MRS A OLDFIELD v UNIVERSITY OF SURREY [2003] UKEAT 0045_03_1211

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0045_03_1211Case No Appeal No.UKEAT/0045/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS A OLDFIELDAPPELLANTUNIVERSITY OF SURREYRESPONDENT
Before
His Honour Judge J BurkeDate 12 November 2003
[1]APPEARANCES For the Appellant The Appellant in person For the Respondents MR M SUTTON (of Counsel) Instructed by: Messrs Barlowes Solicitors Guildford House 66 Guildford Street Chertsey Surrey KT16 9PB HIS HONOUR JUDGE J BURKE QC The Tribunal's decision The Appellant, Mrs Oldfield, was employed by the Respondents, the University of Surrey, as a full time lecturer at the Surrey European Management School ("SEMS"), a department of the University of Surrey, from 1 February 1999. Her employment was not that which might usually be expected of an academic. SEMS operated a five day week throughout the year, save of course for annual leave; employees worked a 9 am to 5 pm day; the Tribunal found that SEMS operated a dress code; lecturers were paid at a higher level than academics who kept normal university terms. The Tribunal said, of her job, that "In all respects it is treated as a normal office environment".[2]Mrs Oldfield was dismissed on 17 August 2001. She made a number of complaints to the Employment Tribunal. They were, first, that the university had been guilty of unlawful disability discrimination, in dismissing her, and, prior to her dismissal, in failing to make reasonable adjustments for her disability, secondly, that she had been unfairly dismissed and, thirdly, that in three separate respects the University was guilty of breach of contract.[3]The first complaint of breach of contract was that, under the University Statutes, which Mrs Oldfield contended were incorporated into her contract of employment, she was entitled to a hearing before an internal tribunal before dismissal, but she had had no such a hearing; the second complaint of breach of contract was that the university was contractually bound to make her a performance-related payment or payments which had not been paid; the third complaint related to expenses which she had incurred. This third claim was settled, save for one item which arose out of work done by Mrs Oldfield for Railtrack, before the hearing proper commenced. The general nature of the issues which arose from these complaints, all of which the university denied, are fully identified in paragraphs 3 - 6 of the decision of the Tribunal, which paragraphs are not criticised by either party to this appeal.[4]The Tribunal, sitting at London South and chaired by Mr Peters, reached after a five day hearing and sent to the parties with Extended Reasons a decision which is lengthy and detailed. At this stage of this judgment it is necessary only to set out its effect in brief terms. The Tribunal dismissed the disability discrimination claims; they found that Mrs Oldfield was a disabled person within the meaning of the Disability Discrimination Act 1995 ("the 1995 Act") it was not in dispute that she suffered from a mental impairment, namely a moderate depressive episode, the symptoms of which would have been significantly more severe but for medication; and the Tribunal found, at paragraph 33 of their decision, that the impairment had a substantially adverse effect on Mrs Oldfield's ability to carry out normal day-to-day activities. The Tribunal then concluded that Mrs Oldfield had been dismissed for a reason which related to her disability, namely her poor attendance record. The Tribunal concluded, however, at paragraph 35 of their decision that the dismissal was justified and therefore did not constitute unlawful disability discrimination. Finally, in relation to the complaints under the 1995 Act, at paragraphs 36 and 37 of their decision the Tribunal concluded that the university had not failed to take steps by way of adjustments which it was reasonable for them to take to prevent Mrs Oldfield from being at a disadvantage as compared with persons who were not disabled. Thus the complaints under the 1995 Act failed.[5]The Tribunal considered next the breach of contract complaints; at paragraphs 38 - 40 they found against Mrs Oldfield in respect of each of them (save, of course, for the previously agreed sums which they ordered the university to pay to Mrs Oldfield).[6]Lastly they considered the unfair dismissal complaint. They found that the reason for the dismissal was the breakdown in working relations between Mrs Oldfield and her line manager and the Head of SEMS, Professor Gamble, and that her absence from work due to depression was referable to that breakdown in relations and to her opposition to any attempt which the university made to enable her to return to work. The reason for dismissal for the purposes of sections 96(1)&(2) of the Employment Rights Act 1996 was found to be some other substantial reason; and dismissal was found to have been not only an appropriate response to the situation which had arisen but to have been inevitable because Mrs Oldfield was not prepared to work with Professor Gamble and there was nowhere else in the university where she could go. However, the Tribunal found that the dismissal was procedurally unfair because it took place without warning, without any opportunity for Mrs Oldfield to discuss her future, or to put forward any proposals to save her job and without any appeal being offered or permitted. The Tribunal then went on to hold that Mrs Oldfield would have been dismissed in any event whatever procedure had been used and that Mrs Oldfield's conduct was a major contributory factor to the dismissal. The Appeal[7]Mrs Oldfield's original Notice of Appeal contained a large number of grounds of appeal almost all of which went to the Tribunal's decisions as to the claims under the 1995 Act; one ground (paragraph 3) was directed at the Tribunal's decision as to the non-incorporation of the University Statutes into Mrs Oldfield's contract of employment. Paragraph 4 simply alleged that the Tribunal Chairman's view was "not grounded in law" but was subjective. On 22 January 2003, His Honour Judge McMullen QC permitted Mrs Oldfield's appeal to proceed to a full hearing but ordered Further and Better Particulars of eight sub-paragraphs of paragraph 2 of the Notice of Appeal to be provided within fourteen days and ordered Mrs Oldfield to provide further particulars of ground 3 of the Notice of Appeal (possibly the Order was intended to apply to ground 4 - but it does not matter).[8]In response Mrs Oldfield lodged an Amended Notice of Appeal in which she deleted paragraph 2.6.1 and 2.7 and paragraphs 3 and 4 of the original Notice of Appeal but inserted a new paragraph 3 which identified five decisions of the Tribunal as under appeal but did not give any grounds for the appeal against those decisions. On 18 March 2003 His Honour Judge McMullen QC allowed the proposed amendments to the Notice of Appeal to be made and ordered that the grounds deleted by Mrs Oldfield from the original Notice of Appeal be dismissed; he ordered that paragraphs 2.1. and 2.9 inclusive of the grounds in the original Notice of Appeal and the Amended Notice of Appeal be dismissed for non-compliance with the earlier Order for Particulars; and he ordered that Further Particulars of the new paragraph 3 be provided in the form of a Skeleton Argument.[9]Thus clarity was provided at least as to the grounds of appeal open to Mrs Oldfield at the full hearing before us of her appeal, save in one respect which we will address later.[10]It is necessary, before turning to the details of Mrs Oldfield's appeal, to make three important points. The first is that the Tribunal's decision, covering twenty one pages and forty seven paragraphs, one of which - paragraph 11 - sets out the Tribunal's findings of primary fact in sixty sub-paragraphs, is a detailed and full decision. The second is that no decision in a case such as this, in which the Tribunal heard evidence from seven witnesses over a number of days and had before them a bundle of over five hundred documents, can be expected to refer to each piece of evidence or each argument relied upon by the parties. The Tribunal's task is to set out the primary facts as found and to express their conclusions on the issues which arise for decision in such a way that, when the decision is read as a whole, the parties can see in relation to each issue why they respectively won or lost and an Appellate Court can see whether there was any error of law on the part of the Tribunal in reaching their decisions on the issues which fell to be decided. Thirdly the Employment Appeal Tribunal is not a Tribunal of fact but an Appellate Tribunal. It is for the Employment Tribunal to decide issues of fact and their factual determination can only be successfully undermined on appeal if the Tribunal have omitted to consider some material fact, have considered some fact which was immaterial or have reached a conclusion which is so unreasonable that no reasonable Tribunal could have reached it.[11]We make these points which, to say the least, are not original because, during the course of the appeal Mrs Oldfield put forward arguments which, perhaps not surprisingly in the light of the fact that, although she was represented below by Counsel with great experience in the field of employment law, she has represented herself at the hearing before us; and, despite her obvious intelligence, it became clear that the restrictions within which we must and do operate as an Appellate Tribunal may not have been fully appreciated. While she has assured us that she appreciates the impossibility of seeking to re-litigate on appeal issues of fact on which she did not obtain all or any of the findings she wished, the nature of Mrs Oldfield's argument was such as to demonstrate that the limitations on our functions had not been fully grasped. It will, we hope, be easier for Mrs Oldfield to understand our decision if these points are made clear at the outset rather than along the road of consideration of her arguments down which we must begin to proceed. General criticisms[12]At the outset Mrs Oldfield put in the forefront of her argument her submission, which went to the Tribunal's decision as a whole, that the Tribunal did not in their decision refer to her evidence or to any evaluation of her evidence, and, indeed, from a reading of the Tribunal's decision it would appear that she had not given evidence at all. The decision was, as a whole, not properly balanced, she submitted, and this lack of consideration of her evidence and lack of balance tainted the Tribunal's conclusions.[13]We will, of course, consider separately Mrs Oldfield's criticisms of the Tribunal's individual decisions on the issues we have identified insofar as they arise in this appeal; but we must before doing so record our conclusion that there is no substance in these general criticisms of the Tribunal. The Tribunal's decision was not, in general terms, unbalanced; at paragraphs 3 to 6 the Tribunal identified at length and in detail the issues which they had to decide in a manner which has not been the subject of criticism; they proceeded, at paragraphs 7 to 19, to find the primary facts in considerable detail; and then after summarising the parties' submissions they set out their conclusions on the issues which had earlier been identified. In those conclusions they found in Mrs Oldfield's favour on three very important issues which were hotly contested by the university, namely that(1) that she was a disabled person for the purposes of the 1995 Act (paragraph 33);(2) she was dismissed for a reason which related to the disability (paragraph 34); and(3) she was procedurally unfairly dismissed (paragraph 44). Although Mrs Oldfield's claims under the 1995 Act and of breach of contract failed, the decision when read as a whole shows no signs at all of lack of balance. It reads generally - and we will come shortly to individual criticisms of specific passages - as a balanced decision which shows that the Tribunal approached the cases of each party critically and considered and made findings upon the important primary facts in detail. It is entirely correct to say that, on each issue of fact, the Tribunal did not set out Mrs Oldfield's evidence or indeed the evidence on behalf of the university. We have already said that it was not in law necessary for the Tribunal to set out all the evidence; it was appropriate and sufficient for the Tribunal to say, as they did at paragraph 11, that they had heard the evidence and read the relevant part of the documents and then to proceed on the basis of that material to make findings of fact. We have not heard any complaint or identified in the documents any indication that the Tribunal did not have Mrs Oldfield's evidence in mind insofar as it went to the issues which they had to determine. We therefore reject Mrs Oldfield's general criticism of the Tribunal's decision.[14]In ground 2 of the Amended Notice of Appeal Mrs Oldfield criticises the Tribunal's decision upon her claims under the 1995 Act and upon her unfair dismissal claim on the basis that the Tribunal failed to make any finding as to the effect of her disability on her ability to undertake work responsibilities and as to the causation of her disability which, she claimed, was derived from the conduct of the university and its agents. We do not regard these criticisms as valid or as establishing any error of law on the part of the Tribunal. The Tribunal addressed and made findings as to the nature and extent of Mrs Oldfield's disabilities in paragraphs 14 to 19 of their decision; they set out a substantial extract from the report of Dr Lipsedge, a Consultant Psychiatrist, who gave evidence on Mrs Oldfield's behalf at paragraph 14, and summarised other parts of his report at paragraph 15 and his oral evidence at paragraph 16. They summarised Mrs Oldfield's evidence and that of her husband and made findings about the extent of her disabilities at paragraphs 17 to 19. They then made specific findings as to the extent of the impairment at paragraphs 32 to 33. There is no indication that they did not have that evidence and their findings on that evidence in mind when they turned to the specific acts relied upon as constituting unlawful discrimination and failure to make adjustments under the 1995 Act and to the issue of unfair dismissal.[15]As to the causation of Mrs Oldfield's disability, at paragraph 41 in considering the unfair dismissal complaint, the Tribunal expressly found that Mrs Oldfield's absences from work due to depression were referable to i.e. were at least in part caused by the breakdown of the working relationship between her and Professor Gamble, which breakdown is described in detail in the factual history in paragraph 11, and were in part caused by her opposition to any attempts made to enable her to return to work. These were findings of fact directly upon the causation issue; it was not and could not be suggested that there was no evidence to support those findings. They were correctly placed in the section of the decision dealing with unfair dismissal. Mr Sutton, on behalf of the university, accepted that as a result of the decision of the EAT in Edwards -v- Governors of Hanson School [2001] IRLR 733 it was appropriate for the Tribunal to consider whether an illness which led to dismissal was caused by the employer's conduct. What the Tribunal decided on the facts, however, was not that the employer's conduct caused the illness which led to the dismissal but that the illness was the product of the breakdown in relationships and Mrs Oldfield's reaction to that breakdown. It is not necessary, in our judgment, to go further into the principle derived from Edwards . The criticism is that the Tribunal did not make findings of fact as to the causation of the disability. When the decision is examined, it is clear that the Tribunal made no such error. Disability discrimination; the justification issue[16]The Tribunal's conclusions on the justification issue are set out at paragraph 35 of their decision. They began that paragraph by correctly reminding themselves of the words of section 5(3) of the 1995 Act that treatment (i.e. less favourable treatment for a reason which relates to the disabled person's disability) is justified if, but only if, the reason for it is both material to the particular case and substantial. They continued:
"In this case the Tribunal is satisfied that the dismissal of the Applicant was both material to the circumstances of the case and substantial. The Applicant was absent from work, there was a need for a lecturer within the school and it is evident from Professor Gamble's memorandum on 17 July 2001 that the Applicant's inability to perform was causing severe problems within the school. The Applicant could not be transferred elsewhere and if she remained within SEMS she had to work with Professor Gamble which she was not prepared to do. In all the circumstances the dismissal of the Applicant was justified. In those circumstances the Respondent did not unlawfully discriminate against the Applicant as a disabled person under Section 5(1) of the 1995 Act."
[17]In paragraph 6(14) of her Skeleton Argument, Mrs Oldfield argued that, of the five facts that are there set out, the second, fourth and fifth were not real and therefore not material and that the first and the third were real but were not substantial. She set out points as to each of these factors, some of which she amplified in oral argument, in particular as to factors 4 and 5. She then made in her Skeleton Argument three general criticisms, namely that the Tribunal were wrong to take a view of justification which went beyond the reason given by the university at the time of dismissal, that the Tribunal did not take a balanced view of the circumstances of the employer and employee and that the Tribunal did not take into account the relevant passage of the Code of Practice for the elimination of discrimination in the field of employment against disabled persons or persons who have had a disability ("the Code of Practice").[18]We address the general points first. Our approach to these points begins with a brief reference to the law. In her Skeleton Argument, at paragraph 6.1.11 Mrs Oldfield referred to Baynton -v- Saurus General Engineers [1999] IRLR 604 and Heinz Co Ltd -v- Kenrick [2000] IRLR 144 as establishing the need for the Tribunal, when considering justification, to take a balanced view of the cases of both parties or at least to carry out some balancing exercise, which task or tasks she suggests that the Tribunal failed to carry out. While it is correct that in Baynton the EAT preferred the submission that, in considering justification under section 5(3), a Tribunal must carry out a balancing exercise between the interests of the disabled employee and the interests of the employer, the EAT in Heinz took a somewhat different view, stating at paragraph 20, after setting out the effect of Baynton :
"We have already noted that the 'circumstances of the particular case' referred to in section 5(3) can include the employer's circumstances. Whilst we would not preclude some balancing exercise, the comparatively limited requirements of section 5(3) are to be borne in mind. It does not require a wider survey of what is reasonable having regard to specific features such as is found in section 6(1) and section 6(4). Under section 5(3) all that is material is whether the reason for the treatment is 'both material to the circumstances of the particular case and substantial' which, under the Code, as we have cited, means that the reason has to relate to the individual circumstances in question and not just be trivial or minor"
[19]In Jones -v- Post Office [2001] IRLR 384 the Court of Appeal emphasised that the Tribunal has the limited function in a case under section 5(3) of considering whether the reason given for the less favourable treatment relied upon can properly be described as both material to the circumstances of the particular case and substantial; see per Pill LJ, with whom Kay and Arden LJJ agreed at paragraphs 25 and 28.[20]It is clear from these authorities that the Tribunal's task is not to carry out some general balancing exercise in order to decide which party's case as to justification is stronger or more reasonable but to decide whether the employer has shown that the reason which he has given for the relevant treatment was material and substantial; and that is the task which the Tribunal plainly and expressly set themselves in paragraph 35. While, of course, in reaching their decision a Tribunal will need to consider the evidence as to the relevant facts on both sides, in general terms there is nothing in the decision here which indicates that the Tribunal did not do so. The Tribunal's approach appears to us to have been correct in law. There is nothing which indicates that the Tribunal only considered the circumstances of the university; the factors set out in paragraph 35, taken together, involve consideration of the circumstances of both sides and are based on the findings of fact set out earlier in the decision.[21]We have considered with care the dismissal letter of 13 August 2001; according to Mrs Oldfield's argument, that letter put forward only two main reasons for dismissal, namely frustration of contract and commercial reasons; but in our judgment that argument is unsound. Although the fact that a particular reason, which is subsequently given by way of justification of treatment said to be discriminatory was not put forward at the time of the treatment may be regarded as evidence which weakens the extent to which that reason may be successfully relied upon, there is no requirement in law that the reason subsequently given must have been advanced at the time of the treatment. In any event while the dismissal letter does refer to frustration of the contract of employment, that reference is based on Mrs Oldfield's absence from work and the breakdown of her relationship with Professor Gamble. The letter also refers to the need for her services, the university's inability to transfer Mrs Oldfield to another part of the university and to her lack of contribution to the university and of an active research portfolio. Read as a whole, the letter can be seen expressly to have included by way of an explanation of the dismissal the thrust of the university's case and indeed the five factors identified by the Tribunal as providing the justification for that dismissal.[22]As to the Code of Practice, the Tribunal said, at paragraph 31, that in deciding the issues under the 1995 Act they had expressly referred to the guidance referred to in the Code of Practice. Mrs Oldfield identifies paragraph 3.2 and 6.21 of the Code of Practice as paragraphs which should have been taken into account. Paragraph 3.2 of the Code of Practice advises employers to talk to disabled persons about the effects of their disabilities; the Tribunal made very detailed findings of fact as to the discussions and exchange of correspondence between the parties in this case. There were, on their findings, a number of discussions with Mrs Oldfield and her union representative as to the situation. Consideration of paragraph 3.2 (if it was not considered - and there is no material to indicate that it was not) would have added nothing. Paragraph 6.21 of the Code of Practice reminds employers that dismissal of a disabled employee needs to be justified and that the reason for dismissal must be one which cannot be remedied by reasonable adjustment; and it makes various specific suggestions as to particular fact situations. It is clear from the Tribunal's approach to the question of justification, in our judgment, that they had in mind the messages which that paragraph conveys.[23]We turn from Mrs Oldfield's general criticisms of the Tribunal's approach to the justification issue to her specific arguments on each of the five factors. Her criticisms of the Tribunal's reliance on the second, third and fourth factors, i.e. the need for a lecturer, her inability to perform and the absence of any post to which she could be transferred is, in each case, that the Tribunal's findings show insufficient or no consideration of the evidence on which she relied. In effect, she bases her argument on the Tribunal's preference for the university's evidence over hers. Unfortunately for Mrs Oldfield, this argument cannot prevail; she has not sought to argue that there was no evidence on which the Tribunal could base their findings; nor has she put the argument on the basis of perversity; and we have not seen any notes of the evidence; we have seen only a minute proportion of the documents which were before the Tribunal. It was for the Tribunal to decide on the facts whether or not these factors were established and whether or not they were material.[24]In relation to the absence of the availability of a transfer, Mrs Oldfield asked us to look at paragraph 46 of the Tribunal's decision and to consider what it was that she had done which closed off all transfer possibilities. Mr Sutton in response took us through the Tribunal's findings of fact which painted a picture justifying the Tribunal's conclusion in paragraph 46 - and their conclusion as to Mrs Oldfield's willingness to work with Professor Gamble in paragraph 5. It is clear from those findings that, despite the relationship difficulties between Mrs Oldfield and Professor Gamble and others, the University considered a transfer (paragraph 11(xl) and (xliii) ) which was rejected by the relevant professors; other solutions were proposed which were rejected by Mrs Oldfield (e.g. paragraph 11(lii)). Mr Behagg, the university's Human Resources Director, eventually concluded that there were no other available options (paragraph 11(lv) ). The history as determined by the Tribunal provides material from which it was open to the Tribunal to conclude both that there was no alternative position in which Mrs Oldfield could be placed and that the situation which had been reached by August 2001 was substantially of her own making.[25]As to the first factor, Mrs Oldfield again relies on evidence which she presented as to other staff absences and the university's sickness policy; but the Tribunal had before them evidence that Mrs Oldfield was off work from 26 January to 26 March, from 2 May to 2 July and from 10 July 2001 until the dismissal. It was for the Tribunal to decide on the significance of these absences when considering whether the justification put forward was material and substantial; there was clearly evidence which entitled them to conclude that the factor of Mrs Oldfield's absences was of weight. As to the fifth factor, Mrs Oldfield's unwillingness to work with Professor Gamble, Mrs Oldfield submitted that she made repeated attempts to return to work which were frustrated by Professor Gamble and by the absence of a completed risk assessment, or a completed investigation into her complaints. Her attention was drawn to the letter of 11 July written to Mr Behagg by Mrs Oldfield's union representative in which she says:
"The situation that Mrs Oldfield finds herself in is not sustainable any longer"
That letter could be understood as making it clear that Mrs Oldfield could not or would not work with Professor Gamble and that the University was being asked to do something about the situation; but Mrs Oldfield's position was that she was still willing to work with Professor Gamble but only through an intermediary. That is perhaps illustrative of an unrealistic view of the situation; but it is not for us to describe what was happening; it was for the Tribunal to consider and adjudicate upon the rival factual contentions, having regard not only to the evidence of Mrs Oldfield, but also to the evidence of Professor Gamble himself and to the other evidence, in particular that of Mr Behagg. We are satisfied that in this area too the Tribunal did so in a manner which discloses no error of law.[26]We have, in what we have set out above as to Mrs Oldfield's argument in this area of the appeal, addressed the points which she makes in ground 2.12 - 2.12.2 of the Amended Notice of Appeal. As to ground 12.2.3 of the Amended Notice of Appeal Mrs Oldfield there seeks to re-open the facts. There is nothing in the Tribunal's Decision to indicate that they failed to consider Mrs Oldfield's evidence that her lecturing role had been removed by Professor Gamble for reasons other than her disability. Their findings of fact as to the events of the first three months of 2001 are set out at paragraphs 11(xxvi) - (xxxii) of their decision. It is not suggested that there was no evidence to support those findings, which they were clearly entitled to make.[27]In ground 2.12.4 Mrs Oldfield asserts that the Tribunal did not consider her evidence as to the outcome of her complaint of harassment before her dismissal and as to the absence of a proper risk assessment, which absence, she claimed was the reason for her problems in returning to work. The Tribunal clearly referred to the fact of her complaint and to the conclusions of Professor Gilbert who investigated it, in paragraph 11; but in any event we do not see how the failure, if there was one, to notify her of those conclusions prior to dismissal could be said to have had any influence or decisive influence on the Tribunal's Decision as to justification. The report revealed (see paragraph 11(liv) ) that the actions which Professor Gamble took to manage an improvement in Mrs Oldfield's performance were reasonable and did not constitute harassment. The report appears to have supported and not undermined the university's case as to justification. As to the circumstances in which Mrs Oldfield came to be absent from work, they were the subject of ample findings of fact which support the Tribunal's general conclusions. We make the same comment about the grounds set out in paragraph 2.12.5 of the Amended Notice of Appeal.[28]Accordingly, we do not accept Mrs Oldfield's criticisms of the Tribunal's conclusions on the justification issue. Disability discrimination - the adjustment issues[29]The first point to be considered in this section of our judgment is Mrs Oldfield's assertion that, in addition to the four adjustments set out at paragraph 4(viii) of the Tribunal's Decision, as those relied upon by her as adjustments which should have been made, pursuant to the university's duty under section 6(1) of the 1995 Act, The Tribunal ought also to have considered, but did not consider, the provision of alternative line management and supervision and the carrying out of a proper risk assessment. Mr Sutton, who appeared on behalf of the university before the Tribunal, told us that the list at paragraph 4(viii) of the decision was precisely that put before the Tribunal by Mrs Oldfield's Counsel; Mrs Oldfield did not take issue with what Mr Sutton said. The Tribunal identified the relevant issues in detail and with obvious care; we can see no indication that they omitted to consider a relevant part of Mrs Oldfield's case.[30]The Tribunal began their consideration of the adjustment issues at paragraph 36 of their Decision. They correctly recorded Mr Sutton's concession that the duty on the university specified in section 6(1) of the 1995 Act arose in Mrs Oldfield's case. They then found that it was not reasonable for the university to redeploy Mrs Oldfield, to allow her to work from home or to permit her to operate on a flexible hours basis; as to a phased return for work, that had been tried and failed on two occasions; the Tribunal were, therefore, satisfied that the university had done what was reasonable in all the circumstances that Mrs Oldfield could return to work in a safe environment. These were all conclusions of secondary fact, derived from the findings of primary fact contained in paragraph 11 of the Tribunal's Decision in which the history was set out in detail; for example the issues as to work at home and redeployment are dealt with in detail at paragraphs 11(xxxx) - (lv). In particular, in relation to redeployment, it was found as a fact that Professor Airey, who headed the other management school within the university, would not consider Mrs Oldfield for an academic appointment because she did not hold a doctorate and was not research active; and Mr Behagg explained in June, and again in the dismissal letter in August 2001 that no other options were available.[31]Mrs Oldfield's criticisms of this aspect of the Tribunal's Decision, are set out in her Skeleton Argument, at paragraph 6.2.3 to 6.2.11. We feel that we have no alternative but to address each, albeit briefly, in turn.[32]In paragraph 6.2.3 Mrs Oldfield argues that the Tribunal should have borne in mind other staff relationship problems and complaints of harassment within SEMS referred to in her witness statement and another Employment Tribunal case brought against the university by a Mr Darnton, and criticism of Professor Gamble's management style made in a statement by the university's Harassment Officer, Mr Hitchcock. We have not seen any of these documents; it is not in dispute that they were before the Tribunal; it is equally indisputable that the Tribunal was not obliged to set out in their decision the extent to which they had considered these individual pieces of evidence or to explain in the case of each whether they gave it any weight or not and why they did or did not so. The evidence relating to the treatment of others by Professor Gamble would have been, at the highest, of tangential relevance; we cannot and do not infer from the absence of any reference to any of this evidence that the Tribunal did not consider it.[33]In paragraphs 6.2.4 and 6.2.5 of her Skeleton Argument, Mrs Oldfield submits that the Tribunal was wrong to accept that redeployment was unreasonable. We have in part addressed this issue earlier in this judgment. It is clear to us that the Tribunal considered this issue in depth and made findings of fact as to it which have not been shown to have been unsupported by evidence or to have been findings which were not, on the evidence, permissible options for the Tribunal. Of course there were factual disputes as to the possibility of redeployment; for example there was a dispute as to whether Mrs Oldfield was or was not research inactive; the Tribunal found, at paragraph 36, that she had produced no research material, despite being given research days when she was allowed to work from home. There was evidence on which the Tribunal could find, as they did, at paragraphs 35 and 42 that redeployment was not possible; and the Tribunal's factual determination on that issue cannot be re-litigated on appeal.[34]In paragraph 6.2.6 of her Skeleton Argument, Mrs Oldfield argues that the Tribunal were wrong to prefer the evidence of Professor Gamble as to the reasonableness of her operating on a flexible hours basis to that of her GP (who had in fact suggest a phased return to work rather than flexible hours in his letter of 23 February 2001) and the university's Occupational Health Adviser. Here again it is not suggested that there was no evidence to support the Tribunal's finding; it is not said that Professor Gamble did not give evidence that flexible hours were not operated in SEMS and that if applied to Mrs Oldfield she would have been alone in receiving that benefit. Thus the Tribunal were entitled to find, as they did, that it would not have been reasonable for the university to be expected to operate flexible hours for Mrs Oldfield alone.[35]In paragraph 6.2.7 Mrs Oldfield makes a number of similar criticisms of the Tribunal's conclusions as to the university's reasonably refusing to allow her to work from home, the basic argument being that the Tribunal should not have accepted the evidence of Professor Gamble. We take the same view here as in relation to paragraph 6.2.6; it was open to the Tribunal to prefer Professor Gamble's evidence and to reach the conclusion that they did.[36]In paragraph 6.2.8 Mrs Oldfield submits that the underlying purpose of the University's rejection of flexible working hours and home working was performance management, rather than effecting her recovery and that the Tribunal did not consider that the extent to which taking the steps which, she argued, should have been taken would have prevented the disadvantageous effect on her of the arrangements which the university was making; she says that, therefore, these matters were not material to the case or substantial. This argument is, in our judgment, fallacious for two reasons. Firstly the employer's duty under section 6 is to take such steps as are reasonable in all the circumstances of the case for him to have to take in order to prevent the arrangements placing the disabled person at a substantial disadvantage. The employer is not obliged to take steps to effect the disabled employee's recovery; and the employer is only obliged to take such steps as are reasonable to prevent the effect which we have set out. If it was a fact - and the Tribunal made no such finding - that the university had performance management in mind in considering whether it should or should not make certain adjustments e.g. permitting Mrs Oldfield to work at home, that does not lead to the conclusion that the refusal to make such adjustments was a breach of the University's section 6 duty; the question for the Tribunal was whether it was reasonable for the university to take such steps, whatever the university's motivation may have been in declining to take them. Secondly, as we have said above, the Tribunal found in the university's favour that the section 6 duty was not broken; section 5(3) and 5(5) of the Act, which refer to justification of the failure to comply with a section 6 duty, did not arise.[37]It is not necessary for us to set out in any detail the substance of the arguments put forward under paragraph 6.2.9 and 6.2.10 of the Skeleton Argument; in part they have been dealt with earlier; the arguments relate to findings of fact which were supported by evidence and which were permissible options for the Tribunal.[38]At paragraph 6.2.11 Mrs Oldfield complains that the university never completed the investigation of her complaint of harassment nor advised her of its outcome prior to her dismissal. It appears that the report of Professor Nigel Gilbert was sent to Mrs Oldfield on 8 August; it was her case that she did not receive it until 22 August, after the termination of her employment of 17 August. We feel bound to say that we do not understand how this sequence of events could have affected the Tribunal's view of the university's discharge or failure to discharge their admitted section 6 duty. The complaints related to matters which had occurred months before the dismissal; the Tribunal summarised the effect of the report at paragraph 11 (liv); it plainly formed part of the material before them which they considered. We see no valid criticism for the Tribunal' s conclusions arising from this line of argument.[39]Finally, in paragraph 6.2.12 Mrs Oldfield submits that the Tribunal should have had regard to the factors set out in paragraph 6(4) (a) to (e) of the 1995 Act but did not do so; but the Tribunal did not have expressly to go through each of the factors set out in that subsection by rote; they considered the extent to which the various adjustments suggested were practicable; the financial issues raised by section 6(4)(c) to (e) do not seem to have been in any event relied upon. The university's case was that, as to three of the suggested adjustments, they were not practical and, as to the phased return, that had been tried and failed. The Tribunal's reasons for the rejection of Mrs Oldfield's case on adjustments do not reveal any failure to consider the relevant aspects of section 6(4). On the contrary, while section 6(4) is not expressly referred to, the material aspects of that subsection were plainly in the Tribunal's mind.[40]For those reasons we are satisfied that the Tribunal made no error of law in reaching their conclusions and as to Mrs Oldfield's case under section 6 of the 1995 Act. Breach of contract[41]Mrs Oldfield's arguments on this part of the appeal were limited to the Tribunal's conclusion, at paragraph 38 of their decision, that the University Statutes were not incorporated into her contract of employment so as to entitle her to an internal disciplinary hearing before dismissal. It was agreed that, if the Statutes had applied, she would have been so entitled; see paragraph 5(1)(v) of the decision.[42]Mrs Oldfield sought to argue that the Tribunal's conclusion as to the incorporation of the Statutes was wrong in law.[43]Mr Sutton raised a preliminary objection to this argument; he submitted that it had been advanced in paragraph 3 of the original Notice of Appeal, which was deleted by the Amended Notice of Appeal and was dismissed as a ground of appeal by the Employment Appeal Tribunal's Order of 18 March 2003. However, that Order was made on the basis that Mrs Oldfield was allowed to pursue the replacement to ground 3 in the Amended Notice of Appeal, insofar as it was particularised in her Skeleton Argument; and the new ground 3 set out expressly that Mrs Oldfield was seeking to appeal against the Tribunal's decision at paragraph 38 where they set out their conclusions on this issue. We expressed the view when this objection was raised, and repeat it in this judgment, that this sequence of events should not be taken as preventing Mrs Oldfield from arguing, in support of the relevant part of her new ground 3, whatever arguments were set out in her Skeleton Argument. The dismissal of the old ground 3 has to be read as being subject to that ground's replacement by the new ground 3.[44]Mrs Oldfield, thus permitted to enter this area, sought to persuade us that the Tribunal had erred on the basis of various provisions of the Education Reform Act 1988 . Mr Sutton objected again, this time on the basis that no point on that Act had been taken by Ms Gill at the hearing. Mrs Oldfield agreed that this was so; and we can no basis consistent with the well known authorities on which Mrs Oldfield could or should be allowed on appeal to embark on a new point of law which was not taken below. Although we heard Mrs Oldfield provisionally on the point, we take the view that it was not a point open to her. However, for the sake of completeness, we have looked at the sections on which Mrs Oldfield relied and take the view that, unless Mrs Oldfield was a member of the academic staff employed on the terms of the Statutes, those sections do not assist her.[45]Mrs Oldfield sought particularly to rely upon section 203(4) of the Education Reform Act 1988 which provides as follows:
"203.—(1) The Commissioners shall exercise the powers conferred by section 204 of this Act with a view to securing that the statutes of each qualifying institution include— ….. (4) Any reference in this section to academic staff includes a reference to persons whose terms of appointment or contracts of employment are, in the opinion of the Commissioners, so similar to those of academic staff as to justify their being treated as academic staff for the purposes of this section."
[46]The Tribunal were not asked to consider and did not consider whether the terms of Mrs Oldfield's employment were so similar to those of academic staff as to justify her being treated as a member of the academic staff. While we strongly suspect, in the light of their findings at paragraphs 11(v) and 38, that if asked to consider that question the Tribunal would have decided it against Mrs Oldfield. We cannot ourselves decide it; but Mrs Oldfield cannot be permitted to raise it for the first time at this stage.[47]The point which was argued and decided upon by the Tribunal appears clearly from paragraph 38 of their decision. It is whether or not she was employed at the date of her dismissal upon terms which incorporated the University Statutes. The document entitled "Principal Statement", which was originally provided to Mrs Oldfield and signed on behalf of the university and by her, said, on page 3:
"Your appointment may only be terminated by the university in accordance with the procedures set out in Statute 23"
Statute 23 provided for academic staff's dismissal procedures. There were various references in the document to the roles and duties of academic staff. However the Tribunal found as a fact at paragraph 11(v) to (xiii) of their decision that SEMS operated on a different system than that operated under the normal academic arrangements which applied to the remainder of the university - as we set out at the very beginning of this judgment - and, that soon after Mrs Oldfield began to work for the university, the university appreciated that the document was incorrect. A new version was given to her which omitted the words quoted above and made no reference to the terms of academic staff. Mrs Oldfield did not sign the new document but raised no protest about it and continued to work. The Tribunal's decision was that she decided to "keep a low profile" about it. This approach continued when she was subsequently pressed by the then Deputy Director of Personnel to sign and return it.[48]At paragraph 38, the Tribunal concluded that Mrs Oldfield fully understood that the terms and conditions of employment within SEMS were different to the terms and conditions which applied to lecturers in the mainstream of the university, that she deliberately did nothing when she was asked to sign the replacement document, that she carried on working knowing that the original document was incorrect and that she did not work under protest. They found that she could not later contend that the original terms applied to her. In effect they found that she had, by conduct, accepted the terms of the second document.[49]Mrs Oldfield challenged this conclusion on the basis that the university could not, by this process, exclude her from the application of the University Statutes and of Statute 23 in particular. We do not agree. Statute 23 related to academic staff only. The references to academic staff in the first document were deleted from the second document as was the reference to Statute 23. It was open to the Tribunal to conclude on the facts that Mrs Oldfield had accepted those deletions and had agreed that her employment should continue on the new terms; we can see no basis on which the Tribunal's conclusions on this part of the case can be said to have been an error of law. Insofar as Mrs Oldfield contends that the status of a members of the academic staff is irremovable, the Statutes do not so provide. The position between the parties was governed by contract. Nothing in the Education Reform Act 1988 , so far as we can see, or in the common law prevents a member of the academic staff from consensually varying his or her position so as to cease to be a member of the academic staff and to become employed on a different basis. Dismissal in any event[50]Under this heading Mrs Oldfield submitted that the Tribunal ought to have found that her dismissal was substantively and not only procedurally unfair, that the Tribunal in finding that she would have been dismissed in any event were speculating as to what might have happened in a situation which never arose and that the Tribunal failed to take into account the effect of the provisions in Appendix E of the academic related staff handbook which set out a system of consultation and warnings in the case of poor performance or misconduct. She accepted, however, that the Tribunal could come to a hypothetical conclusion and, indeed, on the point as to what would have happened had proper procedures been adopted having been raised, that they were obliged to do so and that their decision in response to that question was a factual decision. She contended, however, that the Tribunal had not taken Appendix E into account. She agreed that they had Appendix E before them; when asked why she said that the Tribunal did not consider it, her response was that they must have not considered it or they would not have come to the conclusion which they reached.[51]Paragraph 43 of the decision spells out that the Tribunal did have in mind the absence of prior warning and the absence of appropriate procedures, including an appeal. The fact that they did not refer to the document setting out specific procedures does not mean that they had not considered it. They had to consider a hypothetical question and answer it, having regard to all of their findings of fact about the history of what had passed between the university and Mrs Oldfield set out so fully in paragraph 11. We have already dealt above with the entitlement of the Tribunal to conclude that Mrs Oldfield's view was that she could not work with Professor Gamble or be managed by him and that the relations between them had broken down and with the Tribunal's conclusion that there was no other post available. It follows that the Tribunal's conclusion that dismissal would have been inevitable had a proper procedure been pursued was one which they were entitled to reach. Contributory conduct[52]Mrs Oldfield's criticism of the Tribunal's conclusion in paragraph 46 that her conduct was a major contributory factor to her dismissal is that that paragraph does not explain or give reasons for the conclusions set out therein and that the Tribunal did not make an objective analysis of the situation, in particular having regard to the fact that Mrs Oldfield's actions were in the context of and seeking to protect herself against the effects of her own disability and in the context of Professor Gamble's unreasonable conduct. It is demonstrably correct that paragraph 46 does not contain fully the reasons for the Tribunal's conclusion; it refers, generally, to her demands and to her general conduct having closed off all the possibilities not only within SEMS but elsewhere within the university, without defining either her demands or her conduct. However the decision must be read as a whole. Paragraph 46 is a summary paragraph which must be taken together with all that has preceded it, both in the findings of fact in paragraph 11 and elsewhere. So read, there are sufficient reasons in the Decision to enable the parties to see why they won or lost respectively on this issue. We have discussed at length earlier in this judgment the Tribunal's findings as to the conduct of Professor Gamble, Mrs Oldfield's reluctance to work with him and so forth. We do not regard it as necessary to add under this heading to what we have already said. The decision, read as a whole, in our judgment amply justifies the finding which the Tribunal set out in paragraph 46 of their decision as to contributory conduct. Conclusion[53]We have seen it as necessary to identify the various arguments put forward by Mrs Oldfield, both orally and in writing, and to consider them individually; we have endeavoured to carry out that task, at some length. Having done so we are firmly of the view that no error of law on the part of the Tribunal in making any of the impugned decisions has been demonstrated; and accordingly this appeal must be dismissed.