T-MOBILE (UK) LTD v MR D J KEARNEY [2004] UKEAT 0946_03_1105

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0946_03_1105Case No Appeal No. UKEAT/0946/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
T-MOBILE (UK) LTDAPPELLANTMR D J KEARNEYRESPONDENT
Before
His Honour Judge Birtles Mr P R A JacquesDate 11 May 2004
[1]APPEARANCES For the Appellant MISS DINAH ROSE (Of Counsel) Instructed by: Messrs Eversheds 1 Callaghan Square Cardiff CF10 5BT For the Respondent MS POLLY HIGGINS (Of Counsel) Instructed by: First Assist Group Ltd Marshall Court Marshall Road Sutton Surrey SM1 4DU SUMMARY The issues were:(1) Whether the failure by the Tribunal to find that particular detriments esp. dismissal were caused by disability as opposed to a genuine redundancy situation.(2) Confusion of fact finding in unfair dismissal and disability discrimination claims and the failure to separate the two heads of claim. HIS HONOUR JUDGE BIRTLES This is an appeal from the decision of an Employment Tribunal sitting in Watford on 21 August 2003. The decision was sent to the parties and entered in the Register on 6 October 2003. There was subsequently a review application on 17 March 2004 when the Employment Tribunal added some words to paragraph 31 of its original decision. The Chairman was Miss D Thomas, and the members were Mr D M Walsh and Mr M Bhatti.[2]The Employment Tribunal unanimously held that the Applicant, Mr D J Kearney, was unfairly dismissed and that he had been discriminated against within the meaning of the Disability Discrimination Act 1995 Section 4(2) and Section 5(2). The Notice of Appeal was in fact amended and does not challenge first the finding of unfair dismissal and second it does not challenge one of the two findings by the Employment Tribunal under Section 5(2) of the Disability Discrimination Act 1995. The Employment Tribunal Decision[3]The Employment Tribunal decision consists of extended reasons which sets out the representation of the parties; records in paragraphs 2 and 3 certain undisputed facts relating to the Applicant's employment and then beginning in paragraph 4 through to paragraph 29 deals with unfair dismissal. It asks itself the relevant questions and then from paragraphs 6 onwards makes a number of findings of fact relating to the reason for a redundancy situation arising, the pool of potential employees to be made redundant, the issue of redeployment and the issue of the appeal process. It concludes that Mr Kearney was unfairly selected for redundancy and therefore unfairly dismissed because the procedure applied was unfair: decision: paragraph 29. 4. The Employment Tribunal made a substantial number of findings of fact. It is necessary for us to refer to paragraphs 19 - 21 which say this:
"19. However, although the criteria in our view were capable of being objective we consider that they were not in fact applied objectively or consistently and across the board with an even hand, in this particular instance. The defects were as follows:- a. The element of objectivity was tainted in application by the fact that Mr Brown, one of the four, was on friendly terms with Mr Leonard. It was not disputed that they were part of a group who were accustomed to going to the pub together at lunch times for a drink. It was not disputed that the Applicant was part of this group. Mr North did not know Mr Brown at all, on his own evidence, and relied entirely upon Mr Leonard simply endorsing his assessment of Mr Brown. None of Mr North's comments on Mr Brown could possibly have been his own evaluation. This had two unfair effects. In the four evaluation sheets which we saw, an exercise known as the "
Town Hall Exercise" which involved a display session, was mentioned adversely in the case of three candidates but not that of Mr Brown. In fact in the case of the Applicant it was named twice. In every instance it was cited as justification for an adverse comment on the candidate concerned. It was not in dispute that all four were involved in the Town Hall exercise, in which it was hoped they would participate with ideas in mounting a display. It was not in dispute that none of them in fact made any active effective input (though the Applicant did say, and this was not challenged, that he had made a suggestion about one way in which this may be done. But the Respondents did not follow that through because they considered it impracticable. The point is that he made the suggestion). There is no evidence on those assessment forms that the Applicant, or any other candidate, was given less time and attention than Mr Brown. The quantity of comment is roughly equal in each case. However, those references to the Town Hall project in all except Mr Brown's case do indicate that there was (consciously or not) an element of preference towards him. b. The second effect this had of course was that they were none of them on an even footing with Mr Brown. The other three candidates were being jointly assessed by two assessors. Mr Brown was only in effect being assessed by one and that was somebody he was friendly with. c. We find as a fact that there was a degree of unfairness in those circumstances in applying the criteria; a reasonable bystander commenting on the process would in our view have said "this is not fair". d. There was another way in which the selection procedure applied the criteria unfairly. The limitation of the last 6 months as the basis for the assessment was not observed equally across the board. The Respondent's evidence to us was that in Borrett's case they took into consideration in his favour under the criteria of personal development the fact that he had made a number of job applications for a period well beyond 6 months i.e., since 1994. They did not check what the position was in respect of the Applicant. The criteria, therefore were not being equally or consistently applied. Those flaws in the selection criteria application made the selection unfair. Redevelopment 20. The Respondent's obligation to an employee who has been selected for redundancy goes further than simply facilitating his applying for alternative jobs. The onus is on the Respondent to explore any openings that could reasonably suit the employee and (subject to consultation ) to redeploy him in that situation without the requirement that he compete for the job or apply for it in the normal way. The Respondent's assistance to the Applicant in this case, after his selection, was virtually negligible. They printed out a list of jobs from their databank which had details sparse in the extreme and left the Applicant (in the three week space that he had before his employment terminated) to find himself a suitable job, if there .were one there, for which to apply. As to specific posts, they could not explain why that of a Fixed Asset Clerk had been withdrawn as unavailable. We heard no evidence to the effect that the Human Resources Department had ever investigated that on his behalf. The post of interconnect planner which the Applicant was prepared to consider was one which Human Resources decided between them he would not be qualified for. They said that it required technical qualifications. They were unable to tell us what those technical qualifications were, or how, if at all, the Applicant fell short of them. The Applicant accepted that he may have required some training for this post. However, the Applicant is not without technical qualifications in his background and had in fact worked on technical programmes in the defence field. Beyond that, they left him to access as best he could their own intra net site (information for which was not the same as their web site on the inter net) although they excluded him from the office where he could have access to that. They referred him instead to their learning centre in another building. The Applicant was the only person giving evidence in front of us who had direct knowledge of that centre and had been there. He was quite clear that there was no access to the intra net there when he went and asked. Human Resources evidence from the witnesses in front of us was that they had enquired by telephone from the person managing the centre whether that facility was there and had understood that it was. The Applicant's evidence is more direct and we accept it. He was, therefore, in effect excluded from the prime source of information for jobs i.e., the in-house information. 21. They offered the assistance of an external (outsourced) support agency in finding a post. We find as a .fact (this is dealt with below under discrimination) that he was at that time disabled within the meaning of the DDA. For that reason that facility was of no use to him.[5], Having found that Mr Kearney was unfairly dismissed the Tribunal moved on to consider disability discrimination: "Disability Discrimination Claim30. It. is accepted (see the Respondent's solicitor's letter 7.5.02) that the Applicant was disabled within the meaning of the disability discrimination act. The Respondents however, refute that he was unfavourably treated for, reasons relating to disability31. The Applicant contends that in being selected for redundancy, and in the procedures which were applied he was less favourably treated than others who were not disabled for reasons relating to his disability. The findings of fact we have made in relations to his unfair dismissal claim and the events of the selection process etc, we adopt equally as appropriate for this claim. We make additional findings of fact relevant as follows:- Selection32. The Applicant did not socialise with the group who met in the pub. That was not disputed. The Applicant's evidence (unchallenged) was that it was his disabilities which were the reason for this. The Applicant (and this was not disputed) has extensive disability with a number of conditions including a heart complaint and diabetes. The evidence indicated that the Respondents put some store on the building of good working relationships and team work. This in fact was referred to in the criteria applied. Insofar as this sort of ongoing social - at work contact must go towards building such relationships, the Applicant was disadvantaged. Therefore insofar as these things were taken into consideration in the selection procedure, he was being less favourably treated that somebody who was not disabled would find themselves being treated and it was by reason of his disability. In other words it was for a reason, his reluctance to socialise, which sprung directly from his disability.33. His disabilities also made it difficult for him to participate in any physical way in the Town Hall exercise. The Respondents indicated that there were no physical requirements in this and that people simply had to go along to the location and answer questions. The Applicant's evidence, however, was that they were required to put up display boards etc. We accept his evidence, therefore as more direct and relevant. The Respondents told us that he would not have had to do any this but there was no evidence that at the time that was explained to him or that any arrangements were made for the setting up of the display which were communicated to him as not involving him - or that that was taken into consideration in the selection process. Again, therefore insofar as participation in that exercise impacted on the selection (which it clearly did) he was treated less favourably than others not disabled by reason relating to his disability. He was treated less favourably than others because although two other candidates were marked down in respect of this, they were marked down in one category each. In the Applicant's case this was the source of adverse assessment against him in two of the categories.34. The Applicant on this basis was discriminated against under Section 4 of the DDA. Redeployment35. In regard to the redeployment exercise the Applicant was discriminated against within the meaning of Section 5(2)(a) of the DDA. In leaving it to him to visit the training centre (which proved no help -see above) and in following up the outsource "assistance" they made no adjustments at all to allow for his disability. The outsourcing arrangements are within "any arrangements" in Section 6 (1) and the learning centre being in a different building from his work was a "physical feature" within Section 6(2) of the Act. Moreover, he was sent to the learning centre because it was clearly policy from the beginning that anyone selected for redundancy was not going to be allowed back in the office (this was set out in the package of measures they were given at the business meeting at the outset) it was not because of the Applicant's behaviour or any characteristic individual to him. There was absolutely no consideration of his disability in relation to this point or any of the other points. The Respondents were well aware of the fact in failing to make these adjustments that the Applicant was disabled. They themselves had given him a disabled parking space close to the entrance to the building where he normally worked. In addition, his line manager was aware of his need to go for frequent hospital check ups (Respondent's evidence). On top of that he was telling them that he was disabled and could not manage to deal with the outsourced agency or move about. The agency had offices in Northampton and London and he would have had to go to one or other of these places. The Respondents, could, in our view have made adjustments which would not have been overly onerous or expensive. For example they could have allowed him into the office to use the intra net rather than going to the learning centre. They could also either have given him a car and or a driver to get to and from the outsourced agency, or at the very least somebody to accompany him on those occasions which is what he required.36. In the light of those facts (coupled with the common facts above found in unfair dismissal) we find the claim for discrimination upheld.[6]Before turning to the appeal itself we think it may be helpful if we make two general comments. Criticism has been made of the Employment Tribunal in respect of the fact that it did not set out the relevant statutory provisions in case law. It seems to us that in a case which involves more than one claim based upon different statutory provisions it would be helpful for both of the parties for an Employment Tribunal to set out the relevant statutory provisions and case law. While that itself is not an error of law it does of course assist all parties concerned in knowing that the Employment Tribunal has identified the relevant legal issues.[7]The second general comment we would make is that we think that some of the confusion which has arisen in this case results from language used by the Employment Tribunal which suggests that all of its findings of fact in respect of unfair dismissal were relevant to the claim for disability discrimination. This was patently not the case and indeed the Employment Tribunal recognise that if in making its amendment at the review hearing to paragraph 31 of its decision. We would be surprised if there were many cases where all the findings of fact in relation to unfair dismissal are relevant to a claim for disability discrimination or indeed some other form of discrimination. We would urge Employment Tribunals to identify precisely the findings of fact which are relevant to each head of claim so that there can be no misunderstanding about what facts they have taken into account in reaching their decision.[8]We turn then to the grounds of appeal. Before doing so it is necessary to refer to Sections 4(1) and 4(2), 5(1), 5(2) and Section of the Disability Discrimination Act 1995:
"4 Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a disabled person – (a) in the arrangements which he makes for the purpose of determining to whom he should offer employment; (b) in the terms on which he offers that person employment; or (c) by refusing to offer, or deliberately not offering, him employment (2) It is unlawful for an employer to discriminate against a disabled person whom he employs – (a) in the terms of employment which he affords him; (b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit; (c) by refusing to afford him, or deliberately not affording him, any such opportunity; or (d) by dismissing him, or subjecting him to any other detriment. 5 Meaning of "discrimination" (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."
[9]We heard a submission from Miss Higgins who appeared for the Respondent at the Employment Tribunal that the leading case of Clark v TDG Limited t/a as Novacold [1999] IRLR 318 had expressly rejected the 'but for test of causation' which is found in the decision of His Honour Judge Peter Clark in British Sugar plc v Kirker [1998] IRLR 624. In particular Miss Higgins' points to paragraph 63 of the Clark decision and submits on the basis of what the Court of Appeal said there the 'but for test' is no longer good law. We reject that submission. .[10]As Miss Rose has pointed out the kernel of the Clark case is contained in the passages beginning at paragraph 52. At paragraph 52, Mummery J said this: "52 The 2 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 that 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 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. And then in paragraphs 55 – 64 the Court of Appeal go on to consider the second question and what is meant by 'that reason' 55 What is meant by 'that reason'? 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. 58 Linguistically, s.5(1)(a) is ambiguous. The expression 'that reason' is, as a matter of ordinary language, capable of bearing either of the suggested meanings. The ambiguity must be resolved by recourse to the context of the ambiguous language and to the aim of the legislation. The correct approach is that stated by Waite LJ in Jones v Tower Boot Co Ltd [1997] IRLR 168 at 171, 30: '... a statute is to be construed according to its legislative purpose, with due regard to the result which it is the stated or presumed intention of Parliament to achieve and the means provided for achieving it ("the purposive construction") and the second is that words in a statute are to be given their normal meaning according to general use in the English language unless the context indicates that such words have to be given a special or technical meaning as a term of art ("the linguistic construction").' 59 In the historical context of discrimination legislation, it is natural to do what the industrial and the appeal tribunal (though 'without great confidence') did, namely to interpret the expression 'that reason' so as to achieve a situation in which a comparison is made of the case of the disabled person with that of an able-bodied person and the comparison is such that the relevant circumstances in the one case are the same, or not materially different, in the other case. This might be reasonably considered to be the obvious way of determining whether a disabled person has been treated less favourably than a person who is not disabled. 60 But, as already indicated, the 1995 Act adopts a significantly different approach to the protection of disabled persons against less favourable treatment in employment. The definition of discrimination in the 1995 Act does not contain an express provision requiring a comparison of the cases of different persons in the same, or not materially different, circumstances. The statutory focus is narrower: it is on the 'reason' for the treatment of the disabled employee and the comparison to be made is with the treatment of 'others to whom that reason does not or would not apply'. The 'others' with whom comparison is to be made are not specifically required to be in the same, or not materially different, circumstances: they only have to be persons 'to whom that reason does not or would not apply'. 61 This is to be contrasted not only with the different approach in the 1975 and the 1976 Acts, but also with the express requirement of comparison with the treatment of other persons 'whose circumstances are the same' stipulated in victimisation cases by s.55(1 ) (a) of the 1995 Act. 62 The result of this approach is that the reason would not apply to others even if their circumstances are different from those of the disabled person. The persons who are performing the main functions of their jobs are 'others' to whom the reason for dismissal of the disabled person (ie inability to perform those functions) would not apply. 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. 64 It is also more consistent with the scheme of the 1995 Act as a whole. As Roch LJ pointed out in the course of argument, the language of s.5(1 ) is replicated in other Parts of the Act relating to the definition of discrimination in other areas: goods, facilities and services in s.20(1); and premises in s.24(1). Although neither side sought to place before the court any Pepper v Hart [1993] IRLR 33 material on s.5, such material appears to be available on the provisions relating to access to services. The interpretation of the provisions in s.20(1) is relevant to the interpretation of s.5, as they are in the same terms.[11]In our judgment question 1 raises a question of causation, the dismissal or detriment must be caused by the disability and that is where British Sugar plc v Kirker is relevant. That is the issue of causation. That question raises the Kirker case: the 'but for' test It is not overruled by the Clark case.[12]We turn to the grounds of appeal. The first ground of appeal is that the Employment Tribunal did not address the critical question as to whether or not the Applicant was discriminated against as to his dismissal or the procedure adopted in relation to his selection for redundancy. That appears from the decision (paragraphs 30 - 34). We agree. In our judgment it is not possible to see from those paragraphs whether the Tribunal was actually directing its mind to the issue of dismissal and if so how the factors that it took into account related or caused that dismissal. Paragraph 32 relates to the fact as found by the Tribunal that one of the four candidates for redundancy Mr Brown socialised with Mr Leonard who was one of the selectors at lunch times in a public house. The Applicant did not socialise with Mr Leonard and it was said by the Tribunal that this reluctance to socialise sprang directly from his disability and that was a reason for his selection for redundancy. Two other employees did not socialise with Mr Leonard in the pub at lunchtime either. One of them was a Mr Borrett who was also unsuccessful and was selected for redundancy with the Applicant but nowhere in paragraph 32 does the Tribunal explain how the Appellant's inability to socialise with Mr Leonard affected his selection for redundancy. In other words the Tribunal have not made the necessary causative link.[13]The second matter is paragraph 33. There, the Tribunal found that there was what was called the Town Hall exercise. Mr Kearney gave evidence that part of this exercise was that the four men in the redundancy pool were required to put up display boards. As a result of that the Tribunal said that he was treated less favourably because he was unable to put up display boards and the Tribunal said at the end of paragraph 33 that he was treated less favourably than others because although two other candidates were marked down in respect of this they were only marked down in one category each. In the Applicant's case there was an adverse assessment against him in two categories. Page 97 of the EAT bundle shows that the assessors marked Mr Kearney down in respect of the categories of(a) problem solving and decision making where they said 'he is not always willing to make decisions he feels are not within his job role eg participation in Town Hall and(b) adaptability where they said 'also did not want to get involved in preparation for supply change team event (Town Hall)'. In the case of Mr Brown no reference was made to the Town Hall matter at all. In the case of Mr Borrett, the other unsuccessful candidate 'his unwillingness to get involved in preparation for the supply change team event Town Hall' was marked down under 'adaptability'. Mr Borrett was unsuccessful, Mr Pettitt was successful and he was marked down although not as much as Mr Borrett and Mr Kearney in the adaptability category for the same reason.[14]However, it seems to us that the Employment Tribunal have ignored what they said in paragraph 19(a) of their findings of fact in relation to unfair dismissal which was this:
"It was not in dispute that all four were involved in the Town Hall exercise, in which it was hoped they would participate with ideas in mounting a display. It was not in dispute that none of them in fact made any effective input (though the Applicant did say, and this was not challenged, that he had made a suggestion about one way in which this may be done."
So, that finding of fact makes it clear that none of the four candidates made any input at all into the Town Hall project. As is clear from the assessment sheet I have referred to that matter caused three of them to be marked down and it was not referred to the case of Mr Brown. However, in paragraph 33 of the Tribunal's reasoning there is no indication as to what was the causal link between Mr Kearney's disability and the fact that he had been marked down twice. Indeed we were told by Miss Higgins who appeared for Mr Kearney that Mr Borrett himself suffered from a disability.[15]It seems to us that that failure to identify the cause or connection in those two cases amounts to an error of law and we substitute a finding that there was no discrimination on the grounds of disability under Section 4 of the Disability Discrimination Act.[16]The second ground of appeal is that the Employment Tribunal made a fundamental error in finding that Mr Kearney had been discriminated against under Section 5(2)(a). The Employment Tribunal found that he had been (candidate Mr Borrett) declared redundant had been referred to the Appellant's training centre. There is no doubt that the training centre was a physical feature within the meaning of Section 6(2) of the Act. See Decision paragraph 35.[17]However, there is no explanation in the decision which indicates how Mr Kearney was disadvantaged by the physical characteristics of the training centre. The disadvantage he suffered was that that training centre did not have access to the Appellant's intranet which would have provided details of suitable other job opportunities for him having been chosen for redundancy. That disadvantage was a disadvantage which applied to Mr Borrett and would apply to anyone else who was selected for redundancy by the Appellant. The need to go to the training centre arose from the fact that an employee selected for redundancy was not allowed back into the office.[18]The Tribunal specifically found that that was a matter of the Appellant's policy and was not because of the Respondent's behaviour or any individual characteristics: see paragraph 35. It follows the Tribunal have failed to make a causal link between the disability suffered by Mr Kearney and the disadvantage, the less favourable treatment, in relation to the training centre. The disadvantage as we have said is the inability to use the intranet but that applied to anyone and it is not suggested in any way that Mr Kearney did not have physical access to the training centre. Indeed the Employment Tribunal specifically found in paragraph 20 that he was the only person giving evidence to them who had direct knowledge of that centre and had been there. It follows again therefore that there was a failure by the Tribunal to identify the causal link between the disability and the less favourable treatment and the appeal is therefore also allowed in respect of that ground of appeal.[19]We can deal with the remaining grounds of appeal fairly briefly. The third ground of appeal was that there was insufficient fact finding by the Employment Tribunal which enabled it to reach the decision it did in paragraphs 32 and 33 of its decision. For the reasons we have already given we agree.[20]The fourth ground of appeal related to redeployment and again was a failure by the Tribunal to make the appropriate finding of fact in paragraph 35 of its decision relating to employment. For the reasons we have given we agree. We have carefully considered Miss Rose's submission. There is not sufficient material before us to substitute a finding that Mr Kearney would still have been chosen for redundancy when one looks at the markings which are before us in the bundle. We are conscious that we are not fully aware of all of the evidence which presented. We have no notes of evidence. We are not even clear from the Employment Tribunal's decision what evidence witnesses for the employer gave. We accept what Miss Higgins has told us that there was a general challenge to the marking process. We do not feel able on the bare material in front of us to say with any assurance that Mr Kearney would still have been selected for redundancy and we therefore remit that issue alone to a fresh Employment Tribunal for decision. For those reasons this appeal is allowed.