Appeal No. UKEAT/0318/15/DM

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

	At the Tribunal
	On 18 March 2016

Before
THE HONOURABLE MR JUSTICE MITTING
MR H SINGH
MR T STANWORTH

MR T RISBY	APPELLANT

LONDON BOROUGH OF WALTHAM FOREST	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR PHILIP ENGELMAN
(of Counsel)
and
MS SALLY ROBERTSON
(of Counsel)
Direct Public Access
	
For the Respondent	MR GREGORY BURKE
(of Counsel)
Instructed by:
London Borough of Waltham Forest
Town Hall
Forest Road
Walthamstow
E17 4JF

SUMMARY
UNFAIR DISMISSAL - Reasonableness of dismissal
DISABILITY DISCRIMINATION

Whether the Employment Tribunal, in requiring direct connection to be established between disability and conduct which led to dismissal misinterpreted section 15 Equality Act 2010 and so to conclude that dismissal was not unfair.  Appeal allowed - remitted to the Employment Tribunal for redetermination.

THE HONOURABLE MR JUSTICE MITTING

1.	The Claimant is 52.  On 29 July 1990 until his dismissal without notice on 29 August 2013 he was employed by the Respondent local authority as a deputy risk and insurance manager.  He suffered from a serious disability.  He had been paraplegic since a road traffic accident in 1981, when he was 17.  He worked in an open-plan office with colleagues of both genders and different races.  He had a short temper, which was not related to his disability.  He also claimed to suffer from depression since the death of his father in February 2009, but in an unchallenged finding the Employment Tribunal found that he did not and that his short temper was a personality trait not an illness.

2.	In the first half of 2013 the Respondent decided to organise workshops for their managers, including the Claimant.  They were to take place at a private venue at a cost of £180 per session.  The venue had wheelchair access and so was accessible to the Claimant.  On or shortly before 11 June 2013 the Respondent’s chief executive decreed that because of financial expediency external venues should not be hired.  The venue for the workshop to be attended by the Claimant was therefore changed to the basement of the Respondent’s assembly hall in Walthamstow, which did not have wheelchair access and so was inaccessible to the Claimant.  On 18 June 2013 an email was sent by the Claimant’s divisional director, John Turnbull, inviting 47 managers in his division, including the Claimant, to attend a workshop, the first of which was to be held at the basement of the Walthamstow assembly hall on 26 June.  On his way home the Claimant went past it and confirmed what he already suspected: that it did not have wheelchair access.  He was angry and, as the Employment Tribunal found, worked himself into a state about it overnight.

3.	On 19 June 2013 he went to speak to Lisa Scott, Mr Turnbull’s personal assistant, first of all to enquire if the venue was wheelchair accessible, then to protest at the proposal suggested by the workshop organiser, Lorraine Burke, by email to Ms Scott, an email which was forwarded to the Claimant, that he attend a later workshop at a wheelchair accessible venue and finally to deal with the suggestion made by his line manager, Ms Nitschke, that both of them should attend the same later workshop.  On the third occasion he was very angry.  He shouted at Ms Scott, an inoffensive person junior to him in rank, protesting at the decision.  She was close to tears.  She sought the assistance of Ray Gard, a manager two grades senior to the Claimant but, according to the Employment Tribunal, ineffectual on this occasion.  In the course of this altercation, as it became, with Mr Gard, the Claimant said in a loud voice, audible to other members of staff working in the office, “The Council would not get away with this if they said that no fucking niggers were allowed to attend”.  Ms Scott, who was, unknown to the Claimant, of mixed race herself, believed that this comment was directed at her.  Unsurprisingly, she was upset by it as well.  When later that morning Mr Turnbull heard of the incident, he directed Mr Gard to suspend the Claimant.

4.	Meanwhile, the Claimant had taken an early lunch.  After lunch Ms Burke telephoned him.  He was still angry.  He told her in the hearing of another employee that he was being treated “like a nigger in the woodpile”.  This incident too was reported to Mr Turnbull.  With some difficulty, because the Claimant remained very angry, Mr Turnbull told him he was being suspended.  He was then escorted from the office by Ms Nitschke.

5.	Denise Humphrey was appointed to carry out a disciplinary investigation into the Claimant’s conduct on 19 June.  She interviewed all concerned, including the Claimant.  She recommended that he be dismissed for use of the word “nigger”, which appalled her.  A disciplinary hearing was conducted by Ms Terry Borkett on 16 and 21 August.  She was the assistant director of financial planning and management.  The Claimant’s stance was that he was trying to make a point.  Ms Borkett concluded that he had used offensive and racist language twice and behaved unacceptably towards managers and work colleagues, including Ms Scott, and had behaved in a harassing manner towards her.  She decided that he should be summarily dismissed.  He appealed against that decision.  His appeal was heard on 10 September 2013 by Keith Hanshaw, a divisional director.  The main focus of the appeal, unlike the first disciplinary hearing, was the severity of the sanction imposed.  His appeal was dismissed because it was Mr Hanshaw’s view that, as the Claimant well knew, his conduct would not be tolerated given that it was opposed to all that the Respondent stood for and because of its effect on Ms Scott.  He did not accept that there was no risk of repetition, as the Claimant contended.

6.	By a claim form filed on 25 November 2013 the Claimant claimed that he had been unfairly dismissed and subjected to unlawful discrimination on account of his disability.  After a nine-day hearing in April 2015 the Employment Tribunal dismissed his claims in a 33-page Reserved Judgment sent to the parties on 25 June 2015.  He appeals on manifold grounds to this Tribunal.

7.	The focus of the appeal is on the reasonableness and proportionality of the decision to dismiss.  Mr Engelman, who has advanced the Claimant’s case on appeal, submits that the Employment Tribunal made significant errors of law in its approach to both issues.  The approach that the Employment Tribunal was required to use was laid down in plain and well known language in two statutes.  Section 98(4) of the Employment Rights Act 1996 requires an Employment Tribunal to decide whether:
“(a) … in the circumstances … the employer acted reasonably or unreasonably in treating [the reason for dismissal] as a sufficient reason for dismissing the employee …”

8.	Section 15(1) of the Equality Act 2010 (“EqA”) provides:
“(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.”

9.	In a case in which it is alleged that an employee has been dismissed because of something arising in consequence of his disability, there is likely to be a substantial degree of overlap between the two statutory questions, but they are not identical and require to be addressed in a structured manner.  It will often be the case that an Employment Tribunal will be well advised to start with section 15.

10.	At the Preliminary Hearing the following questions were identified in the list of issues to be determined:
“9.10. Did the Respondent treat the Claimant unfavourably for a reason arising in consequence of his disability of paraplegia …?  The Claimant relies upon his dismissal as unfavourable treatment.
9.11. If so, was dismissal a proportionate means of achieving the legitimate aim of ensuring and promoting adherence to the Equal Opportunities policy throughout the Council?”

11.	The Employment Tribunal dealt with the issue succinctly, beginning at paragraph 138:
“138. The case has been complex over the issue of disability.  Firstly, there is no doubt that the claimant is seriously, physically disabled by reason of paraplegia.  A complication has been that late in the proceedings the claimant also raised the disability of depression.  This seems to be a bid to make some logical connection between his behaviour on 19 June and the fact that he is wheelchair bound.  The two are not directly logically related in the tribunal’s view of the evidence.”

12.	The Employment Tribunal then went on to cite section 15 and paragraph 5.9 of the Equality and Human Rights Commission code and the example given in it, which they distinguished on sensible grounds on the facts of the case.  They then went on at paragraph 143 to state:
“143. In summary, therefore, if the claimant’s conduct cannot be explained in some way by a mental impairment qualifying as a disability under the legislation, specifically section 6 of the Equality Act 2010, then there can be no claim for disability discrimination.”

13.	It restated its approach in its conclusion, having decided that its previous paragraphs had covered all the issues (paragraph 177):
“177. … Obviously the opening list of issues is larger than those considered by the tribunal.  That is because, depending on the analysis certain issues fall away.  The tribunal have made clear findings that there was no direct linkage between the claimant’s physical disability and his behaviour on 19 June, for which he was dismissed. …”

14.	Mr Engelman submits that this reasoning demonstrates a clear error of approach and so of law on the part of the Employment Tribunal.  Mr Burke submits that the Claimant’s disability was no more than the background to the events of 19 June 2013 and so not an effective cause of the decision to dismiss.  The correct approach to an issue such as this was explained by Laing J in Hall v Chief Constable of West Yorkshire [2015] IRLR 893.  In that case, the Employment Tribunal had expressed its findings on this issue in these words:
“We agree that the disability has to be the cause of the respondent’s action; not merely the background circumstance.”

15.	She held that his was a clear error of law.  She explained why the wording of section 15 had come to be enacted in paragraph 35 of her Judgment:
“35. Against that background it is clear to me, in the light of the language of s.15, and of the decisions in Clark v TGD Ltd t/a Novacold [[1999] IRLR 318], and London Borough of Lewisham v Malcolm [[2008] IRLR 700], that Parliament’s intention in enacting s.15 was to reverse the effect of … Malcolm and to loosen the causal connection which is required between the disability and any unfavourable treatment.”

16.	Having so concluded, she identified in paragraph 42 the errors made by the Employment Tribunal:
“42. It seems to me that the tribunal made three errors.  Firstly, it appeared to consider that it was necessary for the claimant’s disability to be the cause of the respondent’s action in order for her claim to succeed.  Secondly, it made a contrast between the cause of the action and a background circumstance.  This leaves out of account a third logical possibility, which, it seems to me, is present on the looser language of s.15(1); ie a significant influence on the unfavourable treatment, or a cause which is not the main or sole cause, but is nonetheless an effective cause of the unfavourable treatment. …”

17.	A very similar analysis was expounded by Langstaff J, as President of the Employment Appeal Tribunal, in Basildon & Thurrock NHS Foundation Trust v Weerasinghe 29 July 2015, unreported.  In the passage cited from the Employment Tribunal’s decision, it is plain that it believed that it was necessary for it to be shown that there was a “direct linkage” between the Claimant’s disability and his conduct on 19 June 2013.  There was no such requirement.  All that had to be established was that the Claimant’s conduct arose in consequence of his disability or, to put it in Laing J’s words, that was an effective cause or more than one of his conduct.  On the Employment Tribunal’s findings, it was, as they explained in paragraph 97 of their Reasons:
“97. It seems to the tribunal that an over fine debate on loss of control or head of the moment is not really going to help the analysis here.  It is too easy to psychologically over-simplify complex feelings.  The claimant did lose his temper.  It seems to the tribunal that he was fired by a feeling of indignation which ultimately was out of proportion to the problem; a problem which, as we stated above, might have been swiftly resolved at director level.  There was a very obvious anomaly in holding a workshop, primarily intended for the wheelchair bound claimant, in the one non-accessible venue used for any of these workshops.”

18.	If he had not been disabled by paraplegia, he would not have been angered by the Respondent’s decision to hold the first workshop in a venue to which he could not gain access.  His misconduct was the product of indignation caused by that decision.  His disability was an effective cause of that indignation and so of his conduct, as was, of course, his personality trait or characteristic of shortness of temper, which did not arise out of his disability.  On the Employment Tribunal’s own analysis of the facts, this was a case in which there were two causes of conduct that gave rise to his dismissal, one of which arose out of his disability.  In concluding otherwise, the Employment Tribunal erred in law.  In consequence, it did not go on to answer the question whether the Respondent had shown that the unfavourable treatment to which the Claimant had been subjected, dismissal, was a proportionate means of achieving the legitimate aim identified in issue 9.11 of ensuring and promoting the Respondent’s equal opportunities policy.  The issue was live.  In paragraphs 132 and 133 of the Employment Tribunal’s decision, when considering the issue of reasonableness of the Respondent’s decision to dismiss, it said:
“132. The tribunal was disturbed by Mr Hanshaw’s response that there was nothing the claimant could have said to affect the outcome, but having considered it we do not consider that this takes the process as a whole outside the band of reasonable responses.  He did, in practice, look at the surrounding context as well as just the central word “nigger”.
133. It would have been clearer for the claimant if the respondent had conducted a proper analysis and shown some understanding of the claimant’s stated position, which had a logic whether you agree with it or not.  Then they could have explained how they understood it but rejected it as a defence to the accusation of gross misconduct.  Essentially, what he was raising was not a defence but mitigation: mitigation that might, in principle, with a more lenient view have led to a final written warning.  However, in law, just because a more lenient view could reasonably have been taken, it does not follow that a harsher view was unreasonable.”

19.	This would appear to be an acknowledgement by the Employment Tribunal that if it had accepted that the Claimant’s conduct did arise out of his disability in the sense that we have explained there would have been an alternative to summary dismissal open to the Respondent - a final written warning - and that in that context Mr Hanshaw’s view that there was nothing that the Claimant could have said to affect the outcome was not a response open to a reasonable employer.  The error of law in relation to section 15 therefore is capable of affecting the Employment Tribunal’s decision on reasonableness as well as on proportionality.

20.	For those reasons, this decision of the Employment Tribunal must be set aside.  Mr Burke, having been referred by us to recent decisions of the Court of Appeal - Jafri v Lincoln College [2014] EWCA Civ 449 and Burrell v Micheldever Tyre Services Ltd [2014] EWCA Civ 716 - accepts that in those circumstances the case must be remitted for further hearing by the Employment Tribunal.  We shall deal with, after we have invited submissions, whether or not the case should be remitted to a different Tribunal or to the same Tribunal identically constituted to re-determine the issues that we have identified in the light of our Judgment.

21.	We deal finally with two remaining substantive grounds of appeal.  We can do so shortly.  First, procedure: if it was open to the Employment Tribunal to conclude that despite fairly dogmatic statements to the effect that the Claimant’s conduct could not have been explained by him in a manner that could have led to a different outcome, both Ms Borkett and Mr Hanshaw did in fact reach decisions based on the totality of the material and not just on their preconceived view.  As the Employment Tribunal found, it was open to them to make that finding.

22.	Secondly, the failure to make reasonable adjustments required by section 20 EqA 2010: the reasonable adjustment that should have been made, Mr Engelman submits, was relocating the first workshop to the private accommodation that had already been identified at a cost of £180.  The Employment Tribunal held that the Claimant’s request to this effect was not unreasonable (see paragraph 174 of its Decision) but that his conduct “eclipsed the reasonable adjustment problem”.  It was entitled so to find.  Mr Engelman submits that section 123(3) EqA 2010 fixes the time at which the obligation to make the reasonable adjustment arises.  It provides:
“(3) For the purposes of this section -
…
(b) failure to do something is to be treated as occurring when the person in question decided on it.”

23.	We do not accept his submission, for two reasons.  First, section 123(3) only fixes the time at which failure is to be treated as occurring for the purposes of section 123, in other words the time within which proceedings must be brought.  Secondly, and in any event on the facts, the Respondent had not, when the Claimant was removed from the office and suspended, decided not to move the venue.  All that had occurred was that suggestions for relocation had been made by Ms Burke and Ms Nitschke, which were, as the Employment Tribunal found, overtaken by events.

24.	The Claimant has won substantially, even though his case on the papers could have been presented in a more ordered and succinct manner.  In those circumstances, we order the Respondent to pay the lodging fee of £1,200.