MR A BLITZ v EQUANT INTEGRATION SERVICES LTD T/A ORANGE BUSINESS SERVICES [2007] UKEAT 0259_07_0211

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2007] UKEAT 0259_07_0211

Case No Appeal No. UKEAT/0259/07

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A BLITZAPPELLANT

EQUANT INTEGRATION SERVICES LTD T/A ORANGE BUSINESS SERVICESRESPONDENT

Before

Mr Justice Burton Mr K Edmondson

Date 2 November 2007

For Equant Integration Services Ltd t/a Orange Business Services MR M PASCALL (of Counsel) Instructed by: Messrs Howes Percival Solicitors 1 Bede Island Road Bede Island Business Park Leicester LE2 7EA

SUMMARY

Disability discrimination : Less favourable treatment / Harassment

Practice and Procedure: Application/claim / Amendment

The Tribunal applied wrong tests in respect of disability related discrimination. On the application of the right tests, based on the Tribunal's findings of fact, its conclusions were clearly correct in respect of two claims, but three claims were remitted to the same Tribunal for fresh consideration of unresolved issues, primarily of detriment and justification. The three stage test explained (paragraphs 32 to 35).

In regard to harassment, the Tribunal did not originally reach a decision, and did so after a Burns/Barke referral, when a review was refused: the decision not to review, by reference to primarily s3B(2) of the DDA, was upheld.

The Respondent's cross appeal was allowed, since the Appellant's bonus claim, only referred to in closing written submissions exchanged after close of evidence, was plainly not pleaded and out of time and no application to amend was sought, and it should not have been permitted.

A firm recommendation is given to employment tribunals to allow the opportunity for some oral argument where closing written submissions are exchanged. Had the Tribunal done so in this case, most of the problems raised by the appeal and the cross-appeal would not have arisen (paragraph 88).

THE HONOURABLE MR JUSTICE BURTON

This has been the hearing of two appeals. One was by the Claimant below at the Employment Tribunal at Reading, Mr Blitz, who was represented both below and before us very ably by Ms Russell of Counsel: we shall call him the Appellant. The other was by the Respondent below, Equant Integration Services Ltd, represented, again, very ably before us and below by Mr Pascall of Counsel.

The Appellant was employed by the Respondent since September 2003 in essence as an accountant, maintaining primarily a general ledger for Switzerland - analysing input data and producing financial reports. The Respondent company did not only operate from this country and Switzerland. It is part of France Telecoms Orange Business Services operations. It is a large organisation, and it had at 2003 some 11,000 employees worldwide, although the Appellant worked at the European Regional Finance Centre at Slough.

The claims which the Appellant brought in the Employment Tribunal were numerous. His primary claim was of unfair constructive dismissal by the Respondent company. He also claimed direct disability discrimination, disability related discrimination, disability discrimination as a result of a failure to make reasonable adjustments, harassment for a reason related to disability and victimisation resulting from a protected act in relation to disability. He also claimed direct and indirect discrimination on grounds of religion or belief, detriment and/or dismissal by reason of trade union membership and/or activities, and a claim for annual leave accrued during his paid sick leave pursuant to the Working Time Regulations . So far as that latter claim is concerned, that depended and still does depend upon the outcome of the appeal in Commissioners of Inland Revenue v Ainsworth

[2005] IRLR 465

to the House of Lords. If the decision remains as it has been in the Court of Appeal his claim would be bound to fail but the position has been left, by agreement, stayed and not resolved in those circumstances by the Employment Tribunal.

So far as the claims which were resolved is concerned, all of them were dismissed by the Employment Tribunal, with the exception of one, which we shall call the 'bonus claim', out of the number of disability discrimination claims and failures to make reasonable adjustment claims on grounds of disability, the rest of which all, as we have indicated, did not succeed. In respect of that one claim, the bonus claim, in which the Appellant succeeded, the Respondent has appealed and that is thus the bonus claim appeal.

There has been no appeal by the Appellant in respect of the dismissal of his claims for constructive dismissal, direct disability discrimination, religious discrimination or trade union detriment or dismissal. His appeal has been in respect of the dismissal of his disability related discrimination claims with regard to five causes of action or matters:

(1) This was called by the Employment Tribunal, and we retain the description, "the matter of the 'Varcoe letter', a letter sent on 17 August 2005, as the Tribunal found, by the Respondent company to AXA, preparatory for an occupational health assessment in respect of the Appellant, which AXA were to carry out.

(2) What has been called the 'referral form' or 'tick box' matter. That related to the referral form, also sent to AXA by the Respondent, in respect of the same proposed occupational health assessment.

(3) The consent form issue. This too related to a document sent to AXA at the same time. The form was signed by the Appellant prior to its being sent to AXA, and the issue related to the way in which it was sent to AXA and subsequently filed by the Respondent.

(4) There is a claim in respect of the Appellant's visit to the Respondent company's offices on 12 August 2005, when he was escorted out of the secured area. That has been called the "security escort" matter.

(5) A letter which was sent on 17 August 2005 requiring the return of his laptop.

Those five matters have formed the basis of the appeal by the Appellant in respect of the dismissal of disability related discrimination claims. There has been a sixth matter, which has also been pursued on this appeal before us, being the only other appeal which is live, namely against the dismissal of his discriminatory harassment claim in respect of the contents of the ET3, that is the defence which was put in by the Respondent in the Employment Tribunal to his various claims.

All those matters were let through after a preliminary hearing at which both parties were represented, because the preliminary hearing related to both appeals, on 6 July 2007. At that hearing the Appellant was represented, due to the unavailability of Ms Russell, by other counsel, who ably pursued his interests on his behalf, but plainly formed a view about one other aspect of the appeal which did feature in his original grounds of appeal. We say 'formed a view' because expressly in the skeleton argument put forward for the preliminary hearing on the Appellant's behalf only the matters set out above were pursued, which carried with it obviously the implication that this other ground was not pursued. Indeed the grounds that were pursued were listed in the skeleton in paragraph 5, each with a separate sub-paragraph number 5(a) through to (g).

5(f) related to a purely factual aspect, to which we shall return, with regard to the Employment Tribunal having erred in relation to describing the security escort matter as having occurred at a visit to the offices on 16 August when in fact it was 12 August. That would have been a factual appeal, requiring a case of perversity, but in any event it became clear in the course of the preliminary hearing that Mr Pascall, on behalf of the Respondent, accepted that there had been such an error, and that consequently there was no need to pursue that as a separate factual ground of appeal. An agreed note of evidence was ordered in that regard, and on that basis no permission was given for that to go through as a separate ground, because there was no need for it.

So far as 5(g) was concerned, that related to the harassment appeal. It was put forward on the basis that the Tribunal had erred in not making a finding in relation to that aspect. It became apparent that there was an express statement in the judgment, to which we shall return when we deal with this ground of appeal, that that ground or that aspect did not form part of the Appellant's application to the Employment Tribunal and that that might well have been wrong. Consequently, at the preliminary hearing the Appeal Tribunal, differently constituted, but chaired by me, ordered that, pursuant to our regular practice (the Burns/Barke procedure) operated now for some years by this Tribunal of seeking clarification, a question should be sent to the Employment Tribunal, as to whether in fact it was right to say that this claim had not been included in the application before the Tribunal and suggesting that the Employment Tribunal might wish to review its decision depending upon its answer to such question. Paragraph 5 of the order read as follows:

"Ground 5 ( g) of the Appellant's skeleton argument … be stayed, pending referral back to the Employment Tribunal to answer, if practicable within 28 days of the date of the sealed order, the following question namely whether in the light of paragraph 23 of the Consolidated Grounds of Claim a complaint of harassment by reference to the contents of the ET3 was made by the Appellant … If thought right the Employment Tribunal may in the alternative decide of its own initiative to review its decision in this regard under Rule 34(5).

As will appear, the Employment Tribunal did accept that that claim had been before it, and did review or rather did consider review of its decision, but in the event decided, for reasons to which we will turn later, not to review its judgment on that ground.

Consequently with those exceptions, that there was a stay on 5(g), and that 5(f) became unnecessary because of the agreement between the two parties, all matters which were pursued before the Employment Appeal Tribunal on the preliminary hearing were let through. The one ground that was not pursued, which related to a challenge by the Appellant to the Employment Tribunal's findings in relation to the Respondent's date of knowledge of the Appellant's disability, as it had not been pursued, did not form part of the order, and permission was consequently not given for it to be sent through to this full hearing.

Ms Russell in her skeleton argument sought to resurrect the point and briefly at the outset of the hearing canvassed it. We looked at it de bene esse . There were two major difficulties in the way of the argument, which made it clear both why her fellow counsel had not pursued it at the preliminary hearing, and why indeed, had it come before us on a contested basis at the preliminary hearing, we would not have then allowed it through. The first of those difficulties was that it was purely an issue of fact which was challenged, namely the Tribunal's conclusion, bearing fully in mind, because the Tribunal referred to it, the employer's obligation under the Disability Rights Commission's Code of Practice - Employment and Occupation paragraph 5.12, that the Respondent had done all that it was reasonably expected to do, and could not have been expected to have appreciated the existence of the disability prior to 13 July 2005 when for the first time a sick note was received from the Appellant - all previous sick notes having referred primarily to issues of depression and none of them having raised what has now been conceded to have been a disability, namely the diagnosis of psoriatic arthropathy. We are quite satisfied that the findings of the Employment Tribunal in a whole series of paragraphs leading up to paragraphs 43 and 47 of the judgment were unchallengeable on that issue of fact. Further, even if the Appellant had been successful in respect of pushing back the date of knowledge from 13 July to a date which was specifically considered by the Employment Tribunal and, for reasons that they gave, rejected in paragraph 106.2.2, of between February and April 2005, it would in fact not have brought very much more if anything into the firing line so far as alleged acts of discrimination were concerned (see paragraphs 106.2.2 and 106.2.4). In the event, Ms Russell did not pursue her application that the ground of appeal should after all be permitted to form part of the appeal: and consequently it did not.

We turn then to the matters which were before us. The background to the appeal is in its entirety the Disability Discrimination Act 1995. .S4(2) provides:

"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."

By s3A(1), the relevant provision in relation to disability related discrimination, there is provided:

"(1) For the purposes of this Part, a person 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."

By s3A(2) it is provided:

"(2) For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person."

It is necessary to look in addition in this regard, and with regard to the duty to make adjustments, also at ss4A and 18B.

Finally, so far as disability harassment is concerned, s3B of the Act provides as follows:

" (1) For the purposes of this Part, a person subjects a disabled person to harassment where, for a reason which relates to the disabled person's disability, he engages in unwanted conduct which has the purpose or effect of- (a) violating the disabled person's dignity, or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

(2) Conduct shall be regarded as having the effect referred to in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect."

We deal first with the Respondent's appeal, the bonus claim appeal, which was, as we have indicated, the only respect in which the Employment Tribunal found in favour of the Appellant. It may be that the Employment Tribunal felt that this was a way of giving at any rate some compensation to the Appellant in the light of their dismissals of all his major claims, because the circumstances in which this claim arose, and was permitted to succeed by the Employment Tribunal, were somewhat unusual. The complaint was about the calculation of his first half-year bonus in July 2005, for some of the period of which the Appellant was absent on the sick leave which subsequently proved to have related to his disability, although, as we have indicated, it was only on 13 July that the Employment Tribunal found that the Respondent company ought to have appreciated that there was such disability. It is quite plain from what we have read out of the claims which were made by the Appellant that he was not remiss in making claims against an employer with whom he plainly had fallen out, for reasons which do not need to concern us now, and which did not, in the event, avail him to succeed on the vast majority of his claims at the Tribunal. In relation to this matter, however, that is the quantification of his bonus in July 2005, he did not make any complaint, although he had complained about previous assessments of him. It is plain that no express mention of any complaint in relation to the bonus by reference to discrimination, disability related or otherwise, was made in the grievance procedure which he entered into, and indeed which led to a consolidated grievance procedure in February 2006 after his resignation. No case was pursued before us that any reference could be spelt out in the grievance procedure to discrimination in respect of the bonus.

In her written submissions Ms Russell made reference to the decision of this Tribunal in Shergold v Fieldway Medical Centre

(2006) IRLR 76

and Mr Pascall referred to Bradford Metropolitan District Council v Pratt

[2007] IRLR 192

; but particularly by reference to paragraphs 35 and 37 of Shergold and paragraphs 49 and 92 of Bradford , even reading the provisions relating to grievance procedure as broadly as possible in favour of the Appellant, we are satisfied that there was no exercise of the grievance procedure in relation to this claim of discrimination. Consequently, s32 of the Employment Act 2002 was not satisfied in relation to the raising of a grievance prior to the issue of proceedings in relation to discrimination.

There was also, we are entirely satisfied, no pleading of the claim. There were in the end five separate claims documents which, between them, set out the various claims which were in the end consolidated at the hearing, and to which we have referred. In none of those was there a pleading which could have even inferentially referred to a discriminatory act or a failure to make reasonable adjustments in relation to the half-year bonus 2005. Nor, when the five pleadings were consolidated into one consolidated claim did this claim feature. We are entirely satisfied consequently that, applying the well-established principles of Chapman v Simon

[1994] IRLR 124

, this claim, not having been pleaded, was not before the Employment Tribunal.

There was some questioning of the witnesses for the Respondent at the hearing, which, particularly given the diffuse nature of the discriminatory, and indeed contractually infringing, conduct which was alleged by the Appellant, ranged far and wide. There were five days of evidence at the Tribunal, the fifth day being set aside for a video hearing of one of the witnesses who was abroad. On the third day there was questioning of Miss Koetting, a German lady who was the line manager of the Appellant at the material time, which included questioning about the bonus. An agreed note of evidence was ordered at the preliminary hearing in this regard, and has been put before us. It was put to Miss Koetting, in the course of cross-examination by Ms Russell, that, because of the Appellant's absence, his bonus was reduced. Miss Koetting replied that she gave him the rating "Needs Improvement" because he had not completed or achieved the development required, and she said that because he was not there she could not assess him as having achieved that objective. On the fourth day there was cross-examination by Ms Russell of the Human Resources Manager of the Respondent, a Mrs Adams. Mrs Adams explained that bonus payments were calculated with respect to employees who are absent on long term sick leave ordinarily by reflecting their performance during the period they were present.

No application to amend the pleadings, whether in the light of that evidence or at all, was ever made by the Appellant, to add what had not been the subject of either the grievance procedure or the pleading claim before the Employment Tribunal. The only time that the matter was mentioned was by Ms Russell in two paragraphs of her written submissions, which were lengthy (111 paragraphs in total) and were, pursuant to the order which the Tribunal made at the close of the fifth day (Friday) to be delivered after the hearing, by way of simultaneous exchange with written submissions by Counsel for the Respondent, on the Monday morning of the following week. This had been booked not for a further hearing day, but for a discussion day between the members, at which they would be able to discuss their decision; and they directed that that simultaneous exchange be at 9 o'clock in the morning on the Monday, so that they could have the submissions for the purposes of that discussion. Those two paragraphs mentioned the fact that, in the submission of Ms Russell, there was no objective justification for discrimination, as she described it, against the Appellant in the light of the evidence of Mrs Adams that in arriving at the bonus, only the performance for the period he was actually there should have been considered. This was, not surprisingly, not addressed at all given the simultaneous exchange of submissions, by the Respondent's Counsel.

Without further ado, the Tribunal gave their judgment, and while, as we have indicated, dismissing all other claims brought by the Appellant they dealt with the bonus in this way.

"49 On 26 July 2005 Mrs Adams wrote to Mr Blitz on the subject of the 2005 first half year bonus (277). The letter was positive and set out brief details of the bonus awarded to Mr Blitz. In the usual way the calculation of the bonus had been partly based on an assessment by Ms Koeting. The assessment is at 263-268. Mr Blitz did not see the relevant papers until the discovery process in these proceedings. Whilst there is nothing in the assessment that makes it clear, Ms Koeting was open in her evidence to us that Mr Blitz had been "marked down" in her assessment of him because he had made a nil contribution during his sickness absence. Mr Blitz says that he should have been consulted about the assessment process. In principle we agree that this would be good practice although there may be occasions when contact with an employee on sick leave on a subject of this sort would be inappropriate. An example might be an employee off sick with work related stress. From the Company's perspective at this time Mr Blitz might have fitted into this category. There must be doubt that Mr Blitz would have welcomed contact from the Company on this issue given the objections he made to contact requiring much less input from him on other occasions. …

…

106.2.3 On 26 July 2005 Mrs Adams wrote to Mr Blitz with details of his 2005 first half bonus. We have found that Ms Koeting had produced the rating which partially drove this bonus on the basis that Mr Blitz had made a nil contribution during what was thought to be his sickness absence but in fact proved to be disability related. The bonus paid, of £1,388, was at the 50% level. We assume, therefore, that there was a reduction of some 50%. The Company applied a provision to Mr Blitz that amounted to a substantial disadvantage in this respect. By this time the Company had seen the diagnosis of psoriatic arthropathy and had the requisite knowledge to put it on enquiry. A reasonable adjustment would have been to assess Mr Blitz, treating his performance as a continuum throughout the assessment period (see DRC Code 5.20 - modifying performance-related pay arrangements). In the absence of any evidence from the Company about what that performance assessment would have been, we find that the Company failed to make a reasonable adjustment in this respect. There is a jurisdictional point here, in that this claim has never been pleaded specifically. We suspect it only emerged during the hearing as a result of perhaps unexpectedly open evidence from Ms Koeting. Potentially, therefore, it is both out of time and falls foul of the Employment Act 2002 (Dispute Resolution) Regulations 2004 in that no grievance has been issued in respect of it. However, there have been grievances about the DDA and, because Mr Blitz did not know of the claim before the hearing, we think it just and equitable to extend time under Part I of Schedule 3 to the DDA and/or we think this is part of an act extending over a period so conferring jurisdiction on us to consider it.

…

106.3.2 In our judgment the methodology used to calculate Mr Blitz's 2005 first half year bonus amounts to disability discrimination because of a failure to make a reasonable adjustment. It also amounts to disability related discrimination. The absence was disability related. The Company would not have treated a person who was not absent in this way. The applicable burden of proof provisions require the Company to show justification and it has not done so. We are conscious that the claim only became clear during the hearing. However, if the Company wanted to plead justification, it could have applied to do so. The same points in relation to jurisdiction that were made in connection with the claim of a failure to make reasonable adjustments apply here."

The Tribunal indicated, as there appears, that so far as the Tribunal itself was concerned, at any rate, it had only become clear in the hearing, and it concluded that it had only become clear also to the Appellant, during the hearing, that there was some, and indeed the only, as they found, discriminatory conduct, in relation to the bonus on the part of the Respondent.

As we have indicated we shall return to this, there was no opportunity given whatever for any submissions on any aspect of this by Mr Pascall. He has pointed to us a paragraph in the bonus review document itself, at page 223 of our bundle, from which he says that it at any rate could have become clear that the performance was being rated inclusively of the period when the Appellant was absent on long term sick leave. In any event, he submits, there was nothing to prevent the Appellant, even if he had not seen that document, from complaining, as he had previously complained, about the fact that he was not rated any higher than he was in his assessment.

If the point had been raised before the Tribunal, it would immediately have become apparent that it had not been the subject of a grievance and was thus prima facie barred by s32 of the 2002 Act. However, Ms Russell has drawn our attention, and would no doubt have drawn the attention of the Tribunal, to the provisions of the Employment Act 2002 (Dispute Resolution) Regulations 2004 at Regulation 6(4), which provides an exception from the requirement to raise a matter in a grievance procedure if an employee had ceased to be employed by the employer and it was not reasonably practicable for him to comply with the requirements of the regulations. Thus, submits Ms Russell, she would have alleged that it was not reasonably practicable for the Appellant to have complained about discrimination in respect of the bonus until he discovered what the evidence was, or appeared to be, as given by Ms Koetting and Mrs Adams, on the third and fourth day of the hearing respectively.

However on any basis the claim was not pleaded and there was no application to amend. Had an application been made to amend, it might or might not have been on the basis, we suspect not, by Ms Russell that was adumbrated by the Tribunal effectively on her behalf in the passage that we have quoted, namely a suggestion that the failure to deal properly with the bonus was a continuing act. Certainly Ms Russell said nothing to us in argument which could possibly begin to support that proposition and we are quite satisfied it was and is unarguable. Had she made an application for leave to amend at that late stage, she would have made it by reference to an application to amend in a claim which had not been the subject of the grievance procedure and out of time, and plainly that would have fallen within the just and equitable discretionary area of the Court. But in consideration of the just and equitable area there would have needed to have been a very careful consideration by the Tribunal, which it is plain there was not, not least because no such application was ever made.

The first point to make is that there were in fact two separate claims for which the Employment Tribunal gave notional but uncharted leave to amend. The first in terms of logic would be a failure to make reasonable adjustments. This would depend upon whether there was a policy which the Respondent company had which ought to have been adjusted for this particular, and no doubt any similar, Applicant. On the face of the brief evidence from Mrs Adams it does not look as though this would have been a case in which there was a policy which required adjustment, but rather a policy which was not followed in the event. Therefore, it looks unlikely as though it would have been a primary case of failure to make reasonable adjustments, but that no doubt could only have been explored if the evidence was fully given.

The second way of putting it, given that the Tribunal did not differentiate between the two claims, was a discriminatory act, by virtue, no doubt, if such was the case, of a failure to comply with the policy of the Respondent. But this was not in any way expanded upon or considered by the Tribunal, nor in any argument. Had an application to amend in the two claims been brought and clarified, then sufficient ground would have had to have been put forward to establish that the grievance procedure should be exempted and that the time that had plainly passed should be excused. No doubt that would have been done by reference to the events on the third and fourth day of the hearing. Without hearing argument, as we have quoted from the passages of the judgment by the Tribunal, the Tribunal appears to have been impressed by the suggestion that it was the first time that the matter had become clear, as they put it. But that was without argument, and we are far from sure that they would have remained in that view had they heard argument from Mr Pascall on either of the two bases which we have elaborated(1) that in fact it could have been deduced by reference to the bonus assessment itself and/or

(2) by the fact that it did not need any sight of the bonus assessment for a claim of discrimination to have been made, given the other complaints that the Appellant had been making. But if, in fact, after argument, the Tribunal had been satisfied that there was excuse for what would otherwise have been a substantial delay and non-compliance with statutory requirements, requiring compliance, not simply, so far as the time is concerned, with the just and equitable test, but also, so far as the excuse from the Regulations is concerned, with the test of reasonable practicability, then the crucial question which would need to have been considered by the Tribunal was the balance of prejudice. It is plain that the Tribunal did not address that at all in its judgment, because of course it had never had the argument. There was, on the face of the Tribunal's judgment itself, plainly prejudice by virtue of the absence of evidence upon which they felt it right to repose criticism of the Respondent. In paragraph 106.2.3, so far as the claim for failure to comply with the duty to make reasonable adjustments are concerned, the Tribunal said:

"In the absence of any evidence from the Company about what that performance assessment would have been, we find that the company failed to make a reasonable adjustment in this respect."

In paragraph 106.3.2 the Tribunal said:

"The absence was disability related. The Company would not have treated a person who was not absent in this way. The applicable burden of proof provisions require the Company to show jurisdiction and it has not done so."

By reference to those comments alone, it is clear that, had an application for amend been made, the Respondent, through Mr Pascall, would have indicated that, if an application for amendment was to be considered, it could only be on the basis of an adjournment, so that he could prepare and consider evidence, to include an explanation much more full than that given in the brief questioning of either Ms Koetting or Mrs Adams, for what had occurred in relation to the assessment of the bonus, and the assessment of the Appellant's performance, and for justification, and, if appropriate, on the question of reasonable adjustments, for the fact that no adjustments would have made any difference pursuant to s18B of the Act.

Ms Russell submits that all that would have been necessary would have been evidence to establish, if such were the case, no loss, in the sense that in any event even had the bonus assessment been carried out a different way, if the Respondent wished to it could assert that the result of it would have been the same. But we are entirely satisfied that this is not simply a question of no loss, but that issues such as we have just set out plainly would have had to be canvassed, and the Respondent would have been entitled to do so, had this very late amendment been sought and granted.

There would plainly have been prejudice to the Respondent had an amendment been granted without an adjournment. There was even greater prejudice to the Respondent that the case was allowed to go forward and judgment given on it with those comments on the absence of evidence, without an application for an amendment ever being made. Had the application for an amendment been made, then the kind of questions which were canvassed in Smith v Zeneca

[2000] ICR 800

, particularly at paragraphs 52 and 53 would have been addressed. We are entirely satisfied that this judgment, based as it is on an implicit conclusion that there was an unpleaded claim, if such it was, or one somehow included in the pleadings, or alternatively some implicit acceptance of an unmade application for permission to amend, cannot stand. The appeal must therefore be allowed.

What course should we then take in relation to a claim that was never pleaded and had never been sought to be amended before judgment was in fact delivered. We ask ourselves, after hearing submissions on this aspect by counsel, what would have happened if permission to appeal had been sought. Plainly it could not have been granted without the opportunity for further evidence to be sought by the Respondent. Would it have been granted? Is that a relevant question, when it was not sought, but rather a judgment was given without any such application to amend being considered? It appears to us that this is a rather different question from a situation in which the Employment Appeal Tribunal overturns a decision which was considered by an employment tribunal, and substitutes its decision the opposite way, on the basis that no reasonable tribunal could have come to any other conclusion than that which is now substituted. The position here is that there never was an amendment, and it is the Appellant, responding to this aspect of the appeal, who says that, had there been an amendment, which there was not, then it could/would/should have been granted. We conclude that, on balance, we consider that an amendment should not have been granted. We would not have granted an amendment, and we would have thought it entirely realistic and reasonable for a tribunal itself, after hearing argument, not to grant an amendment. There had been a delay, which in our judgment was not entirely justified by the explanation put forward, and we might well have been persuaded, had we heard argument, that there would have been nothing to prevent the Appellant complaining about the bonus even without the full knowledge of the mechanism by which it was arrived at. But quite apart from that, we would have been faced with the balance of prejudice, and, even assuming that the delay had been justified, with five contested claims, consolidated, having been brought, taken to trial, and already four days of hearing with only one left, fully booked up a with video link. An amendment would be bound to mean an adjournment and the loss of the discussion day on the Monday, which was all geared up to decide these matters of very considerable significance to the parties. We are not, however, saying that the Employment Tribunal would have been bound to have reached that conclusion. Nor do we decide it on that basis, but we are certainly unpersuaded by the arguments of Ms Russell that the Employment Tribunal would have allowed the amendment and, consequently, that there is no prejudice by virtue of the sending back of the matter for this claim, now so long afterwards, to be properly formulated, proofed and dealt with.

We do include and factor into our balance of prejudice in considering the matter, that there is the further question of the other appeals which are before us, in respect of some of which there are likely to be, and will be, as we shall explain, orders for a remission for their consideration. From that point of view, it is tempting to be able to say that this claim could be tagged on together with them, and we certainly do not rule that out of our consideration. But weighing it all up, we are satisfied that that does not mitigate the prejudice nor answer the question which we have to decide, not least, of course, because it is entirely coincidental in this case that there happen to be cross-appeals, when the issue which we are at present deciding is whether a claim not pursued below, not amended-in below, should now for the first time be properly formulated and brought, after judgment has been delivered. We are however in any event satisfied that the matters which are going to be remitted in respect of the balance of the appeals are of an entirely different character from the assessment of the performance of the Appellant, the assessment of the bonus of the Appellant, the assessment of the policies and compliance with policies of the Respondent over a period, which will be necessary for the purposes of this claim. They will relate, as we shall discuss, only to the events of August 2005, in a very short compass. It would be a much larger exercise, and a different one, for there to be a remission of this bonus claim. We do not decide on that basis only, but we conclude that the fact that there is to be a remission in any event does not outweigh the factors which otherwise drive us to say that it is not just and not equitable that we should allow a claim which was not made before the Tribunal to be amended into the proceedings, nor that we should at this stage send the matter back, as alternatively Ms Russell invites us to do, for the Tribunal to consider an application to amend. It is too late to bring this claim and it was too late when it was brought.

We turn then to the Appellant's appeal. So far as the first five of them are concerned, that is all those apart from the harassment claim, this relates to disability related discrimination. We have borne in mind, albeit it that they are not directly relevant, the persuasive authorities in IGEN Ltd v Wong

[2005] EWCA 142

[2005] ICR 931

, Madarassy v Nomura International plc

[2007] EWCA CIV 33

and Brown v London Borough of Croydon

[2007] IRLR 259

. They relate to the transfer of the onus of proof, evidential or legal, from the victim to the discriminator in the course of consideration by an employment tribunal of claims for discrimination, certainly in race and sex discrimination and, we are prepared to assume, also in disability discrimination. But that does not feature, save in respect of one of the grounds, in any real sense before us, and we feel able, with the guidance of Smith LJ in Taylor v OCS Group

[2006] IRLR 613

CA particularly at paragraph 65, somewhat amended for the purpose, to attempt, not least by way of guidance to the Tribunal on remission, to set out three simple stages which would enable the answers to be given to the Appellant's outstanding claims now the subject of appeal.

Stage 1. Was there an act by the Respondent which related to the Appellant's disability? This is a specific reference to Section 3A(1) and indeed a quotation of the statutory provision. We find it a perfectly straightforward provision. Of course we bear in mind the guidance of the Court of Appeal in Clark v TDG Ltd

[1999] IRLR 318

, but the words of the statute are not difficult, even without that guidance. What Clark did, however, was discourage the use of the words 'but for' in the consideration of this section. Although 'but for' is difficult to avoid entirely - indeed as was apparent from Ms Russell's own formulations at some stages, when, having rightly abjured the words, she found herself using them in the course of her illustrations, because it is difficult not to - nevertheless there is not a 'but for' test, as is sometimes the case in other areas of discrimination and employment law. It is a causation test, and a wide one because of the breadth of the words "which relate to disability". This Employment Tribunal did use on a number of occasions the words 'but for'. We have been satisfied that in analysing what they did we have been able to read what they said as if they had used the words "which relates to disability", and in most cases it has not made a difference; but we do remind Tribunals that 'but for' is not at any rate the first nor in any event the last port of call in this kind of consideration. Subsumed under this first stage in arriving at the question of whether there was an act which related to disability, are issues not only of causation but also of subjective intent. It is quite plain from the decisions to which Mr Pascall has drawn our attention of Taylor v OCS Group

[2006] IRLR 613

and O'Hanlon v Commissioners for HM Revenue & Customs

[2007] IRLR 404

that the subjective intent of the alleged discriminator is a factor: see Taylor at paragraph 72 and O'Hanlon at paragraphs 83 (with reference to paragraph 37 of the judgment below, which was thereby approved by Hooper LJ), and 86. It does however seem to us that because such questions relate to the workings of the Respondent's mind and not in the ordinary case to something known to the Appellant, it is unlikely that a Tribunal would be able to arrive at any decision on subjective intent until and unless the onus of explanation has transferred to the Respondent.

The second stage is whether the act constituted unfavourable treatment of the Appellant, causing him or her detriment. We have run these together, not least because of our view of the helpfulness of Smith LJ's three stages in her judgment, but she did not specifically mention detriment. These two concepts are separate, one arriving from s3A(1)(a) and the other from s4(2)(d), but it is very often difficult to see the distinction between them. Plainly there can be unfavourable treatment which does not lead to detriment, if there is nothing which can be described as loss or injury caused, or even emotional damage suffered to or by the victim, bearing in mind the low level of requirement for detriment which has been made clear by a number of cases culminating in Jiad v Byford

[2003] IRLR 231

and Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] IRLR 285

. But there could be situations in which detriment was suffered, but there was no unfavourable treatment. In this case, we are satisfied the two issues can be satisfactorily and sensibly approached together. In doing so it is important to bear in mind the words of Lord Hope in Shamoon at paragraph 35, as approved in the subsequent House of Lords' decision in St Helens Borough Council v Derbyshire

[2007] IRLR 540

at paragraphs 27, 37 and 66-67. The House of Lords in Shamoon and St Helens emphasise that the question of detriment must be looked at from the point of view of the victim and, and we have indicated, it not a high hurdle or burden for the victim to satisfy to show that detriment has been suffered. However, Lord Hope's words are always to be considered, namely that because the test is one of materiality "an unjustified sense of grievance cannot amount to detriment". Consequently, it will always be necessary, having established whether on a claimant's case, the Appellant's case here, there is detriment, to look to see whether that was, if, for example, it amounts to an emotional detriment, unjustifiable.

The third stage is, on the assumption, therefore, that there has been a discriminatory act related to disability which amounts to unfavourable treatment of the Claimant and causes him or her detriment, whether the discriminator, as he otherwise would be, can justify such act. Justification must be objectively tested. But it is not a heavy burden; it is the same burden as that imposed upon employers justifying the reasonableness of a dismissal. The test is whether the justification put forward falls within the reasonable band of responses of an employer: see Jones v Post Office

[2001] IRLR 384

and Williams v J Walter Thompson Group Ltd

[2005] IRLR 376

The Employment Tribunal, as we have indicated, adopting 'but for' on the first stage, did not in any event follow that simple three-stage test nor anything similar to it, but it certainly did apply, or purported to apply, the reasonable band of responses test in relation to justification. It did not, however, specifically address questions of detriment, contenting itself with addressing unfavourable treatment. We are satisfied, however, that for the purposes of the analysis we now make of the appeal, which we make after considerable help from both counsel, that we are entitled, in looking to see whether, for example, Lord Hope's test in Shamoon was or was not in issue, to consider whether the Tribunal made findings sufficient for that consideration, directing itself, even if not specifically, by reference to Shamoon .

We turn then to the first of the five matters – the Varcoe letter. This was dealt with in the following paragraphs:

"60 At 318 we find the covering letter from Ms McKinley to AXA sent with the other papers in preparation for the occupational health assessment. Mr Blitz refers to this as the "Varcoe letter". We shall refer to it similarly. This was subjected to an intense forensic scrutiny during the course of the hearing and not without reason. Mr Blitz describes it as highly offensive and inaccurate. We need to deal with various aspects in turn.

60.1 We think it important to establish whether or not there could have been any negative motive behind the Varcoe letter. It is undated. However, we know from the date stamp that it was received by AXA on Tuesday 23 August 2005 at the latest. We can therefore suppose that it was not posted later than Monday 22 August. However, Ms McKinley had informed Mr Blitz in her letter dated 17 August that she had sent the referral to AXA. We see no reason to suppose that was incorrect. We find, therefore that the letter was posted on or about Wednesday 17 August 2005. The significance of this is that it was posted before Mr Blitz had raised his grievances with Mr Kubisch on 21 August and Ms Walker-Kurowski on 19 August. Ms McKinley's letter cannot, therefore, have been influenced by those grievances. As far as any negative motivation Ms McKinley or her managers may have had is concerned, we are left with events prior to 17 August 2005. Conceivably Ms McKinley, possibly influenced by others in the management chain might have regarded Mr Blitz as difficult and a nuisance. Mr Blitz often raised issues and escalated them above the immediate level of management concerned. On two occasions in particular he had complained about Human Resources performance by going up the chain of command. On 30 May 2005 Mr Blitz had written to Mr Kubisch and on 6 August he had gone over Ms McKinley's head to Ms Walker-Kurowski. We also know that the Company was suspicious about at least one of his medical certificates. These had been referred to Mrs Bonneton for checking. Whatever management's thoughts were, there is no evidence that it had any input into the Varcoe letter and accompanying documents and we do not think that management influenced the documents in any way. In giving her evidence Ms McKinley showed antagonism towards Mr Blitz. What we do not know is whether this pre-dates the Varcoe letter or is a reaction to later events. We think it was more likely the latter. We have borne all this in mind in reaching our conclusions on the Varcoe letter.

60.2 Turning to the text of the Varcoe letter, the first item Mr Blitz takes issue with is the mention of the PIP. We see no reason why this should not be mentioned. Stress had been diagnosed and the PIP may well have played a part.

60.3 Ms McKinley writes that Mr Blitz's sick notes were consistently late. Mrs Adams' later investigations concluded that 5 of 7 renewal certificates were received a day or more late. It can be argued that the Company's sickness policy anticipates a short delay whilst certificates are obtained and forwarded. This would be sensible. Nevertheless four of the certificates were obtained a day or so late and one was obtained nearly two weeks late although Mr Blitz had properly written to explain the circumstances. If hairs are to be split, the statement is technically correct.

60.4 Ms McKinley writes that any attempt by Mr Blitz's manager or her to contact him is ignored. On the face of the documentation we have, this is an exaggeration. Ms McKinley was over influenced by the immediate problems she had chasing the laptop and the consent form. There were other occasions when Mr Blitz had chosen not to respond such as the occasion when Ms Eckardt had asked him for information early in his sickness absence. Ms McKinley goes on to state that no forwarding address was given when Mr Blitz was in Israel. In fact, although there was no forwarding address as such, Mr Blitz had explained that mail sent to his home address would get to him.

60.5 Mr Blitz mentions that Ms McKinley questioned his diagnosis. Actually, Ms McKinley reports the facts, that the reasons given were several. Ms McKinley does hint at a question mark over the medical certificates being signed whilst Mr Blitz was abroad. That accurately reflects the Company's concern, no matter how badly founded.

60.6 Mr Blitz says that his right to refuse consent to disclose his medical records and GPs details was questioned. It was not.

In summary, therefore, most of the letter was technically accurate from the Company's perspective. Notwithstanding this, looked at as a whole, its tenor was disapproving and Ms McKinley, however quickly she dashed it off, must have known that. We think that not only must she have known that but she thought it justified. Whilst this letter could not have prejudiced the medical outcome nor did it do so, it nonetheless conveyed the negative impression Ms McKinley had formed."

We deal with the three stages.

First, was the writing of the letter or the setting out of the contents, which are there the subject of dissection by the Tribunal, an act relating to disability? At paragraph 106.3.3 the Tribunal states "But for Mr Blitz's disability the letter would not have been written." That uses the 'but for' test. Had they applied the test 'was the act written for a reason which related to disability?' we are satisfied it would have reached the same conclusion, and Mr Pascall does not contend the contrary. That satisfies the first test.

Secondly, was there unfavourable treatment causing the Appellant actionable detriment? At paragraph 106.3.3. the Tribunal said this:

"The Varcoe letter was written in a disapproving and negative way. Because of the factual nature of the letter, however, and the fact that the negative tenor simply reflected Ms McKinley's perception, we do not think there was less favourable treatment."

At paragraph 106.4.3 the Tribunal considers the Varcoe letter again in the context of the alternative claim based on it, of discriminatory harassment. And the Tribunal said this:

"The issue, therefore is whether or not the documents, singly or collectively, having regard to all the circumstances , including in particular the perception of Mr Blitz, should reasonably be considered to have the effect of violating Mr Blitz's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. Mr Blitz perceived the documents at least as violating his dignity and as hostile, degrading and offensive. On the facts, however, this can only turn on the tenor of the Varcoe letter, its content being factually accurate ... We do not conclude that the tenor of the Varcoe letter could reasonably be considered to have the relevant effect. We recognise that it did have that effect but we think this is a product of Mr Blitz's particular sensitivity and unwillingness to accept any explanation."

The question then is whether that conclusion can be supported by applying the test which we have set out. It seems to us that it is difficult on the basis that the Tribunal set it out to avoid concluding that the Tribunal ought to have found, in the light of their own criticisms of the letter in paragraph 60, which we have cited, that the sending of the letter did constitute unfavourable treatment of the Appellant, and that any grievance that he had as a result may have been oversensitive, but nevertheless could not be said to be unjustified, given their own criticisms of it. We do not reach a positive conclusion in that regard, for the reasons that will become apparent, namely that we are proposing to remit this for a further hearing, but what we can say is that we cannot read the conclusions which were set out by the Tribunal without consideration of what we consider to be the proper test as necessarily answering the proper test had it been posed.

We turn to justification. This is of course relevant, because in order for the act of discrimination to be rendered actionable by the Appellant, he must not only succeed on the first two stages but the Respondent must fail on the third; and the Tribunal found in the Respondent's favour in this regard. The Tribunal said this at paragraph 106.3.3:

"If we are wrong about that, such treatment can be justified if the reason is both material in the circumstances and substantial. This is a matter for the Company rather than the Tribunal in the sense that it is subject to a "reasonable band of responses test" similar to that applicable to unfair dismissal. Ms McKinley set out the facts as she perceived them to be at the time. Ms McKinley's perception of these was negative and this she reflected in the tone of the letter. That was her view which was not unreasonable from her perspective. The reason for the treatment was, therefore, justified."

The problem that the Respondent has in supporting that finding by the Tribunal is to be located in the use of the words 'from her perspective'. The Tribunal does not reach a conclusion, albeit that it set out the test correctly, that the view which Ms McKinley had, of negative tenor, was one which a reasonable employer could hold. It simply found that it was not unreasonable from Ms McKinley's perspective. The word 'therefore' is unfortunate from Mr Pascall's point of view, because it specifically refers back to that conclusion, so that he could not even say that in some way there is an implication that not only was the view not unreasonable from the perspective of Ms McKinley but it was also, having set out the test correctly, good enough to comply with a reasonableness test. The word 'therefore' prevents that submission. It may well be that the negative tenor of the letter is appropriate for a reasonable employer; if, for example, a sceptical employer is to be entitled to set out matters in a letter to an occupational health examiner who is about to examine an employee, it may be within the bound of reasonable responses for a reasonable employer to write something along the lines of what they wrote in this case, notwithstanding the critique of it by the Tribunal. But that is not what this Tribunal found. We are satisfied that, even using the most charitable approach to the Tribunal's conclusions as we seek to do, in terms of whether it can be said that, notwithstanding they did not use the words of a test compliant with Court of Appeal authority, they must be deemed to have reached the right conclusion by virtue of an application of that test, we cannot say that that is the case in relation to the conclusions of the Tribunal with regard to the Varcoe letter. We must therefore allow the appeal in this regard and remit the matter, which we shall deal with later.

We turn to the 'referral' issue, the second matter, otherwise referred to in the course of argument as the 'tick box' issue. In paragraph 51 of the Tribunal's judgment they said as follows in relation to the referral document:

"Under the heading "Reason for referral" there are some boxes ticked and some left not ticked for reasons which are not immediately clear. For example, "Ill health caused by work" is not ticked but "Alcohol/drugs/substance abuse" is. Although AXA later confirmed that neither this, nor any of the other documents which accompanied it and to which we will refer, influenced it in assessing Mr Blitz, there is no doubt that more care should have been exercised over the completion of this form and we recommend that the Company ensure that it is in the future. It is, for example, understandable that, from his perspective, Mr Blitz should take exception to the "Alcohol/drugs/substance abuse" box being ticked. From Mr Blitz's perspective his absence was due to psoriatic arthropathy. However, from the Company's perspective, most of the sick notes to that date had referred to depression and anxiety. Ms McKinley's evidence was that the box might be relevant to depression. Nonetheless, from Mr Blitz's point of view the boxes ticked and not ticked in response to the question "Reason for referral" on the version of the form sent to AXA can be viewed, as less relevant to Mr Blitz's condition than those on the Company's file version of the form."

Dealing with the three stages, the first stage was whether the act, namely of sending the referral form in particular with that box ticked, for a reason which related to the disability of the Appellant. Once again, at paragraph 106.3.5, the Tribunal answers that question yes, by reference to the 'but for' test:

"but for Mr Blitz's disability the referral forms would not have been completed."

However, we are satisfied, and Mr Pascall does not argue to the contrary, that by the application of the correct test they would have reached the same conclusion.

We turn to the second question, as to unfavourable treatment causing detriment, bearing in mind Shamoon . At 106.3.5 the Tribunal goes on to say:

"However, we do not think there was less favourable treatment. The regular mention of depression and anxiety in sick notes made the box relevant from the Company's point of view."

Once again, this is an analysis "from the Company's point of view", and we shall return to that when we come to justification. But if it is to be said that there was in that assessment any kind of implicit suggestion that there was consequently no detriment and that if there was detriment then it would be Shamoon - proof, then one must bear in mind what the Tribunal itself said at paragraph 51 namely:

"It is, for example, understandable that, from his perspective, Mr Blitz should take exception to the "Alcohol/drugs/substance abuse" box being ticked."

Mr Pascall has rightly pointed out that in this regard all the Tribunal refer to is the Appellant "taking exception", as opposed to his being upset or humiliated. Once again, we do not need to reach any conclusion in this regard, other than the fact that we are not satisfied the Tribunal was able to find that this test was not satisfied, had they applied the right questions.

We then turn to the third question, which is justification. We have already cited the penultimate sentence of paragraph 106.3.5, however we cite it again together with the final sentence:

"The regular mention of depression and anxiety in sick notes made the box relevant from the Company's point of view. If there was less favourable treatment, applying the test set out above, we would conclude that the treatment was justified."

It is quite apparent that, just as the Tribunal purported to apply the reasonable band of responses test to a conclusion that the view of Ms McKinley was not unreasonable from her perspective, so here, as we have said earlier, the Tribunal is seemingly applying the same test to a conclusion in relation to reasonableness "from the Company's point of view". Once again, it may well be that there is available to the Tribunal to the company an objective justification in relation to the ticking of this box, but the Tribunal did not address it. Consequently, we are satisfied that the Tribunal erred in law in its approach to the referral form, as they did in relation to the Varcoe letter, and we must allow the appeal in this regard and remit it.

We turn thirdly to the consent form. The consent form was signed by the Appellant, and sent or supplied to the Respondent to be dispatched to AXA. It was sent to AXA with, or at the same time as, the Varcoe letter; the referral form, with the tick boxes, and the sick notes, which had been supplied by the Appellant signed by his various GPs. We have, as did the Tribunal, three different versions of the consent form. The Appellant seems to have been very exercised about this, describing one or more of them as a 'falsification of records', and the Tribunal attempted to address some of the those concerns. We do not find ourselves the slightest exercised by there being three forms, because it is apparent to us from the documents themselves what occurred in relation to them. The first of the three documents is the consent form as signed by the Appellant. That has his own name and address and the date; and the form has been filled in on the basis that he consents to attend an independent medical assessment, and he does not know whether he consents to the release of any medical report in confidence for the Pension Fund Trustees, and does not know whether he authorises the medical adviser to release medical information from that assessment to his own GP. The box for the name of the GP is blank.

There is then a second form, which is as it was supplied by Ms McKinley to AXA. In different handwriting, obviously hers and not attempting to look like the handwriting of Mr Blitz, there is filled in, against the names of the GP, the three doctors whose names were on the sick notes, together with their address in Surrey: and it is expressly said next to their names "(from doctor's certificates sent to Equant [the Respondent]"). It is quite apparent that when Ms McKinley sent the form to AXA together with the sick note certificates, as she was entitled to do, she wrote herself on the consent form, which had been left blank by the Appellant in this regard, for cross reference the names of the doctors and their addresses, which were readily apparent from the accompanying documents, explaining where she had taken them from. We see nothing wrong with that at all.

The third form of the document was left on the file by Ms McKinley. This does not have the doctors' names, but instead it simply has her shorthand words against the name of your general practitioner "(as per the certificates)". And as the copy certificates themselves would have obviously been filed, that would simply have enabled whoever was reading the filed document to look themselves at the certificates if they wanted to get the names; and it is no different in our judgment from having written the names in full on the document.

That is the background to the allegation, which is one of discrimination, by virtue of completing the consent form by adding the names, which were not on when the Appellant had signed it, and of filing a different document from that which had been sent. The judgment deals with this at great length including the following:

"61.3 What we do know Ms McKinley added are references to doctors. This seems to have been done in two different ways on 308 and 309, although we do not know how Ms McKinley managed to make two different sets of alterations to the same original of a form. In any event Mr Blitz objects to the alterations on the version that reached AXA because they revealed details of his doctor, although giving the wrong practising address.

61.4 Much has been made of this, particularly because the last thing Ms McKinley wrote in the Varcoe letter was that Mr Blitz did not want to provide his GP's details. It would follow, of course, that Ms McKinley had acted in direct contravention of Mr Blitz's instructions. We think, however, that this point has been taken after the event. There is no other evidence in the documentation that Mr Blitz had ever given this instruction, nor can we see any reason why he would have done so. We do not think he did. He had only ever refused consent to make his medical records available and on the form itself did not authorise the release of any medical information from the AXA assessment to his GP. The information added by Ms McKinley was available from the doctors certificates which were sent to AXA in any event. We would agree that it is bad practice in principle to add anything to a signed medical consent form and the Company should ensure this does not happen in the future. In her evidence Ms McKinley allowed that maybe, in retrospect, she should not have written anything on the form. However, the addition was harmless in its effect and there can have been no negative intent behind this act which could have achieved nothing in that direction."

The Employment Tribunal gave in paragraph 61.5 an explanation of what it thought may have happened in relation to the filing.

It came then to consider the issue as to whether all that amounted to discrimination, accepting that Ms McKinley had regretted the fact that she had added information to the form which had not been permitted or added by Mr Blitz himself, although, quite plainly, not being any information which was not simultaneously available, and rightly sent, to AXA, in paragraphs 106.3.4, where once again the first test is sought to be satisfied but in "but for" terms:

"The alterations to the consent forms are also put forward as evidence of disability related discrimination. But for Mr Blitz's disability the consent forms would not have been completed ."

Once again wrong wording right conclusion, as Mr Pascall accepts.

Second test: unfavourable treatment or detriment. At paragraph 106.3.4, at some length the Tribunal concludes that there was no unfavourable treatment and implicitly no detriment, in particular no difference made whatever, because AXA were going to get the doctors' names in any event.

We are entirely satisfied that there was no unfavourable treatment, and that there was no detriment; and that, applying Shamoon , if Mr Blitz was upset about what had happened it would be an unjustifiable grievance. Insofar as the Tribunal's considerations by reference to their harassment decision are relevant, given the slightly different formulation of s3B(2) of the Act, they so said in paragraph 106.4.3 "The alterations to the consent form cannot reasonably be considered to have the relevant effect", that is of violating his dignity or creating a humiliating or offensive etc environment. We see no grounds for challenge to that finding, and conclude that the discrimination claim would and rightly did fail on the same basis.

Thirdly, so far as justification is concerned, the Tribunal did not address this, none being required. We agree. If necessary, justification would have been obvious, namely the carrying out of an administrative act, and its being within the reasonable band of responses of an employer to help AXA by adding onto the consent form information which they already had by cross-reference. But that is not a necessary part of our conclusion, we simply say that there is no basis whatever for challenge to the Tribunal's finding in regard to the consent forms.

The fourth aspect relates to the request for the return of the laptop in the letter of 17 August. Its return was originally requested by email on 9 August. "We need your laptop back as soon as possible." The Appellant came to the offices on 11 August to collect some books back which he needed, but did not bring or leave the laptop. He came again on 12 August and, in circumstances to which we shall return, he did not leave the laptop. He fixed a meeting for 10 o'clock on 16 August, when he was to bring the laptop, and then he cancelled it. And against that background, the 17 August letter was sent by Ms McKinley, complaint as to which was made, which said:

"As previously requested we require that you return your laptop back to HR at Betjeman Place … It is imperative that you return the laptop as soon as possible. Please be aware that if you do not return the laptop the company may consider this as a disciplinary matter."

Stage 1, does this relate to disability? It may be more doubtful as to whether the sending of this letter relates to disability. The first request for the return of the laptop could be said to relate to it, because the reason he had to return the laptop was because he was off on long term sickness, which could be said plainly to relate to disability. The reason for the terms of the letter of 17 August could rather be said to relate to the fact that, notwithstanding earlier requests, he had not so returned it. But we are prepared to assume for the purposes of our conclusion that stage 1 was rightly satisfied by the Tribunal.

So far as unfavourable treatment is concerned, and detriment and justification, not surprisingly in all the circumstances the Tribunal dealt with all three fairly shortly in relation to this issue, which does not seem to us to have caused much time to be spent because of the greater interest that there was in the immediately concomitant issue, to which we shall turn, of the security escort visit. But the Tribunal referred, at paragraph 58, to the requests for the return of the laptop, and the fact that it was returned on 23 August. The Tribunal there said:

"Whilst we think it might have been within the company's technical rights for Ms McKinley to mention disciplinary action we agree that it was heavy handed."

At paragraph 106.3.6 the Tribunal said:

"The threat of disciplinary action in recovering the laptop … is offered as a possible incident of disability related discrimination. In both cases [that is the reference to this and the security escort] it is stretching the test for this form of discrimination to say that the treatment in question was related to Mr Blitz's disability. However, if it were to be it might also be seen to be less favourable. Nevertheless, for the reasons apparent in our findings of fact … the Company was entitled to threaten disciplinary action to recover the laptop, albeit heavy handed."

It appears to us quite plain that, by that reference to the company being "entitled" to threaten disciplinary action, they are concluding that the action fell within the reasonable band of responses of a reasonable employer. We agree, and this ground of appeal, in so far as it is a separate ground is dismissed.

Fifthly, the security escort matter. This visit to the premises took place on 12 August, and so featured in a chronology which Mr Pascall himself placed before the Tribunal. The Tribunal, however, concluded that the visit was on the 16 th August not on the 12 th , and that the reference in the documents to the 12 th was, in the view of the Tribunal, an error. We read paragraph 57 of the Tribunal's judgment:

"Having recovered the books on the 12 August, Mr Blitz went back to the Company's office on 16 August, not at 1000, as Ms McKinley had requested, but at 0830. Mr Blitz discovered that his security pass had been de-activated. Mr Blitz criticizes this, but we do not see it as objectionable. Indeed Mr Blitz had anticipated it in his e-mail to Ms McKinley on 11 August. Contrary to Ms McKinley's indication that he should not go into the office except to meet with Human Resources, Human Resources was notified that Mr Blitz had arrived and he proceeded through to the IT area on the basis that he had "logged a ticket". Mr Blitz spoke briefly to Ms Mulville, who told him that she had heard that he would not be returning to work from, according to Mr Blitz's evidence, Ms Barbara Skaife. We do not doubt Mr Blitz's evidence that Ms Skaife's name was mentioned. However , we note that, thereafter, whenever she was asked about the incident, Ms Mulville avoided mention of Ms Skaife's name. Ms Skaife later denied having said anything about Mr Blitz and it seems to us that she never did. It became apparent that IT would not deal with Mr Blitz's laptop and shortly afterwards a security officer, sent by someone in Human Resources (not Ms McKinley) arrived to escort Mr Blitz back to reception to wait for Ms McKinley. Mr Blitz chose to leave, taking the laptop with him. Mr Blitz describes the act of being escorted by a security officer through his work colleagues as humiliating and an "arrest". This is an overstatement. Mr Blitz had been asked to attend at 1000 and ask for Ms McKinley who had made it clear that he should not come into the office unless it was to meet with Human Resources. No doubt Mr Blitz thought it would be helpful to short cut the process. Nevertheless, we see nothing unreasonable in the Company's actions in the circumstances."

The Tribunal returns to this in paragraph 106.3.6, to which we have already made reference:

"… the provision of an escort whilst on work premises is offered as a possible incident of disability related discrimination … it is stretching the test for this form of discrimination to say that the treatment in question was related to Mr Blitz's disability. However, if it were to be it might also be seen to be less favourable. Nevertheless, for the reasons apparent in our findings of fact the escort was justified."

The basis for the Tribunal's conclusion appears to have been, at least in part, that the Appellant had made an arrangement to arrive on the day in question at 10 o'clock and arrived unannounced 1½ hours early of his own initiative, and thus, not surprisingly, ran into a hornet's nest. That is not a justified finding, as both sides concede and agree, because in fact he came on the 12 th , and no particular time had been specified for him to come. The fixing of the time of 10 o'clock related to the subsequent proposed arrangement for 16 th August, which was in the event, as we have described above, cancelled. Therefore, there cannot have been any explanation or justification in relation to the security escort by reference to his having come at the wrong time. It is the case that, once he had gone through to the secured part of the premises, he was then escorted back to the unsecured part, and did not in the event leave the laptop behind.

The question is whether the Employment Tribunal's judgment can be justified notwithstanding this error. The Appellant sought a review from the Employment Tribunal, which we shall call the 'first review' to distinguish it from the second review (to which we referred at the outset of this judgment, in respect of the Burns/Barke reference on the harassment matter, after the preliminary hearing before this Appeal Tribunal) when the Chairman considered, among other things, the assertion by the Appellant that there had been this error. Whatever may be the reason, the first review application was not limited to a purported or attempted correction in relation to the error on the security visit, but included a number of other matters, not all of which, indeed none of which, were so straightforward. The Chairman dealt thoroughly with all the applications for review. So far as the security escort issue is concerned, he recognised, in a judgment handed down on 1 May 2007, that there was agreement between the parties that the date had been 12 th August, but he said that it is the Tribunal's job to make findings of fact which may be at variance with such agreement, if the evidence points in that direction, and he then explained in full why the Tribunal had nonetheless reached the conclusion it did.

The parties before me accept not only that the Tribunal was indeed wrong in relation to 12 th August, but the reason which the Chairman gave in answering the ex parte application for a review before him was itself erroneous by reference to his misunderstanding of yet a different document which in fact related to the 16 th . And so we now have to decide the issue on the basis of an agreed fact, that is to say that in regard to the Tribunal's conclusion that the event took place on 16 th August, and not the 12 th , there was an error, namely as to whether the appeal must be allowed in relation to the security escort issue on that ground, or whether Mr Pascall is able to say, as the Chairman did, in the alternative to his assertion that he was not accepting there was an error, that in any event it made no difference to the Tribunal's conclusion: and that it what Mr Pascall asserts in his submissions before us.

We turn then to the three tests.

The first test: whether it was an act for a reason which relates to disability. The Tribunal found that it was not, for the reasons which we have already quoted in part, but which we shall repeat so far as paragraph 106.3.6 is concerned by reference to the short words:

"it is stretching the test for this form of discrimination to say that the treatment in question was related to Mr Blitz's disability."

The Tribunal says again in the part of the judgment related to harassment at paragraph 106.4.4:

"The incident of the security escort on 16 August is alleged harassment. Again, we think it is stretching a point to see this as disability related."

Mr Pascall certainly still supports that proposition, and it may well be that he might be successful in doing so if the evidence were fully analysed and properly understood by a Tribunal.

Ms Russell submits that if the position simply is that he arrived without a pass, went in to the security area where he was expected, but nevertheless without a pass, and was removed, rightly or wrongly, but with no further conduct on either side, because he did not have a pass, then her case would be that his 'passlessness' was the cause of his removal, and his 'passlessness' was due to his long term sickness: i.e. was related to disability.

Mr Pascall for understandable reasons submits that that may well not be the case. If, for example, there was some intervening cause, either by way of conduct on Mr Blitz's part or negligent or even deliberate conduct which had no relevance to disability on the part of the Respondent, then that would break the chain, and would result in its being less likely that there was a disability related act, and more likely that the Tribunal's conclusion that it was stretching a point to see this as disability related would be right. However, without careful findings and correct findings of fact we are unable to reach such a conclusion.

The second point that Mr Pascall makes may again be right. He refers to Taylor and O'Hanlon , to which we referred earlier, and if in fact there was no input on the part of the employer of any discriminatory reasoning, and if on full analysis of the issue it can satisfy the test on which we have already indicated the burden would be likely to pass to it, of showing that there was no subjective intent, on that aspect too he may well be successful in satisfying this first test. But we cannot be satisfied that the first test would either fail or not fail if this Tribunal had had a full grasp, a correct grasp, of the facts.

We turn to the second issue, which is unfavourable treatment/detriment. The Tribunal found at paragraph 106.4.4, when dealing with the alternative case of harassment, that Mr Blitz had made it clear that he saw what had occurred as humiliating, but the Tribunal was not satisfied on the balance of probabilities within s3B(2) that it could reasonably be considered to have that effect. Again, much may depend upon the precise facts, once fully understood by the Tribunal, but we are far from able to say that it is bound to be the case that where, in this case, the Appellant was marched out of the secure part of the premises by security in front of fellow employees, he could be said to have an unjustified grievance when, contrary to the belief of the Tribunal, he was not attending at an inappropriate time.

So far as the third test is concerned, which is justification, Mr Pascall accepts that, if he gets as far as that, he is unable to say that there was material before the Tribunal, as understood by the Tribunal in their findings, upon which he can rely. The basis on which the Tribunal found justification in his favour is, as we have already indicated, not correctly based, and he would have to rely on justification other than by reference to the findings of this Tribunal before he could succeed. In those circumstances on this aspect of the case also - the third out of these five grounds of appeal - the appeal must be allowed.

We turn finally to harassment. The Tribunal dealt in its judgment at paragraph 100 with a number of points arising from the Disability Discrimination Act questionnaire and its response and the pleadings; and in paragraphs100.1 and

100.2 they made a critique of the Respondent's answers in the questionnaire, to an extent, and in the pleadings, concluding that the Respondent's comments were, among other things, factually inaccurate or unsubstantiated. At paragraph 106.4.6 dealing with harassment the Tribunal said this:

"It is suggested that the Company's actions in responding to the DDA questionnaire and the response and pleadings in this case as set out in paragraph 100 above amount to harassment. Whilst in our view, those actions are utterly to be condemned, this head of claim was not included in the detailed pleadings in this case and we have not considered it for that reason."

It was that conclusion by the Tribunal which was the subject matter of paragraph 5(g) of the skeleton before us at the preliminary hearing, and the order that we made which resulted in the second review. This was by reference to paragraph 23 of the consolidated claim, which added in one very brief last sentence the words "The Claimant will also rely on comments made in response to his ET1" - very exiguous and, we point out, not including any reference to the replies to the questionnaire, so that, so far as that latter aspect is concerned the Tribunal was right in concluding that there was no pleaded case in relation to it. It appeared to us however that the Tribunal ought to be asked whether they did or did not stand by the suggestion that the reference to the "comments in response to the ET1", i.e. the pleading of the ET3, was or was not a sufficient plea to found a claim in harassment.

When it came to the review application, very helpfully Ms Russell in her skeleton argument in support of the application for review set out those passages of the ET3 upon which the Appellant relied as amounting to harassment, and we quote:

"(i) that the Claimant was given a full stress assessment upon his return to work. [We interpose that he was not.]

(ii) that the Claimant provided sick notes stating his presence in the UK when he was actually in Israel for his own purposes …

(iii) that the Claimant remained on sick leave for the full 26 weeks and returned immediately following notice that his sick pay would be cut off. [We interpose that that later statement is not correct.]

(iv) that upon his return the Claimant deliberately disrupted the workplace and made various and unwarranted statements against his manager, Ms Koetting, who is German (the Tribunal is respectfully reminded of the Claimant's allegations of discrimination on the grounds of his Jewish religion)." [It is this which the Tribunal found to have been unsubstantiated.]

The Chairman considered the second application for Review, and gave a detailed judgment in his order handed down on 9 August 2007. He answered the questions posed by the Employment Tribunal by stating:

"Yes. In light of paragraph 23 of the consolidated grounds of claim a complaint of harassment by reference to the contents of the ET3 was made by the Appellant.

In answering the question in the affirmative I have taken account of the fact that the reference is general and non-specific. Nevertheless, the reference to "comments" can equally apply to written as well as verbal comments."

So to that extent he accepted that paragraph 106.4 of the Tribunal's judgment had been inaccurate; and he rightly, not least because so encouraged to do so by this Appeal Tribunal's order, turned to the issue as to whether in the light of that conclusion a review ought to be granted. He rightly stated that the only ground for a review of substance of the issue was that the interests of justice required such a review; and he correctly approached the question from whether there was a reasonable prospect that the Tribunal would conclude that the test for harassment had been made out by reference to the ET3. He answered that question firmly 'no'. We quote the following paragraphs:

"3.2 The issue, therefore, can be conveniently stated as "Should the application for a review of whether or not the content of the ET3 amounts to harassment for a reason relating to disability, be granted?" Whilst a review could be undertaken, the application is refused because there is no reasonable prospect of the Judgment being varied or revoked in this respect.

3.3 Paragraph 100.2 of the Judgment sets out the Tribunal's findings of fact in relation to the contents of the relevant ET3.

3.4 Having heard the parties at the hearing and considered all the evidence I consider there is no reasonable prospect that the Tribunal will find that any of this content had the purpose of violating the Claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. Whilst the content was factually inaccurate and unsubstantiated it reflected the "woeful lack of research' referred to in the preceding paragraph of the Judgment (100.1) rather than any purpose on the part of the Respondent. It seemed to the Tribunal that the Respondent's case preparation on receipt of the ET1 was hurried. Further, the Claimant resigned on and with effect from 30 November 2005. The relevant ET3 was filed on 7 December 2005 when the Claimant was no longer in the workplace. It is difficult to see what "environment" might be referred to in the context of the second leg of the test.

3.5 I also do not consider that there is any reasonable prospect that the Tribunal would find the content could reasonably be considered to have had the relevant effect . As the Tribunal observed in paragraph 106.4.3 of the Judgment, the Claimant displayed particular sensitivity. It is quite possible that the content had the effect of violating the Claimant's dignity. However, there is no reasonable prospect that the Tribunal would conclude that, having regard to all the circumstances, including in particular the perception of the Claimant, it should reasonably be considered as having that effect. Further, the same observation as is made above in relation to "environment" applies equally here."

Ms Russell has addressed criticism of the doubt expressed by the Chairman as to whether it could be said that "environment" could be applicable where the Claimant was no longer in the workplace; and she has two points to make in that regard, both of which have substance. The first is that at the time of the ET3, as it happens, in relation to this Claimant, there was still an outstanding grievance procedure. Secondly, she indicates her submission, whether it is right or not does not need at this stage to be examined, that, by reference to s16A of the Disability Discrimination Act , disability discrimination now applies where the work relationship has come to an end, and, unless it is to be said that s3B has no applicability after the termination of employment, which is unlikely, at some stage someone is going to have to decide what if any applicability the word 'environment' has to an ex-employee.

But this was not determinative of the Tribunal's decision. What was determinative was, as appears from the judgment, the conclusion as to whether or not the conduct was said to be such as to violate Mr Blitz's dignity, or to create an intimidating, hostile, degrading, humiliating or offensive environment for him. It was not arguable that the responses, inadequate as they may have been, in the ET3, could, having regard to all the circumstances, including in particular the perception of Mr Blitz, reasonably be considered as having that effect. The issue, it must be recalled, related to the setting out in pleadings of assertions which were either inaccurate or inadequate, which we have referred to by reference to Ms Russell's skeleton argument, set out in pleadings, when battle was already joined between litigants. It is not quite a question of saying that all is fair in love and war, but it is to be emphasised, even if "environment" can be extended, that it was in legal proceedings that these answers were being put forward. This Chairman had already made conclusions critical of the contents of the pleadings, when he wrote the judgment on behalf of the Tribunal: and we are entirely satisfied that he addressed this issue fully and clearly, and gave full reasons for his conclusion that it was not arguable that the responses set out in the pleadings could reasonably be considered as violating the Appellant's dignity or, if appropriate, creating a humiliating environment for him. We see no basis upon which that conclusion can be regarded as perverse, and we reject the appeal.

There are therefore three matters that are to be remitted: the issues of the Varcoe letter, the tick-box in the referral form, sent out in the same post, on or about 17 August and the security visit on 12 August. They fall within a narrow compass and the tests to be answered, coupled with the respects in which the previous conclusions did not address those tests, have been set out in this judgment. We are satisfied that all those three issues can be dealt with very speedily. There will undoubtedly need to be some more evidence as appropriate from the author of the Varcoe letter, Ms McKinley, and by reference to witnesses who were present on 12 August and its immediate aftermath. But it is not a matter that is going to take long. However, we conclude that it is overwhelmingly best that this be dealt with within the confine of a context which will be familiar to the same Tribunal. The Tribunal has made a number of important findings of fact which are not going to be disturbed, whoever hears this fresh matter now sent back. We are satisfied, looking at the decision as we have done and at Sinclair Roche & Temperley v Heard

[2004] IRLR 763

, that on all the tests there referred to – practicality, proportionality, lack of delay, experience and good sense of tribunals – the boxes are ticked, if I can use that expression in the context of this case.

The concern that we had was in relation to Ms Russell's submission which addresses one of the matters which Sinclair Roche indicate should be considered. She does not suggest, of course, that there was any bias or pre-judgment on the part of this Tribunal. It is clear to us that this Tribunal was, in any event, a very sympathetic one towards Mr Blitz as far as it could be, in that, notwithstanding the fact that it dismissed almost all his claims, which would not have pleased him, it nevertheless made a number of criticisms of the Respondent, and did find for him on a claim, which we have already been satisfied they should not have done.

What Ms Russell concentrates on, however, is the first review application. She says that the way in which the Chairman, at any rate, dealt with the first review application is indicative, if not of a closed mind, at any rate of a hope that there will be no need to reopen or reconsider decisions already made, by reference in particular to the conclusion which he made that even if there was an error, it would not have made any difference to the conclusion.

It is important that we should state the following. First of all that the first review application was not an agreed application, it was an ex parte application by the Appellant for a review which was not consented to by the Respondent. Secondly, the point made in relation to the security escort visit was only one of, if not a host certainly a contingent, of other allegations, which the Chairman needed to consider. Thirdly, the Chairman did consider the points and dealt with them, with full reasons. We see nothing in the way in which he dealt with the first review application which indicates any kind of closed mind, and in any event he will, together with his colleagues, be going back to a hearing now which will inevitably be reopened: even if they come to the same result they will not be able to reach exactly the same conclusions. We are satisfied that he, together with his fellow members, will act professionally in this regard. It has always been difficult for a party who has only succeeded on appeal to face the prospect of going back in front of the same tribunal. One can only lay forward the other side of the coin, which is that if it is the same tribunal they may possibly conclude that they erred on the first occasion and should now come to a new decision. If it is a fresh tribunal they may so respect the findings of the first tribunal as to find it difficult to differ from the first tribunal who "knew better than we do" because they were more familiar. It is a toss up at the end of the day, but we can only say that we see no ground in law from differing from the Sinclair Roche decision. Consequently we propose to remit this to the same Tribunal to decide the three issues.

We would only wish to say this by way of guidance to employment tribunals of some importance. This case is a very good example of one important respect in which tribunals should be very reluctant to follow the course taken by this Tribunal, unless both parties agree to it. The course we refer to is ordering written submissions to be exchanged without any opportunity for oral submissions afterwards . It appears to us that, absent agreement of the parties, it is, other than in the most simple case, manifest good sense that there be perhaps half a day set aside in which, if the parties wish it, they can supplement their written submissions or challenge the contents of their opponent's submissions. Had this occurred in this case most of the matters which have taken up time in the Appeal Tribunal might well not have occurred at all. First of all, the problem in relation to the bonus claim which has led to exhaustive consideration on the cross-appeal might well have been sorted out. Secondly, the Employment Tribunal might well have appreciated that they had a need to consider objective rather than subjective justification in relation to the Varcoe letter and the 'tick-box' issue. Thirdly it would have become clear that the harassment claim was indeed pleaded and being pursued, and they could have dealt with it, as they eventually did on the second Review. And, fourthly, they might well have appreciated that they were not in a position to insist upon their view of 16 August in the face of combined agreement about 12 August. They might have tested out their hypothesis as to the alternatives and found that they did not work. That is what the joy and the importance of oral submission is. We quite recognise the saving of cost and time which has followed from the introduction of written submissions and we would not wish in any way to go back on that, but the opportunity, and the need, to supplement and clarify in any but the most simple cases ought not to be lost sight of.