OCS GROUP LIMITED v MR A J TAYLOR [2005] UKEAT 0803_04_2305

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0803_04_2305Case No Appeal No. UKEAT/0803/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
OCS GROUP LIMITEDAPPELLANTMR A J TAYLORRESPONDENT
Before
His Honour Judge McMullenDate 23 May 2005
[1]APPEARANCES For the Appellant MR ADRIAN LYNCH QC (of Counsel) Instructed by: Messrs Nabarro Nathanson Solicitors 1 South Quay Victoria Quays Sheffield S2 5SY For the Respondent MS TESS GILL (of Counsel) Instructed by: Messrs Hart Brown Solicitors 20 Bedford Road Guildford Surrey GU1 4TH SUMMARY Unfair Dismissal / Disability Discrimination 1. The ET did not err in law when it decided that the Claimant because of his inability to participate in a disciplinary hearing on account of his profound deafness, had been unfairly dismissed. 2. The ET correctly applied the judgment of the EAT in Whitbread & Co Plc v Mills [1988] IRLR 501. There is no relevant distinction in the approach in that case and of the EAT in Advihilli v Exports Credits Guaranteed Department unreported EAT/917/97. 3. The ET did not err in finding that the Respondent had failed to make reasonable adjustments for his disability in the disciplinary process. 4. Allowing the cross-appeal, the ET had failed to apply its finding that the Claimant was dismissed for misconduct, but his dismissal occurred because at least in part he was unable effectively to participate in the disciplinary process and could not put forward explanations when put to him, and they were reasons which related to his disability. HIS HONOUR JUDGE McMULLEN QC This is case is about the handling of allegations of gross misconduct against a profoundly deaf employee. The judgment represents the views of all three members who read what we considered to be the relevant papers from the mass presented to us, upon which the parties could not agree as to what was essential. Our reasoned judgment has been held up in part for written submissions which we invited, and in part for reasons outside our control, as explained to the parties when we told them the result. We will refer to the parties as Claimant and Respondent. Introduction[2]It is an appeal by the Claimant and a cross-appeal by the Respondent in those proceedings against a decision of an Employment Tribunal sitting over four days at London (South), Chairman Ms M E Stacey, in early 2004, registered with Extended Reasons on 17 August 2004. An explanation was given to the parties for the delay and no point is taken on appeal. The Claimant was represented there and here by Ms Tess Gill of Counsel. The Respondent was represented there by a consultant and today by Mr Adrian Lynch QC.[3]The Claimant claimed unfair dismissal and unlawful discrimination contrary to the Disability Discrimination Act 1995 in that the Respondent treated him less favourably for a reason relating to his disability, and failed to make reasonable adjustments for his disability. The Respondent contended it dismissed him for gross misconduct, having made reasonable adjustments in the disciplinary process for his admitted disability.[4]The essential issues as defined by the Employment Tribunal were as follow:
"1. This matter came before us on the issues of unfair dismissal and disability discrimination. The Respondent admitted that the Applicant had been dismissed and put forward a reason of conduct which was accepted by the Applicant as a potentially fair reason for dismissal. The issue for determination by the Tribunal was whether the Applicant's dismissal for conduct was fair within the meaning of Section 98(4} of the Employment Rights Act 1996 (ERA). The Applicant complained that the Respondent had not followed a fair procedure in seven regards (paragraph 47(i), - (vii) -Page 14 of the agreed bundle) and that the dismissal was substantively unfair and that the penalty of dismissal fell outside the band of reasonable responses. 2. Under the Disability Discrimination Act 1995 (DDA) the Applicant complained that he had been dismissed for a reason relating to his disability (Section 5(1) DDA) and that the Respondent had been under a duty to make adjustments under Section 6 of the DDA and had failed in that duty. Justification was not relied on by the Respondent in respect of either the S.5(1) or 5(2) claims."
[5]The Tribunal upheld the claims of unfair dismissal and of discrimination contrary to section 5(2) of the Act i.e. reasonable adjustments. It rejected the claim of discrimination under section 5(1) i.e. less favourable treatment. A remedies hearing has been put off pending this appeal.[6]The Claimant and Respondent each appeal against adverse parts of the decision. Directions sending this appeal to a full hearing were given in Chambers by Cox J who noted that the case involved an important issue for the handling of disciplinary proceedings where a profoundly deaf person was involved. Arrangements were made, as they were for the Tribunal hearing (where there was a Palantypist, Speech to Text Reporter for Deaf and Hard of Hearing People), for interpreters to be present throughout so that the Claimant could understand the proceedings by sign language. This is the first time this has happened in the EAT and, with appropriate breaks, the Claimant has been able to participate in our proceedings and this set up has worked well. The legislation[7]The relationship between the provisions affecting unfair dismissal and disability discrimination was set out in our judgment in Claydon House Ltd v Hamilton Bradbury UKEAT/0315/04 as follows: 9. The relevant provisions of the legislation are contained in the Employment Rights Act 1996. The right to claim unfair dismissal is given by section 94. An employer must show that the reason for dismissal fell within section 98(2) or was "some other substantial reason" pursuant to section 98(1). The reasons include conduct and capability. Capability is defined by section 98(3) as meaning "capability assessed by reference to skill, aptitude, health or any other physical or mental quality". Fairness is determined by section 98(4).10. …11. As for disability, prior to the amendment of the Disability Discrimination Act 1995 with effect from 1 October 2004, the Act provided in relevant part:
"4(2) It is unlawful for an employer to discriminate against a disabled person whom he employs (d) by dismissing him, or subjecting him to any other detriment." 5(1) For the purposes of this Part, an employer discriminates against a disabled person if- (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would 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." 6.(1) Where – (a) any arrangements made by or on behalf of an employer, or (b) any physical feature of premises occupied by the employer, place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect. (2)Subsection (1) (a) applies only in relation to- (a) arrangements for determining to whom employment should be offered; (b) any term, condition or arrangements on which employment, promotion, a transfer, training or any benefit is offered or afforded."
Section 6(3) contains a list of examples for what are known as reasonable adjustments. Section 6(6) deals with knowledge: "6(6). Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know- (a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the employment; or (b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection 1(1).[8]The adjustments referred to are found in section 6(4):
"6(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 made, 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."
[9]Discrimination otherwise unlawful can be justified, but for reasons which we explain it is not necessary in this appeal to consider that matter.[10]There are also a Code of Practice and Regulations, but no particular provision is relied on here. The Employment Tribunal was addressed by Ms Gill in respect of the code, but no specific finding is made in relation to that. The Tribunal made a specific finding that there was a breach of the ACAS code on discipline, requiring a fair hearing The facts[11]The Respondent is part of a large group of companies principally engaged in cleaning which provides services to industrial and commercial businesses.[12]The main actors in this drama who gave evidence are Linda Hellens - Intranet/Extranet Manager; John Baccolini - Communications Manager; Melanie Ward - H R Adviser; Jenny Sener - Appeal Chair. The Claimant gave evidence:; Katherine Davis, - his sister, qualified teacher of deaf people, and representative at the appeal hearing; Colin Sayer - teacher of deaf people. In addition the Tribunal had written evidence on behalf of the Applicant from Vera Ward (Interpreter) and Simon Robinson (Legal Officer for the Royal National Institute for Deaf People).[13]To add a personal dimension, the Claimant had a good working relationship with Ms Hellens and considered her to be a friend and (wrongly) understood she would represent him at an investigatory hearing. Ms Hellens had personal family experience and some skills in communicating with deaf people. Mr Baccolini was Ms Hellens' line manager who conducted the disciplinary hearing immediately following the investigatory hearing. It was particular hard for the Claimant to understand him. Ms Ward is the physical embodiment of the Tribunal's finding that the Respondent's undertaking had significant administrative resources (for the purposes of the Employment Rights Act 1996 section 98(4)).[14]The Tribunal provided a very helpful insight into the nature of the Claimant's deafness:
"5.1 The Applicant, Mr Taylor, is profoundly and pre-Iingually deaf and, as a consequence it is more difficult for him to communicate with the hearing world than it is for the hard of hearing. Mr Taylor was not taught to sign at his school for the deaf and was instead taught to adapt to the hearing world by lip reading. He has no mother tongue and has acquired an understanding of English (both lip reading and reading of the written word) without ever having heard any language. He has learnt various sign language systems since school but is not of the same standard of ability of someone who has learned sign language at a very early age. British sign language (BSL) is recognised as a language in its own right using hand shapes, movement of the hands and lip patterns and facial expressions. It has its own grammar, lexicon and idioms and is completely different from English. 5.2. Lip reading is an imprecise art and involves continuous guess work. The ability to lip read accurately depends on a number of factors such as the quality of the light, the ability of the person speaking to speak clearly and slowly and the familiarity of the subject matter, words used and speaker to the lip reader. Lip reading becomes more difficult in stressful situations. Lip reading is significantly harder in a meeting with more than one person and it is very difficult to pick up nuances, tone and mood through lip reading. Mr Taylor understands 90 - 95% of words used in a familiar context which he regularly used. He understands approximately 70% of lip reading if the words are familiar though some people, such as Mr Baccolini are more difficult for him to lip read. If a person is using unfamiliar words they have to be written down in English on paper and he understands, for example, some 60% of the Times newspaper. He has difficulty in understanding the significance of certain words and sentences and when he nods, it does not necessarily signify assent or agreement but is often used to show that he is concentrating and doing his best to follow through lip reading or reading the written word. 5.3. The Applicant is intelligent and well qualified (see for example his application to the Respondent company at pages 20A - E). He has 8 O levels, 3 A levels and a BSC in civil engineering and has undertaken a number of further educational in-house courses in information technology during his 3 year employment at Royal and Sun Alliance between 1985 and 1998."
[15]The chronology of the events in this case is short and both Counsel accept that there was little dispute between them on the facts. That being so, we will take our account from Ms Gill since, as will become clear, we accept her submissions.[16]Mr Taylor, is profoundly and pre-lingually deaf. He was employed by the Respondent in 1999 as a payroll programmer/analyst. In January 2003, he was redeployed as a database developer/analyst after his previous post became redundant. Mr Taylor usually communicated through lip-reading and through the written word although not always without difficulty.[17]On 22 September 2003 Mr Taylor received an email from Ms Campbell, another employee of the Respondent. She asked for help with the database system, which Mr Taylor had helped design. He immediately began work on the problem via remote access. He emailed several emails from Ms Campbell' s terminal to his own which were found not to be relevant to the work he was doing for Ms Campbell. Ms Campbell reported this to Mr Taylor's line manager, Ms Hellens.[18]On Friday 26 September 2003, Ms Hellens suspended the applicant for unauthorised access of Ms Campbell' s email account. On Monday 29 September an investigatory meeting took place with Ms Hellens. Mr Taylor wrongly understood that Ms Hellens would be acting as his representative. He was therefore when asked said he did not want to be accompanied as he thought he was being represented.[19]Ms Hellens decided there was a case to answer and a disciplinary hearing took place that afternoon, with Mr Baccolini. Mr Taylor found Mr Baccolini particularly hard to lip read and he did not fully understand what was happening. Nothing was written for Mr Taylor before or at the commencement of the hearing to explain it was a disciplinary hearing and the Tribunal found that he did not participate effectively or understand what was happening. Mr Taylor was dismissed. The hearing lasted between 15-30 minutes. The Tribunal found that Mr Taylor understood the questions being asked when he provided the written answers but he did not understand that he was dismissed.[20]Mr Taylor appealed and asked for an interpreter at the appeal hearing and complained that there had not been an interpreter at the previous meetings. He tried to explain the matter was a misunderstanding and an over-reaction.[21]An appeal took place on 17 November 2003 commencing at 10.am. An interpreter was provided by OCS but only for two hours. She stayed until 12.30pm. After this time the hearing continued for another 1½ hrs during which time Ms Davis, Mr Taylor's representative, was also required to interpret for Mr Taylor. The hearing was by way of a review rather than a rehearing and the Appeal Chair subsequently confirmed the decision to dismiss.[22]The Tribunal held that: i. the dismissal, which was by reason of conduct, was unfair as Mr Taylor was not effectively able to participate in the process leading to his dismissal and as a consequence the procedure by which his dismissal was arrived at was fundamentally flawed, (para 15); ii. The dismissal was not a breach of s.5(1) DDA as the material reason for the dismissal was Mr Taylor's conduct and was not related to his disability, (para 27); iii. OCS had failed to make reasonable adjustments (viz. the provision of an interpreter) contrary to section 6 DDA , and had discriminated against Mr Taylor contrary to s5(2) DDA , (paras 28/29).[23]The Tribunal elaborated on its reasons as follows:
"15. It is trite law to repeat that the right to be heard is one of the basic tenets of natural justice and the importance of the need for someone to be able to make representations on the allegation against him is well recognised in the field of employment law. In this case we find that the Applicant was not able to effectively participate in the process leading to his dismissal and the procedure by which his dismissal was arrived at was fundamentally flawed as a consequence. We accept that he understood the questions that were posed to him in the investigatory hearing although he did not understand the role Ms Hellens played at the meeting. However the disciplinary hearing was hopelessly flawed as he clearly did not understand what was happening to him and he clearly did not have an opportunity to "put his case before Mr Baccolini made the decision to dismiss as is evident from the first comment made by him after the dismissal decision was announced when he asked "
Can you say how bad my situation is?" It is fundamental to the concept of reasonableness in the context of unfair dismissal that an employee be aware of what is happening and why at all stages of the formal disciplinary procedure. 17. We further find that the appeal hearing was not a rehearing but was a review. Ms Sener explains in her statement (see paragraph 8) that she agreed to hear the appeal to see if any new grounds might be stated during the process. Although we accept that her review was thorough, it did not constitute a rehearing and it is also confirmed in paragraph 30 of her statement where she concludes that Mr Taylor had brought no new explanation or information forward that would change the conclusions of the investigatory hearing or the disciplinary hearing and she considered therefore that she had no choice other than to uphold the decision to dismiss in accordance with the disciplinary procedure. The disciplinary procedure does not provide any detail as to how an appeal should be conducted (p.152). However the premise of Ms Sener's appeal hearing was to review, and not rehear, the original dismissal decision. 18. The Tribunal is aware that some of the answers that the Applicant gave at the investigatory hearing were damaging to his case and we note that the allegations against him the allegations were serious. However the Applicant's lack of understanding and informed participation at the disciplinary hearing was such as to render his dismissal unfair and these matters are relevant for remedy, not liability. 19. We have also disregarded the incident of 4 April 2002 for the purposes of liability (but this may well be relevant to remedy) for several reasons. The "warning" letter did not follow the disciplinary procedure, we were not confident that the Applicant understood its full significance, and under the procedure it would have elapsed in any event since warnings of this type had a currency of twelve months only. 27. Turning firstly to section 5(1) we conclude that the material reason for the Applicant's dismissal was his conduct. We accept that it is a very serious matter for an employee, particularly one based in the IT department with access to other staff members' computers, to forward emails from colleagues' terminals to their own, without permission, that are not related to the job in hand. We agree with Mr Barr that the material reason for the dismissal is not related to the Applicant's disability and the S.5(1) DDA claim must therefore fail.[24]The Tribunal also addressed the section 6 duty by reference to each of the provisions in section 6(4) analytically and again holistically (see paragraph 28). The Respondent's case[25]Mr Lynch QC on behalf of the Respondent makes three separate points. First, the Tribunal failed to appreciate that the hearing before Ms Sener was capable of correcting and did in fact correct any defect at the disciplinary hearing conducted by Mr Baccolini. This is the "re-hearing point". The Tribunal misdirected itself in relation to Whitbread & Co Plc v Mills [1988] IRLR 501 EAT Wood P and members. The Employment Tribunal was referred to Whitbread and relied, wrongly, on it to find that although Ms Sener did conduct a thorough hearing it was incapable of curing the defects it identified at the disciplinary hearing. Although, not referred to it, the Tribunal should have taken the approach, which it is submitted is quite different, set out in Advihilli v Exports Credits Guaranteed Department unreported EAT/917/97 Morison P and members. This requires a Tribunal to have at all times in mind the express language of section 98(4).[26]Secondly, the Tribunal made "inappropriate findings" by reason of its failure properly to construe three relevant documents ("the construction point"). These are the letter of 4 April 2002 which refers to an earlier complaint against the Claimant which the Tribunal used as a basis for its criticism of the Respondent; the note of the disciplinary hearing conducted by Mr Baccolini when it held that the Claimant's nodding did not betoken understanding and consent; and thirdly, documents relating to the Claimant's earlier appraisals when it held that further action was required by the Respondent pursuant to what was agreed then.[27]The third error is that the Tribunal erred in failing to establish what the understanding was by the Respondent of the Claimant's difficulties and whether that was unreasonable ("the reasonableness point"). As a matter of form this is also a challenge to the sufficiency of the reasons given by the Tribunal. It is contended that a number of the findings by the Tribunal are "extremely curious". We make it clear that such a ground does not amount to an error of law.[28]In response to the Claimant's cross-appeal against the finding that the Respondent did not discriminate contrary to section 5(1), it is contended that the reason for dismissal was properly found to be conduct. This was the legally effective cause of the Claimant's dismissal and was not related to his disability. The Claimant's case[29]On behalf of the Claimant it is contended that there is no distinction between the approach in Whitbread and that in Advihilli . The Tribunal correctly applied itself to whether as a whole the process of dismissal was fair. If there were a distinction, it is between a "mere review" and something which in substance regardless of the label is a re-hearing. In this case the task set for Ms Sener by herself was as a matter of construction one of review i.e. looking for new information.[30]As to the construction point, the Tribunal correctly criticised the Respondent for issuing what appeared to be a final warning in 2002 without reference to the proper procedure. But, in any event, this matter was disregarded by the Tribunal and would form part of its judgment when it considers remedy, the appropriate place for it. The Tribunal had sufficient material upon which to basis its judgment about the Claimant's understanding of the disciplinary hearing, including, but not exclusively, the note of the meeting. The Tribunal also had sufficient material to consider the appraisals and what was to be forthcoming as a result of them.[31]On the reasonableness point, the Tribunal did not look solely at matters from the perspective of the Claimant. It warned itself against substitution of its own view for that of the Respondent and fully considered all matters relating to reasonable adjustments.[32]As to the cross-appeal, it is contended that since the Claimant was, by reason of his inability to participate in the disciplinary hearing, unable to avoid a finding of dismissal, or to displace that finding on appeal, at a time when explanations were being sought from him, it is correct to say that the dismissal was by reason of his conduct, but he was dismissed for a reason which related to his disability. His failure to participate in the disciplinary hearing contributed in a significant way to the decision to dismiss him on the ground of conduct. The legal principles and our conclusions 1 The re-hearing point[33]In having to decide, as Mr Lynch submits we should, between judgments of the EAT given by successive former Presidents, we wished to be assured that full research had been conducted into the authorities. We were not so assured at the hearing and invited Counsel to make further submissions. Mr Lynch did so, then Ms Gill, then Mr Lynch again. By this further submission he acknowledged that traditional methods of researching authorities are not always adequate, and electronic methods through the EAT, BAILII and Court of Appeal websites, together with other electronic sources, are preferable. He volunteered in writing that his earlier submission should have been prefaced by his admission: "I am such a Dodo". Since we are engaged in the vibrant subject of modern employment law, it is unnecessary for us to add our views on natural history, or on Mr Lynch.[34]As will be seen when we turn to the issue of justification (para 48 below), a technical disposal of this point is possible. Before the Employment Tribunal, it appears to have been accepted by the consultant representing the Respondent that there is a distinction between a mere review and a full rehearing: see reasons para 9. The contention was that a full examination of the circumstances revealed that the internal appeal fell into the second category. Ms Gill on behalf of the Claimant at the Employment Tribunal referred to the same classification by reference to Whitbread v Mills . The issue presented to the Tribunal was therefore whether what occurred at the appeal was capable of curing, and did cure, any procedural defect found at the first hearing. If it was curative, it seems to us that the shorthand classification as a full rehearing is apt, and if it was not so curative, a mere review is also an apt shorthand description. That means, in our judgment, that the Tribunal was engaged in an assessment of the facts relating to the first and appeal hearings.[35]The two-fold classification was based on authority, Whitbread v Mills . The requirement to look at the whole of the statute when considering fairness requires attention to the whole of the process: see Advihilli . The assessment of any of the hearings as being capable of curing a fundamental defect is one of fact for as Morrison P put it in Advihilli :
"Whether the procedural defect which had been identified by the… Tribunal was corrected by that process or not, is purely a question of fact and judgment for the [Employment] Tribunal as it seems to us."
[36]A simple disposal of this ground of appeal commends itself. Since the sole issue before the Employment Tribunal was to assess whether defects occurred at the first hearing and if so whether they were cured at the appeal hearing, such assessment is one of fact. It is not open to the Respondent on appeal to raise the new point challenging the accepted classification, but if it is, this matter has been disposed of as one of fact in accordance with Advihilli , the sole authority relied on by the Respondent.[37]However, since we have heard and read substantial submissions on this point we will give reasons additional to those we have given above.[38]The classification into reviews and rehearings is one well established as the authorities cited in Whitbread v Mills make clear. The most important source appears to be the speech of Lord Wilberforce in Calvin v Carr [1979] 2 All ER 440 who identifies on behalf of the Privy Council three categories of case where what occurs at a second hearing or appeal may affect what has occurred at the first. Mr Lynch argued, and without dissent from Ms Gill and we consider it to be correct, that in an employment relationship such as the one we are dealing with, where written procedures provide for first and second stages, the parties have put their case within the "intermediate" category. This means that they have agreed that if there is a defect in treatment at the first stage, a fair treatment at the second stage can put it right. That is what the parties have bargained for. Some employment cases may also fall within Lord Wilberforce's "extreme" category, cases where nothing short of complete fairness at both first and second stages is what the relationship demands. In his examples occur some employment cases and trade union cases.[39]Following the researches of Counsel, the following appears to be common ground. Whitbread v Mills has been followed and relied upon in at least 25 unreported EAT judgments from 1998 to its two most recent emanations in a judgment of mine in Sewards v Autoglass Ltd [2004] UKEAT/0483/04 and of His Honour Judge Peter Clark in Wise v Filbert Realisations (Formerly Leicester City Football Club) (In Administration) UKEAT/0660/03. In that case the EAT carried out a careful critique of the principles in Whitbread v Mills and applied that judgment.[40]In addition to HSBC v Foley [2000] IRLR 827 , which we drew to the attention of Counsel at the oral hearing, the Court of Appeal has cited and applied Witbread v Mills without disapproval. Most recently in Brown v TNT [2001] ICR 182 Peter Gibson LJ noted at paragraph 43 that when considering whether a dismissal is unfair, the whole of the dismissal procedure including any appeal must be considered. A distinction also should be drawn between cases where a failed appeal has rectified a procedural error at an earlier hearing and those where the defect was substantial and could not therefore be cured on appeal. In addition, Whitbread v Mills was referred to but not cited by the Court of Appeal in Whitbread v Hall [2001] ICR 699 . In none of these cases (and we must assume there were references to Whitbread v Mills in unreported cases which have not been drawn to our attention prior to 1998 for which electronic records are not searchable), there has been no mention of Advihilli or the principles said to be contained within it. On the other hand, there is no judgment expressing doubt about the principle in Whitbread v Mills . In our judgment the correct approach to Advihilli is to regard it as Morrison P did as an authority restating the importance for an employment tribunal to look at the words of section 98(4) in considering fairness and in particular in considering fairness of procedures used in internal disciplinary hearings. We do not consider that the EAT there was declining to follow Whitbread v Mills or expressing any doubt upon its correctness. Once it is recognised that the process is not one simply of labelling but of assessment of the circumstances at, in any given case, first and second hearings, it is not an error and indeed it is convenient to adopt the shorthand classification found in Whitbread v Mills .[41]With those observations in mind, we then turn to the assessment conducted in this case. As we have indicated, this was a matter of fact for the Employment Tribunal. It is clear to us that Ms Sener regarded her task as one of reviewing an earlier decision with fresh representations. Although her task was conducted thoroughly, the Tribunal cannot be faulted in its depiction of the circumstances as being a mere review falling short of the thorough re-examination required for the correction of the earlier procedural defect. We therefore hold that the Tribunal correctly adapted the approach in Whitbread v Mills to its task, as it had been invited to do, and its evaluation of the circumstances cannot be faulted. This ground is dismissed. 2 The construction point[42]This point arises out of that part of the Notice of Appeal (para 6(c) (2)) which squarely advances a case of perversity. Yet it was moulded into a construction point in Mr Lynch's skilful hands. It is plainly inappropriate to describe as a pure point of construction, and thus of law, what a Tribunal is doing when it makes a decision which, on the evidence before it, no reasonable Tribunal could make. That is the language of perversity. The test for perversity raises the bar very high: Yeboah v Crofton [2002] IRLR 634 para 12 per Mummery LJ. An overwhelming case must be made out for it to succeed.In this part of his oral argument, Mr Lynch cited, but did not produce for us, several authorities the most important of which appears to be Davies v Presbyterian Church of Wales [1986] ICR 280. He agreed that the case stands for the proposition that where the issue is whether a person is an employee or engaged on some other contract, and all of the material relevant to the decision on that issue is documentary, a question of law is raised, capable of appeal in a jurisdiction which admits only of questions of law, like ours. Mr Lynch equally accepted that where the material includes, but is not limited to documents, a mixed question of fact and law arises which is not susceptible to appeal.[43]The first point to which this argument is directed relates to a 2002 event when the Claimant received a letter. We say at once that we cannot understand the respective positions of Counsel in this case, given the finding of fact and self-direction by the Tribunal that it was to disregard this letter until it comes to remedies. The reason it gave was that the letter did not take place within the formal disciplinary context and in any event it was time-spent. The gist of the letter is contained in the following:
"It must be clearly understood that any breach of this policy will be taken very seriously and made lead to dismissal…."
The Tribunal held that this purports to be a final written warning. It was submitted to the Employment Tribunal by Ms Gill that the letter should be discounted as constituting a warning under the disciplinary procedures, for such was conceded by the Respondent's witnesses. The Tribunal thus disregarded the incident. On appeal the criticism by Mr Lynch is that the Tribunal was wrong to hold this to be a final written warning, since the Respondent did not issue it under the disciplinary procedure. It thus erred in law in criticising the letter. Nevertheless, as we understand Mr Lynch's submission, since the letter was shown to the Claimant at Mr Baccolini's hearing, it was relevant to Mr Baccolini's decision to dismiss the Claimant for reasons which were related to 2002 incident. On appeal, Ms Gill argues that the Tribunal was entitled to make a finding in effect that this was a final written warning.[44]Our conclusion on the unpromising forensic situation placed before us is that the issue is not one of construction. The letter itself contains words which are plainly a warning that future conduct of this nature, may result in the Claimant's dismissal. Yet, the Tribunal also considered the Claimant's appreciation of this matter and the actions of the parties at that time. The Tribunal is correct to say that this purports to be a final written warning, carefully avoiding depicting it as a warning within the formal disciplinary process. If it were within the formal disciplinary process, it would be relevant to events in 2003. But, by then, whatever its proper character, it had expired. An employee is entitled to know whether a warning is held on file and for how long. It was an issue for the Tribunal to consider whether it constituted the kind of warning which would trigger, on a repeat offence, an immediate dismissal. But, in making that decision more was to be considered then the simple language of the letter, for example the conduct of the parties, what each then understood, the way it was raised at the disciplinary hearing before Mr Baccolini, the understanding of the parties at that stage, and use of the formal disciplinary procedure as illustrated by the letter summoning the Claimant to the investigatory hearing which undoubtedly includes a warning that the Claimant is at risk of his job. The Tribunal was also entitled to take a view based upon the existence of sophisticated disciplinary procedures within this employment. Thus, it was considering far more then the letter itself and we reject the contention that it was engaged upon an issue of construction. That being so, as a matter of mixed fact and law, the decision of the Tribunal that this purported to be a final written warning cannot be faulted on appeal.[45]Far more important, however, is the fact that the Tribunal discounted it. That too is a question of fact. Whether it was reasonable for Mr Baccolini to regard this letter, not made in the context of the formal disciplinary procedure and time-spent, as instrumental in his decision to dismiss, was a question for the Employment Tribunal to decide. For the reasons which it gave, it disregarded this letter and that finding is not susceptible to an appeal.[46]We then turn to the appraisals: again the note does not tell the complete story. This is not a question of pure construction. Evidence was given about the appraisals. In our judgment, the Tribunal did not misinterpret the note taken and the forward responsibilities which that note described. We see no error in its approach.[47]Finally, we take the same view of the note of the disciplinary proceedings. We bear in mind that it is not our job to go through the evidence before the Employment Tribunal line by line, as Mummery LJ reminded us in Yeboah v Crofton (above). It is plain that the Employment Tribunal had before it considerably more material relating to this disciplinary process, than is contained in the note. The most obvious matter which emerges from the careful description by the Tribunal of the Claimant's disability is that when the Claimant is involved in face to face meeting with managers, far more is going on than can be determined by reference to a written note. The combination of signing, written questions and answers and observation of facial and body language mean that by definition, a note cannot be the complete account of the meeting. To consider this as a matter of construction, and thus of law, therefore misunderstands in a fundamental way the nature of the relationships in this case. This ground of appeal is rejected. 3 The reasonableness point[48]Mr Lynch addressed a sosphicated argument to us based upon the judgment of the Court of Appeal in Collins v National Theatre Board [2004] IRLR 395 . Sedley LJ (paras 9-21) deals with the distinctions to be found in the justification defences under respectively sections 5(3) and 5(4) of the Disability Discrimination Act 1995 . Mr Lynch contended that this approach affects the approach to reasonableness which informs the question of fairness under section 98(4) of the Employment Rights Act 1996 and less favourable treatment and failure to make adjustments under sections 5(1) and 5(2) of the DDA 1995 . Reference was made in Collins to Jones v Post Office [2001] IRLR 384 which indicates that the band of reasonable responses approach, accepted for the purposes of unfair dismissal, also applies to certain stages of the examination of issues under the DDA .[49]We listened carefully and tried to follow Mr Lynch's oral argument before realising the context in which it was raised. The relevant passages in Collins relate to an examination of the defence of justification. The proposition which Mr Lynch advances by reference to Collins does not appear in the Notice of Appeal or in his Skeleton Argument. The Employment Tribunal was not addressed on justification nor were sections 5(3) and 5(4) referred to. It expressly found that the Respondent did not rely upon justification: reasons para 26. We do not know what the Tribunal's reaction would be had it defined as an issue or received a submission, as we have, that reasonableness for the purposes of section 6(1) should be decided in accordance with a particular construction of section 5(3) and 5(4). It would certainly need to hear evidence and make findings. It played no part in Cox J's decision to allow this case to go to a full hearing. This point must have occurred to Mr Lynch more than seven days ago. No application has been made to us pursuant to Practice Direction paragraph 8 relating to new points of law. In those circumstances we are deep in the territory of new points of law. Although Ms Gill did not take the point, we are entitled to rely on what the Court of Appeal has cited with approval as "the EAT's own jurisprudence" and refuse to allow the new point to be raised: Divine-Bortey v Brent LBC [1998] ICR 886 CA, 895E per Simon Brown LJ. It is true to say that Ms Gill's Skeleton Argument includes a headline "Evidence to justify breach of reasonable adjustments" and refers to the Notice of Appeal ground C2(c). But that ground is not an attack upon the Tribunal's plain finding that justification was not in issue. This ground of appeal does not raise justification in its statutory sense. It is not an issue which we will allow to be raised before us for the first time.[50]Turning then to the arguments which are raised in the grounds of appeal and in the Skeleton Argument, the heart of Mr Lynch's complaint on behalf of his client is that the Tribunal focused exclusively on the Claimant's perspective of the disciplinary process, without reference to the Respondent's. In our judgment, this is unsustainable. The context in which reasonableness arises for the purposes of the DDA 1995 is section 6(1). The Tribunal looked both analytically and holistically at the measures set out in section 6(4) and gave definitive answers with cogent reasoning in respect of each one: see paragraph 28 of its reasons. Self-evidently, these do not focus exclusively on the Claimant's perspective. Even on the one matter upon which the Respondent relies as placing a responsibility on the Claimant to see that certain matters post-appraisal were dealt with in a different way, the Tribunal finds that this was a dual responsibility. Those findings addressed to the DDA can be read across to the Tribunal's treatment of section 98(4) of the Employment Rights Act . The Tribunal also paid attention to the ACAS code and made findings about the Claimant's understanding of what was going on in the context of the long relationship between himself and his managers.[51]It must be recalled that a finding as to reasonableness is one of fact: Kent County Council v Gilham [1985] IRLR 18 CA per Griffiths LJ at para 24, per Dillion LJ para 41 and Waller LJ para 47. The Tribunal directed itself correctly on both statutes, and on the ACAS code relevant to unfair dismissal. Its decision as to what was reasonable under both of these statutes was a matter of fact for it and we will not interfere.[52]We reject the contention that the Employment Tribunal gave insufficient reasons for its decision. The reasons on its application of the test of reasonableness are clear and cogent and speak for themselves. 4 The cross-appeal on disability discrimination[53]As to the cross-appeal, it is contended that since the Claimant was, by reason of his inability to participate in the disciplinary hearing, unable to avoid a finding of dismissal, or to displace that finding on appeal, at a time when explanations were being sought from him, it is correct to say that the dismissal was by reason of his conduct, but he was dismissed for a reason which related to his disability. His failure to participate in the disciplinary hearing contributed in a significant way to the decision to dismiss him on the ground of conduct.[54]The correct approach to determining what is a reason for discrimination is contained in Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 at para 29 per Lord Nicholls. "29. (3) 'by reason that' Contrary to views sometimes stated, the third ingredient ('by reason that') does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many vents leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the 'operative' cause , or the 'effective ' cause. Sometimes it may apply a 'but for' approach. For the reasons I sought to explain in Nagarajan v London Regional Transport [1999] IRLR 572 , 575-576, a causation exercise of this type is required either by s.1(1)(a) or s.2. The phrases 'on racial grounds' and 'by reason that' denote that a different exercise: why did the alleged discriminator act as he did? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact."[55]We made available to Counsel the judgment in Claydon House (above). In that case a disabled employee, dismissed for conduct for the purposes of unfair dismissal, was also found to have been dismissed for a reason which related to her disability. She had been absent, her absence caused problems of cover and expense and her absence was caused by her illness which was attributable to disability within the meaning of section 1. We held as follows:
"25. The expression "which relates to" is wider than "on the grounds of": see Rowden v Dutton Gregory (A Firm) [2002] ICR 971 Lindsay P at 973. The approach to the assessment of compensation under the Disability Discrimination Act 1995 is the same as that for damages in tort: section 8(3). In the field of sex discrimination, a woman succeeds if she proves that her gender had a significant influence on her employer's decision to treat her in a particular way; and once she puts forward prima facie evidence, her employer must prove that her gender did not have a significant influence: Chamberlin v Emokpae [2004] ICR 1476 , 1487 at paras 34, 37 applying the principles cited by Lord Nicholls in Nagarajan v LRT [1999] ICR 877 , 886 (a race discrimination case) to the reverse burden of proof under the Sex Discrimination Act 1975. Yet both those statutes require a stronger connection to the proscription than the looser connection denoted by "relates to" in the DDA. It is not a misuse of language to say that if disability were a factor in the decision to dismiss, then the dismissal was for a reason related to the disability. In order to recognise the difference in the language of the statutes, we consider that the degree of relationship to disability must be more than token or minimal. 34. We then turn to the relationship between that finding and the finding for the purposes of unfair dismissal that the reason for the dismissal was gross misconduct. Is the unchallenged finding of unfair dismissal vitiated by the finding of disability discrimination? We do not accept that there is an inconsistency. One relates to the reason for dismissal and the other relates to the decision to dismiss. The language of these two statues is different. For the purposes of unfair dismissal, the employer must show a reason or, if more than one, the principal reason for the dismissal. When it comes to fairness, the Tribunal "has regard" to this reason. The Respondent here advanced conduct as the reason, or some other substantial reason which caused it to lose trust and confidence in the Applicant. A broader approach has to be taken to section 5(1) of the Disability Discrimination Act 1995. Can it be said that the reason for dismissal i.e. gross misconduct "relates to" the Applicant's disability? Here the chronology is important. Disciplinary charges were framed against the Applicant only after she had been absent for a considerable period of time and correspondence with the local authority had advanced the matter no further. The Applicant's medical prognosis gave no certainty of the date of a return to work, if at all. The cost of the Applicant's absence and the need to provide a manager both caused Mrs Jeffery to decide on 3 October 2002 that the Applicant should be dismissed. 35. The vehicle chosen for dismissal was labelled gross misconduct, but the decision to dismiss, and to dismiss at that time, were plainly related to the Applicant's absence and thus disability."
[56]Although there is mention there of the burden of proof in Chamberlin , its reversal by the Court of Appeal and reinforcement of the evidence required, does not directly affect our judgment here where the burden is not an issue. The finding in our case was that the Claimant was not able effectively to participate in the process leading to his dismissal. The dismissal was arrived at as a result of a fundamental flaw. In our judgment, there is no inconsistency between a finding of dismissal for misconduct, which as Mr Lynch points out is common ground, and that the dismissal was for a reason which related to Claimant's disability. There is substance in his submission that in ordinary language the employer here dismissed for misconduct and if that conduct had nothing to do with disability, it cannot be a reason under the DDA as well. This was the approach in London Clubs Management Ltd v Hood [2001] IRLR 719 EAT, where the sole issue was the application of the employer's sick pay policy to the Claimant.[57]In this case, however, what the Tribunal regarded as a fundamental element in the process i.e. effective participation by the employee in the investigatory and disciplinary stages, was missing. The Tribunal found that this was a case where procedures might have been relevant (reasons para 15). The Claimant was unable to make representations on the allegations made against him. His lack of understanding and effective participation made the dismissal unfair. His dazed response when the dismissal was communicated to him is evidence enough of that. The most important finding (para 15.15), since he could not understand what was happening, is that he could not "give an adequate or acceptable explanation for his actions" when put to him. That failure was significantly influenced by his disability. His dismissal was for conduct, but the decision to dismiss was partly based on his failure to give an adequate explanation. That is a reason which relates to his disability.[58]We therefore uphold the Claimant's cross-appeal. The sole result of such a decision is, as Ms Gill submitted, that we should substitute our view. Mr Lynch did not resist that approach or suggest any other. We have sufficient material and having identified the error of law, which is essentially a failure logically to follow through the finding of fact that the Claimant was unable to participate and unable to give adequate explanations, both on the grounds of his disability, it is open to us to substitute our view. The Claimant was dismissed for a reason which related to his disability.[59]We would very much like to thank both Counsel for their submissions. The appeal is dismissed. The cross-appeal is allowed and the case will now go to the Employment Tribunal for remedies. We note that there is no challenge to the finding by the Tribunal that the remedies in respect of unfair dismissal will include submissions and evidence in relation to Polkey and contributory fault. These are issues relevant to unfair dismissal, but do not arise under the DDA . Appeal[60]The Appellant's application for permission to appeal is refused. There is no reasonable prospect of success in either point and there is no compelling reason for the Court of Appeal to consider them. It is not reasonably arguable that the Court will find a distinction between Advihili and Whitbread , or if it did that it would decline to apply long established principles set out in Whitbread and applied extensively by that Court and by the specialist jurisdictions at first instance and on appeal, the Court no doubt guided by the principle of caution in Secretary of State v Cooke [2001] EWCA Civ 734 para 16 per Hale LJ. There is no reasonable prospect of success in the contention that a dismissal of a disabled worker on grounds partly related to his inability to understand the disciplinary proceedings is not for a reason related to that disability, and no compelling reason for it to be heard.