MS K GUNNESS v SOUTH BANK UNIVERSITY [2005] UKEAT 0232_05_2507

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0232_05_2507Case No Appeal No. UKEAT/0232/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS K GUNNESSAPPELLANTSOUTH BANK UNIVERSITYRESPONDENT
Before
Mr Justice BurtonDate 25 July 2005
[1]APPEARANCES For the Appellant MS ALTHEA BROWN (of Counsel) Instructed by: Messrs Deighton Guedalla Solicitors Top Floor 30/31 Islington Green London N1 8DU For the Respondent MR SIMON DEVONSHIRE (of Counsel) Instructed by: Messrs Taylor Wessing Carmelite 50 Victoria Embankment Blackfriars London EC4Y 0DX SUMMARY Disability Discrimination: Less Favourable Treatment; Justification The Tribunal erred in law contrary to Clark v Novacold and Cosgrove in its approach to s5(1)(a) DDA in respect of the dismissal of Claimant disabled by depression who had had long absences and was unfit to work, and ET did not proceed to consider justification: substitution of finding of less favourable treatment by the EAT. As to consequences, Respondent submitted that the decision should be upheld in any event notwithstanding the error: Appellant submitted that it should be remitted to different Tribunal. Held : remitted to same Tribunal to 'finish the job' and consider justification. THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This has been the hearing of an appeal by Mrs Kaloutee Gunness against the Decision of the Employment Tribunal at London (South) after a hearing on 30 November, 1 and 2 December 2004 in a Judgment sent to the parties on 24 February 2005.[2]The Appellant was employed by the Respondent, but had many problems with her health and, as recorded in the Tribunal's Judgment, "had substantial periods of absence between 1989 and 2001". In 2001, she had 36 days of absence – of course over and above her holiday entitlement - and there came a time when she was simply signed off from work on a permanent basis.[3]The Respondent employer communicated its decision to dismiss the Appellant by a letter dated 20 September 2002. There was then an appeal. It was fairly considered by the Respondent, and the refusal to uphold the appeal was communicated by a letter dated 11 December 2002. The Tribunal recorded that since the termination of her employment, the Appellant had not been fit for work and at the time of the Employment Tribunal hearing, remained unfit for work. There was an issue about the disability of the Respondent and, certainly, the Respondent contended that much of the absence, in terms of sickness, was not connected with the disability that was eventually established; and the Tribunal concluded that the Appellant was disabled by reference to a recognised psychiatric disorder, namely depression, but not as at the dates of February and March 2002 (when she alleged separate matters of disability discrimination) but only by the time of her dismissal, and no appeal is brought against that conclusion.[4]The Appellant made claims for unfair dismissal and race discrimination which were both dismissed, and no Notice of Appeal has been lodged against those conclusions. So far as disability discrimination is concerned, the Tribunal concluded that, in respect of the only remaining issue, which was disability discrimination by virtue of the Respondent's dismissal of the Appellant, that, too, failed, and the only appeal is in respect of that latter finding.[5]The Tribunal made a substantial review of the facts for the purposes of all of its conclusions, both those in respect of race discrimination and unfair dismissal and earlier alleged disability discrimination, which were dismissed and not appealed and of the dismissal on alleged disability discrimination grounds in respect of which this appeal is brought, and we do not propose to summarise those findings of fact for the purposes of this appeal which, in the event, has been heard very shortly before us by Counsel for each side, neither of whom appeared below. Ms Althea Brown for the Appellant and Mr Simon Devonshire for the Respondent.[6]The central passage in the Judgment upon which Ms Brown concentrated for the purposes of her appeal was as follows: "9.28 The Claimant was unable to show that she had been treated less favourably than a non-disabled person in similar circumstances. The circumstances are that they had a similar absence record and were unable to return to work in the near future. In these circumstances, the Claimant has failed to show that she has been treated less favourably than non-disabled persons and her claim fails for this reason".[7]The way in which the Tribunal put that conclusion was in a similar way to that which would have been addressed had this been a case of race discrimination or sex discrimination, where comparison with those in similar circumstances is a fundamental part of an assessment of discrimination. That is not, however, the approach in law so far as concerns disability discrimination. We set out at this stage the relevant parts of s 5 of the Disability Discrimination Act 1995 ("the DDA") :
"(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"…… (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"
. There is then reference in s5(4) to s 6 of the DDA, which prescribes duties of employers to make adjustments, and by s 5(2) there is a separate act of discrimination actionable in the Employment Tribunal if there is a breach of that duty. That is not a matter which was sought to be put forward by this Claimant, but the question of breach of a s 6 duty is relevant even for the determination of an ordinary claim for disability discrimination under s5(1), by reference to the following subparagraphs. "(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". It is therefore necessary in a case of justification not simply to look to see what the justification is by the Respondent that he has put forward, and to be satisfied that it is material to the circumstances of the particular case and substantial, but also to see whether there could be said to be a breach of a section 6 duty to make adjustments which has arguably been breached by the Respondent.[8]In relation to justification, including satisfactory compliance with s6 of the DDA, the onus of proof in such a circumstance is on an employer. In those circumstances, there has been consideration by the Courts of the meaning of s5(1) and of the contrast between s5(1) and claims for race and sex discrimination. As was pointed out by the Appellant in her Notice of Appeal, there are two authorities which were cited to the Employment Tribunal and which are directly in point. The first is Clark v Novacold Ltd [1999] IRLR 318 and the second is Cosgrove v Caesar and Howie [2001] IRLR 653 . The latter case was an Employment Appeal Tribunal decision and the facts are on all fours with or, at any rate, very similar to the facts of this case. The former is a decision of the Court of Appeal, and is consequently binding upon this Employment Tribunal whereas the latter would only be very persuasive, given, as it was, by Lindsay P, as he then was. The combination of those two cases make it quite plain that there was an error in the approach by the Tribunal in this case. Paragraph 6.8 of the Notice of Appeal reads as follows: "The Tribunal in the Appellant's case has made a similar material error of law to that made by the tribunal in Cosgrove. It is submitted that the correct approach should have been as follows. The material reason for the Appellant's dismissal was her absences and her being unable to show that she could return to work in the near future; that material reason related to the Appellant's disability, namely her depression; the Respondent would not have dismissed some other to whom that material reason did not apply, as there were no other reasons for dismissal other than the sickness absence and absence of a return date in the near future; and therefore she should have been found to have been less favourably treated on the grounds of her disability".[9]Mr Devonshire largely agrees with that formulation and certainly agrees with the basis of the proposition, and so the arguments before us have been two-fold. Ms Brown submits that the error by the Tribunal, which of course, renders the decision as it stands unsustainable, is such that there should be an order for remission and in the circumstances, by reference to the guidelines in Sinclair Roche & Temperley v Heard [2004] IRLR 763 , remission to a different tribunal.[10]Mr Devonshire submitted in his Skeleton Argument that this is a case in which this Tribunal, while recognising the error of the Tribunal, should conclude that there was no other conclusion to which this Tribunal could have come, had it asked itself the correct question, than to dismiss the claim as it did, and consequently that this Appeal Tribunal should substitute its own conclusion of justification, and thus uphold the decision by the Tribunal to dismiss the claim, but on a different basis.[11]We deal first with the latter submission by Mr Devonshire. Clearly, the facts in this case are very strong in support of the case that the employer would wish to make out that there was justification and no breach of a s6 duty; but what he invites us to do is to say that the Respondent employer, upon whom the onus rests as a result of statute, is bound to satisfy that onus. The difficulties facing Mr Devonshire in such circumstances, as he recognised, include the following:(i) In essence he is saying that on these facts, which were not largely contested at any stage, an Employment Tribunal at a preliminary hearing would or should have found that there was no arguable case sufficient to go forward to a hearing. No such application was made by the Respondent and, in any event, no such conclusion was reached by the Tribunal.(ii) Difficult as it is to establish such a case in such circumstances, there are, of course, authorities which say that although a Tribunal has the power to strike out as unarguable cases at the interlocutory stage, that should be a course rarely taken in a case of discrimination.(iii) It is, of course, not infrequent that this Appeal Tribunal is prepared to substitute its own conclusions, where it is plain that the basis upon which the Employment Tribunal decided a case cannot be supported, but that on the evidence before the Tribunal, the same or a different tribunal would be bound to come to the same conclusion. However not only is this, in any event, a high hurdle, but this is a case in which the issue which we would now be resolving is one upon which the Respondent bears the onus, and so we would be substituting a conclusion that the Respondent would be bound to satisfy the onus, not simply a conclusion that the Claimant would be bound to fail.[12]We are satisfied that this is not a case where we should substitute that conclusion. Indeed, we are influenced by the very way in which this Tribunal concluded the paragraph of its Judgment, to which we have earlier referred.

(b) , the Tribunal continued as follows:

"Having come to this conclusion the Tribunal did not consider the other issues relating to this claim"
. As was pointed out in the course of argument, it would have been open to this Tribunal (and we would certainly encourage tribunals in similar situations to follow this course and regret that it was not taken in this case) to continue on in the traditional form:
"In case we be wrong as to this, we now turn to consider those other issues"
. That would have been a course open to this Tribunal, but it did not take it.[13]We are satisfied that, in the light of the error by the Tribunal in paragraph 9.28, it ought to have gone on to consider those further issues and did not do so and that we are not in a position to say that the Respondent is bound to satisfy the onus such that we could substitute our own conclusion.[14]We turn then to the argument of Ms Brown as to the destination of such remission. Mr Devonshire had concluded in his submissions, in opposition to the appeal, an option that there should be a referral back to the Tribunal of questions pursuant to the procedure in Burns v The Royal Mail [Consignia] [2004] IRLR 425 as recently approved by the Court of Appeal in Barke v SEETEC Business Technology Centre Ltd [2005] IRLR 633 . It is certainly the case that the Burns/Barke procedure is not limited to referral back for questions to be asked and answered in a case of inadequacy of reasons by a tribunal. It is also available on the sift or at a preliminary hearing where there are, for some reason, no findings made in relation to particular parts of the case, perhaps by some oversight. But it does not appear to us, particularly at a full hearing, as this now is, appropriate to follow that course where the circumstances are, as they are here, that a tribunal has only reached halfway in reaching a finding and not as the Appeal Tribunal now concludes, concluded its job. This is a case, in our judgment, for remission and not for referral, but to describe the situation in those terms is to reflect very much the view that this Appeal Tribunal came to in Sinclair Roche itself, only a fortiori in this case. In Sinclair Roche , the Tribunal, on the face of it, had gone through to the end of the case and concluded that there was sex discrimination when, on analysis, the Appeal Tribunal concluded that it had not considered the case put forward by the Respondent; albeit that the onus would be on the Respondent at that stage by way of explanations for the prima facie discriminatory treatment. In this case, the position is even more clear that the Tribunal has only got to halfway, because it said that it was only getting to halfway in the paragraph to which we have referred, and expressly said that it was not going on to deal with the issues which, we conclude, it should have gone on to deal with. It is thus even more of a Sinclair Roche case than Sinclair Roche was itself.[15]Ms Brown, therefore, makes submissions up against that difficulty. Of course, in Sinclair Roche , the case had run for a substantially long period before the Tribunal and there was the great concern of the Appeal Tribunal that such a relatively lengthy hearing should not be restarted, whereas, in this case, the Tribunal only ran for three days and the cost and inconvenience of starting again is not so high and not so obvious. But it is still the case that if this were remitted to the same tribunal, there would be no need for further evidence, possibly no need for further submissions, although clearly, it is likely that the Employment Tribunal would find themselves assisted by further submissions from each side, and we shall include the provision for such submissions in the directions we make. But if the matter were to go back to a fresh tribunal, the evidence would be required to be started from scratch and that, in a case in which, as Ms Brown accepted, there was not any material conflict of evidence which was, in some way, conclusively resolved by this Tribunal.[16]The arguments that Ms Brown made in support of her submission that this should go back to a different tribunal were limited. The first and major point she made was that this was a case, within Sinclair Roche, where the judgment of the Tribunal was wholly flawed. Clearly, there was an error by this Tribunal. If there was no error in law by this Tribunal, we would not have been entitled to interfere, but it was an identifiable error of law and did not, in our judgment, amount to the entire decision being fundamentally flawed. What it led to was the Tribunal erroneously not proceeding to consider the questions under s5(3) (4) and (5) which it should have done. There was no fundamental flaw which infected the competency or the ability of the Tribunal to go forward to carry out and complete its task.[17]Secondly - and obviously always more sensitively - Ms Brown submitted that in some way the Tribunal could be said, if not to be partial, certainly not to remain sufficiently independent to be able to approach a rehearing with an open mind. This is clearly not a case in which there is any suggestion of bias, nor has Ms Brown being able to point to any particular factor which indicates that this tribunal will not bring to the remitted hearing the same professionalism as all other tribunals do to rehearings or, indeed, original hearings. Ms Brown points to the fact that the Tribunal has rejected the other claims by this Appellant but, of course, not only did it do so, but there has been no appeal, and Ms Brown has not begun to suggest that there was either an erroneous or inappropriate way in which the Tribunal approached its tasks in relation to those other claims.[18]Thirdly, she points to certain findings of fact by the Tribunal which, she submitted, might show a mind-set, as she puts it, by the Tribunal. The particular fact she referred to, indeed the only fact she referred to in this regard, was in paragraph 9.26 where the Tribunal recorded:
"Even at the time of the hearing which was some two years after her dismissal, she stated that she was unfit to do any work of any description be it part time or otherwise"
. But that, as we pointed out to Ms Brown, is not evidence of a mind-set; it is a statement of evidence that was given before them. It is certainly evidence that will make the position of the Appellant a difficult one when it comes to the rehearing, and there is much other evidence which appear to us to show that this Appellant will have a difficult task on the remitted hearing, but that arises out of the facts of the case, and not out of any mind-set of the Tribunal which could in any way detract from the Tribunal's professionalism.[19]Lastly, and really only because it is the phraseology which is always used in relation to Sinclair Roche questions, all arising out of the seminal judgment of Lord Phillips MR in English v Emery Reimbold & Strick [2003] IRLR 710 , she cautioned against giving this Tribunal a second bite of the cherry. We are satisfied that this is not the second bite at the cherry. On the basis of the evidence given before it already, which this Tribunal will have recorded on its notes of evidence, this Tribunal is now going to have to go forward and eat the cherry which they have only half eaten to date. In those circumstances, we are satisfied that there is no other proper alternative and, indeed, we conclude that it is the right course that this Tribunal should rehear the issue of justification on the basis that we substitute a finding that there has been less favourable treatment under s5(1)(a) of the DDA and this Tribunal will now go forward to resolve the issue of justification pursuant to ss5(1)(b), 5(3), 5(4) and 5(5).[20]As we have indicated, if this Tribunal considers that it will be assisted by submissions, then it should direct, which it no doubt can on paper, a time-table for delivery of such submissions. We very much hope that this case can be brought on at the Employment Tribunal, in front of the same constitution, very speedily indeed and we cannot see that more than half a day will be required for an oral hearing if, indeed, this Tribunal concludes that an oral hearing is necessary. If it is satisfied to deal with a matter on paper submissions. that would be a matter for this Tribunal. On that basis, the appeal is allowed to that limited extent.