v Chief Constable of West Yorkshire Police [2012] IRLR 601 to which I will also come in due course. In the Bilka case the test of justification was whether the treatment was “necessary and in proportion to the objectives pursued by the employer.” The test was objective unlike the question whether a dismissal was unfair, in which category of cases the whole range of reasonable responses needed to be considered. It was submitted that the Employment Tribunal is required to strike an objective balance between the discriminatory effects of the measure and the needs of its business. There is no need for there to be concrete evidence; in some cases common sense and the experience of the Employment Tribunal will be sufficient evidence of proportionality; Mr Legard referred to the Homer decision and Seldon v Clarkson Wright and Jakes [2012] UKSC 16. The availability of alternatives to the discriminatory means that were used by the employer is, of course, relevant to the question of proportionality.

76. Mr Legard drew attention to authorities on dismissals in case of ill-health, in particular Spencer v Paragon Wallpapers [1977] ICR 301, to which I will refer in due course. Each case was dependent on its own circumstances and the essential question in such cases was whether the employer can be expected to wait longer and if so, how much longer?

Ground 1

77. In relation to ground 1 Mr Legard relied on the decision of Elias J in Seldon v Clarkson Wright and Jakes [2009] IRLR 267 to support the proposition that in cases involving section 15 Equality Act there is no obligation on the Respondent to lead concrete evidence to support its claim of justification, provided that it can satisfy the Employment Tribunal on the material before the Tribunal that, as in this case, the dismissal was objectively justified. There was clearly evidence that the Governors of the school considered that the impact of the Claimant’s long-term absence and continued absence had a significant impact. One might suppose that the Governors and the head of the school would know perfectly well the cost in non-financial terms of the prolonged absence of the head of an important department and the effect of this absence on other teachers and pupils. There was evidence of an additional cost of paying for Mr Kemp, and the Respondent’s witnesses appear to have been questioned on the question of proportionality issues, although the evidence was categorised as “vague”. Mr Hopkinson was not found to be untruthful (but his evidence in relation to the reason for dismissal was found to be clear and consistent). At no point did the Employment Tribunal make a finding that the Respondent’s assertions as to cost, disruption and impact upon colleagues were inherently false. I am minded to accept Mr Legard’s submission that there was no obligation upon the Respondent to adduce in support of such assertions, such matters as detailed financial reports, staff rotas, contracts of employment for temporary staff, minutes of the Senior Leadership Team, heads of department meetings, pupil attainment records, or Ofsted reports. Mr Legard went on to submit that it was unnecessary to produce such documentation “to support what to any reasonable person was blindingly obvious” (there is another reference to it being “bloody obvious” but I take this to have been a proof-reading error and that it was intended to repeat the word “blindingly”). Mr Legard submitted it was obvious as a matter of common sense that the absence of the head of the ICT department for 14 months and, on the Tribunal’s findings, potentially 21 months or more in circumstances where there was no clear prognosis for return, in an academy where ICT was a key part of the curriculum, would adversely impact upon the quality and consistency of the children’s education. Mr Legard stressed that the academy was in a deprived area where education represented for many their principal life opportunity. He submitted that the Tribunal “singularly failed to apply its own common sense rational judgment to the issue as expressly encouraged in cases such as Seldon and Homer” and “instead sought to place an intolerable and unrealistic burden upon the academy to produce ‘concrete’ evidence”. The Employment Tribunal failed to take account of its own findings, including the extra payment made to Mr Kemp and that the Respondent took account of the risk of relapse by the Claimant; this was not an unreal or unrealistic concern because the Claimant had returned to work and suffered a further and substantial breakdown as a result of simply seeing the child KB at school; it also took account of the reluctance of the Claimant to engage with the school and her lack of co-operation. There was little to support the Claimant’s upbeat self-assessment and there was a need to balance the interests of pupils and the Claimant’s absence as head of ICT for 14 months with no guarantee she would be able to return after 17 months.

78. The medical evidence was not optimistic. At the time of her dismissal she was unfit to work and remained on a strong dosage of anti-depressant medication. She had been described as unfit with little prospect of a return in successive OH reports from April and August, to which I have referred. The doctors could not suggest any adjustments that might enable the Claimant to return to work and, as at October 2012, she remained seriously unwell and incapable of attending school. It was also relevant there was a significant disagreement between the Claimant and the school in relation to its policy on exclusion and that the medical evidence suggested that, before the Claimant could return to work, it was necessary for there to be some resolution (through mediation or otherwise) in relation to what steps could be taken to make the Claimant feel safe. Mr Legard pointed out that the Employment Tribunal had also found that a reduction in costs was a legitimate aim.

Ground 2

79. In relation to ground 2 Mr Legard submitted the Employment Tribunal based its decision substantially upon the failure of the Respondent to carry out the balancing exercise. Mr Legard submitted this infected the entire Judgment. Section 15 does not require a balancing exercise to be carried out by the Respondent; the employer only has to show that its actions are proportionate. Balancing is not relevant to proportionality. Even if the Employment Tribunal has not considered or given inadequate consideration to questions of balancing, it is nonetheless open to the employer to justify objectively the action taken. In this regard Mr Legard relied upon HM Prison Service v Johnson and Hardy and Hansons plc v Lax [2005] IRLR 726. He also pointed out that Cadman v Health and Safety Executive [2004] IRLR 971 permits an employer to rely upon matters that may have come to light “after the event”. I will refer to these authorities later in the Judgment. Mr Legard submitted, and I believe him to be correct, that the principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the reasonable needs of the undertaking. He submitted that the task of the Employment Tribunal when considering a claim under section 15 is to use its common sense when determining whether or not, as in this case, the dismissal was proportionate, as the Respondent says it was. Mr Legard made it clear that he was not seeking to argue that the decision of the Employment Tribunal was perverse but that it had misapplied the principle of proportionality. The main thrust of the Employment Tribunal’s criticism of the Respondent was that it never turned its mind at the time of dismissal to the impact of the Claimant’s absence.

80. Mr Legard pointed to the additional cost, disruption to students and the impact of colleagues of the long-term absence of the Claimant. The crux of the case was that justification should be determined objectively. The task of carrying out the evaluation of the balancing exercise is for the Employment Tribunal. He pointed to paragraph 4.30 of the Code of Practice of the EHRC, referred to by the Employment Tribunal. It provides as follows:

“4.30. Even if the aim is a legitimate one, the means of achieving it must be proportionate. Deciding whether the means used to achieve the legitimate aim are proportionate involves a balancing exercise. An Employment Tribunal may wish to conduct a proper evaluation of the discriminatory effect of the provision, criterion or practice as against the employer’s reasons for applying it, taking into account all the relevant facts.”

Mr Legard repeated that there was clear evidence of additional cost and common sense suggested there would have been disruption to students and an impact on the Claimant’s colleagues of her long absence. It was clear from the decision in Homer that, even if a Respondent does not carry out a balancing exercise itself, it can justify its actions as proportionate if it can prove that objectively they were. There is, further, no need for an employer to adduce concrete evidence. In the particular case, the answer to justification was “obvious” and there can only be one outcome. The only alternative to dismissal, the Employment Tribunal found, was to wait a little longer. He submitted it was obvious that an experienced teacher with leadership responsibilities, responsible for delivery of an important part of a curriculum in a school in a deprived area, must have had a significant adverse impact on the Respondent’s “business” and the decision of the Employment Tribunal placed an intolerable and unrealistic burden on the Respondent to produce concrete evidence.

81. Mr Legard submitted that it was not the case that there was no such evidence, but on the Employment Tribunal’s own findings of fact there was material to support justification without identifying all of the matters that he referred to. He pointed to:

· The nature of the school and the Claimant’s responsibilities.

· Her absence for 14 months with a further minimum of three months.

· The absence of evidence to support her ability to return to work in the foreseeable future.

· The effect of the continuing dispute about whether KB should be excluded.

· The lack of co-operation by the Claimant in failing to provide medical information.

· The Respondent was entitled, as at the date of the medical incapacity hearing, to conclude from the medical evidence that despite having been off work for 14 months, and the likelihood it would be a minimum of three further months before she could return but the prognosis was uncertain, the Respondent was entitled reasonably to take the view that these matters justified the termination of her contract. The Employment Tribunal suggests that the Respondent should have waited a little longer. Mr Legard submitted that it was difficult to see how an alleged failure to wait a little longer impacted upon the proportionality issue. The Respondent was entitled to conclude it had waited long enough and Mr Legard went further and suggested that if the decision of the Employment Tribunal was upheld it would place employers in an invidious position. If a school could “carry” a sick employee by adapting timetables and teaching arrangements (for example), on the Tribunal’s reasoning, dismissal would rarely if ever be justified. Mr Legard asked forensically how long must an academy therefore wait? 21 months, as suggested by the Tribunal? He suggested (respectfully) that this was a “ridiculous proposition”.

82. The Employment Tribunal, it was submitted, found that the absence of any express discussion about impact and proportionality meant the Respondent could not discharge the burden of justifying the dismissal. It is submitted that the Employment Tribunal was, in effect, treating the question of justification as though the Respondent was applying the “range of reasonable responses” test to the Respondent’s conduct.

83. Mr Legard repeated that the Employment Tribunal had accepted there was a legitimate aim. I observe that although the Respondent adduced no evidence in relation to impact, Mr Legard repeated that the impact of the long absence was obvious. No evidence on the point was given by the Claimant.

84. The Employment Tribunal did receive evidence from Mr Hopkinson, although it regarded it as vague and inconsistent, that dismissal was considered the appropriate sanction because of the obligation to give the student’s educational needs top priority and there was a requirement for consistency in teaching; see paragraph 198 of the Decision of the Employment Tribunal and also the response to the Claimant’s grounds of appeal:

“198. … The Panel at the Medical Incapacity Hearing had to weigh up the effects of terminating the claimant’s employment against the prospect of having to incur further expense, disruption and asking colleagues to provide extra support for a further 3 months (on top of the previous 14 months).”

I observe it would be equally surprising if the school Governors did not have these things in mind even though the Employment Tribunal (paragraph 199.2) held that at the medical incapacity hearing the Governors did not consider “the affect” of the Claimant’s absence on the running of the school and that this was not rectified at the appeals stage when the panel considered only that the Claimant’s absence was “too great a burden” without establishing the extent or nature of that burden. Paragraph 199.3 makes it clear that the Employment Tribunal is fastening upon the Respondent’s failure to specifically consider this matter when taking the decision to dismiss and failing to lead evidence to support its case on impact. The Employment Tribunal, submitted Mr Legard, considered that the failure to consider questions of impact at the capability hearing and adduce evidence as to impact before the Employment Tribunal was fatal to the Respondent’s attempt to prove the proportionality defence.

85. Mr Legard submitted that even though the Employment Tribunal had to make up its mind on proportionality it must nonetheless attach appropriate weight to the views of the Respondent’s Governors; I am minded to accept that particular submission. Mr Legard referred to Mr Hopkinson’s response to the Claimant’s appeal against the decision of the medical incapacity hearing. I have already referred to that document in which Mr Hopkinson said that the panel believed the period off work was unacceptable and it had to weigh up the effects of terminating the Claimant’s employment against the prospect of having to incur further expense, disruption and asking colleagues to provide extra support for a further three months on top of the previous 14 months, all of which represented a best case scenario that was not based on any firm medical opinion.

86. Mr Legard submitted the Employment Tribunal was not so much critical of the substance of what Mr Hopkinson said but of the fact that it was not expressly considered at the time; this was to ignore the need for justification to be satisfied on objective grounds and not by fixating on the actual discussions and grounds of the medical incapacity hearing.

87. Mr Legard was at pains to point out that at the hearing on 28 January 2013 Mrs Simpkins accepted the “medical side of the management case” as presenting an “accurate picture” (at the meeting the Respondent had, inter alia, referred to the absence of any further information regarding a return to work in the near future, which was why the Respondent had felt it necessary to convene the medical incapacity hearing). Mrs Simpkins also said (see minutes at page 6, supplemental bundle) that “when it comes down to the medical points, the management case is right [the Claimant has not been fit enough to attend school]”. Mr Legard also pointed out that although the Claimant maintained that she should be in a position “hopefully” by the end of April to return to work, having had a number of sessions with a therapist, a therapist had said she would be able to assess a potential return to work more accurately after a further seven sessions. But the Claimant had recently seen the psychologist, who was reluctant to say she would be able to return to work after those seven sessions. Mr Legard went on to submit that, when the decision to dismiss was taken, it was clear that the Governors were concerned with when the Claimant might return to work and also with a risk of similar incident leading to a recurrence of the Claimant’s illness. Although new evidence was shown on the appeal including a letter of 23 February 2013 from an associate psychologist, Ms Welden, it was to be noted that the level of medication had not been reduced, as had previously been predicted. The Claimant scored high on anxiety and the diagnostic criteria for post-traumatic stress disorder and as at the date of dismissal, 31 January 2014, was clearly unable to return to work in the foreseeable future. Indeed, at the appeal hearing, Ms Greaves of the NUT, who represented the Claimant on that occasion, is expressed as saying that she understood why the Respondent may have made the decision it did from the evidence that was available.

88. My attention was drawn to a letter from the Claimant’s GP dated 8 April 2013 (which suggests that after therapy the Claimant might be able to fully return to pre-trauma functioning and her condition was treatable, but it was not suggested she was in a position to return to work at once). The following day a fit note was provided by the GP (page 40) and in the light of the letter of 8 April 2013 the appeal panel was entitled to be somewhat sceptical about whether the Claimant was in fact fit for work.

89. Mr Legard submitted that the question of justification did not depend solely on the cost of the further absence but also involved consideration of the length of absence and the position of the employee, the prognosis, the nature of any additional on cost, who covered the Claimant’s work, whether the Claimant co-operated in the medical incapacity process, whether there was a definite date of return to work. These were all factors to be considered when deciding whether the dismissal was proportionate in addition to questions of cost, impact on colleagues and impact on pupils.

Ground 3

90. The challenge to the finding that dismissal was disproportionate in circumstances where the Respondent could reasonably have waited a little longer. Mr Legard asked forensically, if this point was of general application, how long should someone be carried for? The Employment Tribunal, it was submitted, had conflated the approach under section 98(4) of the Employment Rights Act with that of section 15 of the Equality Act 2010. The Employment Tribunal was, in effect, suggesting that it was unreasonable to dismiss rather than wait for a further few months, thereby suggesting that the decision to dismiss was outside the range of reasonable responses. The Employment Tribunal had not explained why the Respondent should be criticised for not waiting, bearing in mind it had already waited 14 months and was liable to have to wait, on a best case scenario, for a minimum of a further three months. Mr Legard also pointed to the Employment Tribunal having found that calling the Claimant to the medical incapacity hearing (which might well lead to her dismissal) was a reasonable response. The Employment Tribunal had not explained how waiting “a little longer” impacted on proportionality. Mr Legard was clear in his submission that the finding that the dismissal was disproportionate in circumstances where the Claimant could reasonably have waited a little longer was perverse.

91. The Employment Tribunal gives no explanation as to why it might have been reasonable to have waited a little longer.

Ground 4

92. Did the Employment Tribunal fall into error by applying the test of justification to circumstances prevailing at the date of the appeal rather than at the date of dismissal? Mr Legard submits that it did. Ms Banton suggests it did not. I would note at this point in time it seems to me that the Employment Tribunal applied the test both to the date of dismissal and also to the date of the appeal. Mr Legard pointed out that the appeal was not a rehearing but a review and it was therefore inappropriate for the panel to seek further medical evidence. But in any event it was not necessary to do so.

Ground 5 - Conflation of Unfair Dismissal with Claim under Section 15 Equality Act

93. I have already largely dealt with the Respondent’s submissions. It was submitted, in particular by reference to paragraph 207 of the Employment Tribunal’s Decision, that the Employment Tribunal is conflating the test of proportionality with that of the reasonable range of responses.

Ground 6 - Failure to Consider Authorities on Capability and Ill-Health

94. Mr Legard referred to the decisions in Spencer v Paragon Wallpapers Ltd [1976] IRLR 373, BS v Dundee City Council [2014] IRLR 131 and DB Schenker Rail (UK) Ltd v Doolan UKEATS/0053/09. In fact, the Employment Tribunal cited extensively from Schenker and from the Dundee case and the citation from the Dundee case referred to the decision in Spencer, referring to the passage in which the EAT had stated that:

“… in a case where an employee has been absent from work for some time owing to sickness, it is essential to consider the question of whether the employer can be expected to wait longer.”

95. I take the Respondent as submitting that, notwithstanding the authorities that were before the Employment Tribunal, the Employment Tribunal failed to apply the principles set out in those cases and had not given adequate consideration to whether “in all the circumstances the [Respondent] can be expected to wait any longer and if so how much longer.”

96. Although the Employment Tribunal reminded itself it should not substitute its view on questions of reasonableness in relation to unfair dismissal for those of the employer, Mr Legard submits that is in fact what the Employment Tribunal proceeded to do. Mr Legard submitted that, on the Tribunal’s own findings at the incapacity hearing on 28 January 2013, the Claimant did not dispute the medical side of the Respondent’s management case and neither she nor have the medical experts suggested any reasonable adjustments. The Claimant did not seek an adjournment of the hearing to allow her to present further medical evidence and could not confirm that she would be able to return to work even after completing the therapy sessions. Mr Legard submitted that the Respondent could not reasonably be expected to wait any longer. He submitted there were close parallels between the instant case and the Dundee case. The panel was fully entitled to take account of the Claimant’s own views and act without seeking any further medical opinion. Mr Legard submits that, on any objective view, it had to be the case that the decision was one which was not only reasonably held but based upon reasonable grounds. Whether the Tribunal agreed with the panel’s decision is beside the point. In considering questions of unfair dismissal the Employment Tribunal need only be satisfied that the decision was genuinely and reasonably held and the product of a reasonable investigation. Mr Legard reminded me that the Claimant’s trade union representative, Ms Greaves, stated that she was able to understand why the Respondent may have made the decision that it did from the evidence that was available. Mr Legard made a point that if the Claimant’s own trade union representative accepted that the panel’s decision was understandable, it should on any view fall within the band of reasonable responses.

97. The final ground of appeal relates to alleged inadequacy of reasoning. I have already indicated I see no merit in this particular ground.

Claimant’s Submissions

98. Ms Banton naturally relied upon the findings and reasoning of the Employment Tribunal.

Ground 1

99. In relation to ground 1 Ms Banton submitted that the finding of the Employment Tribunal that the Respondent had failed to demonstrate the dismissal was a proportionate means of achieving a legitimate aim was neither wrong in principle nor law. Ms Banton submitted that the Employment Tribunal had not placed any obligation on the Respondent to produce concrete evidence nor was such a test applied; she made reference to Seldon v Clarkson Wright and Jakes [2009] IRLR 267. She pointed out that, contrary to an earlier submission by the Claimant, both Mr Hopkinson and Mr Wallington were challenged before the Employment Tribunal on questions of proportionality.

100. The Respondent had failed to provide “cogent evidence” of the impact on the school and the views expressed in the dismissal letter were no more than subjective impressions of the kind referred to in Homer v West Yorkshire Police or stereotypical assumptions as referred to in Seldon. She pointed out that the Employment Tribunal found that the decision of the medical incapacity hearing did not consider the impact of the Claimant’s absence on the “business” and did not weigh up the effects of terminating the Claimant’s employment against the prospect of having to incur further expense, disruption and asking colleagues to provide extra support for a further three months. It also found that no questions were asked internally as to the impact of the Claimant’s absence on the running of the school or the standard of teaching. The basis for that finding was well-made and reasonable because the Employment Tribunal heard the evidence and the witnesses and was best placed to evaluate such testimony. In those circumstances the Respondent’s appeal was properly characterised as a perversity appeal which could not meet the high hurdle of perversity appeals as set out in Yeboah v Crofton [2002] IRLR 634. The Claimant was simply relying upon stereotypical assumptions or subjective impressions or, as put by the Employment Tribunal, “vague assertions”. Reference was made to Homer and to Kapenova v Department of Health [2014] ICR 884, which cited from Homer. The findings of the Employment Tribunal as to the inadequacy of evidence to support objective justification of the dismissal were all reasonable factors to be considered when looking at proportionality. The Employment Tribunal was correct to point out that dismissal was the most discriminatory means of achieving the objective. Ms Banton also criticised the acceptance by the panel at the medical incapacity hearing of the risk of relapse in the case of further incidents of aggression. This was not evidence-based and was “impermissible based simply upon subjective impression or stereotyped assumptions”. A much less discriminatory response would have been to postpone the decision pending up-to-date medical evidence on the Claimant’s ability to cope with similar events in the future. There was no evidence, or credible explanation given as to why “such a simple step was not undertaken by the Respondent”.

Ground 2 - Unlawful discrimination by reason of the Respondent failing to carry out a balancing exercise

101. Ms Banton submitted that the Employment Tribunal correctly identified as a “theme” of the case the Respondent’s complete failure to conduct a balancing exercise as required under section 15 of the Equality Act. The Employment Tribunal had correctly had set out the law and identified that the test in question was objective and that the Respondent did not have to adequately consider the issue at the time.

Ground 3 - Dismissal disproportionate in circumstances where the Respondent could reasonably have been expected to “wait a little longer”

102. Ms Banton submitted there was no error of law; it was unclear how it could be said that the Employment Tribunal conflated the tests under section 15 Equality Act and section 98(4) Employment Rights Act because the Employment Tribunal approached its analysis on those issues separately. Insofar as the Respondent relied on the perversity argument, again it did not meet the high threshold required by Yeboah v Crofton.

Ground 4 - Employment Tribunal applied the test for justification to circumstances prevailing at the date of the appeal as opposed to the date of dismissal

103. Ms Banton submitted that the Employment Tribunal was in effect saying that the appeal process did not cure any defect in the dismissal process because the appeal failed in a basic manner regarding fairness because at the medical incapacity hearing, in reaching the decision to dismiss, the panel gave no consideration to the effect of the Claimant’s absence on the running of the school and this was not rectified at the appeal stage at which the panel only considered that the Claimant’s absence was “too great a burden” without establishing the extent or nature of the burden.

Ground 5 - Conflation of unfair dismissal and section 15 jurisdictions

104. Ms Banton submitted that there was no conflation; in deciding whether or not the dismissal was unfair the Employment Tribunal at paragraph 206 correctly directed itself that it should not substitute its views for that of the employer but consider whether the Respondent acted fairly within the band of reasonable responses of a reasonable employer in dismissing the Claimant. This was noted to be a different test from that applied in determining the section 15 Equality Act claim. The Employment Tribunal had specifically found that “any” reasonable employer would have conducted the appropriate balancing exercise required of it under section 15 Equality Act before reaching the decision to dismiss and before upholding that decision on appeal. The Employment Tribunal found that both panels had failed to carry out that balancing exercise. As the Respondent was aware of the Claimant’s disability the Employment Tribunal was entitled to find that in all the circumstances the dismissal fell outside the band of reasonable responses because it was a discriminatory act.

Ground 6 - Failure to apply relevant factors to ill-health capability dismissals

105. The issue of the Claimant’s ability to work and the Respondent’s investigation and analysis were clearly factors appropriately considered by the ET.

Ground 7 - Substitution

106. Ms Banton submitted that there was no question of the Employment Tribunal substituting its Judgment for that of the employer and reminded me of the evidence that at the appeal hearing the trade union representative, Ms Greaves, had suggested medical evidence was out of date and that the incapacity hearing should have called for further evidence; I note, however (see page 20 supplemental bundle) that the decision taken by the panel “was based on medical evidence”.

The Law

107. The Employment Tribunal gave itself a careful and full direction as to the law. The issues on this appeal are largely referable to the application of the law to the facts. The principles of unfair dismissal under section 98 of the Employment Rights Act 1996 are well-known. To be fair a dismissal must be for a potentially fair reason and “capability” is such a reason and it is not in issue that the Employment Tribunal found that capability was the reason for dismissal. In order for a dismissal to be fair the principles are set out in such cases as BHS v Burchell [1980] ICR 303 must be applied. The employer is required to show that its decisions throughout the dismissal process were within the reasonable range of responses. There is a somewhat different emphasis in cases of dismissal for ill-health capability. I do not consider in the circumstances it is necessary for me to say anything further about the Burchell principles or to refer to other authorities on the point.

Discrimination Arising from Disability

108. Section 15 of the Equality Act provides as follows:

“(1) A person (A) discriminates against a disabled person (B) if -

(a) A treats B unfavourably because of something arising in consequence of B’s disability, and

(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”

109. There is no issue in this case that dismissal constitutes unfavourable treatment. The issue in the case is whether the Respondent could show that the dismissal of the Claimant was a proportionate means of achieving a legitimate aim. A leading authority on issues of justification and proportionality is Homer v Chief Constable of West Yorkshire Police [2012] IRLR 601 in which Lady Hale quoted extensively from the decision of Mummery LJ in R(Elias) v Secretary of State for Defence [2006] 1 WLR 3213. Lady Hale cited a passage in his Judgment when Mummery LJ said:

“151. … the objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. So it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group.”

110. Mummery LJ went on to commend the three-stage test for determining proportionality derived from De Freitas v Permanent Secretary of Ministry of Agriculture [1999] 1 AC 69 at page 80 in the Privy Council (advice delivered by Lord Clyde):

“165. First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective?”

111. Lady Hale also made reference to the decision of the ECJ in Bilka-Kaufhaus GmbH v Weber von Hartz [1987] ICR 110 in which the ECJ held that a discriminatory practice might be regarded as objectively justified on economic grounds if a national court finds that the measures chosen by [the employer] respond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued and are necessary to that end:

“19. The approach to the justification of what would otherwise be indirect discrimination is well settled. A provision, criterion or practice is justified if the employer can show that it is a proportionate means of achieving a legitimate aim. The range of aims which can justify indirect discrimination on any ground is wider than the aims which can, in the case of age discrimination, justify direct discrimination. It is not limited to the social policy or other objectives derived from article 6(1), 4(1) and 2(5) of the Directive, but can encompass a real need on the part of the employer’s business: Bilka-Kaufhaus GmbH v Weber von Hartz, Case 170/84, [1987] ICR 110.”

112. Lady Hale cited a further passage from the Judgment of Mummery LJ which he had cited from the decision of the Court of Appeal in Hardy and Hansons plc v Lax [2005] ICR 1565:

“20. …

As the Court of Appeal held in Hardy & Hansons plc v Lax [2005] EWCA Civ 846, [2005] IRLR 726 [31], [32], it is not enough that a reasonable employer might think the criterion justified. The tribunal itself has to weigh the real needs of the undertaking, against the discriminatory effects of requirement.”

113. At paragraph 24 Lady Hale continued:

“24. Part of the assessment of whether the criterion can be justified entails a comparison of the impact of that criterion upon the affected group as against the importance of the aim to the employer. That comparison was lacking, both in the ET and in the EAT. Mr Homer (and anyone else in his position, had there been someone) was not being sacked or downgraded for not having a law degree. He was merely being denied the additional benefits associated with being at the highest grade. The most important benefit in practice is likely to have been the impact upon his final salary and thus upon the retirement pension to which he became entitled. So it has to be asked whether it was reasonably necessary in order to achieve the legitimate aims of the scheme to deny those benefits to people in his position? The ET did not ask itself that question.

25. To some extent the answer depends upon whether there were non-discriminatory alternative available [to the employer]. …”

114. Because the test of determining proportionality is objective it is no bar to the dismissal being justified objectively that an employer at the time of dismissal did not turn its mind to questions of proportionality. It follows that in order to prove objective justification an employer may rely upon matters that have come to light after the event; see Cadman v Health and Safety Executive [2004] IRLR 971.

115. The objective approach to be applied to the question whether a dismissal for a reason arising from disability differs from the approach taken to determine cases of unfair dismissal when it is necessary to consider whether the conduct of the employer was within the range of reasonable responses (see Hardy and Hansons plc v Lax). The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the reasonable needs of the undertaking; it is helpful, in my opinion, to have regard to the Judgment of Pill LJ as to the task of the employer when considering issues of justification. At paragraph 32 Pill LJ made clear that:

“32. Section 1(2)(b)(ii) requires the employer to show that the proposal is justifiable irrespective of the sex of the person to whom it is applied. It must be objectively justifiable (Barry …) and I accept that the word “necessary” used in Bilka … is to be qualified by the word “reasonably”. That qualification does not, however, permit the margin of discretion or range of reasonable responses for which the appellants contend. The presence of the word “reasonably” reflects the presence and applicability of the principle of proportionality. The employer does not have to demonstrate that no other proposal is possible. The employer has to show that the proposal, in this case for a full-time appointment, is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary. I reject the appellants’ submission (apparently accepted by the appeal tribunal) that, when reaching its conclusion, the employment tribunal needs to consider only whether or not it is satisfied that the employer’s views are within the range of views reasonable in the particular circumstances.”

The appraisal was later described as requiring considerable skill and insight. I also refer to paragraph 34 of Pill LJ’s Judgment:

“34. The power and duty of the employment tribunal to pass judgment on the employer’s attempt at justification must be accompanied by a power and duty in the appellate courts to scrutinise carefully the manner in which its decision has been reached. The risk of superficiality is revealed in the cases cited and, in this field, a broader understanding of the needs of business will be required than in most other situations in which tribunals are called upon to make decisions.”

116. The authorities make clear that the employer is not required to provide evidence of justification. Employment Tribunals are expected to use their common sense, reasoned and rational judgment; what may not be prayed in aid are subjective impressions or stereotyped assumptions. I have already referred to the decision of the Supreme Court in Homer. In that case Elias J (as he then was) made some helpful comments in the Employment Appeal Tribunal on the evidence required to establish justification. The decision of Elias J in the Employment Appeal Tribunal was ultimately upheld in the Supreme Court, but the comments of Elias J to which I am about to refer were not the subject of consideration either in the Court of Appeal or the Supreme Court. At paragraph 48 Elias J said:

“48. We also have reservations about other aspects of this part of the decision. We think there is force in the appellant’s submission that it is unjustified to put any real weight on the fact that there is no evidence in the short period subsequent to the changes having been made to demonstrate an improvement in the quality of recruits. An employer might be reasonably justified in making changes which he genuinely and on proper grounds considers will improve the standard of his work force and these may well be capable of justification, notwithstanding that with the benefit of hindsight the improvements which he reasonably anticipated were not realised. It is an error to think that concrete evidence is always necessary to establish justification, and the ACAS guidance should not be read in that way. Justification may be established in an appropriate case by reasoned and rational judgment. What is impermissible is a justification based simply on subjective impression or stereotyped assumptions. Moreover, the timescale is in any case too short to reach any satisfactory conclusion on the point.”

117. Elias J returned to the question in Seldon v Clarkson Wright and Jakes [2009] IRLR 267, which was affirmed by the Court of Appeal and Supreme Court although this point does not appear to have been argued before them. The case concerned justification for a compulsory retirement age in the partnership deed of a firm of solicitors. At paragraph 73 he said:

“73. We do not accept the submissions of the appellant, and indeed repeated by the Commission, that a tribunal must always have concrete evidence, neatly weighed, to support each assertion made by the employer. Tribunals have an important role in applying their common sense and their knowledge of human nature. So, to take an example from this case, it seems to us plain that it will assist retention of associates, at least to some degree, that they know that partners are going to have to retire at a particular age. It is also self-evident, we think, that it will assist forward planning, particularly in relation to the operation of particular departments, to have the predictability of knowing when a partner will leave. It does not need a business planner to give evidence about that. Tribunals must, no doubt, be astute to differentiate between the exercise of their knowledge of how humans behave and stereotyped assumptions about behaviour. But the fact that they may sometimes fall into that trap does not mean that the tribunals must leave their understanding of human nature behind them when they sit in judgment.”

118. In Kapenova v Department of Health [2014] ICR 884 Slade J made clear that an Employment Tribunal is entitled to cull evidence from such material as is before them in determining issues of justification.

119. In HM Prison Service v Johnson [2007] IRLR 951 the Employment Tribunal had held that an employer in full knowledge of the employee’s disability “blatantly” ignored indisputable facts, disregarded material information, and failed to address a fundamental question which arose from that information and those facts, such conduct simply blew out of the water any possible defence of justification.

120. This reasoning was roundly rejected by Underhill J (as he then was) in the Employment Appeal Tribunal, who made clear that this approach was misconceived. The relevant question is whether the dismissal can be justified objectively. It may be justified objectively even if it had given no specific thought to issues of justification at the time of dismissal.

“114. The reasoning in those paragraphs is clear. The essential point to note about it is that all the particular criticisms advanced by the tribunal are essentially aspects of a single criticism, forcefully expressed here and elsewhere in the reasons (particularly paragraphs 8.54-8.57, of which they are essentially a summary), namely that as a result of a mixture of incompetence and insouciance the appellants’ managers never sought or acquired a properly informed and comprehensive understanding of the claimant’s condition and, in particular, never addressed the question - which it should have been obvious needed to be addressed - as to whether she was disabled. We have no doubt that the tribunal was entitled to reach those overall conclusions, even if there may be room for argument about the validity of some of the specific points raised. But we do not agree that they are determinative of the question of justification. The straightforward question for the tribunal was whether the appellants were justified in dismissing an employee who had been off sick for 11 months and who, on the uncontested medical advice, was not going to be fit to return to her usual work for the foreseeable future (if ever). The fact that the claimant’s sickness amounted to a disability (as almost any long-term sickness will do) does not of course afford any answer to the question of justification - see Royal Liverpool Children’s NHS Trust v Dunsby [2006] IRLR 351, where Judge Richardson said (at paragraph 16 (p.353)):

‘The provisions of the Disability Discrimination Act 1995 do not impose an absolute obligation on an employer to refrain from dismissing an employee who is absent wholly or in part on grounds of ill health due to disability. The law requires such a dismissal to be justified so a tribunal does not answer the question whether a dismissal is justified merely by saying that it was, in part, because the employee was absent on grounds of disability.’

It is also in our view irrelevant that the appellants’ consideration of the issue may have been inadequate or procedurally flawed: the question of justification is (at least for these purposes) objective. It may in principle be relevant (as with the questions of reasonable adjustment and unfair dismissal - see paragraph 97 above) that the claimant’s illness was caused or contributed to by the appellants’ own failings; but in practice that consideration is likely to be operative only in marginal cases, since it cannot be the law that an employer is never justified in dismissing a disabled employee for whose disability he is partly to blame.”

121. For completeness I refer to the Code of Practice on Employment issued by EHRC in 2011, which provides under the rubric “When can discrimination arising from disability be justified?:

“5.12. It is for the employer to justify the treatment. They must produce evidence to support their assertion that it is justified and not rely on mere generalisations.”

Insofar as this suggests that an employer is obliged to produce evidence, it is contrary to the authorities I have cited. The employer is required only to rely on materials before the Employment Tribunal. It is not required to lead evidence itself, although obviously it may well be advantageous for the employer to do so.

Dismissal for Capability based on Ill-health or Disability

122. The leading case is the decision of the Employment Appeal Tribunal (presided over by Phillips J in Spencer v Paragon Wallpapers Company [1977] ICR 301). In that case the Employment Appeal Tribunal upheld the finding of an Employment Tribunal which had dismissed the claim of an employee who had been dismissed for reasons of ill-health capability. Phillips J noted that the Employment Tribunal had taken into account:

“… the nature of the illness, the likely length of the continuing absence, the need of the employers to have done the work which the employee was engaged to do, the circumstances of the case, and concluded that the employers had discharged the onus put upon them under paragraph 6 (8) of the Schedule 1 to the Act of 1974. Nothing has been shown to us which would justify us in interfering with that conclusion. In the first instance, the decision how to act in circumstances such as the present is that of the management. Secondly, it is the function of the industrial tribunal to determine whether the management has satisfied them that in the circumstances (having regard to equity and the substantial merits of the case) they acted reasonably in treating it as a sufficient reason for dismissing the employee. It is not the function of the industrial tribunal to take the management’s decision for it, but only to decide whether the decision taken by the management passes that test. …” (page 306G-307A)

123. Phillips J concluded his Judgment:

“… this case should not be interpreted as laying down any rule, applicable to other cases, that employees may be dismissed when they are absent and are likely to continue to be absent for another four to six weeks. Every case depends on its own circumstances. The basic question which has to be determined in every case is whether, in all the circumstances, the employer can be expected to wait any longer and, if so, how much longer? Every case will be different, depending upon the circumstances.” (page 307C-D; my emphasis)

124. I was also referred to the Judgment of EAT (Phillips J) in East Lindsey District Council v Daubney [1977] IRLR 181 in which Phillips J stressed the need for the employer to consult the employee and inform itself of the true medical position before dismissing him on the grounds of health.

125. Edwards v Mid-Suffolk District Council [2001] ICR 616 (EAT HHJ Levy) makes clear that the test of unfair dismissal under the Employment Rights Act 1996 and the test of non-discriminatory dismissal under the Disability Discrimination Act 1995 are different. It may be that an Applicant is fairly dismissed under the 1996 Act but it does not necessarily follow that the dismissal is non-discriminatory under the 1995 Act (pages 628H-629A).

126. I now return to the case of BS v Dundee City Council [2014] IRLR 131. I remind myself that every case depends on its own facts, but there are some striking similarities between the present case and the Dundee City Council case.

127. This was a decision of the Inner House, Lady Dorrian, Lord Bracadale and Lord Drummond Young. The Claimant was employed by Dundee in its Contract Service Department for 35 years. He was off work for one year by reason of disability. There was an Occupational Health report on 14 September 2009 to the effect that the Claimant’s health was improving and it was expected he would be able to return to work within 1-3 months. The Claimant’s subjective view was that he was not improving. He was dismissed for capability on 23 September. The Respondent’s reasons for the dismissal were the length of his absence, the absence of any indication as to a date for a return, all the more so as the Claimant’s view of the matter was more pessimistic than that of the Occupational Health department. The ET, in that case, found that no reasonable employer would have dismissed the Claimant nine days after the Occupational Health report when there were was some positive medical advice, especially as the Claimant had 35 years’ service and the Respondent employed 8,000 staff and there was evidence that temporary staff were available (at the same payments as were made to the Claimant to cover him). Further, the Claimant was no longer receiving a salary. The Employment Tribunal took the view that further medical evidence should have been obtained. There was no specific evidence as to the impact of the Claimant’s absence on the “business” of Dundee. Accordingly the Employment Tribunal found that the dismissal was unfair.

128. The Respondent’s appeal was upheld by the Employment Appeal Tribunal (in Scotland) but reversed on the Claimant’s further appeal by the Inner House of Session, which followed Spencer v Paragon and held that the employer was entitled to rely on the opinions of his medical advisors and there was no need to go and obtain further medical evidence. In approaching the question of reasonableness the Inner House stressed that the question is not whether the members of the Tribunal could have dismissed the Appellant but is rather an objective test that does not permit the Tribunal to substitute its view for that of the employer.

129. The Inner House stated:

“27. Three important themes emerge from the decisions in Spencer and Daubney. First, in a case where an employee has been absent from work for some time owing to sickness, it is essential to consider the question of whether the employer can be expected to wait longer. Secondly, there is a need to consult the employee and take his views into account. We would emphasise, however, that this is a factor that can operate both for and against dismissal. If the employee states that he is anxious to return to work as soon as he can and hopes that he will be able to do so in the near future, that operates in his favour; if, on the other hand he states that he is no better and does not know when he can return to work, that is a significant factor operating against him. Thirdly, there is a need to take steps to discover the employee’s medical condition and his likely prognosis, but this merely requires the obtaining of proper medical advice; it does not require the employer to pursue detailed medical examination; all that the employer requires to do is to ensure that the correct question is asked and answered.” (my emphasis)

The Employment Tribunal in the Dundee case had also not considered whether or not the Respondent could be expected to wait any longer.

130. The Inner House stressed that the Employment Tribunal needed to consider all the circumstances of the employer, its size, its ability to absorb costs and:

“28. … Against all of these considerations, however, it would be necessary to set the unsatisfactory situation of having an employee on very lengthy sick leave. In such a case it must clearly be open to the employer to bring the employment to an end. The main problem with the tribunal’s approach to these issues is in our opinion that it did not expressly address the balancing exercise that the decision in Spencer requires. …”

131. I next refer to DB Schenker Rail (UK) Ltd v Doolan UKEATS/0053/09 (EAT in Scotland presided over by Lady Smith). This case is authority for the proposition that an employer is entitled to have regard to the risk of recurrence of a disability, and in determining whether or not a dismissal was fair or unfair under section 98(4) of the 1996 Act there were three initial questions the Employment Tribunal is required to address; whether the Respondent genuinely believed in their stated reason, whether it was a reason formed after a reasonable investigation and whether they had reasonable grounds to conclude as they did. Medical evidence was to be determined by the employer rather than the Employment Tribunal unless the interpretation of the employer was outside the range of reasonable responses.

132. I have in my papers the decision in McAdie v Royal Bank of Scotland [2007] IRLR 895. The Court of Appeal held that there was no rule that the fact an employer had caused the incapacity in question, however culpably, precluded him forever from effecting a fair dismissal. The Employment Tribunal should ask whether it was reasonable for the employer to dismiss the employee in the circumstances as they then were including the fact that their mishandling of the situation led to her illness. As I have explained, in order not to prejudice the personal injury claims commenced by the Claimant in the present case, this was not an argument either party sought to make and neither has sought to rely upon this decision.

133. I remind myself that decisions of an Employment Tribunal may only be challenged on issues of law. Decisions based on facts may only be challenged on what might be described as Wednesbury principles: mistakes of law, the taking into account of irrelevant facts or matters, or ignoring relevant matters. Any other factual challenge requires proof of perversity and, as I have been reminded by Ms Banton, perversity appeals need to surmount the high threshold of an overwhelming case as explained in Yeboah v Crofton.

134. Finally, I have in mind the principle in MA (Somalia) v SSHD [2010] UKSC 49, which enunciated the principle that when a Tribunal articulates a self-direction and does so correctly, the reviewing court should be slow to find that it has failed to apply the direction in accordance with its terms. All the more so where the effect of the failure to apply the direction is that the Tribunal will be found to have done precisely the opposite of what it said it was going to do.

Discussion and Conclusions

Introductory

135. I remind myself as to the approach to be taken on appeals to the Employment Appeal Tribunal from Employment Tribunal to which I have just referred.

136. One thing struck me when I first read the Judgment of the Employment Tribunal was that the Employment Tribunal had made no attempt to consider, from a commonsense point of view (using their industrial experience), the impact that the absence of the Claimant’s long-term absence had upon on the Respondent school and to engage with the question whether the Respondent should be required to wait longer and, if so, for how long. I resist temptation to draw assistance from the period of absence regarded as unacceptable in other cases, including in particular the Dundee case, because each case must depend on its own facts. One does not need to be a management consultant to see that in a large school, which I have referred to as having problems, the absence of the head of an important department holding a leadership role for 17 months, with her teaching responsibilities having to be covered by having to make additional payments to a part-time teacher and also her leadership and development and administrative roles having to be covered by colleagues (if covered at all), would have had a significant effect on the school especially in these times of austerity and shortage of resources. Yet there is no mention of this at all by the Employment Tribunal. It is clear that Mrs Wilkinson, who was found by the Employment Tribunal to be sympathetic to the Claimant, had come to the conclusion that enough was enough. As part of her responsibilities she would report to the Governors and the Assets and Finance Standards subcommittees on the level of staff sickness absences (albeit in a generic sense rather than by reference to specific individuals) and the impact of absences on the cost and running of the school. I do not accept that it was necessary for her go into line-by-line detail. Mrs Wilkinson had been concerned for some time at the effect of the Claimant’s absence and it is a fair assumption that Mrs Wilkinson would have kept the Governors and Head Teacher informed as to the impact of the Claimant’s absence. I do not consider there is any need for the Respondent to provide detailed information, for example as to what lessons were missed, staff rotas, timesheets or the like, who undertook the leadership development work she would do or to provide detailed financial statements. It is also fairly arguable that the Respondent must have given careful consideration to the question of whether it was necessary to terminate the Claimant’s employment by reason of the length of time it took, in the circumstances that I have described, to come to the decision to do so.

Grounds 1 and 2 - concerns about the application of section 15 Equality Act and section 98 Employment Rights Act

137. I note that there is no requirement on the employer under section 15 to adduce evidence before the Tribunal. It is sufficient for the employer to demonstrate that dismissal was objectively justified. Even if no consideration had been given at the time of dismissal and even if the evidence was not available at the time of dismissal or if it inadequately considered the issue, the Respondent can show, by reference to the material before the Employment Tribunal, that the treatment was justified and it is an error of law for a Tribunal to take the incompetence and failure of the employer to get to grips with the disability from which the Claimant suffered as a reason for rejecting a justification defence; see HM Prison Service v Johnson relied on by Mr Legard. While in determining if a dismissal is discriminatory, contrary to section 15 of the Equality Act 2010, it may be appropriate to carry out a balancing exercise; the test is objective and therefore it is inappropriate to import the reasonable range of responses considerations relevant to unfair dismissal.

138. On the other hand in the case of unfair dismissal the task of the Employment Tribunal is to determine whether the Respondent’s actions were within the range of reasonable responses. As the internal appeal was a review rather than a re-hearing, it is inappropriate to treat the decision on appeal as being a re-hearing with a reconsideration of the merits afresh. It was not for the appeal panel to do so nor to seek further evidence.

139. In my opinion the Respondent cannot be criticised for failing to seek further evidence at the appeal stage. I accept the submission that much of the criticism of the Employment Tribunal was not directed to the substance of justification (albeit it may have been expressed in rather general terms); the criticism was directed to the fact that neither the medical incapacity panel nor the appeal panel were considering issues of justification at the time of the hearings, which ignored the need for there to be an objective test; in this regard I refer back to the Judgments of Elias J in Homer in the EAT and to Seldon v Clarkson Wright.

140. I also accept the submission that although the Employment Tribunal was critical of Mr Hopkinson’s evidence of whether the impact of the Claimant’s absence was discussed at the medical incapacity hearing (the Employment Tribunal found it was not) and that his evidence of impact was vague, the fact that the Respondent considered there to be an adverse impact to the Academy caused by the absence of the Claimant was not disbelieved by the Employment Tribunal. Whether or not the question of impact was discussed or not deflected attention from what the Employment Tribunal needed to consider: i.e. had the Respondent proved that the dismissal was objectively justified? This is a point the Employment Tribunal does not appear to have grappled with, other than by saying that no satisfactory evidence had been adduced as to the impact of the long-term absence of the Claimant by the Respondent and no attempt was made to weigh up such evidence as there was. There is no rule that justification has to be limited to what was consciously and contemporaneously taken into account in the decision making process. The task of an Employment Tribunal when considering section 15 is to use its common sense and knowledge as an industrial jury to ask whether the dismissal was proportionate, as the Respondent maintains it was.

141. There was significant material in the letter of 15 April 2013 consequent upon the appeal meeting which should have been considered by the Employment Tribunal in relation to the question of justification. I pick out the following:

· The significant length of time that had passed (14 months) and the length of time likely to be required for return to work could be contemplated (at least three further months).

· The medical evidence before the panel on 28 January 2013 referred to the Claimant having seven further sessions of therapy; these sessions were likely to take until the end of April before the return to work could be contemplated and the Claimant’s psychologist was reluctant to say that she would be able to return to work after those seven sessions. There was accordingly no purpose in seeking further medical evidence.

· Lack of co-operation on the part of the Claimant in relation to medical issues.

· The panel believed the length of time the Claimant had been absent, combined with the uncertainty about any return date until the end of April 2013, which represented approximately 17 months, was unacceptable. The panel had to weigh up the effects of terminating the Claimant’s employment against the prospect of having to incur further expense, disruption and asking colleagues to provide extra support for a further three months on top of the previous 14 months; it was the opinion of the Respondent that an absence of 14 months, which was likely to last 17 months, was too great a burden for the academy and staff and its pupils to be expected to tolerate. Although the matter was put succinctly in this letter, it was a reasoned and rational Judgment and cannot be said simply to have been based on subjective impression or stereotyped assumptions and I reject the submission to the contrary. It was a Judgment based on experience of Governors of the school and the head teacher to avoid further expense and disruption. As I have said, one does not need to be a management consultant to appreciate that in the circumstances there was bound to be a significant impact caused by the Claimant’s long-term absence and the Employment Tribunal should have taken this into account, but there is no evidence that it did so. Adapting what Underhill J (as he then was) said in HM Prison Service v Johnson, the straightforward question for the Employment Tribunal to determine was whether the Respondent was justified in dismissing the Claimant, who had been off sick for 14 months and who, on the uncontested medical advice, was not going to be fit to return to her usual work for a minimum of a further three months and possibly thereafter without any certainty of a date when she might be fit to return to work. The position was complicated by reason of the Claimant’s dissatisfaction with the policy of the Respondent in relation to permanent exclusion which medical advice suggested had to be satisfactorily resolved before the Claimant could return to work. This was regarded by Dr Weadick as being a management rather than a medical issue.

142. In relation both to the question of proportionality and reasonableness, the question was not whether the Respondent could accommodate the Claimant’s absence but whether it should have to do so. Although the Employment Tribunal referred to cases such as Spencer v Paragon Windows, it does not seem to have applied the reasoning in those cases to the instant case.

143. I am not able to accept, firstly, that a decision in the circumstances not to seek further medical evidence was unreasonable or outside the range of reasonable responses. There is no material that supports the Employment Tribunal’s finding in this regard. I find it impossible to say that every reasonable employer acting reasonably either would have sought a further medical report or would not have dismissed the Claimant. It looks very much to me as if despite its self-direction the Employment Tribunal did substitute its own views for those of the Respondent and I find it very difficult to see how it could be said, in all the circumstances of the case, that the Respondent’s conduct fell outside the range of reasonable responses. It might be said that such a finding was perverse. I also consider the Employment Tribunal fell into error in applying the test for justification to circumstances prevailing at the date of appeal rather than the date of dismissal especially as the appeal was not a re-hearing. It is correct, as Ms Banton submits, that the Employment Tribunal did consider the position also as the date of the medical incapacity hearing. However, a fair reading of the Employment Tribunal Judgment does suggest that it placed rather more emphasis on the failure of the appeal panel to seek further evidence. In my opinion it is not legitimate to rely upon any such failure as being outside the range of reasonable responses.

144. I consider the Employment Tribunal was wrong when it found that dismissal was not a proportionate means of achieving a legitimate aim, without having taken account of the common sense matter I have referred to and the other material suggesting that the school did have regard to the detrimental impact of the long term absence of Ms O’Brien.

145. The Employment Tribunal was critical of the Respondent for not adducing evidence in relation to the impact of the long-term absence of the Claimant. Mr Legard submitted that it was “blindingly obvious” what the impact was. I have already referred to a number of matters the Employment Tribunal does seem to have taken into account in considering both justification and reasonableness including the lengthy period of absence, the additional payments to Mr Kemp, the fact that work was undoubtedly carried on by other colleagues, the uncertain medical prognosis as at the date of dismissal, and the medical incapacity hearing, at which date the Claimant was still unfit for work and the Occupational Health reports of April and August did not suggest any early prospect of a return to work. The Claimant remained on a strong dose of medication. The Respondent was entitled to conclude, based on its own experience and upon the previous relapse that there was a reasonable risk of relapse should the Claimant return in the event of further aggressive behaviour. The Employment Tribunal should have taken into account the Claimant’s reluctance to engage and co-operate, declining to attend the welfare meeting and provide answers to medical questionnaires, the fact that Mrs Wilkinson’s response to the Claimant’s lack of co-operation and delay in resolving matters by calling her to a medical incapacity hearing was a reasonable response to the Claimant’s uncooperative behaviour.

146. The conflation of proportionality and reasonableness by the Employment Tribunal can be seen in the repeated references by the Employment Tribunal as to the failure of the Respondent to expressly consider the impact of the Claimant’s absence by both the panel at the medical incapacity hearing and appeal hearing. The medical evidence at the date of the dismissal was not subject to challenge. The Employment Tribunal found that reduction of cost was a legitimate aim.

147. The Employment Tribunal does not appear to have attempted to weigh up the needs of the pupils, the school and the Claimant and the fact that her non-teaching responsibilities had to be covered by other staff members. The Employment Tribunal was required to consider justification and proportionality by reference to the evidence before it. It could not avoid the obligation to do so by complaining that the Respondent had not adduced evidence bearing in mind what common sense and experience strongly suggested. The Employment Tribunal found that a failure to expressly consider questions of impact at the capability hearing was fatal to proving a proportionality defence; this seems to me to be quite wrong. The authorities show that consideration of these matters is not a prerequisite of establishing a justification defence. The only alternative proposed to dismissal, by the Employment Tribunal, was that the Respondent should wait longer for a further medical report, but it is not clear how this could be regarded as a proper means of securing a legitimate aim. Even if the evidence as to impact might be characterised as vague, I take the view that in the circumstances detailed evidence was not necessary. Despite the Employment Tribunal having given itself a proper warning and despite the guidance from MA (Somalia) it is difficult to see how failure to seek further medical evidence or dismissal could be regarded as outside the range of reasonable responses. I am not able to accept that any reasonable employer would have adjourned and sought a medical report. Nor do I accept that any reasonable employer was bound to carry out a balancing exercise. It is conflating the test under the Equality Act 2010 for the reasonable responses test. I would add that it seemed reasonable to infer, having regard to the Claimant’s long absence and the delay by the Respondent in calling the Claimant to a medical incapacity hearing, that there was considerable reluctance to terminate her employment. Then again, this is unsurprising having regard to her long service and unblemished record. It is obvious, therefore, that the Governors must have had her position well in mind when deciding, as they did, that enough was enough.

148. In the circumstances grounds 1 to 6 of the Notice of Appeal are made out. I am also satisfied that the Employment Tribunal fell into error by substituting its view for the dismissing employer (ground 7). However, I reject ground 8. I am satisfied the Employment Tribunal gave sufficient reasons so as to comply with its obligations to provide adequate reasons as to why it reached the conclusions it did.

149. The appeal case must be remitted to a freshly constituted Employment Tribunal to determine, in accordance with this Judgment, whether the Respondent can make out its case that the dismissal of the Claimant was a proportionate means of achieving, what was accepted to be, the legitimate aim of efficient running of the school, reduction of cost and providing a good standard of teaching, and whether the decision to dismiss was within the range of reasonable responses.

150. I am grateful to Mr Legard and Ms Banton for their helpful submissions.

United Kingdom Employment Appeal Tribunal