"109. The Tribunal do not make specific findings that the Claimant should have been given a guaranteed job, that she should have been included in closed pools, whether in the Trading Division or elsewhere, or that she should definitely have been given priority status with effect from a specific date. This was a complex individual case, against a backdrop of a very large and complex fragmented redundancy exercise. This was an individual who had said clearly, by challenging her at risk status, without prior reference to her manager, that she did not want to be in the BCR process. It was not logical or reasonable to expect the Respondent in those circumstances simply to give the Claimant priority status under the Redeployment Policy as an immediate reaction to her successful challenge. The Claimant had indicated by her challenge that she wanted to concentrate on her fixed term assignment until its conclusion; that she was not ready to focus her attention on full blown competition for jobs. 110. The Tribunal's fundamental concern was that in these particular circumstances the issue of possible adjustments to policies was not addressed. Occupational Health did not address it when declaring the rehabilitation completed and identifying concerns about the effect of uncertainty on the Claimant. Human Resources made some adjustments, for example extending her job search period and giving additional support and offers of training, but did not tell the Claimant what they were doing on the key job search issue and did not discuss options with the Claimant after her successful challenge. They could have explored with her the very questions discussed above of whether she was to go back into the BCR loop at some point, how and when priority status was to be given, and for how long. The Tribunal had some impression that Helen Arnold would have benefited from more intervention from a more experienced, senior Occupational Health professional in such a complex case and was somewhat out of her depth, leading to her appearing weakly non-directional. Management were annoyed at the Claimant taking herself out of the BCR process. The overall demands of the BCR process and the disruptions of summer holidays for the key players in the Claimant's case impacted. The net result was that matters were left to drift between the successful challenge and the end of her fixed term contract."
"136. In relation to the chances of jobs, the Tribunal had regard to the table prepared by the parties summarizing the evidence of the Claimant and John Hubner on each job which is annexed to this Judgment, at Appendix II. They decided to give the Claimant the benefit of the doubt in the sense of taking into account the version of the table that included comments which the Respondent contended were not in the Claimant's evidence but were rather matters of submission. 137. This table, and the confused and vague oral evidence that the Tribunal heard by reference to it, did not enable them to reach specific conclusions about which jobs were actually filled, when and why. Certainly, during the period from, say, May 2003 until the Claimant became redundant in February 2004, and in the month immediately thereafter, a range of jobs did become available for which the Claimant had some appropriate skills. In her evidence, she overstated her skills and employability in the Tribunal's perspective, for example in suggesting that she could have satisfied the minimum requirements for jobs that required an accountancy qualification or finance degree. That was unrealistic. 138. The Tribunal thought that it was unlikely that the Claimant would have contemplated a C5 job, i.e. demotion, until November 2003. The Claimant's high opinion of her own skills meant that demotion was an unpalatable option for her, which she was only likely to contemplate when actually put under notice of dismissal. By November the Claimant was not in a fit state to pursue roles, as demonstrated by her withdrawal at that stage from the HR C5 job." 52. The Tribunal returned to the matter later in its decision at paragraph 314 in their decision: "
"Under s.54 of the 1976 Act, the complainant is entitled to complain to the Tribunal that a person has committed an unlawful act of discrimination, but it is the act of which complaint is made and no other that the Tribunal must consider and rule upon. If it finds that the complaint is well founded, the remedies which it can give the complainant under s.56(1) of the 1976 Act are specifically directed to the act to which the complaint relates. If the act of which complaint is made is found to be not proven, it is not for the Tribunal to find another act of racial discrimination of which complaint has not been made to give a remedy in respect of that other act."
'… in the absence of such an assessment it will often be impossible for an employer to know what adjustments might be reasonable, possible or effective.'
"Approaching the matter first as one of principle apart from authority, we would be sorry to see the internal appeal hearing excluded from consideration. In practice, every employer who has signed (as most employers these days do) a procedure agreement which includes disciplinary and appeals procedures knows perfectly well that anything relevant to the appeal hearing must also be relevant to the dismissal itself. Such appeals have become a fundamental feature of good industrial relations practice; and any sensible and realistic appraisal of the reasonableness of an employer's decision to treat a particular reason as grounds for dismissal would, we think, require his state of mind and knowledge to be judged down to the conclusion of the internal appeal procedure on the footing that such procedure itself forms an essential part of the dismissal process."
"The common sense of industrial relations demands that in considering the reasonableness of the employer's conduct account must be taken of information coming to his knowledge on the hearing of the appeal: the appeal is part of the procedural structure established by the employer to ensure fair treatment: see National Heart and Chest Hospitals Board of Governors v Nambiar …"
Showing the 50 most senior of 349.