MR S WHEELER v SUNGARD SHERWOOD SYSTEMS GROUP LTD [2004] UKEAT 0459_04_1511

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2004] UKEAT 0459_04_1511

Case No Appeal No. UKEAT/0459/04

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR S WHEELERAPPELLANT

SUNGARD SHERWOOD SYSTEMS GROUP LTDRESPONDENT

Before

His Honour Judge Ansell Mr A Harris Ms N Sutcliffe

Date 15 November 2004

[1]APPEARANCES For the Appellant MR DAVID MASSARELLA (of Counsel) Instructed by: Messrs ASB Law Solicitors 12 Mill Street Maidstone Kent ME15 6XU For the Respondent MR ANDREW ALLEN (of Counsel) Instructed by: Messrs Taylor Wessing Solicitors Camelite 50 Victoria Embankment London EC4Y 0DX SUMMARY Disability Discrimination Disability discrimination – Tribunal failed to draw inferences from findings of fact made by them in relation to employer's conduct. HIS HONOUR JUDGE ANSELL The Appellant appeals against the Decision of an Employment Tribunal sitting in Croydon, whose Decision was sent to the parties on 14 April 2004, and whose unanimous decision was that the Appellant was unfairly dismissed but that he was not discriminated against or victimized, contrary to the Disability Discrimination Act 1995 . The appeal relates to the dismissal of the Discrimination Act proceedings.

[2]The background facts that the Appellant joined the Respondents in 1995 and there is no dispute that he had a history of recurrent moderate depressive episodes and a mental impairment. In September 2001 he had a period of severe depression and at the time of the events complained of, at the beginning of January 2003, he was still on anti-depressants. The Tribunal concluded that he was disabled within the meaning of Section 1 of the Disability Discrimination Act , in that he had a clinically well recognized mental illness which affected his memory and ability to concentrate and the effects were both substantial and long-term.

[3]In September 2001 he became an "S-Cat salesman". S-Cat is a preferred supplier list run by the Office of Government Commerce, detailing suppliers, their skills and rates, which enables government agencies to place immediate orders for work with companies that are on the list. During the course of 2002 the Appellant's behaviour began to be erratic and by the summer he had not yet made a sale in his new role. The Respondents' managers, Messrs Fraser and Wykes, informed the Appellant that he was to be the subject of performance monitoring, the purpose of which was to provide focus and targets for the remainder of the year, and he was also warned that if his performance did not improve, disciplinary measures would be taken. As a result, meetings were held with him in August, September and October to monitor his performance and another manager, David Clarke, was appointed to mentor and support him to help him achieve the objective. Although the Appellant made it clear that he was unhappy about being subject to the performance monitoring process, he was to later acknowledge that Mr Clarke did have a positive impact on his work, and he secured at least one contract towards the end of 2002. Mr Clarke left the company in October and shortly afterwards the performance monitoring ceased. During this period it was noticed that the Appellant's behaviour was still erratic, at times positive and enthusiastic and at other times negative and moody. The Appellant claimed that he was suffering from the side effects of an anti-malarial drug called Larium. Towards the end of 2002 he was showing increasing signs of stress and was quick to lose his temper, on one occasion swearing at a female colleague. He also had problems with one of the Respondents' business partners.

[4]By the end of December 2002 and into January 2003 the Appellant was working on a number of bids and was said to be working very long hours. He asked for resource support, but the Tribunal records that "no-one was available", although both Counsel agree that no evidence was actually put before the Tribunal as to the response by the Respondents to the Appellant's request. Managers were becoming increasingly concerned by his erratic behaviour, and he was described by the Tribunal as being very distressed and stressed out. He again claimed that the problem was with Larium and did not agree to the suggestion that he should see the company doctor. It was also suggested that he should move away from sales back to his original job as a consultant, but he was not happy with this suggestion though said he would think about it. As a result of further discussions between Mr Fraser, the Appellant's line manager, and Mr Wykes, the Head of the Department, it was decided that the only solution was to remove the Appellant from his role in sales and he was informed of this decision on 22 January and told that he would be moved to a new role as the sales role was detrimental to his health. He was told to take an extra week's leave and return on 3 February, by which time the Respondents would have found him a new position. The Appellant was said to be shocked and told Mr Fraser that changing his role would not help his health, although he acknowledged that the intention was good. A few days later he was asked by Mr Pumphrey, who was responsible for the allocation of consultancy work, to provide an updated CV, but despite several requests the Appellant did not update or send it to Mr Pumphrey. By the end of his week's leave no new role had been found for him and he remained at home on full pay.

[5]Sometime in the period between 22 January and 14 February 2003, the Directors decided that, as there would not be enough new sales business in 2003 to support four salesmen in the S-Cat team, the team would have to be reduced to two and that a redundancy procedure should be commenced. Although the Appellant had been moved out of his role as an S-Cat salesman, Mr Fraser decided that he should be included in the pool for selection for redundancy. A scoring process was devised and implemented and the Appellant achieved the lowest scores of the four salesmen. At a meeting on 17 February the Appellant was told that it was likely that redundancies would be necessary and that he was at risk, but that the Respondents would continue to seek an alternative role for him. He was told that he should go home and that they would consult him as regards alternative roles. The Appellant said that he wished to appeal against the decision to make him redundant and that he had already notified them of his intention to appeal against the decision to change his role, and that he was also now willing to see the company doctor, but was unwilling to sign the consent form to allow the doctor access to all his medical records owing to a childhood event that he did not want disclosed.

[6]A two stage paper-only review of the decision was conducted by, initially Sara Sepehr and then by Sarah Helsdon, both of the Respondents' HR Department. The Tribunal criticized the Respondents for not allowing him a proper appeal and went further, stating that:

"We have heard nothing from Ms Sepehr which leads us to conclude that this was in any sense a real and genuine review…"

Dealing with the claim for unfair dismissal arising out of the alleged redundancy situation, the Tribunal accepted that a redundancy situation existed and there was a genuine need to reduce the number of salesmen, and:

"We do not accept that the process was a sham designed to secure the Applicant's dismissal"

Whilst they found that the scoring process looked at as a whole was not unreasonable, they were critical that the Appellant was included in the pool for selection since the Respondents' managers, particularly Mr Wykes, had made it clear that he was not to be returned to the team and indeed he told the Tribunal that even if the Appellant had scored top marks in the redundancy selection exercise he would not have been allowed back. The Tribunal therefore concluded that to include the Appellant in the pool for selection was "mere window dressing". They therefore concluded that he should not have been in the pool for S-Cat salesmen for redundancy and the dismissal was unfair. They continued as follows:

"To complete the picture, we would add that we also have serious doubts about the genuineness of the Respondent's search for alternative work. At the time that the Applicant was moved out of his role the Respondent's case was that there would be no trouble finding the Applicant a role as a consultant. Mr Wykes evidence was that he "had absolutely no doubt that they could find him another role"

. Ms Sepehr and Ms. Helsdon said that the Respondent did this "all the time" and that there were plenty of jobs for consultants. At the same time however, once the Applicant was identified as potentially redundant no jobs were available and no support was given to the Applicant in his search for one. The Tribunal is at a loss to understand why, if Mr Wykes was so sure that a consultant position would be available before the redundancy exercise began, none was available afterwards. Certainly the Respondent does not appear to have made a real and genuine attempt to assist the Applicant to find another job."

[7]Earlier on in the Decision in paragraph 41 the Tribunal had dealt with the same issue as follows:

"In the period between the Applicant's change of role on 22 January and his eventual dismissal for redundancy limited attempts were made by the Respondent's to find the Applicant another role. Although the Tribunal had seen a number of e- mails from Mr. Pumphrey to Ms Sepehr, stating that he had not found any suitable roles for the Applicant these appear to be window dressing. There was no contact between the Applicant and Mr Pumphrey or anyone else at the Respondent and it is apparent that, once it had become clear that there were to be redundancies within the sales team, the Respondent ceased to make any genuine efforts to find the Applicant another role. They regarded him as a difficult employee who would be better out of the company. Indeed the lack of contact between the Respondent and the Applicant in relation to alternative employment speaks for itself."

[8]This appeal relates to the Tribunal's findings on discrimination against a background where they had concluded that certainly by early January 2003 the Respondents knew that the Appellant was ill and should have known that they might be dealing with a disabled employee. The issues firstly were whether the Respondents were under a duty to make reasonable adjustments and, if so, did they comply with that duty and, if they did not comply, was that failure justified? The second main issue was whether the Appellant was treated less favourably for a reason relating to his disability, contrary to Section 5(1) of the Disability Discrimination Act 1995 ( DDA ) and the Appellant relied on a number of acts of less favourable treatment that we shall detail below. Again, if he was treated less favourably, was such treatment justified? The Law "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 treat 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.

(3) Subject to subsection (5), for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.

(4) For the purposes of subsection (2), failure to comply with a section 6 duty is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial.

(5) If, in a case falling within subsection (1), the employer is under a section 6 duty in relation to the disabled person but fails without justification to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 6 duty. … 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 other benefit is offered or afforded. (3) The following are examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1)- (a) making adjustments to premises; (b) allocating some of the disabled person's duties to another person; (c) transferring him to fill an existing vacancy; (d) altering his working hours; (e) assigning him to a different place of work; (f) allowing him to be absent during working hours for rehabilitation, assessment or treatment; (g) giving him, or arranging for him to be given, training; (h) acquiring or modifying equipment; (i) modifying instructions or reference manuals; (j) modifying procedures for testing or assessment; (k) providing a reader or interpreter; (l) providing supervision. (4)In determining whether it is reasonable for an employer to have to take a particular step in order to comply with subsection (1), regard shall be had, in particular, to- (a) the extent to which taking the step would prevent the effect in question; (b) the extent to which it is practicable for the employer to take the step; (c) the financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his activities; (d) the extent of the employer's financial and other resources; (e) the availability to the employer of financial or other assistance with respect to taking the step. This subsection is subject to any provision of regulations made under subsection (8). …" The Grounds of Appeal Ground 1 -The Section 5 (2) DDA claim that the Respondents failed to make reasonable adjustments by making appropriate enquiries into the Appellant's medical condition so as to establish the true position and assess the need for adjustments.

[9]The Tribunal's conclusions on adjustments were set out in paragraph s 59-61 as follows:59. In this case we doubt that it was the Respondent's arrangements which were' causing the Applicant stress, rather his approach to the job. The Applicant says that the Respondent should have made a number of reasonable adjustments including altering his working hours and allocating duties to another employee. However, the Applicant already had a significant amount of control over the way he did his job and his working hours. He was allowed to work from home. He was free, within reason, to select which leads to pursue and which not to pursue. The difficulty was that it was within his interest to pursue as many as possible as that affected his commission arrangements. It was the nature of the job itself and the Applicant's approach that was causing the stress.

60. As for support this had been provided during the performance monitoring process and the Applicant had objected. In fact the most sensible adjustment at this stage was to do what the Respondent suggested and find him a less stressful role. It is unfortunate that this is not in fact what the Respondent did.

61. The Applicant relies on Mid Staffordshire General Hospital NHS Trust v Cambridge

2003 IRLR 566

and says that the Respondent failed to conduct a proper assessment of his disability and its impact before removing him from his role and that this alone was a failure to make a reasonable adjustment. However, we do not think that this is a case which can be compared with the Cambridge case. Mrs Cambridge had been unable to work as a result of her disability and the employers were considering her dismissal. In this case it was the Applicant's case that he was fit and able to work. The Respondent frequently moved employees from job to job to suit their needs and at that stage the Applicant was not being dismissed -merely moved into a less stressful environment with no change of salary. It is true that the Applicant did not wish to be moved (believing he would benefit from extensive commission" payments)- but he had shown a reluctance to see the Company doctor and the Respondents had to be able to run a business as best they could, while at the same time protecting the Applicant's health and livelihood. No doubt if that had not worked further enquiries would have had to be made and the Respondent would have had to have pressed the Applicant harder but that moment had not yet arrived. There was no failure to make reasonable adjustments.

[10]Mr Massarella firstly submitted to us that the Tribunal erred in law by declining to follow the Mid Staffordshire case. In that case the Employment Appeal Tribunal had held that a proper assessment of what is required to eliminate a disabled person's disadvantage was a necessary part of the duty imposed by Section 6 (1) DDA , since that duty cannot be complied with unless the employer makes a proper assessment of what needs to be done. Keith J giving the Decision of the Court set out the position thus"16. The principal criticism of the tribunal at this stage of its reasoning is that the gloss which the tribunal put on s.6( 1) is unjustified. It is not warranted by the statutory language, and the effect of the gloss is to impose on the employer an antecedent duty which, once it has been performed, may establish that there are no steps which can reasonably be taken to ameliorate the disabled person's disadvantage. If the duty imposed by s.6(1) is to take such steps as are reasonable to ameliorate a disabled person's disadvantage, how can there be, so it is said, an antecedent duty which once carried out may show that no duty has in fact arisen because there are no steps which can reasonably be taken to ameliorate the disabled person's disadvantage? And if those antecedent enquiries reveal that there are no steps which can reasonably be taken to ameliorate the disabled person's disadvantage, all that the disabled person will have lost by the employer's breach of the antecedent duty (which the tribunal identified) would be the prospect that those enquiries might have produced a different result. Although the tribunal recognised that that was the logical consequence of its approach, the fact that the tribunal concluded that Mrs Cambridge's loss had to be assessed by reference to the loss of that prospect, shows, so it is said, the flaw in its approach, because the law only recognises the assessment of loss by reference to the loss of a chance when liability has already been established.

17. We are not persuaded by this argument. If it were correct, it would deny s.6(1) practical application in very many cases. There must be many cases in which the disabled person has been placed at a substantial disadvantage in the workplace, but in which the employer does not know what it ought to do to ameliorate that disadvantage without making enquiries. To say that a failure to make those enquiries would not amount to a breach of the duty imposed on employers by s.6(1) would render s.6(1) practicably unworkable in many cases. We do not believe that that could have been Parliament's intention. The fact that the preliminary steps which the tribunal had in mind are not referred to in s.6(3) is not decisive since the list of steps in. s.6(3) .is .not exhaustive, and although s.6(4)(a) is, in terms of language, difficult to link in with preliminary steps of the kind which the tribunal had in mind, s.6(4)(a) was only a consideration which the tribunal had to have regard to, and it was not one which was to be treated as decisive. A proper assessment of what is required to eliminate the disabled person's disadvantage is therefore a necessary part of the duty imposed by s.6(1 ) since that duty cannot be complied with unless the employer makes a proper assessment of what needs to be done. As the tribunal said in paragraph 36 of its extended reasons:

'... in the absence of such an assessment it will often be impossible for an employer to know what adjustments might be reasonable, possible or effective.'

The making of that .assessment cannot, in our judgment, be separated from the duty imposed by s.6(1), because It is a necessary precondition to the fulfilment of that duty and therefore a part of it."

[11]Mr Massarella argued that the Tribunal were wrong to seek to distinguish the Mid Staffordshire case from the facts of this case, since it was never the Appellant's case that he was fit and able to work, but that he could have continued in his salesman role if adjustments had been made. Further, he argued that the plan to remove the Appellant from his salesman role was as serious a detriment as the proposed dismissal of Mrs Cambridge, relying on Section 4 (2) (d) of the DDA , which refers to "dismissing him or subjecting him to any other detriment". He also argued that the Tribunal failed to deal with the Appellant's case as it was put which suggested not only that the Respondents ought to have conducted an assessment before removing him from his salesman role, but right up to the late period when he was selected for redundancy. He also referred to the Tribunal's conclusions in paragraph 61, which appear to have acknowledged an assessment might have been appropriate at a later stage, when they spoke of "further enquiries would have had to be made". He submitted that even then, when redundancy was being contemplated, the Tribunal did not consider whether there was then a breach of the Section 6 duty.

[12]Mr Massarella then went on to consider whether the Respondents had advanced a suggestion either that it would not be reasonable in all the circumstances to seek a medical report or alternatively that the failure could be justified. The Tribunal's findings recorded the Appellant's reluctance to see the company doctor and also the Respondents' need to "run a business as best they could while at the same time protecting the Applicant's health and livelihood." Mr Massarella contended that whilst initially there had been reluctance on the part of the Appellant to be seen by a doctor, certainly by 20 January he was suggesting to Ms Sepehr that he wanted to talk to her about his health and that by 17 February he was indicating his willingness to see to company doctor, although was still unwilling to sign the consent form in relation to the medical records.

[13]In response, Mr Allen for the Respondents argued that the Tribunal clearly considered the Mid Staffordshire case which, whilst suggesting that there might be many cases where an employer did not know what to do to ameliorate the disadvantage without making enquiries or conducting an assessment, did not impose a requirement in all cases. In the context of this case the Tribunal had found that the Appellant had failed to notify the Respondents of his condition, had taken active steps to hide it, had been unwilling to see a company doctor and from January 2003 onwards was showing "increasingly erratic behaviour". The Tribunal found later in the Decision that the Respondents had believed that the Appellant was under considerable stress and that to leave him in the role would be detrimental to his health, and that there was "…no other reasonable adjustment which could be made to alleviate the effects of his disability."

[14]With regard to the possible continuing obligation to obtain a medical assessment, Mr Allen argued that it was not until 17 February that the Tribunal found that the Appellant was indicating his willingness to see the company doctor, although even at that time there was an unwillingness to sign the consent form. However, as the Tribunal found, by that time events had been overtaken by the redundancy process, which the Tribunal found was a genuine process, albeit unfair in the case of the Appellant.

[15]We are satisfied that the Tribunal approached this issue in the correct manner. There is no rule of law imposing a requirement in all cases for an assessment to be carried out, but it is clearly appropriate in those cases which Mid Staffordshire identified, where the employer does not know what it ought to do to comply with its obligations under Section 6 without making further enquiries. In this case, however, the employers were faced with an employee who was hiding his condition, had refused to see the company doctor and generally had not responded well to the monitoring that had been imposed in respect of his current job. The Tribunal agreed with the employers' approach that the only sensible adjustment at that stage was the removal from the job which was causing him stress. By the time that the employee agreed to see a doctor, the redundancy process was underway and all other issues became subsumed into that process. We therefore reject this ground of appeal. Ground 2 – the Section 5 (2) claim that the Respondents failed to make reasonable adjustments by providing the Appellant with appropriate support to enable him to carry out his role as a salesman.

[16]Mr Massarella contended that the Tribunal failed to consider the statutory test or to apply the approved approach to determine the issue of reasonable adjustments, as set out in Morse v Wiltshire County Council

[1998] ICR 1023

, namely to decide first whether the provisions of Sections 6(1) and 6

(2) impose a duty on the employer and, if so, whether the employer had taken such steps as were reasonable to prevent the disabled persons being placed at a substantial disadvantage, having regard to the suggested steps set out in Section 6

(3) and to the factors set out in Section 6 (4), and finally if there was a failure to comply with the duty, the Tribunal then had to decide whether that failure could be objectively justified. He argued that had the Tribunal applied this test or these considerations, they would have inevitably found firstly that the Appellant was at a substantial disadvantage in carrying out his role as a salesman by comparison with a person without his disability as evidenced by their finding of severe stress. Secondly they would have found that the provisions in support of supervision would have a reasonable adjustment in the light of the benefit that the Appellant received from having David Clarke assist him, and that no alternative support was offered, and that failure could not be justified in the light of the finding by the Tribunal that the Appellant had asked for resource support. He further argues that if there was a finding of justification by the Tribunal in relation to the Appellant's previous objections to monitoring and supervision, they failed to assess that issue against an objective test, as required by Morse , and alternatively failed to give adequate reasons for its dismissal of this claim.

[17]Mr Allen reminds us that the Morse case was referred to the Tribunal and also refers us to a passage in Wilson-Wright v Nottinghamshire Ambulance Service NHS Trust

EAT/437/99

, decided on 7 July 2000, where the EAT stated that "…it is wrong to treat the passage in Morse as if it were a statute; it is only the statute that is required to be considered as if it were a statute. Unless that is remembered there is a danger, where guidance is given in authorities, that courts and tribunals end up construing the authorities rather than the statute." In any event he argued that paragraphs 59-61 deal with the issues raised in Morse , although the Tribunal doubted that in fact it was the Respondents' arrangements that were causing the Appellant stress, rather than his approach to the job. They did, however, go on to consider what steps the employer could take that were reasonable in all the circumstances of the case, and in paragraph 60 placed particular emphasis on the Appellant's objections to the performance monitoring process. Indeed the Appellant's acceptance of Mr Clarke's role did not appear until much later on. He argued that in all the circumstances it was not perverse for the Tribunal to come to the conclusion that moving the Appellant to another job rather than offering support in the existing position was the only reasonable step to take in all the circumstances.

[18]Again we agree with Mr Allen's submissions. We are satisfied from paragraphs 59-61 that the Tribunal did address their minds to the various factors set out in Section 6 and we cannot find fault with their process or conclusions. Ground 3 – the Section 5 (1) DDA claim that the removal of the Appellant from his role as salesman on 22 January 2003 and the enforced leave of absence was unjustified less favourable treatment for a reason relating to disability.

[19]The Tribunal dealt with this issue in paragraph 62 (iii) as follows:

"(iii)- The removal of the Applicant from his role in January 2002 . The Applicant here was treated less favourably than the other S-cat salesman in that he was removed from his role and they were not. The Applicant was removed from his role because the Respondent believed that the Applicant was under considerable stress and to leave him in the role would be detrimental to his health. At this stage the removal from role related directly to the Applicant's health and not to his performance. There was less favourable treatment for a reason which related to the Applicant's disability in that the Applicant did not wish to be removed from role. However, the Applicant's removal from role was, in our view, justified. The Respondent believed that the Applicant was under such stress that continuation in this highly pressurised job would be detrimental both to the Applicant's health and to the Respondent's own business. The reason was more than minor or trivial and there was no other reasonable adjustment which could be made to alleviate the effects of his disability."

Thus it will be seen that Tribunal found that removing the Appellant from his role as salesman was less favourable treatment, but relied on his health as justification from removing him permanently from his role as salesman. Mr Massarella argued that this was a conclusion that could only properly be made with medical guidance and the employers had never sought such guidance and the Tribunal were wrong to endorse the employers' lay assessment of the Appellant's health. He also argued that under Section 5 (5) the Tribunal could not consider whether less favourable treatment under Section 5 (1) could be justified without considering first what reasonable adjustments required by Section 6 had been made. He therefore argued that the Tribunal could not consider the issue of justification without considering the necessity for adjustments, such as a medical assessment and/or the provision of support and the effect of those adjustments; see Nottinghamshire County Council v Meikle

[2004] IRLR 703

[20]Mr Allen argued that the Tribunal were entitled to come to a view that justification was found on the basis of a danger of a continuation in the role for the Appellant's health and for the Respondents' own business, in the context of their previous finding that it was his approach to the job which was causing him stress, rather than the arrangements put in place by the Respondents. He argued that whilst many situations may call for a medical assessment, there are some situations such as this in which the answer was obvious and called for immediate action on the part of an employer, and as the Tribunal found the reason for so acting " was more than minor or trivial". Again we are satisfied that the Tribunal adopted the correct approach. They had, earlier in their Decision, set out the relevant law and particularly in paragraph 52 reminded themselves of the provisions of Section 5 (5). We cannot find fault with their approach, particularly in light of the Appellant's deteriorating condition. Ground 4 – the Section 5 (2) DDA claim that the Respondents failed to make the reasonable adjustment of transferring the Applicant to a suitable alternative role.

[21]Mr Massarella criticized the Tribunal's approach in that in paragraph 60, having found that the most sensible adjustment was to find the Appellant a less stressful role, this was not carried out by them and yet they found that there was no breach of the Section 6 duty. He points to the findings in both paragraph 41 and 70, that we have referred to above, detailing the very limited efforts made by the Respondents to find him another role, which effectively came to an end once he was identified as potentially redundant. Mr Massarella referred us to Archibald v Fife Council

[2004] IRLR 651

, where the House of Lords clearly confirmed that the steps which an employer might have to take in order to prevent the arrangements placing a disabled employee at a substantial disadvantage in comparison with a non-disabled persons could include transferring that person to another job without competitive interview and, if necessary to a slightly higher grade. Mr Allen argued that the Tribunal were entitled to reach a conclusion that the failure to find an alternative role was justified in the circumstances in which firstly the Tribunal found that there were some limited attempts to find another role, that there was non-co-operation by the Appellant in terms of completing and sending in his updated CV and most importantly the decision to place him in the pool for selection for redundancy. He submitted that it was because of the non-discriminatory but unfair dismissal that the Respondents did not find the Appellant a less stressful role.

[22]The problem we face on this issue is in relation to subsequent grounds of appeal where the Appellant contends that the whole redundancy process was in fact tainted with discrimination, although the Tribunal found to the contrary. If the Tribunal were in error in that view then it seems to us that it could be argued that they could not therefore rely on the tainted redundancy process as justifying their continuing failure to find the Appellant alternative employment. We shall therefore return to this ground below when we have considered the allegations in relation to the redundancy process. Ground 5 – the Section 5 (1) DDA claim that the Respondents' selection of the Appellant for redundancy was unjustified less favourable treatment for a reason relating to disability.

[23]The Tribunal's Decision in relation to the selection of the Appellant for redundancy was set out in paragraph 62 (iv) as follows:

"(iv) The selection of the Applicant for redundancy. The Applicant was treated less favourably than others who were not disabled but the issue here was whether his selection related to his disability. We accept that the Applicant's score was fairly arrived at. If his low score was as a result of his disability then his selection was no doubt justified. However, this is not the Applicant's case. The Applicant says that he was doing a good job and he was deliberately and unjustifiably marked down. We do not accept this as a matter of fact."

Mr Massarella firstly submitted that that Decision made no reference to the basic complaint that was made in relation to discrimination, namely that the placing of the Appellant in the pool for redundancy was discriminatory and clearly related to his illness. He reminded us of the finding in paragraph 41 that the Respondents regarded the Appellant "…as a difficult employee who would be better out of the company". The Tribunal did deal with the issue of the selection for redundancy under the heading of unfair dismissal and in paragraph 67 they said this:

"67. However the Tribunal were troubled by the Applicant's inclusion in the pool for selection. The Respondent had made the decision on 22nd January that the Applicant was to be removed from the S-Cat team. It was clear from the evidence that decision was irrevocable. However, subsequent to the decision made on 22nd January a redundancy situation arose. The Respondent was faced with an employee protesting his move and a need to reduce the sales team to two. They therefore decided that they would treat him as part of the team for the redundancy exercise. However Mr Wykes made it clear that the Applicant was not to be returned to the team and told the Tribunal in evidence that, even had he scored top marks in the redundancy selection exercise, he would not have been allowed back. In such circumstances to include him in the pool for selection, was mere window dressing."

Mr Massarella argued that these various facts found by the Tribunal were clearly sufficient to raise the inference of discrimination which the Tribunal failed to deal with.

[24]In Rowden v Dutton Gregory [2002] 971 Lindsay J giving the Decision of the Employment Appeal Tribunal said this in paragraph 5:

"5. Section 5(1) provides: "

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 treat others to whom that reason does not or would not apply; and (b) he cannot show that the treatment in question is justified." The words "for a reason which relates to the ...disability" in section 5(1)(a) are strikingly different to the descriptions of the causative links used in the other discrimination Acts. Thus in the Sex Discrimination Act 1975 and the Race Relations Act 1976 the respective forms of discrimination consist of treatment "on the ground of' sex: section 1(1)(a) of the 1975 Act, or "on racial grounds": section l(l)(a) of the 1976 Act. The victimisation provisions involve treatment "by reason that" a protected act has been done or is intended or suspected: section 4(1) of the 1975 Act; section 2(1) of the 1976 Act. Had the model of the earlier Acts been intended by the legislation to have been adopted when the 1995 Act came to be framed, one might have expected to see section 5(1) speaking of treatment "on the ground of' the disabled person's disability or perhaps "by reason that" the claimant was disabled. However, instead (and it can only have been deliberate) the 1995 Act uses the expression "for a reason which relates to the ...disability". Whilst everything done "on the ground" of the disability or by reason of it would inescapably fall within that phrase, the need for the reason merely "to relate to" the disability can only, in our view, be wider and more inclusive than the use of the 1975 and 1976 Act models would have suggested. The Court of Appeal has already commented on the dangers of approaching the 1995 Act upon the basis of assumptions and concepts derived from the earlier Acts - see Clark v Novacold LId

[1999] ICR 951

,959, 968 - and we shall adopt as permitted a width to the expression "which relates to" which is inclusive of causative links beyond those which would fall within "on the ground of disability" or "by reason of" the disability. With that in mind we return to the facts and to the applicant's grounds of appeal." And then later at paragraph 9 he said this: Direct evidence of disability discrimination can be quite as unusual to find as that of race or sex discrimination. As was said in the King case

[1992] ICR 516

, 528G:

"In some cases the discrimination will not be ill-intentioned but merely based on an assumption that 'he or she would not have fitted in'."

So, as in race cases, the outcome will often depend on the propriety of drawing inferences from primary facts. Just as a finding of a difference of race, usually a plain enough issue, can lead to the employer being looked to for an explanation, so also a finding of a disability coupled with something that could be discrimination should, in our view, equally lead to the employer being asked to explain himself. Continuing with citation from the King case, at p 529A:

"If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds."

Later cases have emphasised that it only "may" be legitimate so to infer but, with that reservation, and conscious too that adjustment needs to be made because Neill LJ was there assuming that there had been discrimination, we see no reason why a corresponding approach should not be taken to the questions of whether there has been less favourable treatment within section 5(1) of the 1995 Act and what had been the reason for it. Mr Massarella also reminded us of the duty to consider the drawing of inferences that was made clear by the Court of Appeal in Anya v University of Oxford & Another

[2001] ICR 847

where Sedley LJ at paragraph 853 B commented:

"Were racial grounds an effective cause of the difference in treatment? What explanation of the less favourable treatment is given by the respondent? In answer to each of these questions the Tribunal must make findings of primary fact, either on the basis of direct (or positive) evidence or by inference from circumstantial evidence"

And later at 853 H:

"The respondent has to respond to the introduction of those items. He may dispute some of them as factually incorrect. He may seek to introduce other evidence to negative any possible inference of racial grounds eg, non-racial explanations for his acts and decisions."

[25]Mr Allen argued that the Tribunal dealt properly with the issue of redundancy. They had found in paragraph 64 that they did not accept that the process was a sham designed to secure his dismissal and that the scoring process was reasonable. He also submitted that the assertion that the Appellant was regarded as a "difficult employee" did not present an unavoidable inference that the Respondents' point of view was related in any way to the Appellant's disability.

[26]We are not satisfied with the Tribunal's conclusions on this issue. In their Decision they failed completely to deal with the issue of whether the selection of the pool for redundancy was tainted with discrimination. Their findings, taken as a whole, clearly point to the Appellant's health problems and thus his disability being the major area of concern for the employers and that much of what happened after they transferred him out of the sales role was described by them as "window dressing". The Tribunal's failure to deal at all with the issue of the selection of the pool as potentially discriminatory action, coupled with their failure to draw inferences from the findings that they made in addition to the issue of justification leads us inescapably to the conclusion that the Tribunal's conclusion on this issue cannot stand. Mr Massarella urges us that we should substitute our own Decision on the basis that there was an inescapable inference that the less favourable treatment was related to the Appellant's disability and that had the Tribunal applied Section 5 (5) it must inevitably have found that the less favourable treatment could not be justified. However in our view these are issues for the Tribunal to consider. Our conclusions on this issue also lead us to the conclusion that ground 4 must also succeed since if the Tribunal came to the conclusion that the selection for redundancy was for a reason relating to disability then that could impact on the complaint that there was a continuing failure to find the Appellant an alternative role since the employers would not then be able to rely on the redundancy process as justification for that failure. Ground 6 – the Section 5 (1) DDA claim that the Respondents' failure to deal properly with his appeal was unjustified less favourable treatment for a reason relating to disability.

[27]The Tribunal found that the failure to deal with the appeal against selection for redundancy was not related to disability; the Tribunal added "we deal with this further below". Paragraph 71 of the Tribunal's Decision said this:

"Finally we also criticise the Respondent for not allowing the Applicant a proper appeal. The appeal against redundancy was a paper exercise. We doubt that any employee can get a fair crack at persuading a manager to listen to his case with an open mind when there is no hearing. This also was unfair."

Mr Massarella argued that paragraph 71 does not deal with the reasons for the failure to deal with the appeal process properly and also again raised the issue in relation to the failure to consider the drawing of inferences. Bearing in mind our Decision in relation to ground 5, it seems to us it must inevitably follow that this issue must also be reconsidered by the Tribunal for the reasons we have indicated above. Ground 7 – the Section 5 (1) DDA claim that the Respondents' dismissal of the Appellant was unjustified less favourable treatment for a reason relating to disability.

[28]Mr Massarella argued that the Tribunal did not address this issue and that in any event, had they considered it properly, since the dismissal flowed from the redundancy and the redundancy was tainted with discrimination, the Tribunal would have had to come to the conclusion that the dismissal itself was for a reason relating to the disability. Whilst the Tribunal had accepted that the redundancy process itself was justified by the requirement to reduce the number of salesmen, he argued that the Tribunal should have found that his inclusion was an act of disability discrimination which led to his dismissal. Again, since the dismissal flows from the redundancy decision and in the light of the reasons which we have given in relation to ground 5, we consider this ground also succeeds and calls for the Tribunal to reconsider this issue.

[29]We therefore propose to direct a re-hearing of this case on the issues raised in grounds 4, 5 6, and 7 of the Appeal as we have set out above.

[30]We give consideration as to whether the matter should be remitted to the same or a different Tribunal, and in particular the relevant factors set out by the EAT in Sinclair Roche & Temperley v Heard

UKEAT/0738/03

, and in particular the issue of "second bite" set out in paragraph 46.5 of that Decision where Burton J said this:

"46.5 Second Bite . There must be a very careful consideration of what Lord Phillips in English (at paragraph 24) called "

A second bite at the cherry ". If the tribunal has already made up its mind, on the face of it, in relation to all the matters before it, it may well be a difficult if not impossible task to change it: and in any event there must be the very real risk of an appearance of pre-judgment or bias if that is what a tribunal is asked to do. There must be a very real and very human desire to attempt to reach the same result, if only on the basis of the natural wish to say "I told you so". Once again the appellate tribunal would only send the matter back if it had confidence that, with guidance, the tribunal, because there were matters which it had not, or had not yet, considered at the time it apparently reached a conclusion, would be prepared to look fully at such further matters, and thus be willing or enabled to come to a different conclusion, if so advised."

[31]However he followed this paragraph with reference to what he termed "Tribunal Professionalism" wherein he stated:

"…it should be assumed that the tribunal below is capable of a professional approach to dealing with the matter on remission."

[32]This Tribunal has already spent a considerable amount of time on this case and there has been no dispute about their findings of fact or indeed, as we have indicated, in relation to some of their conclusions in relation to the issue of reasonable adjustments. Accordingly we see no reason why they should not be able to take a fresh look at the issues that we have identified without fear that that process will in any way be tainted by their previous decision making.