BRITISH GAS SERVICES LTD T/A SCOTTISH GAS SERVICES v JOHN ALEXANDER PARK [2005] UKEAT 0088_04_3006

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0088_04_3006Case No Appeal No. UKEAT/0088/04Venue 52 MELVILLE STREET, EDINBURGH EH3 7HF
Between
BRITISH GAS SERVICES LTD T/A SCOTTISH GAS SERVICESAPPELLANTJOHN ALEXANDER PARKRESPONDENT
Before
Lady Smith Mr P Pagliari Miss A MartinDate 30 June 2005
[1]APPEARANCES For the Appellant Mr I D Truscott, QC Instructed by- DLA Scotland LLP Solicitors Rutland Square EDINBURGH EH1 2AA For the Respondent Ms S Coleman, Solicitor Of- Maclay, Murray & Spens Instructed by- Edinburgh Citizens Advice Bureau 58 Dundas Street EDINBURGH EH3 6QZ SUMMARY UNFAIR DISMISSAL Reason for dismissal DISABILITY DISCRIMINATION Disability Reasonable adjustments Unfair dismissal and disability discrimination. Claimant employed as a service engineer and dismissed. Claimant's case was that dismissal was both unfair and for a reason related to disability. Respondents' case was that dismissal was fair, on grounds of misconduct. Tribunal found that dismissal was because of respondents' perception of the claimants' gross misconduct but also that it was because of his disability. They also determined that a key factor in the respondents' finding of misconduct was not open to them but did so by taking into account evidence that had not been before the respondents which it was held the Tribunal were not entitled to do. Held that the Tribunal failed to apply the Burchell test, took into account irrelevant material regarding claimant's application for ill-health retirement in a manner which also made an unfounded assumption, had reached contradictory findings on the respondents' reason for dismissal and drawn inferences regarding the disability discrimination claim that were not justified by reference to primary fact. Remitted back to a freshly constituted Tribunal. THE HONOURABLE LADY SMITH: This case is about unfair dismissal and disability discrimination. The judgment represents the views of all three members who have pre read the relevant papers. We will refer to parties as claimant and respondents. Introduction:[2]This is an appeal by the respondents in those proceedings against a Decision of the Employment Tribunal sitting at Edinburgh, Chairman Mr M Sischy, registered with extended reasons on 6 September 2004. The claimant was represented there by Mr R Younger of the Citizens Advice Bureau and here by Ms Sarah Coleman, solicitor. The respondent was represented there by Mr R Bradley, solicitor, and here by Mr Truscott QC. The claimant claimed unfair dismissal and disability discrimination. The respondent contended that he had been fairly dismissed on grounds of misconduct, that the provisions of s.6 of the Disability Discrimination Act 1995 did not apply to their disciplinary procedures and that even if it did, they were not required to make the adjustment sought by the claimant and had not dismissed the claimant for a reason relating to his disability. The Issues:[3]The essential issues before the Employment Tribunal appear to have been as follows:-[4]At the opening of the hearing before us, Mr Truscott indicated that he would not be insisting on his first ground of appeal, a ground which was directed, essentially, to the question of whether or not s.6 of the 1995 Act applied to the respondents' disciplinary procedures. He accepted that it did apply and that, on the facts of this case, the respondents were obliged to make a reasonable adjustment, namely, to canvass relevant medical opinion such as that of Professor McPherson, consultant clinical psychologist, regarding the claimant's fitness to undergo a disciplinary hearing, before proceeding with the hearing. Accordingly, it was accepted that there had been a breach of s.5(2) of the 1995 Act. It was not, however, accepted that there had been any breach of s.5(1). The Decision Judgment: The Employment Tribunal stated, at paragraph 62, that they had:
"no hesitation in accepting that the reason for the dismissal was the respondents' perception of the applicant's gross misconduct"
. It is evident that they took account of the respondents having reached that view on the basis of the various allegations which included that the claimant had knowingly and deliberately misled their investigating officers and lied to the Disciplinary Panel. At paragraphs 14, 15 and 16, the Employment Tribunal record findings of fact to the effect that the claimant had indeed lied to the investigating officers and that he had done so of his own volition.[5]The other grounds founded on by the respondents were contained in a letter the terms of which are set out at paragraph 62 of the Employment Tribunal's reasons. Clearly, the ground relating to the allegation that the claimant had told lies was the most serious and had, of itself, obvious potential for justifying dismissal. As regards the other grounds, the Employment Tribunal questioned the applicability of that which related to the claimant acting in a manner that could have delayed his return to work under reference to his ongoing application for ill–health retirement, they did not accept that using the respondents' vehicle to uplift and carry personal goods had been established as being an unauthorised use (see: paragraph 70) and they did not accept that by delivering a replacement radiator to a family member and helping to fit it, the claimant was working in competition with the respondents since he had not been paid for his work and there was no commercial element in the transaction (see: paragraph 71).[6]However, most significantly in our view, they record having reached the opinion that the respondents could not conclude, on a balance of probabilities that the claimant's admitted lies were deliberate, founding on evidence given to them (although not to the respondents' Disciplinary Panel) by Ms Siobhan Healy, who was employed by the respondents as an occupational health adviser. That evidence was that the claimant's mental condition, one involving anxiety and depression, would have adversely affected the quality of his evidence at the disciplinary hearings and might have made him more predisposed to telling untruths. Accordingly, they did not accept, it seems, that the respondents were entitled to proceed on the basis that the claimant had knowingly and deliberately lied in the respects alleged (see: paragraph 65).[7]The Employment Tribunal decided further that the provisions of s.6 of the Disability Discrimination Act 1995 did apply to the respondents' disciplinary procedures and that they should have made a reasonable adjustment in the form of suspending the ongoing disciplinary process and seeking specialist advice from Professor Frank McPherson, a clinical psychologist, regarding the applicant's fitness to attend a hearing, a finding that appears to have had in mind the provisions of s.5(2) of the 1995 Act. One of the elements of their reasoning regarding the making of reasonable adjustments did, however, appear to proceed on the basis that the disciplinary proceedings would have been overtaken by the claimant's ill-health retirement application. At paragraph 81, they stated:- "The Tribunal were of the opinion that there was no inhibition on the respondents halting the disciplinary process, particularly against the background that the applicant was on the verge of being retired on ill–health grounds in any event." an approach which appears to chime with their earlier comments at paragraph 68 to the effect that it was wrong to regard the claimant as having done something that could delay his return to work because he was going to be retired on ill-health grounds, not return to work. The Employment Tribunal also found as regards the claim advanced under s.5(1) of the 1995 Act, at paragraph 82, that:
"the only inference to be drawn was that the real reason for the dismissal was the applicant's mental disability."
The Appeal[8]The respondent appeals against the decision of the Employment Tribunal. The Legislation:[9]The relevant provisions of the legislation are, firstly, contained in sections 5 and 6 of the Disability Discrimination Act 1995:
"5(1) For the purposes of the 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) … 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 …."
Section 6 provides that where any arrangements made by or on behalf of the employer place the disabled person at a substantial disadvantage in comparison with persons who are not disabled then the employer has a duty to take such steps as are reasonable to prevent the arrangements having that effect. Secondly, section 98 of the Employment Rights Act 1996 applies:
"(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within sub-section (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held . (2) A reason falls within this sub- section if it – … (b) relates to the conduct of the employee, ……….. (4) Where the employer has fulfilled the requirements of sub-section (1), the determination of the question whether the dismissal is fair or unfair ( having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking), the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with the equity and the substantial merits of the case."
[10]The Employment Tribunal took the above legislative provisions into account. They were referred, in respect of the unfair dismissal claim, to the leading authorities of British Home Stores Ltd v Burchell [1978] IRLR 379 and Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 23 and also to the case of Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 . As regards the application of s.6 of the Disability Discrimination Act 1995, they took account of the guidance given in the case of Morse v Wiltshire County Council [1998] ICR 102 and in inferring that the real reason for dismissal was the claimant's mental state, they relied on the cases of King v Great Britain China Centre [1991] IRLR 513 , Zafar v Glasgow City Council [1998] IRLR 36 , and Law Society v Kamlesh Bahl [2003] IRLR 640 . The Facts:[11]The respondents are a large, UK wide organisation with some 1,000 employees in total, 5–600 of whom are engineers. The claimant was employed by them, latterly as a service engineer, from August 1967 until 7 January 2002, when he was dismissed. He was aged 52 years at the time of the hearing before the Employment Tribunal.[12]It is evident that the claimant had been absent from work on account of ill-health for some time prior to July 2001. He had applied for ill-health retirement. The nature of his ill-health was a generalised anxiety disorder and depression. It appears that he had retained possession of a works van provided by the respondents. The Employment Tribunal found that in about July 2001, the respondents discovered that, on 1 June 2001, the claimant had asked a workmate to give him a lift to collect the van after it had been repaired and that later the same day, he had gone to a plumbers' merchants to collect a radiator, having been requested to do so by a fellow employee. He was, thereafter, involved in delivering the radiator to his uncle's house and assisting in the fitting of it. His uncle did not pay him for doing so. The respondents were concerned at this account and felt that it ought to be investigated.[13]The claimant lied to the investigating officers in the course of their investigations as to what had happened. In particular, he misled them by saying that the radiator was for his own bathroom and by covering up the part played by the fellow employee who had asked him to collect it. He admitted having done so of his own volition although indicated to the Employment Tribunal that he had been confused and anxious at the time.[14]A disciplinary hearing was fixed for 21 December 2001 and the date of the hearing intimated to the claimant in a letter dated 10 December 2001. The respondents had been advised by their occupational health physician, Dr Lando, in a memo dated 16 November 2001, that attending the hearing would "do nothing to improve the claimant's health and may in fact cause further difficulties" . The claimant had previously been examined by Dr McPherson, who had provided a report dated 25 May 2001 in connection, it seems, with his application for ill- health retirement. He had commented that, as at the date of his examination, the claimant was forgetful and his concentration could be poor. He diagnosed him as then suffering from a condition characterised by a mixture of depression and anxiety.[15]The respondents' Disciplinary Panel dismissed the claimant on the grounds of gross misconduct, making reference, in a letter which is set out in full at paragraph 62 of the Employment Tribunal's reasons, to various factors including those to which we have already referred. As we have already noted, the Employment Tribunal stated that the reason for the dismissal was the respondents' perception of the applicant's gross misconduct.[16]The claimant appealed and his appeal was rejected by the respondents' Appeal Panel. The Employment Tribunal were critical of their doing so, remarking on their failure to ask questions regarding what they referred to as the "serious procedural flaws in the disciplinary process" , particularly the delay in carrying out investigations and also commenting that they should have taken account of the claimant's application for ill-health retirement as being "central".[17]Separately, we note that the claimant had applied for ill-health retirement and that the Employment Tribunal heard evidence regarding the stage that his application had reached. It appears that the procedure was close to conclusion and there were grounds for optimism that it would succeed but, as the Employment Tribunal determined (see: paragraph 24), it had been put on hold pending the outcome of the disciplinary investigation. Respondents' Case:[18]The respondents submitted that the Employment Tribunal had erred in law. Mr Truscott went carefully through their reasons and submitted that their structure lacked clarity and cogency in a way that showed that the Tribunal had misapprehended the law.[19]He submitted, in particular, that as regards the claim for unfair dismissal, whereas the function of the Tribunal was to consider the actions of the respondents in the context of the range of reasonable responses available to them at the stage of investigation, disciplinary procedures and dismissal ( Burchell; Conlin v United Distillers [1994] IRLR 169; Iceland Frozen Foods v Jones [1983] ICR 17 ) , there was nothing in their decision to indicate that they had applied their minds to the question of whether the dismissal of the claimant fell within the range of responses open to a reasonable employer.[20]The problem was, it was submitted, compounded by the fact that, in arriving at their decision that the respondents' Disciplinary Panel were not entitled to conclude that the claimant told deliberate lies, they relied on evidence that was before them, from Siobhan Healy, but which had not been before the respondents' Disciplinary Panel. Separately, in appearing to reject the respondents' Disciplinary Panel's conclusions as to breaches of the three rules of conduct covered by the Tribunal in their paragraphs 68–71, they had failed to set out their reasons for doing so in a way which showed that they had considered what a reasonable range of responses would have been. Overall, it was submitted that the Tribunal failed in its duty to make clear what was being decided and why. Their reasoning was inadequate in, it was said, the sense discussed in Meek v City of Birmingham District Council [1987] IRLR 250 and Tran v Greenwich Vietnam Community Project [2002] ICR 1101 . In these circumstances, the decision of the Tribunal was flawed and unsound. Mr Truscott specifically did not assert that another Tribunal approaching matters correctly would inevitably reach a different result but the respondents were entitled, he submitted, to a determination that was the result of the correct approach being adopted, not a flawed one.[21]Turning to the disability discrimination claims, Mr Truscott submitted that if, as he apprehended was the case, the import of the Tribunal's comments in the penultimate subparagraph of paragraph 81 was that they had determined that the respondents had a duty, by way of reasonable adjustment, to refrain from dismissing the claimant, they had erred in law ( Clark v Novacold Ltd [1999] ICR 951 . ) Whilst it was accepted, by way of concession, that the respondents had a duty to make the medical enquiries to which we have already referred, by way of reasonable adjustment, there could be no question of that duty being taken further so as to oblige them, in the context of a s.5(2) claim, to refrain from dismissal. Nor would permitting the claimant to retire on ill-health grounds have been such an adjustment.[22]Moving then to the claim under reference to s.5(1) of the 1995 Act, Mr Truscott submitted that the Tribunal reached their decision that, in dismissing the claimant, the respondents had discriminated against him in a remarkable way. They found, as the reason for his dismissal, a reason that contradicted their own finding at paragraph 62. They appear to have done so by way of drawing an inference but they did not set out clearly which were the primary facts that they found established from which that inference was drawn. The claim under s.5(1) had, in any event, not formed part of the claimant's originating application and there was no explanation of how it was that they came to be considering it.[23]In summary, the respondents' position that whilst some of the Tribunal's criticism of them was justifiable, their reasoning was seriously deficient in a way which undermined the whole decision and also made it appropriate that the case be remitted for a fresh hearing before a differently constituted Employment Tribunal. Claimant's case:[24]For the claimant, Ms Coleman submitted that the Tribunal had not erred in law. They had given adequate reasons ( Meek; Tran ) in the course of which they had set out the primary facts, examined the submissions of parties, stated their conclusions and given grounds for those conclusions. Even if it was deficient in findings in fact to support its conclusions, it met the test set out in Chief Constable of Thames Valley Police v Kellaway [2000] IRLR 170 .[25]Regarding the respondents' challenge to the Tribunal's finding that the Disciplinary Panel were not entitled to find that the claimant had deliberately lied, Ms Coleman confirmed that the evidence of Siobhan Healy that was relied on by them had not been before the Panel. She submitted, however, that the Tribunal's decision was to be understood as being to the effect that if the respondents had taken into account the medical evidence that they had from Dr Lando then they would not have been able to conclude that he had lied deliberately. Initially she referred also to Dr McPherson's report but retracted that submission on recognising that his report covered his findings of the claimant's condition as a date in May 2001 but did not refer to his condition at or around the date of the hearing.[26]Regarding the respondents' submission that the Tribunal had not considered whether the decision fell within the band of reasonable responses open to a reasonable employer, she submitted, under reference to the headnote in Conlin that it is not an error of law to fail to do so. She submitted that the Tribunal had in fact applied the Burchell test. In any event, since the Tribunal had found that the respondents had failed to establish adequate grounds to merit a finding of gross misconduct, they did not need to consider whether the sanction of dismissal was a reasonable response.[27]Regarding the case under the 1995 Act, the claimant's submission was that the respondents' apprehension that the Tribunal had in fact determined that they required, by way of reasonable adjustment, to refrain from dismissal was ill founded. All that they were, it was said, doing, was confirming their conclusion that the subsection had been breached. However, she went on to submit that, in the circumstances, since there were no substantive grounds for the claimant's dismissal it was axiomatic that he should have been retired on ill–health grounds. Accordingly, it was apparent that the claimant did seek to take from the Tribunal's decision and reasons, a determination that rather than follow through with the disciplinary process, the respondents ought to have granted ill–health retirement to the claimant.[28]Finally, regarding the case under s.5(1) of the 1995 Act, Ms Coleman submitted that the Tribunal did not err in law. The use of the word "perception " in paragraph 62 was such as to prevent it conflicting with the finding in paragraph 82 regarding the respondents' reason for dismissing the claimant. Further, it was implicit in what the Tribunal stated in paragraph 82, that they were of the view that the respondents did not have a genuine belief in the guilt of the claimant, thus entitling them to draw the inference that they drew.[29]Regarding disposal, Ms Coleman submitted that if the case was to be referred back then it should go back to the same Employment Tribunal because there had been so much delay in these proceedings already. The claimant was dismissed some 3½ years ago and the respondents had sought to challenge every aspect of the claimant's claim at every stage, causing delay. The claimant was anxious to make progress. Legal Principles:[30]The legal principles that fall to be applied would appear to be: Unfair Dismissal: Bearing in mind the provisions of s.98 of the Employment Rights Act 1996 to which we have already referred, the Employment Tribunal required to determine what was the reason for the claimant's dismissal. If it was misconduct, they then required, in accordance with the test set out in Burchell , to ask themselves: whether the respondents genuinely believed that the claimant was guilty of misconduct; whether the respondents had in mind reasonable grounds on which to sustain that belief; and whether, at the stage that the employer formed that belief on those grounds, he had carried out as much investigation as was reasonable in the circumstances? all on the basis that it was not for them to ask what would have been their view or what would, by applying an objective standard, have been a correct and justifiable conclusion because their task was to consider, rather, whether, in the circumstances, dismissal fell within the range of responses open to a reasonable employer. In particular, it is not, as was at one point submitted on behalf of the claimant, a matter of asking whether the employer has, objectively tested, established adequate grounds for dismissal. Disability Discrimination: Firstly, we are satisfied that the legislation cannot be read so as to require an employer to make a reasonable adjustment which consists of refraining from dismissing an employee. If an employer does dismiss a disabled employee and he does so for a reason relating to his disability, then the employee may well have a claim under s.5(1) but, as was made clear in Clark that would be a separate and distinct claim. Secondly, whilst, as in racial discrimination cases, it may be unusual for there to be direct evidence of disability discrimination, in accordance with the normal principles of evidence, inferences can only be drawn from facts which the Tribunal are satisfied as having been established in evidence and which, put together, point to a particular conclusion. Conclusions: Unfair dismissal: The Employment Tribunal also, as we have noted, dealt with three of the other findings of the Disciplinary Panel and found that they could not support the claimant's dismissal (see: paragraphs 67–71). They state at the end of paragraph 67 that the respondents did not have any reasonable grounds to sustain the allegation that the claimant had engaged in behaviour which could delay his return to work under reference to, as they put it: "the fact that the applicant was in any event not coming back to work." a conclusion which rested, it seems on the evidence regarding the claimant's ill–health retirement application. However, as the Tribunal themselves found, that application had been put on hold. It had not yet been concluded. We do not see how, in these circumstances, it was open to the Tribunal to proceed on the basis of any assumption that the claimant would be successful in his application notwithstanding that views were expressed that it was highly likely that he would have been successful in it had it not been for the intervening disciplinary proceedings. Time had passed since the last medical assessment for the purpose of the application. Agreement had not been reached regarding it. It was simply not, in our view, open to the Tribunal to make the assumption that it did. Disability discrimination: