AAA v Northumberland County Council and BBB: 2503467/2018

EMPLOYMENT TRIBUNALS

Case No 2503467/2018

Venue NORTH SHIELDS

Hearing 4-8 November 2019

Between

AAAClaimant

Northumberland County Council and BBBRespondent

Before

Employment Judge Johnson

Mr C Henshall (instructed by Solicitor) for claimant

Date 27 November 2019

JUDGMENT

[1]All the claimant’s claims against the first respondent are dismissed upon withdrawal by the claimant.

[2]The claimant’s claims against the second respondent of unlawful disability discrimination contrary to Section 13 of the Equality Act 2010 and Section 19 of the Equality Act 2010 are dismissed upon withdrawal by the claimant. EMPLOYMENT JUDGE JOHNSON

[3]Relevant Law 3.1. Section 6 of the EqA includes(1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.

(2) A reference to a disabled person is a reference to a person who has a disability. Section 212 defines “substantial” as “ more than minor or trivial” Schedule 1 includes (1) The effect of an impairment is long-term if— (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected. (2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. 5(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if— (a) measures are being taken to treat or correct it, and (b) but for that, it would be likely to have that effect. 3.2. SCA Packaging –v-Boyle

2009 ICR 1056

held the word “likely” in this context meant “could well happen “. Banaszczyk v Booker Ltd held UK law on who is protected as a disabled person should be interpreted in light of the wider concept of disability deriving from the UN Convention on the Rights of Persons with Disabilities, HH Judge Richardson said: “It is to my mind essential, if disability law is to be applied correctly, to define the relevant activity of working or professional life broadly; care should be taken before including in the definition the very feature which constitutes a barrier to the disabled individual's participation in that activity.” 3.3. Vicary v British Telecom made clear the decision as to whether a person is disabled is one for the Tribunal to make and not for any medical expert. In Hill v Clacton Family Trust, the Court of Appeal said I also accept that no court or tribunal would come to a decision on the question of mental impairment without giving careful consideration to the medical evidence before it. That evidence must however be considered in the context of the totality of the evidence and the decision is of the tribunal not an expert however qualified he may or may not be”. Morgan v Staffordshire County Council, was decided when it was necessary for the claimant to prove the impairment was a clinically well recognised mental illness. But even in Morgan Sir John Lindsay said: “This is not to be taken to require a full consultant psychiatrist’s report in every case.” J-v-DLA Piper

2010 IRLR 936

said the Tribunal should be aware of the difference between alleged depression and a reaction to adverse circumstances. However, a person with depression may react more severely to such circumstances. 3.4. Section 15 EqA says (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. 3.5. City of York Council-v-Grossett held the respondent does not have to know the “something” arose in consequence of the disability. However, it must have actual or constructive knowledge of more than symptoms of poor mental health as explained by Eady J in A Ltd-v-Z

2019 IRLR 952

. Ridout v TC Group

[1998] IRLR 628

was a reasonable adjustments case where respondent must have knowledge of disability and its effects. With that caveat, the words of Morison P are helpful by analogy: “We accept what Counsel for the appellant was saying that Tribunals should be careful not to impose on disabled people … a duty to ‘harp on’ about their disability … On the other hand, a balance must be struck. .. It would be wrong if, merely to protect themselves from liability, the employers … were to ask a number of questions .. People must be taken very much on the basis of how they present themselves”. 3.6. Gallop-v-Newport Council held an employer cannot avoid liability by unquestioning reliance on medical advice the employee is not disabled. 3.7. Section 98 of the ERA provides: “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair it is for the employer to show – (a) the reason (or if more than one the principal reason) for dismissal (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it relates to ..... the conduct of the employee.” 3.8. Abernethy v Mott Hay & Anderson, held the reason for dismissal is a set of facts known to the employer, or may be beliefs held by it, which cause it to dismiss the employee. The reason must be established as at the time of the initial decision to dismiss and at the conclusion of any appeal. Although it is an error to over minutely dissect the reason for dismissal, it is essential to determine its constituent parts. At this stage an employer does not have to prove, even on a balance of probabilities, the misconduct it believes took place actually did take place. The employer simply has to show a genuine belief. 3.9. In unfair dismissal claims, we try to read the mind of the " employer" as to the reason why it dismissed . Corporate employers and public authorities do not have a mind, human beings do, so which human beings' minds are we to read in cases where the decision maker acted on information he believed to be complete and true, but which some other person knew was not . In Orr-v-Milton Keynes Council Moore-Bick LJ said 58. The answer to the question "Whose knowledge or state of mind was for this purpose intended to count as the knowledge or state of mind of the employer?" will be "The person who was deputed to carry out the employer's functions under section 98." 60. Sedley L.J. suggests that the person deputed to carry out the investigation on behalf of the employer must be taken to know any relevant facts which the employer actually knows, which include not only matters known to the chief executive but also any relevant facts known to any person within the organisation who in some way represents the employer in its relations with the employee. However, in my view it would be contrary to the language of the statute to hold that the employer had acted unreasonably and unfairly if in fact he had done all that could reasonably be expected of him and had made a decision that was reasonable in all the circumstances. …If the investigation was as thorough as could reasonably have been expected, it will support a reasonable belief in the findings, whether or not some piece of information has fallen through the net. There is no justification for imputing to that person knowledge that he did not have and which (ex hypothesi) he could not reasonably have obtained. 3.10. Even if the dismissing panel’s reason is fair, some types of influence may render their decision unfair. The Supreme Court in Chhabra v West London Mental Health NHS Trust considered the extent to which an HR department could permissibly influence an investigation under a contractual disciplinary procedure. In Ramphal v Department for Transport, the EAT thought Chhabra should also be applied in determining fairness under S.98(4) where the decision maker had been heavily influenced by HR’s advice. The EAT reiterated that for a dismissal to be fair there has to be a fair investigation and disciplinary procedure. A third party materially influencing the decision maker might well render any consequent dismissal unfair. Very recently in Cadent Gas Ltd v Singh the EAT referred to the judgment of Underhill LJ in Royal Mail Ltd v Jhuti but in both the person materially influencing the decision maker was an employee of the same employer, which neither the LADO nor HR officers were. 3.11. Section 98(4) of the ERA says: “Where an employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in all the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee (b) shall be determined in accordance with equity and the substantial merits of the case.” 3.12. At this stage the Tribunal must determine, with a neutral burden of proof, whether the employer had reasonable grounds for its belief after as much investigation of the circumstances as was reasonable (British Home Stores v Burchell as qualified in Boys & Girls Welfare Society v McDonald. In Weddel v Tepper Stephenson LJ said Employers suspecting an employee of misconduct justifying dismissal cannot justify their dismissal simply by stating an honest belief in his guilt. There must be reasonable grounds, and they must act reasonably in all the circumstances, having regard to equity and the substantial merits of the case. They do not have regard to equity in particular if they do not give him a fair opportunity of explaining before dismissing him. And they do not have regard to equity or the substantial merits of the case if they jump to conclusions which it would have been reasonable to postpone in all the circumstances until they had, per Burchell, “carried out as much investigation into the matter as was reasonable in all the circumstances of the case”. That means that they must act reasonably in all the circumstances, and must make reasonable inquiries appropriate to the circumstances. If they form their belief hastily and act hastily upon it, without making the appropriate inquiries or giving the employee a fair opportunity to explain himself, their belief is not based on reasonable grounds and they are not acting reasonably.” 3.11. In A v B

[2003] IRLR 405

, Elias J ( as he then was ) said “In determining whether an employer carried out such investigation as was reasonable in all the circumstances, the relevant circumstances include the gravity of the charges and their potential effect upon the employee. Serious allegations of criminal misbehaviour, where disputed, must always be the subject of the most careful and conscientious investigation and the investigator carrying out the inquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as on the evidence directed towards proving the charges. This is particularly so where, as is frequently the situation, the employee himself is suspended and has been denied the opportunity of being able to contact potentially relevant witnesses. Employees found to have committed a serious offence of a criminal nature may lose their reputation, their job and even the prospect of securing future employment in their chosen field. In such circumstances, anything less than an even-handed approach to the process of investigation would not be reasonable in all the circumstances. Whether an employer has carried out such investigation as is reasonable in all the circumstances also necessarily involves a consideration of any delays. In certain circumstances, a delay in the conduct of the investigation might of itself render an otherwise fair dismissal unfair. Where the consequence of the delay is that the employee is or might be prejudiced, for example because it has led to a failure to take statements which might otherwise have been taken, or because of the effect of the delay on fading memories, this will provide additional and independent concerns about the investigative process which will support a challenge to the fairness of that process. Where the investigation is defective, it is no answer for an employer to say that even if the investigation had been reasonable it would have made no difference to the decision. If the investigation is not reasonable in all the circumstances, then the dismissal is unfair and the fact that it may have caused no adverse prejudice to the employee goes to compensation.” 3.13. Linfood Cash & Carry Ltd v Thomson concerned a situation in which, for fear of reprisals, witnesses refused to be identified, but we think the following guidance is applicable to any situation in which a “live” witness will not be present at a disciplinary hearing : 1. The information given by the informant should be reduced into writing. ….. 2. The following are important in taking statements: (a) Date, time and place of each or any observation or incident. (b) The opportunity and ability to observe clearly and with accuracy. (c) The circumstantial evidence, such as knowledge of a system ..and why certain small details are memorable. (d) Whether the informant has suffered at the hand of the accused or has any other reason to fabricate. 3. Further investigation can then take place either to confirm or undermine the information given. Corroboration is clearly desirable. …... 6. ……, it is desirable at each stage the member of management responsible for the hearing should himself interview the informant and satisfy himself what weight is to be given to the information.

[8]If the employee or his representative raises any particular and relevant issue which should be put to the informant, it may be desirable to adjourn .. to make further inquiries of the informant.

[9]It is particularly important that full and careful notes should be taken.” We do not expect the IO , HR or the LADO to know case law, but the principles in the last two paragraphs are incorporated in the ACAS Code of Practice , which should be known to HR, and are , in any event basic fairness and common sense . 3.14. In Santamera v Express Cargo Forwarding the EAT said . “The employer has to act fairly, but fairness does not require a forensic or quasi-judicial investigation, for which the employer is unlikely in any event to be qualified, and for which it may lack the means. That is why cross-examination of complainants by the employee whose conduct is in question is very much the exception in workplace investigations of misconduct. There may be cases, however, in which it will be impossible for an employer to act fairly and reasonably unless cross-examination of a particular witness is permitted. Ulsterbus Ltd v Henderson could not be read as laying down the proposition cross-examination can never be required in any investigation carried out by a reasonable employer. The issue under s.98(4) is reasonableness and fairness. In each case, the question is whether or not the employer fulfils the test laid down in British Home Stores Ltd v Burchell and it will be for the tribunal to decide whether the employer acted reasonably and whether or not the process was fair. 3.15 Strouthos v London Underground held the employee should only be found guilty of disciplinary offences with which he has been charged. One found guilty of and sentenced for something that had not been charged will not have received fair treatment. Pill LJ said; It is a basic proposition, whether in criminal or disciplinary proceedings, that the charge against the defendant or the employee facing dismissal should be precisely framed, and evidence should be confined to the particulars given in the charge. .. it does appear to me to be basic to legal procedures, whether criminal or disciplinary, that a defendant or employee should be found guilty, if he is found guilty at all, only of a charge which is put to him. What has been considered in the cases is the general approach required in proceedings such as these. It is to be emphasised that it is wished to keep proceedings as informal as possible, but that does not, in my judgment, destroy the basic proposition that a defendant should only be found guilty of the offence with which he has been charged. 3.16. Retarded Childrens Aid Society v Day held that if an employee does not appear to recognise what he did was wrong and is “determined to go his own way” , it would be reasonable for the employer to conclude a warning would be futile and may fairly dismiss even for a first offence. Conversely, if the employee admits fault, apologises and promises never to do the same again, no reasonable employer would dismiss on the basis of her apology and promise being “unreliable” without some factual basis for concluding it was. 3.17. Taylor-v-OCS Group

2006 IRLR 613

held whether an internal appeal is a re-hearing or a review, the question is whether the procedure as a whole was fair. If an early stage was unfair, the Tribunal must examine the later stages “ with particular care… to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the open mindedness (or not) of the decision maker , the overall process was fair notwithstanding deficiencies at the early stage “ ( per Smith L.J.) 3.18. In all aspects substantive and procedural Iceland Frozen Foods v Jones (approved in HSBC v Madden) and Sainsburys v Hitt) held a Tribunal must not substitute its own view for that of the employer unless the view of the employer falls outside the band of reasonable responses. In UCATT v Brain, Sir John Donaldson put the matter perfectly thus: “Indeed this approach of Tribunals, putting themselves in the position of the employer, informing themselves of what the employer knew at the moment, imagining themselves in that position and then asking the question, “Would a reasonable employer in those circumstances dismiss”, seems to me a very sensible approach – subject to one qualification alone, that they must not fall into the error of asking themselves the question “Would we dismiss”, because you sometimes have a situation in which one reasonable employer would and one would not. 3.19. In Software 2000-v-Andrews Elias P. set out the law applicable at the time which now must be adjusted since the repeal of s98A (2) of the ERA but much his Lordship says still applies including (2) If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, it is for him to adduce any relevant evidence on which he wishes to rely. (3) However, there will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made.(4) Whether that is the position is a matter of impression and judgment for the Tribunal. But in reaching that decision the Tribunal must direct itself properly. It must recognise that it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact an element of speculation is involved is not a reason for refusing to have regard to the evidence. 3.20. Sections 122(2) and 123(6) permit a reduction in a compensation on account of an employee’s conduct. Nelson-v-BBC (No2) held the conduct under s123(6) must be culpable and blameworthy, which behaviour caused by a disability probably would not be, and it must be just and equitable to make a reduction. 4. Conclusions 4.1. We begin with the EqA claim. The World Health Organisation definition of an impairment, includes any abnormality of psychological function. Anxiety is a normal human condition but the measures the claimant formerly used to cope indicates some abnormality. The doctors accept that, though say it was not “major”. Because she did not tell the medical professionals how much she struggled with anxiety, they diagnosed no serious mental illness. On what the claimant has told us, self -harming was for her the measure she took to prevent her anxiety having the effect she could not even go to work or function in day to day life . Now she needs weekly ‘Step 4’ therapy sessions with Talking Matters and medication to enable her both to work and perform other normal day-to-day activities. We accept this effect was not confined to the period of the disciplinary process, has been a major problem for her for over 30 years and probably will remain so for the rest of her life. On that basis we find she was at all material times disabled, but until recently hid it very well. 4.2. We cannot find the respondent knew ,or ought reasonably to have known, what we have discovered now. It did not blindly follow medical advice, but considered it and came to a decision she had symptoms of temporary mental ill health. The respondent having discharged the burden imposed upon it by section 15(2), the only EqA claim pleaded cannot succeed and the remaining issues under the EqA become otiose. 4.3. On the ERA claim our conclusions are incorporated in our findings of fact, but some should be summarised here. The claimant, who felt shame about what she did, kept it secret , even from her family. The TA knew, Ms L knew and from November 2017 so did Teacher A. The Head believed she was self harming probably from 2015 but definitely in May 2017. Therefore, when she saw what she considered to be a fresh wound on 11 December she went straight to HR who suggested a further OH referral . The terms of that referral demonstrate the Head’s mind she was self harming was already made up. After the claimant admitted she had been to Dr D on 20 December 2017, over the Christmas holiday she was in a dreadful state and, as her texts show, could not see her way forward to stopping it, until on 11 January she was taken to hospital and realised not only that she had to stop but also that not all conventional treatment would have the adverse effect which Mirtazapine had in 2014. 4.4. On 20 December 2017 Dr D’s letter said , after consulting the Head of OH , the claimant should return to work. The Head and others then knew that was likely to happen unless something else emerged. An”anonymous call to the LADO on 2 January and Teacher A giving him access to the texts provided that something else. We doubt Teacher A did so out of malice towards the claimant. She clearly felt “her neck was on the line” because of what she had not disclosed in November 2017. Some time that week definitely by 11 January she also provided a version at least to the LADO of what the claimant said on 8 January. 4.5. The difficulty for the respondent is the evidence of their witnesses was evasive, contradictory with documents as well as with each other and, on many points, simply untrue. They were plainly trying “ to say the right thing” to advance their case. The effect of the way they dealt with the internal processes and with these proceedings has been to make the claimant believe there was an orchestrated plan to get rid of. She may be right. However, there is another possibility and we need not go as far as to decide which is correct. In comparison the claimant’s case hung together well. For example, when the claimant said “I’ve still have not found that blade I lost”, one would have expected Teacher A to ask “ What blade? When?”. There is no suggestion she did, even from her. 4.6. There are different versions, at paragraphs 2.35 and 2.59 above, of what claimant said to Teacher A on 8 January, both of words used and importantly the order in which they were said. Unlike the disciplinary and appeal panels we heard Teacher A and formed the view she had no wish to cause the claimant harm. As Sedley LJ said in Anya -v-Oxford University “a witness maybe credible and honest but mistaken”. Hypothetically, if one compares “You know I do it in school. They just don’t know. I can’t get thro’ school without it”. “You know I don’t in school. They just don’t know, I can’t get to school without it.” the first is what the claimant is accused of saying, while the second is exactly the case she puts in her own defence. With phonetic spelling of “through”, they differ by three letters and three punctuation marks. If these words were spoken by the claimant when in tears, the potential for misinterpretation is even greater. We now know Teacher A herself had recently had a difficult time. Quite simply, it never crossed the mind of the IO, DO, the Head, HR or the LADO, Teacher A may have put two and two together and made five. 4.7. Apart from what Teacher A reported, the only evidence capable of supporting a conclusion the claimant self harmed in school, was the observations of what various unqualified people saw mainly on 11 December , 9 and 10 January. We have chosen the unfair dismissal case law cited above carefully. All the HR advisers would have told the IO, as the DP Chair told the Head in May 2017, of the importance of detailed notes and statements taken as near to the event as possible. Had anyone, including the LADO, followed the steps in Linfood we would not have the problem of witnesses saying they cannot now remember what happened nearly two years ago. Had anyone asked any of the OH doctors to report on their physical findings we would know what marks existed and probably have some medical opinion as to how old they were. We have not even a second hand version of the “ anonymous parent” telephone call to the LADO on 2 January, if indeed she was anonymous, not only asking for her identity not to be revealed. If the phone call and/or the number from which it was made was recorded, at least the IO and ourselves maybe could have been assured it was not from a member of staff. Knowing the matters being investigated could result in the loss of a career as well as a job, it beggars belief HR would not have realised a thorough even handed investigation was needed as explained in A-v-B and told the IO how to do it properly. The evidence of the Head was HR said matters revealed first on 2 February “changed everything” was untrue. Most if not all those present on 11 and 31 January already knew a diligent investigation into the disputed facts was needed urgently. Mr Stubbs in submissions said this was not a council maintained school and had limited resources. We disagree. Our findings show they had plenty of HR and medical advice. 4.8. The investigation was hugely delayed and wholly inadequate. If the IO had been trying to find the truth, she would have spoken to Teacher A, and all those who saw marks, well before she did, kept a very careful note of what they said , not waited six weeks before speaking to the claimant and, when she did, put clearly to her what those she had interviewed had said. When she received the claimant’s denials in a short interview on 17 April , she never went back to any of them to explore the possibility of misunderstanding or mis-observation. The claimant has been self harming for over 30 years. Her medical records do not show she has been in need of treatment for infections. Why would anyone who could discreetly take razor blades into school, if determined to self-harm on the premises, choose to do so with Stanley or craft knife blades and hide them in blu-tac? A search which included the seizure of all the blutac and the use of a metal detector found no blades. A search on 13 February found broken glass. We think it was missed on the first search 10 days earlier not ”planted”, which would be an act of extraordinary wickedness, but if it was put into the cupboard by somebody it cannot have been the claimant between 3 and 13 February because she was not even in the school and the cupboard had been secured. We understand the claimant being suspicious because no one has ever explained to her how Teacher A could have described the glass when interviewed by the IO on 7 March .We think the Head , despite her denial ,or possibly someone else, showed it to Teacher A. None of these contradictions, improbabilities or untruths were explored by the IO at all. Despite saying it was not her job, she wrote “conclusions” the charges were “substantiated”, the illogicality of which she could not explain . 4.9. Somebody from HR told Dr D razor blades had been found in the school which was untrue. That was passed to Dr V who said it was important the facts should be decided, and despite being told razor blades had been found gave the opinion the claimant was no danger to children. Still no further investigation took place. 4.10. The disciplinary hearing was abysmal. The huge IO report was given at short notice to the panel and the claimant’s answers shorter notice still. There were no changes to the charges but the panel strayed into everything from safe storage of sharps, to the blade taken by accident into the school in November, about which the claimant had told them, to the bad language in the texts . No-one asked to speak to Teacher A. We do not expect a hearing to the standards of court proceedings but “double hearsay” (ie. what the IO said Teacher A said the claimant said on 8 January) is best avoided if possible , and it was easily possible at least for the DO and the panel to speak to her direct as recommended in Linfood . Cross examination of Teacher A , as in Santamera, may not have been needed. The evidence of the claimant was frank as to her past problems but none of it was believed for reasons the DO could not logically explain. Every piece of evidence pointing away from the claimant’s guilt was ignored. The panel ignored the inconsistencies in the respondent’s evidence and simply rubberstamped the IO’s conclusions . In effect they ended the claimant job and career in a mere three hours during which time they could not have given any serious thought as to whether the evidence contained in the IO report showed she was guilty of the charges against her. It took us more time than they spent just to read the report and the claimant’s answers. 4.11. Why would they do this ? The DO herself had been friendly with the claimant and may well have thought that if she did not go along with the others and the views being put to them by the IO and LADO, she would be accused of bias in the claimant’s favour . We do not like to draw conclusions about people we have not heard. However, the LADO’s comments to the IO and both internal hearings express views that if a person has self-harmed she may well do so again and poses a risk to children. The phrase used repeatedly by him, and by many of the respondent’s witnesses, was “potential risk“. A ”risk“ is the “potential” for some harmful consequence so the phrase is strictly speaking a tautology, but we are not concerned with matters of grammar. In the context in which the phrase was used by people here, and in ordinary language, it indicates a risk in theory that some harm may conceivably happen. 4.12. We agree with the claimant’s statement at paragraph 95 where she says the LADO’s generalisations to those delegated by the respondent to decide her future that “ people like me” who had self harmed in secret until she “came out”, would always be an unacceptable risk to children so had no place working in a primary school, had a massive influence. It was not only on the sanction to be applied. The disciplinary panel thought where children are involved, any allegation, which if true may pose even a minimal risk, justified the strongest sanction, regardless of whether evidence showed guilt of the charges actually put. They allowed that to dictate the outcome in a way that defied logic. 4.13. History, and the opinion of three doctors, two being specialists and all being well familiar with assessing risk of emotional damage to children, was the risk now the claimant had “come out” and accepted treatment was, in the word of Dr P, minimal . That did not prevent the LADO telling the disciplinary and appeal panels that in his opinion as a social worker where children are involved, the claimant must be seen as a “risk”, and no risk should be taken. If a person believes or perceives that due to the nature of the claimant’s particular condition , they need not dwell on the step of establishing guilt of the charges that she had brought sharps into school for the purpose of self harming and did so on the premises and treats her less favourably by dismissing her , it may be direct discrimination as explained in Stockton Borough Council -v- Aylott and more recently Chief Constable of Norfolk-v-Coffey. . That was the view the minutes show the LADO held . It is possible the Head, and others, shared that view. 4.14. That said , narrowly, we conclude the dismissing and appeal panels held a genuine belief the claimant was guilty as charged because they accepted what they were told, and did not give it thought . Also, we detected no motive or desire on the part of the DO or any member of either panel to want rid of the claimant. However, no reasonable employer on the evidence before them could have concluded she was guilty of the charges put to her and was continuing to lie by not admitting to those charges. 4.15. Mr Stubbs in his submissions said the claimant, who gave evidence first , accepted in cross examination their view was reasonable. We do not accept she did. He put the proposition if the respondent did think Teacher A was truthful and wounds spotted late in the day were fresh, they could put those pieces of information together and logically come to a conclusion she had self harmed at school. That would be right if the disciplinary and appeal panels had gone through that mental process, but they did not. The claimant never accepted the premise of his questions. In his gentle but very effective style he led her, like the proverbial lamb to the slaughter, into an answer which was only an apparent admission. 4.16. We conclude the dismissal was, substantively and procedurally, grossly unfair. It is necessary to decide whether any reduction under the principle established in Polkey v AE Dayton or under s123(6) of the Act is just and equitable . It is now far too late to attempt to decide what might have happened had a proper investigation and hearing taken place. We are wholly satisfied the claimant was not guilty of culpable and blameworthy conduct. Both her self harming, and not “coming out” earlier than she did, are a symptom of her disability as explained by the extracts she quoted at paragraph 2.6 above. T M GARNON EMPLOYMENT JUDGE SIGNED BY