NTL GROUP LIMITED v MISS M DIFOLCO [2006] UKEAT 0120_05_2701

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0120_05_2701Case No Appeal No. UKEAT/0120/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
NTL GROUP LIMITEDAPPELLANTMISS M DIFOLCORESPONDENT
Before
His Honour Judge J BurkeDate 27 January 2006
[1]APPEARANCES For the Appellant MR JONATHAN COHEN (Of Counsel) Instructed by: NTL Group Ltd Legal Services NTL House Bartley Wood Business Park Bartley Way Hook Hampshire RG27 9UD For the Respondent MS JANE WOODWARK (Of Counsel) Instructed by: Messrs Bishop & Sewell Solicitors 46 Bedford Square London WC1B 3DP SUMMARY The employee was made redundant while working a 3-day week, on one day of which she worked at home, after a fall at work. The redundancy pool consisted of the employee and one colleague only; the colleague had less experience in the industry although more experience with the employers. The selection exercise did not take into account the employees previous experience. The Tribunal found that the employers had failed to make reasonable adjustments in relation to the relevant exercise, in the provisions for working from home and in respect of alternative employment and that the employer had been unfairly dismissed in a flawed selection exercise, without proper consultation and efforts to find alternative employment. There was also a finding of part-time worker discrimination. The Tribunal's conclusions on the central issue, the selection exercise were flawed because their reasons for so concluding were insufficient, as were their reason for some of the conclusions as to working arrangements. We remitted the issues as to which we allowed the appeal to a fresh tribunal. The appeal as to consultation and alternative employment failed. HIS HONOUR JUDGE J BURKE QC The Appeal This is an appeal against a judgment of the Employment Tribunal, sitting in Thornaby on Tees and chaired by Mr Shepherd, promulgated on 12 December 2004. By that judgment the Tribunal set out their decision and their reasons for their decision that the employee, Miss Difolco, had been unfairly dismissed by her employers, NTL Group Limited (NTL), had been discriminated against on the grounds of disability and had been discriminated against on the ground of her status as a part time worker.[2]The employers in this appeal challenge each of those conclusions of the Tribunal. The Facts[3]The Tribunal set out detailed findings of fact at paragraphs 5.1 to 5.24 of their judgment: we will seek to summarize those findings. Miss Difolco was employed by NTL as a service improvement manager from 4 March 2002, based at NTL's offices at Hook, Hampshire. She is a graduate with, at the time, eleven years experience of project management in the relevant industry, telecommunications. Her salary was approaching £60,000 per annum.[4]After only 10 days of her employment Miss Difolco fell down some stairs at her place of work and sustained serious neurological injuries which caused partial paralysis. Substantial symptoms persisted; in a medical report dated 3 June 2003 (bundle PP66/7) she was described as continuing to have numbness of the right arm, diminished grip strength, loss of sensation in the right leg and weakness in that leg requiring the use of a splint to walk. It was accepted that at all material times, she was a disabled person for the purposes of the Disability Discrimination Act 1995.[5]Miss Difolco's family home was in the North-East of England; and after initial hospitalization she went to live with her parents there and received treatment locally. It was agreed that she should return to work on a part-time basis from October 2002; and she did so, working for three days per week. For two of those days she worked at NTL's Teesside offices; on the third day she worked at home. The Tribunal found that she found that regime difficult because she lacked face to face contact with her colleagues, her laptop was unreliable, tasks were slower from home because she did not have a Broadband connection and she was required every two to three weeks to attend meetings in Hook.[6]Because of the need to attend those meetings, as the Tribunal found, Miss Difolco was signed off work for a further two months in February 2003; but she continued to do some work from home. She was not able, at any time before her contract of employment came to an end on 12 March 2004, to return to full time work.[7]While Miss Difolco was off work because of her injuries, in July 2002 NTL appointed another service improvement manager, Mr Lewis. He was ten years younger than Miss Difolco and was not a graduate; he was appointed from within NTL for whom he had worked for four years. His salary was in the region of £25,000; it seems that NTL had a policy of paying external recruits the market rate whereas internal promotions provided employees with substantially lower pay; but, the Tribunal found that Mr Lewis was paid substantially less because of his lack of qualifications and experience in the industry when compared to Miss Difolco.[8]In October 2003 Mr Melrose, who was the head of internet service improvement and therefore Miss Difolco and Mr Lewis' line manager, informed Miss Difolco that the number of service improvement managers was to be reduced from two to one. One of Mr Lewis and Miss Difolco was to be selected for redundancy from a two-person pool. Mr Melrose developed a selection matrix of 13 apparently objective criteria which related for the most part to the abilities and skills of the two relevant employees but included attendance, disciplinary record, career potential and appraisal rating. However the Tribunal found that, when these criteria were applied to the employees, Mr Melrose left out of account their CV's and their previous experience; and there was no consultation about the way in which the criteria were applied.[9]Mr Melrose scored the selection criteria; Miss Difolco scored 50, Mr Lewis scored 67. On 9 October Mr Melrose informed Miss Difolco that Mr Lewis had scored higher and that she was at risk of redundancy and that there would be a consultation period running to 4 November 2003. Miss Difolco appealed against her selection for redundancy; the appeal was rejected on 11 February 2004.[10]On 19 February 2004, Miss Difolco, Mr Melrose and another manager, Mr Langley, discussed alternative employment for her. She felt that the only suitable opportunities would be part-time roles in the North-East, because of her continuing health needs. She was informed that there was a full-time job in Teesside which matched some of her skills but that she would have to apply for it and go through a selection process and that, if successful, it might be possible for her to carry out the role on a part-time basis. Miss Difolco felt unable to apply for this role because it was not intended to be a part-time role and she did not wish to be pressurized into working full-time until she felt able to do so. There is no suggestion that any other alternative post was proposed; and her employment ended on 12 March 2004.[11]The Tribunal found, at paragraph 5.2 of their judgment that, in applying the selection criteria, Mr Melrose limited his consideration to his knowledge of the two candidates' performance while working for NTL. He did not discuss the scoring with anyone else and did not consult Miss Difolco or Mr Lewis with regard to the way in which he applied the selection criteria.[12]We will return to the Tribunal's findings of fact later in this judgment. The Tribunal's conclusions[13]The Tribunal, having directed themselves as to the law at paragraphs 6 to 9 of their judgment, set out first their conclusions on unfair dismissal, at paragraphs 10 to 12. They then set out their conclusion on disability discrimination at paragraphs 13 to 16 and on part-time worker discrimination at paragraph 17 of their judgment.[14]The Tribunal's conclusions as to unfair dismissal can be summarized as follows:(1) there was a genuine redundancy situation;(2) following British Aerospace v Green [1995] IRLR 433 the Tribunal had not carried out a detailed analysis of the criteria or of the scores given to the two candidates on each criterion; but(3) by restricting the application of the criteria to the period of the two candidates' employment with NTL Mr Melrose made it almost inevitable that Miss Difolco would be selected because she had, as a result of her disability and part-time worker status, had limited involvement in NTL's business; thus although the selection criteria may have appeared reasonable, that the application of those criteria was unfair;(4) there was insufficient time or opportunity for reasonable consultation;(5) there was no reasonable attempt to find suitable alternative employment;(6) if NTL had followed a fair procedure it was unlikely that Miss Difolco would have been selected for redundancy;(7) in those circumstances Miss Difolco had been unfairly dismissed.[15]The Tribunal's conclusions as to disability discrimination were that NTL had failed to make reasonable adjustments as they were obliged by s.6(1) of the 1995 Act to make in that they:(1) failed to carry out a risk assessment at Miss Difolco's parents' home or to make further attempts to avoid her having to travel long distances and to arrange for her to have more contact with her colleagues;(2) failed in the selection procedure to apply the criteria so as to take account of Miss Difolco's extensive experience in the telecommunications industry prior to her joining NTL;(3) failed to ascertain whether the job in Teesside which was discussed as possible alternative employment could have been performed on a part-time basis and, if so, to offer the post to Miss Difolco without the need for a competitive selection procedure;(4) all of the above failures were not justified (NTL's case was that there had been no such failures, not that any of them was justified).[16]As to the Part-time Workers ( Prevention of Less Favourable Treatment ) Regulations 2000 , the Tribunal concluded that Miss Difolco had been subjected to detriment because Mr Melrose's decision to confine the application of the selection criteria to the candidates' performance at NTL "meant that" a part-time worker with the length of service of Miss Difolco was likely to score less well than a full-time worker employed in that position for a similar length of time and that that detrimental treatment was not justified. Disability Discrimination[17]We propose to consider first the appeal against the Tribunal's conclusions that NTL had been guilty of failing to make reasonable adjustments, as set out above. It appears to us to be preferable to do so in the circumstances of this case because the effects of Miss Difolco's disability and the manner in which NTL addressed or failed to address those effects clearly has an important role in the Tribunal's decision on unfair dismissal. Indeed Mr Cohen, on behalf of NTL, submitted that the Tribunal had made the mistake of concluding that there was unfair dismissal because there was disability discrimination and said, at an early stage of his oral submissions, that if we were against him on his arguments that the Tribunal had erred in finding disability discrimination in relation to the selection exercise, his appeal on unfair dismissal was bound to fail. Although it is established law that, where unfair dismissal and disability discrimination claims arise from the same facts, the two claims should be considered separately (see British Sugar v Kirker [1998] IRLR 624 and Heinz v Kenrick [2000] ICR 491 ), a point to which we will return, Miss Difolco's injuries and consequent disabilities lie, on any view, at the heart of this case; and it makes, as we see it, good sense to consider the disability discrimination claims first.[18]The Tribunal set out the relevant provisions of sections 5 and 6 of the 1995 Act, as they were at the relevant time in 2003, in paragraph 9 of their judgment; they are familiar provisions and we do not propose to set them out again here. We draw attention to the fact that the Tribunal's conclusions as to disability discrimination were that there had been the failures to make reasonable adjustments which we have already set out; although they did not in terms spell this out, they must be taken to have concluded that in those three respects, NTL had discriminated against Miss Difolco in the manner set out in section 5(2) of the Act by failing to comply with the duty set out in paragraph 6(1) of the Act, which is ordinarily described as the duty to make reasonable adjustments. The Tribunal did not make any finding of disability discrimination by subjecting Miss Difolco to detriment contrary to section 5(1) of the Act, although it was open to them to do so on the parties' pleaded cases.[19]Before the duty to make reasonable adjustments arises, the Tribunal must find as fact that(a) the arrangements made by or on behalf of the employer, or(b) the physical features of the premises occupied by the employer ((b) does not arise at all on the facts of this case) place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled; see section 6(1) of the Act.[20]It is perhaps a statement of the obvious to say, but in this case it is a necessary statement, that the fact that an employee is disabled does not of itself necessarily justify the conclusion that that employee is substantially disadvantaged; otherwise, once it is proved or admitted that an employee is a disabled person within the meaning of section 1 of the 1995 Act, the section 6(1) duty would inevitably arise; and there would be no need for the statutory requirement that a substantial disadvantage be proved before that duty can arise. Of course it is not difficult to think of factual examples where that duty is highly likely to arise; and similarly one can imagine factual examples in which it is unlikely to arise; but whether it does or does not arise has to be considered in the context of each case and of the arrangements made and physical features of the premises provided by the employer in each case, having regard to the nature of the adjustment which it is said should have been made to protect the employee against the alleged substantial disadvantage.[21]Tailored to the context of this case, the position is that a disabled employee is not inevitably going to score less well in a redundancy selection exercise than an employee who is not disabled. Whether a disabled employee is at a substantial disadvantage in a process of redundancy selection or in other facets of his or her employment is a question of fact. In the case of redundancy selection, that question of fact requires an analysis of the nature and application of the criteria by which the selection is determined and the extent to which the disabled employee's chances of scoring as well as an employee who is not disabled is adversely affected by the disability.[22]The point was succinctly made in Kirker , at paragraph 33, in these terms:
"Similarly, in the present case it is clear from authority that the tribunal is not required to carry out its own assessment exercise in a redundancy selection case for the purpose of determining the fairness of dismissal: British Aerospace v Green [1995] IRLR 433 . Whereas for the purposes of a DDA claim, in circumstances where it is alleged that the assessment carried out on the applicant was impermissibly coloured by considerations of his disability, it may be necessary for the employer to lead some evidence to explain how the assessment was reached absent the disability factor."
[23]We will turn to consider specifically the Tribunal's conclusions as to the Part-Time Workers Regulations later in this judgment; but we need at this stage to set out our view that a similar question may arise under those Regulations where the discrimination relied upon is said to have occurred in the conduct of a redundancy selection exercise (as in this case). In order to determine whether a part-time worker has been treated less favourably than the employer would have treated a comparable full-time worker (or would so have treated a hypothetical full-time worker in the absence of a live comparator) by being subjected to a detriment in the conduct of the redundancy selection exercise, the content of that exercise is likely to have to be examined by the Tribunal.[24]In this respect the position differs from that which prevails in unfair dismissal claims in which, in the light of British Aerospace v Green (see above), tribunals are normally not required to investigate the details of the marking during the course of such an exercise as long as the criteria is objective and fair. The Selection Exercise[25]Miss Difolco's primary case before the Tribunal was that she had been deliberately targeted for dismissal and that the redundancy and consequential redundancy selection exercise were set up or manipulated to ensure her dismissal because she continued to be disabled and unable to commit herself to full-time work; see paragraphs 8 and 11 of her Originating Application and paragraph 16 of her witness statement.[26]That is not to say that she did not put her case on the alternative basis that there had been disability discrimination and part-time worker discrimination in the manner in which the selection exercise was carried out; her Originating Application and her witness statement set out how she felt she had been discriminated against in the course of the selection exercise and in her conduct of her part-time work. Her criticisms were specifically and in detail denied in NTL's Response.[27]Although Miss Woodwark on behalf of Miss Difolco submitted in her Skeleton Argument to the contrary, the primary case that Miss Difolco had been targeted and that there was no genuine redundancy was rejected by the Tribunal; see paragraph 10, first sentence, of the judgment – "there appeared to be a genuine redundancy situation". As to the secondary case, there was much contentious evidence during the 3-days of the hearing; there were disputes as whether the criteria were fair and fairly applied and whether any shortcomings which caused Miss Difolco to be marked down arose from her disability or from inherent or other causes. One of the central issues, we accept, was whether Miss Difolco was performing the same or similar work for 3 days per week as that which she would have been performing absent the disability. This was an important issue because it was Miss Difolco's case that she was not given an equal chance to display her skills; it was NTL's case, supported by Mr Melrose's evidence, that she was doing the same level of work and working on the same or similar projects as Mr Lewis and upon which she would have been working had she not been disabled and that, contrary to Miss Difolco's case, she had been fairly marked on the basis of criteria which were applied equally between the candidates.[28]We have set out the Tribunal's conclusions upon Miss Difolco's claim; we must now set out how they reached their conclusions as to the selection procedure. At paragraph 5.13 of their judgment the Tribunal said:
"5.13 The Tribunal is satisfied that by limiting the scoring to his knowledge of the candidates' performance Mr Melrose made it almost inevitable that the claimant would be selected for redundancy. She had only completed approximately 128 full days of employment with the respondent and this was in difficult circumstances when she had been based in the North East and had difficulties travelling long distances and communicating with other members of staff. The Tribunal accepts the claimant's evidence that she was unable to demonstrate her skills to a great extent due to her injury and limited involvement in the respondent's business which was as result of her disability and part-time status. She was a clear and credible witness. Donald Melrose informed the candidates of their individual scores under the selection matrix on 7 and 8 October. He did not inform each of the candidates of the other candidate's score at that time. At a meeting on 7 October between Richard Lewis and Donald Melrose, Richard Lewis asked if he could volunteer for redundancy. It is notable that he had volunteered for redundancy prior to the final selection for redundancy having taken place. The respondent rejected his request for voluntary redundancy on the basis that, as he had the highest score in the selection matrix, they wished him to remain in the role. The Tribunal was concerned that the refusal to accept the volunteer for redundancy was before the completion of the selection process and found this somewhat bizarre in a genuine redundancy situation. On 9 October 2003, Mr Melrose telephoned the claimant and informed her that Richard Lewis had scored higher in the selection matrix and that she was now at risk and the consultation period would run until 4 November 2003."
[29]In relation to disability discrimination, the Tribunal's conclusion were set out in paragraph 15 of their judgment, in these terms:
"15 With regard to the redundancy selection procedure, the Tribunal finds that the respondent failed to make a reasonable adjustment in this regard. The criteria referred to skills and experience. However, the way in which the criteria were applied meant that it was not possible for the claimant's skill and experience to be properly taken into account. This was as a result of her not being able to work full time and to travel and gain full experience of the respondent's organisation due to her disability. The way in which the criteria were applied clearly place the claimant in a substantial disadvantage. It would have been a reasonable adjustment to apply the criteria so as to take account of the claimant's extensive experience and skill in the telecommunications industry. The respondent did not provide any justification for its failure to make this reasonable adjustment. Mr Melrose said that he made a conscious decision not to take into account the candidates' CVs and previous experience other than that gained at the respondent's organisation. This would immediately place the claimant at a disadvantage. She had little opportunity to demonstrate her abilities during her employment with the respondent as a result of her disability. There was some recognition of this during her employment the appeal investigations by the respondent but the Tribunal is satisfied that the appeal did not remove the failure to make the reasonable adjustment and it did not justify such failure."
[30]Mr Cohen's submissions as to paragraph 15, and the conclusions in paragraph 5.13 from which they are derived, is that they were unreasoned or insufficiently reasoned, unsupported by evidence, contrary to the evidence and perverse. If the Tribunal's conclusion that the selection exercise should have involved consideration of the whole of Miss Difolco's CV and previous experience and not only her work with NTL was to stand, it was necessary for it to be found that such consideration would have brought into the exercise factors which would or might have affected the selection favourably to Miss Difolco, which, by reason of her disability, were absent from the exercise; in the absence of such a finding such consideration in logic could not have anything to do with Miss Difolco's disability; and such a finding could only be based on an examination of the criteria and findings as to how Miss Difolco was marked on each criteria and how her marks would or might have been improved, had her CV and full experience been taken into account.[31]As to the finding that Miss Difolco was unable properly to demonstrate her skills, that was a secondary finding of fact which was based on no reasoning, was contrary to the evidence and, if the Respondent's evidence was rejected, did not explain why or on what basis that rejection occurred. Mr Cohen drew to our attention a number of specific aspects of the evidence; it is sufficient for us to refer to the following:(1) an e-mail from Miss Difolco to Mr Melrose dated 6 May 2003 (bundle page 68) the contents of which show that she was content with the work allocated to her;(2) the absence of any written complaint that she was unhappy about the work allocated to her, despite some discussion between Miss Difolco and Mr Melrose on 3 July 2003 in a "development review" as to various ways in which her performance could be improved;(3) the selection matrix completed in her case by Mr Melrose and Miss Difolco;(4) her evidence in cross-examination that she was doing the same kind of work as if not under a disability (bundle page 119), albeit from the Teesside office and from home, and that if Mr Lewis had been working part-time he would have been doing the same type of work;(5) her inability in cross-examination to specify what other work she should have been enabled to perform (bundle pages pp137/8);(6) the absence of any cross-examination of Mr Melrose on the basis that but for her disability Miss Difolco would have had a higher level of work.[32]In the light of this material, Mr Cohen asked rhetorically - how did the Tribunal reach the conclusion that Miss Difolco's disability placed her at a substantial disadvantage or that to take into account her previous experience and CV would have been a reasonable adjustment to rectify such disadvantage?[33]Miss Woodwark on behalf of Miss Difolco accepted that Miss Difolco had, in her evidence, agreed that she was doing the same work as she would have done had she not been disabled (save in reduced quantity because of her 3-day week); but, submitted Miss Woodwark, the thrust of Miss Difolco's evidence was that she could, had she not been disabled, have been doing work which required a greater level of skill than Mr Lewis could display, he being much younger, coming from a different part of NTL's organization, not being a graduate and being at a much lower pay level. The Tribunal, had in that context, found that Miss Difolco had only effectively worked for a short time as a result of her disability; and that put her at a substantial disadvantage as compared with Mr Lewis, which disadvantage could reasonably have been alleviated by taking Miss Difolco's experience elsewhere into account. The Tribunal had made findings of fact which were neither perverse nor unreasoned; they were entitled to accept her evidence.[34]The fact that the principal thrust of Miss Difolco's case was that there was no genuine redundancy or redundancy selection exercise does not affect the decision which we have to make in any relevant way. It is not in dispute that Miss Difolco ran the secondary case that she had been the victim of disability discrimination in the respects found by the Tribunal to have been established, including the alleged failure to adjust the selection exercise by taking into consideration her CV and her experience prior to joining NTL.[35]However, we are persuaded that the decision that there was that failure to make a reasonable adjustment cannot stand, for the following reasons. First, it was in our judgment not sufficient for the Tribunal to base their conclusion on their acceptance of Miss Difolco's evidence. It is correct that she asserted that she had not a sufficient opportunity in the limited time that she had effectively worked with NTL, as a result of her injury and consequent disability, to enable her fully to demonstrate her skills; but her evidence was that she was in general doing the same kind of work as she would have done if not disabled, albeit on a 3-day week, and the same kind of work as her rival Mr Lewis; and a bald statement by the Tribunal that they accepted her evidence was, in our judgment, insufficient to sustain the conclusion that she was at a substantial disadvantage by reason of her disability. A finding that she was unable fully to demonstrate her skills required, as we see it, an identification of the skills which she was unable to demonstrate, some analysis of whether she was able to do better in relation to those skills and how she would or at least might have been able to effect the marking carried out by Mr Melrose in the course of the selection exercise but for her disability and whether her inability to demonstrate those skills to a greater degree was attributable to her disability. The Tribunal did not identify the skills concerned or carry out any analysis which could or did justify the conclusion that she was placed at a substantial disadvantage in the selection exercise because, as a result of her disability, she was on part-time work or was doing work of a reduced status.[36]This criticism of the Tribunal's decision might be unsound if the criteria were or any of them was quantitative; but it was not suggested that any of them was; and as is plain from the matrix (bundle pp 71-75) they were criteria which involved, to a large extent, assessment of the quality and not the quantity of Miss Difolco's work. The Tribunal's decision does not reflect any consideration of the difference between a qualitative and a quantitative assessment.[37]We also regard Mr Cohen's further criticism of the Tribunal's conclusion in this area, as being improperly reasoned, as well founded. The Tribunal have not explained why they accepted the evidence or assertion of Miss Difolco as to her inability to display her skills as a result of her part-time working, save by saying that she was a clear and credible witness. There was a considerable body of evidence, including evidence from Miss Difolco, which pointed against that conclusion; we have referred to the principal strands of that evidence above. There was much evidence as to how she was marked on the selection criteria and as to how the work she was carrying out was not qualitatively different from that which she would have been carrying out absent her disability; but no reasons for rejecting that evidence and finding that Miss Difolco was at a substantial disadvantage or that any difficulties were attributable to her disability appear in the Tribunal's judgment, either in paragraph 5 where they set out their findings of fact or in paragraph 15. The acceptance of Miss Difolco's evidence without explanation as to why other evidence to the contrary was rejected is, in our judgment, insufficient to meet the well-established requirements for a judgment in the circumstances of this case.[38]In English v Emery Reimbold & Strick [2003] IRLR 710 , Lord Phillips MR, giving the judgment of the Court of Appeal said at paragraph 16:
"We would put the matter at its simplest by saying that justice will not be done if it is not apparent to the parties why one has won and the other has lost."
And at paragraph 19:
"19 It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge's conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the judge to identify and record those matters which were critical to his decision. If the critical issue was one of fact, it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon."
[39]In Tran v Greenwich Vietnam Community [2002] IRLR 753 Sedley LJ with whom Brooke LJ agreed said at paragraph 17 "17 For these regrettable reasons, the appeal to this court cannot succeed. But it is necessary to make clear what is being decided and what is not. Mr Fodder, in his generally well-directed submission for the respondent, was prepared if necessary to defend the tribunal's extended reasons as (to coin a phrase) Meek-compliant. While for the technical reasons set out above this appeal does not depend on the answer, no employment tribunal and no advocate or representative practising in the employment field should imagine that a decision as short on reasoning as the present one complies with the legal obligation, if asked, to explain how the tribunal has got from its findings of fact to its conclusions. It may be done economically, but simply to recite the background and the parties' contentions and then to announce a conclusion is not to do it at all; and an opaque reference to the evidence which has been given does not save it. The giving of adequate reasons fulfils many functions, among them the important one of concentrating decision-makers' own minds on what they are doing and demonstrating to the parties and (if necessary) to appellate tribunals that they have given acceptable answers the right questions. I find it disturbing that an experienced lay representative appears to have resigned himself to grappling with reasons which were not there instead of confronting their absence as a primary ground of appeal; and I hope that it does not signify that extended reasons like those given in the present case are becoming usual."[40]While the judgment in this case does not suffer from the very stark deficiencies which were so apparent in Tran , in our view in the light of the nature and depth of the evidence which had been given on the selection issue, the Tribunal did not by paragraph 5 or 15 of their judgment satisfactorily explain, as was necessary in this case, how they came to the conclusion that Miss Difolco's evidence should be accepted or to the conclusion that she had not had an opportunity to demonstrate her skill as a result of her disability or the basis for the conclusion that Miss Difolco was at a substantial disadvantage because of her disability in such a way as to comply with the requirement in Tran for adequate reasons and with the requirement in English , which of course echoes the well-known requirement set out in Meek v City of Birmingham District Council [1987] IRLR 250 to provide sufficient reasoning to enable the parties to know why they have won or why they have lost.[41]Those requirements are, in our judgment, essential components of the obligations as to the written reasons for a judgment. It was not suggested that Para 30(6) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure and Regulations) 2004 has the effect that, if we are correct in our view as to the deficiencies in this judgment, the judgment was nevertheless unassailable because (if it did) it complied with the requirements of paragraph 30(6).[42]The Tribunal further fell into error, in our judgment, in paragraph 15 of their decision in giving as a reason for their finding of a substantial disadvantage the way in which the criteria were applied, i.e. by excluding Miss Difolco's CV and her experience prior to joining NTL. We say that for two reasons; first there was no finding that her CV and previous experience would have improved her performance or marking on any of the criteria or overall; and secondly that exclusion was not found to be (nor was it as far as we know, once the allegation of targeting failed) suggested as being attributable to Miss Difolco's disability or as placing Miss Difolco at a disadvantage as compared with someone who was not disabled.[43]Had the Tribunal reached a sustainable conclusion that Miss Difolco's assessment in the selection exercise was (at least to a material extent) caused by her disability, so that she was, as a result, at a substantial disadvantage as compared with an employee who was not disabled and in the presence of evidence that there was in her CV and previous experience material within the knowledge of NTL that might have redressed the balance or, to put it in statutory language, might have prevented the relevant arrangements having the effect of creating substantial disadvantage, it would have been open to the Tribunal to conclude that taking into account Miss Difolco's CV and previous experience was a reasonable adjustment; but neither of those two pre-conditions for such a conclusion was present.[44]We are fully aware that we must not subject a Tribunal's decision to microscopic examination or "go through it with a fine toothcomb"; nor must we expect a judgment to be expressed as fully as it might have been. We accept too, as made clear in Piglowska v Piglowski [1999] 1 WLR 1360 to which we were referred by Miss Woodwark, that we should not criticize a judgment merely because it could have been better expressed and should read a judgment on the assumption that, unless demonstrated to the contrary, the Tribunal knew how they should perform their functions and what matters should or should not be taken into account (see per Lord Hoffman at page 1372). We are aware too that a judgment must be approached on the basis that it is for the benefit of the parties who are familiar with the detail of the case (see Derby Specialist v Burton [2000] ICR 837).[45]Miss Woodwark was wholly entitled to remind us of these important principles which we have borne in mind; we do not believe, however, that our decision has been reached contrary to those principles.[46]For the reasons we have set out in our judgment the conclusion as to disability discrimination set out in paragraph 15 of the Tribunal's judgment cannot stand.[47]In the circumstances we have not considered any arguments as to perversity. Risk assessment, travel and contact/communication[48]We turn to the conclusions of the Tribunal set out in paragraph 14 of their judgment.[49]Although the Tribunal did in, the penultimate line of that paragraph, find, by implication, that Miss Difolco was placed at a substantial disadvantage by her disability, we agree with Mr Cohen's submission that the Tribunal gave no reason for that finding, save perhaps in respect of the issue as to travel. We will take the criticisms of NTL in the order in which they appear in the sentence in paragraph 14 which sets out the nature of the reasonable adjustments which, the Tribunal concluded, should have been made.[50]The first such adjustment is the carrying out of a risk assessment at Miss Difolco's home; but the Tribunal have not explained why the absence of such an assessment at home, where she worked for one day per week, put her at a substantial disadvantage or, indeed, what kind of risk assessment the Tribunal had in mind. No such risk assessment was suggested in the medical report on Miss Difolco to which we have already referred (bundle pp 66/7). There was no finding that Miss Difolco had sought to have an assessment in relation to her "work station" at home or as to what a risk assessment could have achieved which could have redressed the balance or as to why, in the absence of such a risk assessment, her working conditions put Miss Difolco at a substantial disadvantage. Miss Woodwark fairly accepted that the evidence as to difficulties experienced by Miss Difolco was about communication difficulties; there appears to have been nothing which indicated the need for a risk assessment at home.[51]When we asked Miss Woodwark why it was reasonable for NTL to carry out a risk assessment at Miss Difolco's home, she responded that a risk assessment had been carried out at NTL's premises and therefore it was reasonable to do the same at home. With respect to this argument, there is an obvious difference between an employer carrying out a risk assessment upon his own premises where he provides the work station, the equipment and everything else and in respect of which he has statutory obligations and the carrying out of such an assessment at an employee's home where the employee works for one day per week and in the absence of any medical or health and safety indication for such an assessment.[52]The Tribunal's conclusion in this respect was, accordingly, not based on any factual findings which could justify it and was unsupported by evidence.[53]As to communication it appears to us that, in this respect, there is nothing in paragraph 14 or elsewhere in the judgment which explains how the Tribunal concluded that the absence of more contact with Miss Difolco's colleagues or of better technology or communication support put Miss Difolco at a substantial disadvantage. Whether there was such a disadvantage was very much an issue; it was NTL's case that NTL was an organization principally reliant on electronic communication which did not ordinarily rely on face to face meetings and that Miss Difolco's work, but for disability, would have involved her in projects all over the country which would normally be conducted by electronic communications. Although she said that but for her disability she would have chosen to meet people, Miss Difolco accepted that the company culture was to do its work by email and telephone (see in particular bundle pp 113 and 145). In these circumstances the basis for the Tribunal's conclusion that the absence of more direct contact put Miss Difolco at a substantial disadvantage – as opposed to it being her personal preference to have more direct contact in an organization in which the culture was one of electronic communication – does not appear from the Tribunal's decision.[54]In our judgment the Tribunal's reasoning on this issue does not satisfactorily appear; the reason why NTL's case that there was no such disadvantage was rejected does not find a place in the judgment. NTL are entitled to complain that, on this issue, they do not know why they lost or Miss Difolco won.[55]As to an assessment of technological and communication equipment to assist Miss Difolco to work with her disability, in our view there are similar shortcomings in the Tribunal's judgment. The evidence established that NTL had made available to Miss Difolco her own free dedicated telephone line into which she could dial from home and that she had a mobile phone which was free of charge to her. She was only at home for one day per week. She complained that she was not on Broadband; but NTL's evidence was that their telecommunications system was incompatible with Broadband. The Tribunal's conclusions in this respect that Miss Difolco was at a substantial disadvantage as compared with a non-disabled employee, is not explained. NTL do not know from the judgment on this point why they lost or why it would have been reasonable to make further communication provision.[56]Lastly under this heading is the Tribunal's conclusion that it would have been a reasonable adjustment for NTL to make further attempts to avoid Miss Difolco having to travel long distances to meetings. The Tribunal found earlier, at paragraph 5.6, that she was asked to attend meetings at Hook once every 2-3 weeks and found travelling to these meetings very difficult.[57]In considering the Tribunal's findings on this issue it is necessary to consider the cases of the parties. Miss Difolco's case was that she was, in effect, forced to drive from her home in the North-East to Hook to these meetings (see Originating Application paragraph 4). NTL's case was that it was necessary for her to attend meetings at their headquarters in Hook once or twice per month but that Miss Difolco had accepted the need to attend these meetings when it had been agreed that, due to her disability, she could work at home and from the Teesside office and that she was not forced to drive to Hook; NTL were willing to allow her to travel by rail or air, to use taxis as required and to use overnight accommodation if she so wished. (See Response paragraph 11).[58]Miss Difolco's evidence was that these offers had been made but that she should have been allowed to attend meetings not in Hook but in London which would have avoided changes of train and some carrying of luggage and that NTL were reluctant to pay expenses (see bundle pp 167/8/9)[59]Of course if NTL were found to have been making difficulties over the expenses of these trips, a finding of substantial disadvantage would have been open to the Tribunal (and perhaps inevitable). Miss Difolco was living in the North-East because of her disability; and journeys to the South-East, by plane, train or car would have been very expensive. But the Tribunal made no finding as to that; and if NTL were willing to pay for Miss Difolco to travel by plane or train and for taxis and overnight accommodation, as they asserted, we do not understand why Miss Difolco was put at a substantial disadvantage by having to travel to Hook as opposed to London – and the Tribunal's judgment does not explain. The Tribunal did not find that Miss Difolco was forced to drive to Hook, as she contended.[60]In these circumstances, while we acknowledge that the Tribunal found as fact that Miss Difolco found the travelling to Hook difficult, we cannot discern from the decision why the request that she should so travel placed her at a substantial disadvantage or what further attempts to avoid Miss Difolco travelling long distances to these meetings the Tribunal had in mind or why it was regarded by the Tribunal as reasonable for NTL to make such further attempts. The Tribunal's judgment does not appear to us to give reasons for the Tribunal's broad conclusion on this point or to tell NTL why their case failed and Miss Difolco's succeeded on this issue. The Teesside job[61]We have earlier summarized the Tribunal's findings of fact about what passed between the parties in respect of this alternative job, as set out at paragraph 5.22 of the Tribunal's judgment. Mr Cohen said that he was content to base his arguments under this head on those findings of fact. His submissions may be summarized as follows:(1) Archibald v Fife Council [2004] 4 AER 303 establishes only that, where an employee becomes so disabled that he or she can no longer meet the requirements of the relevant job description and as a result the employee is at a substantial disadvantage, the employer may be found to be under an obligation by way of making a reasonable adjustment to transfer the employee, without competitive selection, into a sedentary job which he or she is qualified to fill. The Tribunal, it was submitted, fell into error in assimilating the circumstances of the present case to those in Archibald ; Miss Difolco was not so disabled that she could no longer meet the requirements of her job description; unlike Mrs Archibald, her employment was not being terminated on the grounds of incapacity;(2) The Tribunal had not in paragraph 16 made a finding that Miss Difolco was at a substantial disadvantage; thus, in any event, the duty to make any reasonable adjustment was not triggered; and it would not have been a permissible option to have made such a finding.[62]Mr Cohen accepted that, if there was a sustainable finding of substantial disadvantage, then the findings of the Tribunal as to what would have been reasonable adjustment could not be attacked.[63]So far as the first of these arguments is concerned, while we accept that the facts of Archibald were different, we do not accept that the differences were material in the circumstances of this case. It is correct that Miss Difolco was not dismissed or about to be dismissed because she could not any longer do her job; she was dismissed or about to be dismissed because she was redundant; but both Mrs Archibald and Miss Difolco were dismissed or about to be dismissed in circumstances in which they were physically disabled, in Mrs Archibald's case with the effect that she could not do other then sedentary work, in Miss Difolco's case with the effect that she could only work for 3 days per week. In both cases in our view, if the employee was at a substantial disadvantage, it was open to the Tribunal to find that the duty to make reasonable adjustments was triggered.[64]It is true that there is no finding of substantial disadvantage expressed in paragraph 16 of the Tribunal's judgment; but in this instance the Tribunal were considering not the highly contentious issue as to whether Miss Difolco's disabilities put her at a substantial disadvantage in relation to the redundancy selection exercise but whether her disabilities put her at a substantial disadvantage when, her job having gone, she was competing with others for alternative employment. Although we have been critical of the Tribunal for not setting out their reasons or their conclusions earlier in this judgment, it would, as we see it, be wholly excessive to have required the Tribunal to have set out in terms that Miss Difolco in the new situation was at a substantial disadvantage; and we cannot imagine that there was any issue as to whether she was at such a disadvantage. We are tempted to say that plainly she was at such a disadvantage; but it is not our task to put forward our own view of the facts; what we would say is that the Tribunal had shown throughout that they were conscious of the need to prove a substantial disadvantage before the duty to make adjustments was triggered and that their judgment on this topic must have implicitly involved the finding that Miss Difolco was at a substantial disadvantage in looking for alternative employment because of her disability which rendered her able to work only a 3-day week. We do not accept Mr Cohen's submission that such a finding would not have been a permissible option; with respect, that appears to us to be unrealistic.[65]In the light of Mr Cohen's acceptance that if Miss Difolco got past the substantial disadvantage hurdle he could not then criticize the Tribunal's decision further, we conclude that NTL's appeal against this aspect of the Tribunal's decision fails. Unfair dismissal[66]Earlier in this judgment we referred to the important principle that, where a disability discrimination claim and an unfair dismissal claim arose from the same facts, it was necessary to keep the issues in each complaint separate. In his criticisms of the Tribunal's decision as to unfair dismissal on the basis of unfair application of the selection criteria as set out in paragraph 10 of the Tribunal's judgment Mr Cohen first submitted that the Tribunal had failed to observe that principle and indeed had concluded that because there was disability discrimination in relation to the selection exercise, the dismissal as a result of that exercise was unfair. Mr Cohen accepted that, in most cases in which there had been discrimination in relation to dismissal, the Tribunal would be expected to find that the dismissal was unfair - for example where race or sex discrimination was present in a redundancy selection exercise; but, he submitted, the 1995 Act created by section 5(2) and section 6 not an obligation to maintain a level playing field, as he submitted did the Race Relations Act and the Sex Discrimination Act in relation to race and gender, but an obligation positively to prefer the disabled employee by making reasonable adjustments which would not be expected of an employer absent disability. Thus it did not follow that, where there was disability discrimination in relation to a dismissal, the dismissal must or would normally be expected to be found by the Tribunal to have been unfair.[67]He made the further point that the test for causation was different as between the 1995 Act on the one hand and the Acts relating to sex and gender on the other; section 5(1) of the 1995 Act provides that an employer discriminates against a disabled person if he treats him less favourably for a reason "which relates to the disabled person's disability"; discrimination under the other statutes is established if the less favourable treatment is "on the grounds of" race or sex.[68]These general submissions may well be sound; but they do not apply, in our judgment, in this case. We see nothing in the Tribunal's judgment which demonstrates that they found in favour of Miss Difolco on her unfair dismissal claim automatically because they found that there was a failure to make adjustments, contrary to the duty arising under section 6(1) of the 1995 Act. The Tribunal appear to us, in paragraph 11 of their judgment, to have given separate consideration to the issue of unfair dismissal arising out of the selection exercise and to have reached their conclusion on that issue before turning to the issues arising under the 1995 Act.[69]However alternatively Mr Cohen submitted that the central finding on this aspect of the unfair dismissal claim was the same as that which was central to this aspect of Miss Difolco's disability discrimination act claim, namely that she was unable, because of her limited involvement in NTL's business due to her disability, to do as well in the selection exercise as, if not disabled, she would have done; and, therefore, NTL ought to have brought into the exercise her CV and previous experience. If that were so, Mr Cohen submitted, then his criticisms of the Tribunal's conclusion in paragraph 15 of their judgment apply equally to their conclusions in paragraph 10 of their judgment.[70]Miss Woodwark submitted that, while the Tribunal were not obliged to and normally should not consider the details of the scoring or of the selection criteria, once it was established that they were objective and reasonable, the Tribunal was not bound to accept that the criteria had been fairly applied; the Tribunal had applied the right test to what were essentially findings of fact and had come to conclusions which were open to them.[71]The Tribunal based their criticism, in paragraph 10 of their judgment of NTL's conduct of the selection exercise on Miss Difolco's limited involvement in NTL's business due to her disability and part-time work status; that can only be a reference to the finding in paragraph 5(13) that Miss Difolco "was unable to demonstrate her skills to a great extent due to her injury and limited involvement in the Respondent's business which was as a result of her disability and part-time status". That finding cannot, in our judgment, stand for the reasons we have set out earlier in this judgment when addressing NTL's appeal against the conclusion in paragraph 15 of the Tribunal's judgment that the selection criteria ought to have been applied so as to take account of Miss Difolco's experience and skill in the telecommunications industry. The Tribunal's judgment does not satisfactorily explain why they accepted Miss Difolco's evidence on this issue in the face of a considerable body of evidence, some of it her own, in the opposite direction or in what respects, where the selection criteria were qualitative and not quantitative, she was unable to demonstrate her skills.[72]While it was not necessary for the Tribunal to consider the marking in detail, in this case the Tribunal could not conclude that her disability and part-time status put her at an unfair advantage in the selection exercise without considering and explaining how she was, for those reasons, unable fully, to demonstrate her skills; and for that purpose considering and explaining what skills she was unable to demonstrate fully and how her disability and part-time status caused that inability. Such essential consideration would not have involved re-marking or trespassing upon the principle in British Aerospace v Green ; these were essential steps in our judgment if the Tribunal's conclusion as to the unfairness of Miss Difolco's selection and redundancy was to be satisfactorily reasoned and explained.[73]Although, of course, the statutory requirement for proof of substantial disadvantage did not formally arise in the unfair dismissal claim, in reality the Tribunal's conclusion on this aspect of that claim was that Miss Difolco was placed at a substantial disadvantage which created unfairness and that that unfairness needed to be remedied and was not remedied by applying the selection criteria as they were applied; that conclusion is flawed for the same reasons as those which we have earlier set out. Consultation[74]The Tribunal's conclusion as to the inadequacy of consultation was sparsely addressed in Mr Cohen's Skeleton Arguments and was hardly mentioned in oral argument. It is an issue of subsidiary importance in the context of this case as a whole. We do not propose to lengthen this judgment further by detailed discussion of this issue; the findings of fact in paragraph 11 of the Tribunal's judgment are not said to have been erroneous or unsustainable; and on the basis of those findings of fact it was open to the Tribunal to conclude that there should have been consultation with Miss Difolco about the criteria and their application before the selection exercise was carried out and that the absence of such consultation was unfair. Alternative employment[75]On this issue we agree with Miss Woodwark that the Tribunal have made findings of fact in paragraph 12 which it was open to them to make and that the conclusion that reasonable attempts to find suitable alternative employment were not made cannot be successfully impugned. This aspect of the Tribunal's decision, too, received little attention in the parties' submissions, for understandable reasons; and the argument as to alternative employment before us was principally directed at the Tribunal's conclusion in paragraph 16 as to reasonable adjustment. In his Skeleton Argument Mr Cohen submitted that the Tribunal's conclusion was not a permissible option, i.e. was perverse. We do not agree. NTL did not find out whether the Teesside job was one which would have been available to Miss Difolco on a part-time basis; there was no suggestion that they could not have done so; it was open to the Tribunal to conclude that they should have done so.[76]It was, therefore, permissible for the Tribunal to reach the conclusion that in failing to take such steps NTL had acted unreasonably and had, therefore, failed to take reasonable steps in relation to the obtaining of alternative employment for Miss Difolco. Part-time worker discrimination[77]Mr Cohen's first submission under this head was that the Tribunal's conclusion that Mr Melrose's decision not to take into account Miss Difolco's CV and pre-NTL experience "meant that", as a part-time worker, Miss Difolco was likely to score less well in the selection exercise than Mr Lewis. The "but for" test was inappropriate, he submitted. He referred to the decision in the House of Lords in Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 . In that case the House of Lords had to consider, inter alia , the words "by reason that" which are to be found in section 2(1) of the Race Relations Act 1976 (and also in section 4(1) of the Sex Discrimination Act 1975 ). Those words arise in the context of victimisation claims. In such claims it must be established, if they are to succeed, that the less favourable treatment was by reason that the person victimized has done one of the protected acts described in the relevant section. However the words "by reason that" do not appear in the Part-time Workers Regulations . Regulation 5 of those regulations is, so far as is relevant for present purposes, in these terms:
"5 Less favourable treatment of part-time workers (1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker- (a) as regards the terms of his contract, or (b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer. (2) The right conferred by paragraph (1) applies only if- (a) the treatment on the ground that the worker is a part-time worker, and (b) the treatment is not justified on objective grounds."
[78]The requirement that the treatment alleged to have been less favourable should be "on the ground that the worker is a part-time worker" is analogous to the requirement for ordinary discrimination but not for victimisation, in section 1(1) of the Race Relations Act 1976 , namely: "A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if- (a) on racial grounds he treats that other less favourably than he treats or would treat other persons." and with the parallel provision in section 1(1)(a) of the Sex Discrimination Act 1975 .[79]In a supplementary note sent to us after we had reserved our judgment in this case Mr Cohen drew our attention to the decision of the Employment Appeal Tribunal in Matthews and Others v Kent and Medway Towns Fire Authority [2003] IRLR 732 in which the EAT, presided over by HHJ Birtles, said at paragraph 77, in the context of argument as to causation in a part-time worker's discrimination claim:
"…the finding of the Employment Tribunal on causation is unimpeachable. It beggars belief that the "but for" test applies in race and sex discrimination but not in discrimination against part-time workers"
. Mr Cohen in his supplementary note submits that that view is in error as being contrary to the decision of the House of Lords in Khan and their earlier decision in Nagarajan v London Regional Transport [2000] 1 AC 501 .[80]We are grateful to Mr Cohen for, entirely properly, drawing our attention to Matthews ; he told us in his note that he had sent a copy of the note and of Matthews to Miss Woodwark who has confirmed that she has no submissions to make in response.[81]We do not regard it as necessary, in the context of this appeal, to embark on consideration as to whether the EAT was in error in expressing the view as to causation in a part-time worker's case that it did in Matthews . The words used by the Tribunal in this case, "meant that", do not necessarily indicate that the Tribunal were applying a "but for" test if that test is different from "on the ground that" – which we doubt. The Tribunal were, by using those words, expressing their view that Miss Difolco's part-time status was the or at least a material cause of her coming second in the selection exercise. To criticize the Tribunal for using the words "meant that" rather than words more familiarly chosen where a causation question arises would be, in our judgment, to go too far.[82]However, Mr Cohen's further attack on the Tribunal's decision in paragraph 17, namely that it is subject to the same defects as those to which we have referred at length in dealing with both disability discrimination and unfair dismissal is on stronger grounds; in our view that decision, which is dependant upon the same central conclusion as that which is central to the selection exercise aspect of the disability discrimination and unfair dismissal claims, must be regarded as fatally flawed for the reasons we have set out in relation to those two claims and which we do not see any purpose in repeating. Conclusion[83]For the reasons we have set out the appeal against the Tribunal's conclusions upon the disability discrimination claim set out in paragraphs 14 and 15 of their judgment – but not that in paragraph 16 of their judgment - succeeds, as does the appeal against the conclusion as to unfair dismissal set out in paragraph 10 of the judgment but not those conclusions on unfair dismissal set out in paragraphs 11 and 12 of the judgment; the appeal against the decision that there was part-time worker discrimination in paragraph 17 of the judgment also succeeds.[84]We cannot possibly substitute a decision of our own in respect of any of the heads of claim which succeeded before the Tribunal but as to which this appeal has succeeded. Nor would it be practical or just, having regard to the time which has passed and to the nature and extent of the criticisms we have found it necessary to make of the Tribunal's judgment, to send this case back to the same Tribunal for further reasons or to re-consider the outstanding elements of Miss Difolco's claims. Those outstanding elements must be remitted to a fresh Tribunal for re-hearing.