CLAYDON HOUSE LTD v MRS J HAMILTON-BRADBURY [2004] UKEAT 0315_04_1612

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0315_04_1612Case No Appeal No. UKEAT/0315/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
CLAYDON HOUSE LTDAPPELLANTMRS J HAMILTON-BRADBURYRESPONDENT
Before
His Honour Judge McMullenDate 16 December 2004
[1]APPEARANCES For the Appellant MR TOBY KEMPSTER (of Counsel) Instructed by: Messrs Quantrills Solicitors The Peninsula Business Centre Wherestead Ipswich IP9 2BB For the Respondent MR JOHN HORAN (of Counsel) Instructed by: Messrs Adams & Remers Trinity House School Hill Lewes East Sussex BN7 2NN SUMMARY On a proper analysis of the Employment Tribunal's reasons the Respondent dismissed the Applicant for gross misconduct. It was for a reason which related to her disability. The Tribunal approached compensation incorrectly and the case was by consent remitted to the Tribunal for it to consider future loss. Notwithstanding any misdirection on the law on the substantive point, its decision was unarguably correct. HIS HONOUR JUDGE McMULLEN QC This case mainly concerns the relationship between a reason for dismissal for the purposes of unfair dismissal and of disability discrimination. The question is: if an employee is dismissed for gross misconduct, is it inconsistent at the same time to find that the reason related to disability? Our answer to that, found in paragraphs 29-36 below, is: No in the specific circumstances here.[2]The judgment represents the views of all three members. We will refer to the parties as Applicant and Respondent. Introduction[3]It is an appeal by the Respondent in those proceedings against the decision of an Employment Tribunal, Chairman Mr J Teagle, sitting at Brighton over four days and registered with Extended Reasons on 18 February 2004. The Applicant was represented there and here by Mr John Horan of Counsel and the Respondent by a solicitor who now instructs Mr Toby Kempster of Counsel.[4]The Applicant claimed unfair dismissal and that the Respondent had discriminated against her as a disabled person by dismissing her and by failing to make reasonable adjustments for her disability during the course of the dismissal process invoked by the Respondent. The Respondent asserted that the Applicant had been dismissed for gross misconduct, conceded that she was disabled within the meaning of the Disability Discrimination Act 1995 section 1, but denied knowledge of the disability at the relevant times.[5]It denied the claims by reference to the specific sections of the Act viz section 5(1) and 5(2) and asserted that the dismissal was fair on the ground of conduct and/or some other substantial reason justifying dismissal, which led to a breakdown in the Respondent's trust and confidence in the Applicant. The issues[6]The Tribunal did not define the issues. Since it referred to a number of previous directions hearings it may be that the issues were sufficiently clear to the parties in advance. They appear to be: whether the Applicant was unfairly dismissed, whether she was dismissed for a reason related to her disability, whether there was discrimination in the process leading to her dismissal and the assessment of compensation in the light of a finding in her favour on any of the above. It has to be said at once that the reasons are not set out as clearly as they could be and they certainly do not meet the standard required of a judgment and reasons following the introduction of the 2004 Tribunal Regulations.[7]We have decided that it is necessary to approach this case with regard to the substance rather than the form of the presentation of the reasons. The Tribunal decided that the Applicant was dismissed for gross misconduct but that the dismissal was unfair. From the Notice of Appeal, it is implicit that the Respondent accepts that the Tribunal decided in addition that the Applicant was dismissed for a reason which had something to do with her disability, to put it neutrally at this stage. It is implicit because the Respondent's case is that the two are inconsistent. The Tribunal also decided that there was discrimination in the process of dismissing her. It purported to award her compensation assessed under the Disability Discrimination Act 1995 and not under the Employment Rights Act 1996 (for unfair dismissal). The compensation amounted to £75,244 which including £16,000 for injury to her feelings. It ordered the Respondent to contribute £2,000 towards the Applicant's costs.[8]The Respondent appeals against part of that decision, essentially the finding of disability discrimination in relation to the dismissal. It also appeals against the approach to compensation and to the assessment of two years' future losses. The Applicant cross-appeals against that assessment, too. The cross-appeal includes a criticism of the procedure of the Tribunal. Directions sending the appeal and cross-appeal to a full hearing were given, respectively, by Cox J, His Honour Judge Birtles and further directions by His Honour Judge Ansell seeking the Chairman's comments on the procedural irregularity point. On 13 September 2004 comments were given by the Chairman for which we are grateful. The legislation[9]The relevant provisions of the legislation are contained in the Employment Rights Act 1996 . The right to claim unfair dismissal is given by section 94. An employer must show that the reason for dismissal fell within section 98(2) or was "some other substantial reason" pursuant to section 98(1). The reasons include conduct and capability. Capability is defined by section 98(3) as meaning "capability assessed by reference to skill, aptitude, health or any other physical or mental quality". Fairness is determined by section 98(4).[10]Remedies available include compensation, which consists of a basic award and a compensatory award. The latter is regulated by section 123:
"123 (1) the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer."
Compensation can be reduced if the employee contributed to his or her dismissal (section 123(6)).[11]As for disability, prior to the amendment of the Disability Discrimination Act 1995 with effect from 1 October 2004, the Act provided in relevant part:
"4(2) It is unlawful for an employer to discriminate against a disabled person whom he employs (d) by dismissing him, or subjecting him to any other detriment." 5(1) For the purposes of this Part, an employer discriminates against a disabled person if- (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would retreat others to whom that reason does not or would not apply; and (b) he cannot show that the treatment in question is justified. (2) For the purposes of this Part, an employer also discriminates against a disabled person if- (a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and (b) he cannot show that his failure to comply with that duty is justified." 6.(1) Where – (a) any arrangements made by or on behalf of an employer, or (b) any physical feature of premises occupied by the employer, place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect. (2)Subsection (1) (a) applies only in relation to- (a) arrangements for determining to whom employment should be offered; (b) any term, condition or arrangements on which employment, promotion, a transfer, training or any benefit is offered or afforded."
Section 6(3) contains a list of examples for what are known as reasonable adjustments. Section 6(6) deals with knowledge: "6(6). Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know- (a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the employment; or (b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection 1(1).[12]An Employment Tribunal may order a number of remedies including the award of compensation under section 8(2)(b). When it does so, it must apply "the principles applicable to the calculation of damages in claims in tort" (section 8(3)). Compensation may include an award for injury to feelings (section 8(4)). There is a code of practice to which a Tribunal must have regard in considering certain questions. The Tribunal did pay attention to the code and to the leading authority Clark v TDG Ltd t/a Novacold [1999] IRLR 318 CA but did not correctly cite from it nor did it cite section 5(1). The non-issues[13]Before dealing with the disputes in this appeal, it is helpful to set out what might be described as the non-issues. These are matters which are no longer in dispute or have been conceded. They reflect a very helpful approach by both Counsel.(1) It was conceded that the Applicant was disabled as suffering from acute stress reaction to an interview conducted with her by the Respondent on 9 January 2002.(2) The "ostensible" reason for dismissal, and the reason found by the Tribunal, was gross misconduct. The Tribunal refused an application made at the hearing for the Respondent to argue "capability". That refusal has not been appealed.(3) The Tribunal found that the dismissal of the Applicant was procedurally unfair. Mr Kempster in his skeleton Argument correctly concedes it was also substantially unfair. This distinction was explained by Linsday P in Constantine v McGregor Cory Ltd [2000] ICR 938 EAT.(4) In its approach to the assessment of compensation, the Tribunal refused to make a reduction in accordance with the principles in Polkey vEA Dayton Services Limited [1988] ICR 142 HL. It held that approach was inapplicable in the assessment of compensation for disability discrimination, which was the sole basis upon which it made its assessment, but made clear that Polkey would not be applied if it were assessing compensation on unfair dismissal principles. It declined to make a finding reducing the compensation for contributory fault. Neither of those decisions is appealed.(5) The award of £2,000 in costs, made because the Tribunal found the Respondent was running a hopeless unfair dismissal defence, has not been challenged on appeal.(6) The Respondent has paid the Applicant £30,000, apparently not subject to the outcome of the appeal.(7) The Respondent's defence of justification to the disability discrimination claims, based essentially upon its contention that it lacked knowledge of the Applicant's disability, was rejected by the Tribunal and is not appealed.(8) The Tribunal assessed compensation exclusively under the Disability Discrimination Act 1995 . Compensation under the Employment Rights Act 1996 is capped at £55,000 by section 124(1). Section 126(2) prevents double counting of losses under the unfair dismissal and discrimination statues. Both Counsel accept the Tribunal erred in describing its approach to compensation as being informed by what is "just and equitable" for this applies to unfair dismissal whereas a tortious approach to damages must be taken for discrimination. See Essa v Laing Ltd [2003] IRLR 364 CA.(9) In awarding compensation for future losses extending to two years, the Tribunal made findings about alternative occupations and the Applicant's aspiration as to retirement age. Her complaint that neither of these points was the subject of evidence or submissions is not disputed either by the Chairman or by the Respondent. On this procedural point therefore the case has to be remitted for further assessment.(10) The Applicant's claim for aggravated damages was dismissed. Her claim for damages for personal injury was also dismissed. Neither is pursued on appeal. The facts[14]Claydon House is a residential care home in Lewes, East Sussex. It was bought by the Respondent from receivers in December 1999 and was in an extremely poor condition. Residential care homes were at the time regulated by local authorities. It was a condition placed by the local authority at the time of the purchase that the home should be refurbished. The Respondent is part of a larger group known as Caring Homes Ltd which is engaged in a programme of expansion. The relevant Director Mrs Jeffery had access to legal advice. The Applicant began to work for the Respondent's predecessor in 1986 as Group Director of Care and was appointed manager of Claydon House in December 1999 by the Respondent. Enforcement notices were served on the Respondent relating to the refurbishment in January 2001. The responsibility for attending to the matters in the notice lay with the Respondent rather than the Applicant. In October 2001, Ms Fish became Regional Manager. At the same time the local authority appointed a new inspecort with responsibility for Claydon House.[15]From October 2001 concerns were expressed by the Local Authority about the fabric of the home and the way in which the Applicant was managing it. This culminated in a meeting between Mrs Jeffrey and the Local Authority Chief Inspector on 20 th December. An unannounced visit on 9 January 2002 by Mrs Jeffrey and Mrs Fish led to a meeting, which was in no way a disciplinary meeting, with the Applicant. The Applicant was not then or prior to that taken to task for any of her perceived shortcomings. The specific concerns raised were inadequate staffing levels, staff undertaking domestic and caring duties, staff competence, staff training, management structure, poor health and safety risk assessments, fire safety, hot water temperatures and no locks on the laundry door. The meeting was not an easy meeting. Immediately after it the Applicant went sick and did not return to work. Her medical certificates throughout indicated her sickness was stress. Ms Fish took over the management of the home for a time but was herself replaced by Mrs Newman. We have not been provided with a chronology, but, doing the best we can, it appears that correspondence ensued between the Respondent and the local authority which made it clear that matters required to be resolved by the Respondent rather than by it. During this time complaints about the applicant then began to emerge from within Claydon House. These complaints were collated by Mrs Fish. The specific issues were negligence of residents, employing staff without references and other employment related matters, administration of medicines, the continued employment of a Mrs Short, discrepancies relating to petty cash and resident's money accounts, contraventions of Health and Safety policies by for example using residents washing machines to wash the dog blankets used at her husband's dog kennels, favouritism and her attendance at work but the Tribunal noted as follows:
"(k) It is noted that this seems to have started happening after the correspondence with the local authority, by which time the Tribunal concludes that it was certainly in the mind of the Respondent that the Applicant might well have to be dismissed. (l) The Respondent then wrote to the Applicant on 29 July 2002 (294/295) a letter seeking consent for a medical report and clearly raising the possibility of dismissal because of long-term ill health. The Applicant consented and a report was obtained from her GP, Dr Heath (305 and 306). His letter made it clear that the Applicant was suffering from an "acute stress reaction" and further, that it was quite possible that she would not be able to return to work with the Respondent as a Care Home Manager or another such firm. Although that reply might well have been seem to open the door to a capability/sickness dismissal, no action was taken in that regard. (n) The Respondent, though Mrs Jeffery, was put on notice by the letter from Dr Heath both as to the nature of the illness and its probable consequences. The Tribunal concludes that the strict accuracy of the information received by Dr Heath and other doctors in respect of documentation of the meeting on 9 January 2002 (that it was complied by the Applicant and not given to her by the Respondent) has no bearing on the diagnosis or prognosis given in the medical opinions)."
[16]October 2002 the Applicant was told to attend a disciplinary hearing on 16 th October. Mrs Jeffery would be the senior member of the disciplinary panel. The Applicant made a number of objections including the unavailability of a companion to accompany her, the need for preparation time and the location. Some adjustment was made. The Applicant was still not satisfied. She did not attend. It was concluded on 24 October 2002 that she should be dismissed but she was not notified until the Respondent had received legal advice on this matter on 4 November 2002. The Applicant's medical condition was significantly affected by the dismissal and the way in which it was handled. Before the Applicant was notified of the disciplinary proceedings Mrs Jeffery had made up her mind to dismiss the Applicant for she had written in those terms and had considered that the Applicant:
"has avoided the disciplinary hearing by virtue of her long term sick leave but I believe there should be no further delay in bringing this matter to a conclusion"
. Had the Applicant attended, there was only a remote possibility that Mrs Jeffery would change her mind.[17]The way in which the dismissal was handled was unfair for it lacked essential elements such as a proper investigation. No reasonable employer would have categorised the complaints against the Applicant as gross misconduct since only one of them was in the category of conduct and the rest related to other matters. On the basis that no reasonable employer would have dismissed in those circumstances, Mr Kempster conceded that the dismissal was substantively unfair. That is a correct reading of the Tribunal reasoning. It held that there had been a breach of section 5(2) and section 6 of the Disability Discrimination Act 1995 (failure to make reasonable adjustments) in "the process of dismissal". Mr Kempster does not challenge this finding but in our judgment wrongly describes it too narrowly as being delay in Mrs Jeffery conducting the disciplinary proceedings. The Tribunal accepted the Applicant's case that reasonable adjustments could have been made to accommodate the Applicant's disability and difficulty she faced in attending disciplinary proceedings. The Tribunal came to its conclusions in relation to the dismissal in the following way:
"13 The circumstances relating to dismissal arose out of the Applicant's long-term illness and sick absence. As Mrs Jeffery admitted, she wished to bring matters to a conclusion given the cost of paying the Applicant for long-term sickness and the need to find a permanent replacement. The Applicant suffered detriment by dismissal and, for the reasons given, the reason satisfies the condition, which has a relatively low threshold, that it related to the Applicant's disability. The whole process leading to dismissal arose out of the absence through the illness. It was Mrs Jeffery's evidence that at the time of the visit in January, nothing was further from their mind than that the Applicant's employment should finish. Notwithstanding that, ten months later, it was terminated not because of ill-health absence, albeit after that pathway had been opened but not followed through, but on disciplinary grounds, many of the issues being raised being those which were of concern prior to the meeting on 9 January 2002. Following the conclusions of the Court of Appeal in Clark v Novacold Ltd , the Tribunal is satisfied that, subject to justification, the Applicant has demonstrated that the disability is a factor, it has to be no more, in the dismissal."
[18]It then went on to consider justification, which is a defence to claims under section 5(1) and 5(2). The principal defence was that the Respondent did not know of the Applicant's disability. Of this the Tribunal said as follows:
"16. The Tribunal was tempted to conjecture that the reason why the Respondent may have moved from considering dismissal because of absence based on illness to a disciplinary process was because in fact they did become aware that the disability Discrimination Act might be engaged following receipt of Dr Heath's letter. No matter, that letter put them very firmly on notice and should have directed them to make appropriate enquiries and thus to establish the exact position."
[19]We feel that the best way to view that is to treat it as conjecture and as immaterial. The Tribunal then went on to assess compensation under the Disability Discrimination Act 1995 but approached it on the basis, wrongly it is accepted, of being what was "just and equitable". It awarded the Applicant two years' future losses based on consideration of her alternative employment prospects and the aspiration she had to retire at 65, neither of which was ventilated and neither of which can form the basis, it is accepted, of the assessment. The Tribunal dismissed the Applicant's claims for aggravated damages and damages for personal injury. It awarded her costs of £2,000. The Respondent's submissions[20]On liability under section 5(1), Mr Kempster makes two simple submissions. First, since the implication of the Tribunal's decision is that the dismissal was for the Applicant's disability, it is inconsistent with its earlier finding that the reason for dismissal was gross misconduct. Secondly, in paragraph 13 of its reasons, the Tribunal failed to address section 5(1) and misdirected itself as to the application of Clark v Novacold , in particular introducing the concept that "the disability is a factor" in determining liability. The Tribunal should have asked what role disability played in the dismissal. It is conceded that Mrs Jeffery's evidence that she should dismiss the Applicant without delay because of continuing payments to her and the problem of not having a permanent manager both related to the Applicant's disability. Yet these go only to the timing of the dismissal rather than the fact of it.[21]As to compensation, it is contended that the Tribunal ought to have assessed compensation solely under section 5(2) (reasonable adjustments) in relation to the timing of the dismissal hearing and that would not be in the top band of the range specified by the Court of Appeal in Vento v The Chief Constable of West Yorkshire [2003] IRLR 102 but towards the bottom end of the lowest band i.e. £500 to £5,000. In any event, the award of two years' future losses, even for the dismissal and even if calculated upon unfair dismissal principles, was too high in the light of the Applicant's medical evidence. On the other hand, since the Tribunal decided the Applicant was unfairly dismissed, a just and equitable approach under section 123 of the Employment Rights Act 1996 was appropriate. The Applicant's submissions[22]On behalf of the Applicant it is contended that the Respondent's case is premised upon a finding that the dismissal related to the disability. The Tribunal had correctly applied Clark v Novacold (above). Great care should be taken in reading across from the Sex Discrimination Act 1975 and the Race Relations Act 1976 into the Disability Discrimination Act 1995 for there was a distinction between the expression "which relates to" and "on the grounds of": see Rowden v Dutton Gregory (A Firm) [2002] ICR 971 Lindsay P at 973. It is contended that the Tribunal had found that the Applicant's disability played a material part in the decision to dismiss her.[23]As to compensation, there was no dispute that the Applicant's compensation was capped by reason of two findings upon which the Tribunal had not received evidence or submissions. In any event, the "just and equitable" approach was wrong if the Tribunal was considering compensation under the Disability Discrimination Act 1995 . The legal principles[24]We consider that the legal principles to be applied in this appeal emerge from the following authorities. The correct approach to a consideration of dismissal where disability is alleged is set out in Clark v Novacold (above) at paragraphs 52-57, 63 as follow:
"52. The s.5(1) point The two questions posed by the statutory provisions are: (1) Was Mr Clark dismissed for a reason which relates to his disability? (2) If so, did Novacold treat him less favourably than they would treat others to whom t hat reason would not apply? 53. Question (1) is one of fact. It is common ground that 'dismissal' is caught by s.5(1). See s.4(2)(c). The finding of the industrial tribunal on the reason for dismissal is stated above. It is clear that that was a reason which related to his disability. 54. In order to answer question (2) it is necessary to compare Novacold's treatment of Mr Clark with the treatment of others to whom 'that reason' would not apply. 55. What is meant by' that reason'? 56. On the one hand, it is argued on behalf of Novacold that it refers to the whole of the first clause of the paragraph. That imports two requirements: first, the existence of 'a reason' for the treatment (in this case, the dismissal); secondly, the causal link between the reason and the disabled person's disability. It must be a reason 'which relates to the disabled person's disability'. Thus 'that reason' embraces the significant causal link to the disability. On this approach, the person to whom 'that reason' would not apply would be one who, like the disabled person, is incapable of performing the main functions of his job, but for a reason which does not relate to disability. This is the interpretation favoured both by the industrial tribunal and the appeal tribunal. On the factual findings of the tribunal this interpretation leads to the conclusion that Mr Clark was not treated less favourably than others incapable of performing the main functions of their job for a non-disability reason. 57. A contrary interpretation is submitted on behalf of Mr Clark. His argument is that 'that reason' refers only to the first three words of the paragraph -'for a reason'. The causal link between the reason for the treatment and the disability is not the reason for the treatment. It is not included in the reason for the treatment. The expression 'which relates to the disability' are words added not to identify or amplify the reason, but to specify a link between the reason for the treatment and his disability which enables the disabled person (as opposed to an able-bodied person) to complain of his treatment. That link is irrelevant to the question whether the treatment of the disabled person is for a reason which does not or would not apply to others. On this interpretation, the others to whom 'that reason' would not apply are persons who would be capable of carrying out the main functions of their job. Those are the 'others' proposed as the proper comparators. This comparison leads to the conclusion that Mr Clark has been treated less favourably; he was dismissed for the reason that he could not perform the main functions of his job, whereas a person capable of performing the main functions of his job would not be dismissed. 63. In the context of the special sense in which 'discrimination' is defined in s.5 of the 1995 Act it is more probable that Parliament meant 'that reason' to refer only to the facts constituting the reason for the treatment, and not to include within that reason the added requirement of a causal link with disability: that is more properly regarded as the cause of the reason for the treatment than as in itself a reason for the treatment. This interpretation avoids the difficulties which would be encountered in many cases in seeking to identify what the appeal tribunal referred to as 'the characteristics of the hypothetical comparator'. It would avoid the kind of problems which the English (and Scottish) courts and the tribunals encountered in their futile attempts to find and identify the characteristics of a hypothetical non-pregnant male comparator for a pregnant woman in sex discrimination cases before the decision of the European Court of Justice in Webb v EMO Air Cargo (UK) Ltd [1995] IRLR 645 : see Webb (No.2) [1995] IRLR 645 . This interpretation is also consistent with the emphasis on whether the less favourable treatment of the disabled person is shown to be justified. That defence is not available in cases of direct discrimination under the other discrimination Acts."
[25]The expression "which relates to" is wider than "on the grounds of": see Rowden v Dutton Gregory (A Firm) [2002] ICR 971 Lindsay P at 973. The approach to the assessment of compensation under the Disability Discrimination Act 1995 is the same as that for damages in tort: section 8(3).[26]A Tribunal should not make decisions adverse to a party without giving an opportunity to make submissions and to call evidence: Hereford & Worcester County Council v Neale [1986] IRLR 168 CA at 175.[27]Where an error of law is detected in a Tribunal's decision, it is permissible to ask whether, notwithstanding the misdirection, the decision is unarguably right: Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812 CA. Conclusions Section 5(1)[28]Applying those principles to the present case, we prefer the submissions of Mr Horan and will dismiss the appeal on section 5(1) of the Disability Discrimination Act 1995 . We start with the proposition that we are prepared to look generously at the way in which these reasons have been presented. The failure by a Tribunal to set out the relevant section, in this case section 5(1), and to cite a relevant passage in a judgment of a higher court which it seeks to follow, carries the inherent risk that it may misdirect itself. There has been misdirection in this case which but for the overwhelming other aspects of this case would have caused a minority member to dissent from the above decision. The citation attributed to the Court of Appeal in Clark v Novacold is incorrect, for there does not appear in the judgment the proposition that if "disability is a factor, it has to be no more," the dismissal will be contrary to section 5(1).[29]While the tribunal's formula does not appear in the Court of Appeal judgment, we have noted that a formulation close to this appears in the judgment of the EAT (Morison P and members) in Clark v Novacold [1998] IRLR 420 at para 35:
"Section 5(1) is concerned with a comparative exercise which is designed, logically, to isolate the sole factor in issue."
[30]The EAT judgment on this issue was not disturbed on appeal, which was essentially concerned with relevant comparators. As is made clear in Mummery LJ's judgment at para 53, the reason for Mr Clark's dismissal was his absence, the fact that he was no longer capable of performing the main functions of his job and the need for someone else to do so (at para 15). It was on these facts that the EAT held that his disability was a factor in his dismissal. Further, a different division of the EAT (HH Judge Peter Clark and members), without reference to Clark v Novacold , in Kirker v British Sugar plc [1998] IRLR 624 at para 30 held:
"In this case there was no suggestion that the other employees suffered from a disability. That was therefore not a factor in their assessments but was, on the tribunal's findings, a detrimental factor in the assessment of the Applicant."
[31]If both those judgments are right, the Tribunal in our case did not misstate the law when it found that disability was a factor to be considered, although it wrongly attributed this to the Court of Appeal. In the field of sex discrimination, a woman succeeds if she proves that her gender had a significant influence on her employer's decision to treat her in a particular way; and once she puts forward prima facie evidence, her employer must prove that her gender did not have a significant influence: Chamberlin v Emokpae [2004] ICR 1476 , 1487 at paras 34, 37 applying the principles cited by Lord Nicholls in Nagarajan v LRT [1999] ICR 877 , 886 (a race discrimination case) to the reverse burden of proof under the Sex Discrimination Act 1975. Yet both those statutes require a stronger connection to the proscription than the looser connection denoted by "relates to" in the DDA. It is not a misuse of language to say that if disability were a factor in the decision to dismiss, then the dismissal was for a reason related to the disability. In order to recognise the difference in the language of the statutes, we consider that the degree of relationship to disability must be more than token or minimal. Mr Horan advocated "material factor," which is almost the same as one of the phrases with different shades of meaning Lord Nicholls cited and did not criticise i.e. "an important factor." If a tribunal can see that a dismissal related to disability in a way which was not token or minimal - the degree is a matter for it - it applies the statute correctly.[32]The Tribunal did not ask itself the questions posed by Mummery LJ (see above). It began its consideration of "the issue of discrimination on grounds of disability" ( emphasis added ) by using a stricter concept than appears in section 5(1) i.e. "for a reason which relates to..." In other words, it set a higher test for the Applicant, which nevertheless she passed. It may be that in that passage the Tribunal was simply summarising and introducing its fuller approach in the next paragraph of its reasons. However, in paragraph 13 the Tribunal does make a finding by reference to a correct self direction i.e. "…the reason satisfies the condition that it related to the Applicant's disability". The grounds which it gives for that conclusion are conceded by Mr Kempster to be related to disability i.e. Mrs Jeffery's view about the problems caused by Applicant's absence, which was caused by her illness, which was on account of her disability. Although there may have been concerns about the Applicant's performance prior to the meeting on 9 January 2002, no attempt was made to move against her until after her long term absence began and indeed not until 6 ½ months later.[33]When the Tribunal then went on to consider whether disability was "a factor" it could be said that what it meant was that the dismissal was for a reason which included one related to disability. It seems to us, by reference to its positive finding, backed by what are conceded to be grounds related to disability, that the Tribunal was not applying a lesser standard. On the facts in this case, the Applicant was dismissed for a reason (gross misconduct). However the Tribunal held that the decision to dismiss related to her absence and that absence was caused by her disability. Further, the Tribunal uses the word "relates to" three times in the following paragraph. It seems to us, therefore, that notwithstanding the small misdirection and the failure to ask the question to which we have referred, the Tribunal elsewhere gives itself a correct direction, and we can say that the decision is unarguably right if confined to disability discrimination under section 5(1).[34]We then turn to the relationship between that finding and the finding for the purposes of unfair dismissal that the reason for the dismissal was gross misconduct. Is the unchallenged finding of unfair dismissal vitiated by the finding of disability discrimination? We do not accept that there is an inconsistency. One relates to the reason for dismissal and the other relates to the decision to dismiss. The language of these two statues is different. For the purposes of unfair dismissal, the employer must show a reason or, if more than one, the principal reason for the dismissal. When it comes to fairness, the Tribunal "has regard" to this reason. The Respondent here advanced conduct as the reason, or some other substantial reason which caused it to lose trust and confidence in the Applicant. A broader approach has to be taken to section 5(1) of the Disability Discrimination Act 1995 . Can it be said that the reason for dismissal i.e. gross misconduct "relates to" the Applicant's disability? Here the chronology is important. Disciplinary charges were framed against the Applicant only after she had been absent for a considerable period of time and correspondence with the local authority had advanced the matter no further. The Applicant's medical prognosis gave no certainty of the date of a return to work, if at all. The cost of the Applicant's absence and the need to provide a manager both caused Mrs Jeffery to decide on 3 October 2002 that the Applicant should be dismissed.[35]The vehicle chosen for dismissal was labelled gross misconduct, but the decision to dismiss, and to dismiss at that time, were plainly related to the Applicant's absence and thus disability. The Tribunal did no more than conjecture about whether this decision was made to avoid the application of the Disability Discrimination Act 1995 , but on those facts, and that Mrs Jeffery's desire to bring matters to a conclusion related to the Applicant's disability, there is no inconsistency in the two findings made by the Tribunal. Thus the Tribunal's conclusion that it was a factor is not an incorrect direction. If we are wrong about that, the facts in this case lead to only one conclusion which is that the Applicant's absence, by reason of her disability, induced by the stress of her workplace meeting, was a significant influence on the decision to dismiss her. It would therefore meet the degree of relationship described in Chamberlin v Emokpae [2004] ICR 1476 , 1487 at paras 34, 37 applying the principles cited by Lord Nicholls in Nagarajan v LRT [1999] ICR 877 , 886. The appeal against the finding under section 5(1) is dismissed. The compensation issue[36]It is not disputed that the Tribunal could assess compensation solely by reference by the Disability Discrimination Act 1995 and not to the Employment Rights Act . In doing so, it erred in taking the "just and equitable" rather than the tortious approach. It further erred in taking account of two factors to limit the compensation which had not been dealt with in evidence or submissions. The appeal against the award in relation to future losses and the cross appeal on these three points, is allowed.[37]Mr Kempster argued that the Tribunal had failed to consider the medical evidence about the Applicant's future employment. If we were not remitting future loss to the Tribunal for reconsideration, we would reject Mr Kempster's complaint since the Tribunal expressly noted that it had "considered very carefully all the medical reports" and made its decision on the basis of "a difference of opinion as to how long it may take the Applicant to recover….". In a part of the Decision which is not the subject of appeal, dealing with a claim for personal injury damages, the Tribunal expressly eschewed an approach based on the causation of the Applicant's illness. Causation is, as Mr Kempster argued, relevant to this assessment of damages in tort. However, since the Tribunal will be directed to apply the correct principle, it will consider the evidence and submissions, as both parties urge at a short re-hearing, and make a decision about future loss.[38]As to other elements in the award of compensation, no substantial grounds of appeal have been argued. While the award of damages at the top end of the Vento (above) scale is, we accept, wrong in respect of a finding solely in relation to section 5(2), no argument was addressed to us that it was wrong to award £16,000 for injury to feelings for the process of dismissal and for the dismissal itself. As we have said above, the finding on the process of dismissal was not simply its timing but recognition of the Applicant's other complaints about the way in which the dismissal was handled and the finding that that too contributed to the Applicant's illness. This award is upheld.[39]We would very much like to thank both Counsel for their help in understanding the substance of this case. The appeal on liability is dismissed. The appeal on compensation is allowed in part. The cross appeal on compensation is allowed. The issue of compensation under the DDA in relation to future loss only will be remitted to the Employment Tribunal. The Applicant will within 14 days provide a statement and any other evidence and a schedule of loss. 14 days after that the Respondent will provide its own evidence and counter-schedule. The parties will apply to the Tribunal for a one day hearing.[40]Given a substantial measure of agreement (see the non-issues above) and the narrow issue which is remitted to the Employment Tribunal, in which the parties cannot be said to have lost confidence, all three members of our Tribunal consider that this is a case where, the parties being represented by experienced lawyers, some settlement should be within reach by negotiation or if necessary by using the services of ACAS (since this case is now back in the Tribunal and within its jurisdiction). We would urge the parties to approach any possible negotiation or conciliation with open minds and a sense of realism.[41]Since counsel were not able to help us on the cases in paras 30-32, if they wish to make any submissions on these passages, they may do so when the draft is sent by email to them before handing down.