1) MS S WILMOT 2) MS S WILMOT 3) MS K PATEL v DR M SELVARAJAN [2007] UKEAT 0427_06_1210

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0427_06_1210Case No Appeal No. UKEAT/0427/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
1) MS S WILMOT 2) MS S WILMOT 3) MS K PATELAPPELLANTSDR M SELVARAJANRESPONDENT
Before
His Honour Judge Peter Clark Ms J L P DrakeDate 12 October 2007
[1]APPEARANCES For the Appellants MR P DRAYCOTT (of Counsel) Instructed by: UNISON Employment Rights Unit 1 Mabledon Place London WC1H 9AJ For the Respondent MISS J WOODWARD (of Counsel) Instructed by: Messrs. Frodshams Solicitors 19 Hardshaw Street St. Helens Merseyside WA10 1RB SUMMARY Unfair Dismissal – Reasonableness of dismissal / Automatically unfair reasons Disability Discrimination – Reasonable adjustments Race discrimination – Victimisation Ordinary unfair dismissal (conduct). Automatically unfair dismissal (s98A ERA): completion of disciplinary procedure. Reasonable adjustments: application of PCP. Victimisation. HIS HONOUR JUDGE PETER CLARK The parties to these proceedings before the Manchester Employment Tribunal were Sharon Wilmot, Sandra Wilmot and Kalavati Patel, Claimants, and Dr. Selvarajan, Respondent. We shall so describe them. The Respondent is a General Practitioner, who, from 1 October 2002, carried on practice as a sole practitioner from the Deane Clinic. All three Claimants were employed in the practice as receptionists. All were summarily dismissed for alleged gross misconduct on 5 March 2005. They brought a variety of claims before the Employment Tribunal. Some were withdrawn; the remainder were dismissed by the Judgment of an Employment Tribunal chaired by Mr J B Vinecombe, registered with reasons on 23 May 2006. Following the Employment Appeal Tribunal case management process we now have before us an appeal by the Claimants and a cross-appeal by the Respondent. Employment Tribunal Claims[2]The Claimants brought the following material claims before the Employment Tribunal:(1) 'Ordinary Unfair Dismissal'; all three Claimants.(2) Automatically unfair dismissal s98A Employment Rights Act 1996 (ERA ) ; all three Claimants.(3) Direct Racial discrimination; all three Claimants.(4) Direct Discrimination on the grounds of religion or belief; Kalavati Patel only.(5) Disability discrimination (failure to make reasonable adjustments)(6) Victimisation; in the case of: Sharon Wilmot, contrary to s2 Race Relations Act 1976 (RRA); Sandra Wilmot, contrary to s2 Race Relations Act 1976 (RRA) and s55 Disability Discrimination Act 1995 (DDA); Kalavati Patel, contrary to s2 Race Relations Act 1976 (RRA) and regulation 4(1) Employment Equality (Religion or Belief) Regulations 2003 (RB Regs 2003). Before the Employment Tribunal the Claimants withdrew claims (3) and (4).[3]We are not concerned with further claims of breach of contract and unlawful deductions from wages brought by all three Claimants.[4]Claims (1) - (5) were contained in ET1s lodged on 3 June 1005. The victimisation claims were brought by way of further ETIs lodged on 18 October 2005. Issues in the appeal and cross-appeal[5]The following issues arise before us:(1) Ordinary Unfair dismissal Did the Employment Tribunal fall into error in determining (a) the reason for dismissal (conduct) and (b) the fairness of the dismissals (ERA s98(4))? Did the Employment Tribunal give adequate reasons for their finding of unfair dismissal under s98 in each case?(2) Automatically Unfair Dismissal – ERA s98A Was the statutory Dismissal and Disciplinary Procedure (DDP) completed notwithstanding a delay between the Claimants' internal appeals and the Respondent's determination of those appeals?(3) Disability Discrimination When is the statutory tort based on failure to make reasonable adjustments complete: did the Employment Tribunal err in law in rejecting Sandra Wilmot's complaint of failure to make reasonable adjustments?(4) Victimisation Did the Employment Tribunal erroneously determine the claims of victimisation on the basis of the Respondent's conscious motivation? If so, did they take a wrong approach to the question of 'good faith' raised by the Respondent (the point in the cross-appeal)?[6]We shall deal with the facts, the Employment Tribunal's findings and the arguments in the appeal and cross-appeal under these four headings. Ordinary Unfair Dismissal[7]The Employment Tribunal found the following relevant facts.[8]In addition to the three Claimant receptionists, the Respondent employed a Practice Manager, Colin Elrington, whose responsibilities included the payroll and staff holidays.[9]The Respondent inherited a substantial backlog of clerical work. He asked Mr Elrington to conduct an audit to assess the hours worked by the staff for the purposes of ensuring that proper payment was being made by an outside source. As a result of a contract dispute with the Claimants the Respondent commenced an investigation into the management of the practice by Mr Elrington and on 8 November 2004 he was suspended. He later resigned.[10]The Respondent instructed a specialist computer company, Vogan, to assist him in investigating overtime claims and holiday entitlement. As a result of his investigation into the practice records the Respondent formed the view that the Claimants were claiming holiday to which they were not entitled and making false overtime claims.[11]On 6 January 2005 he interviewed each of the Claimants, asked for details of their working hours and then suspended them on full pay. They were told the suspension was in relation to irregularities in overtime claims and that the Respondent wished to carry out further investigations.[12]On 30 January 2005 the Respondent wrote to each of the Claimants, asking them to attend a disciplinary hearing on 9 February. With that letter was an appendix setting out alleged irregularities concerning overtime and holidays. They were told that at the disciplinary hearing they could be represented by a work colleague or trade union official.[13]The Employment Tribunal summarize the course of that disciplinary hearing at paragraph 25 of their reasons thus:
"25. At the disciplinary hearing held on the 9 February 2005 each of the claimants was represented by Mr Parkes of Unison. Specific allegations of overtime irregularities were put to the claimants. Sharon Wilmot's explanation for the alleged extra hours claimed was that two people were required on reception at all times. Sandra Wilmot explained that approximately two hours of the alleged twenty two hours claimed were because she was cleaning up after building works. Kalavati Patel stated that she had only made claims in respect of legitimate hours worked. The claimants accepted that the planning of holiday rotas and work schedules was a collective decision. None of the claimants produced any evidence, such as their diaries in which they claimed they had recorded their hours, to the respondent. Those diaries were not before the Tribunal. Before the Tribunal Sharon Wilmot said that she did not recall putting forward any defence to the allegations. None of the claimants requested copies of the overtime claims sheets or other documentation. Before the Tribunal the claimants admitted that they had been paid for overtime that they had not worked and intended to pay back."
[14]By letters dated 5 March 2005 the Respondent summarily dismissed each Claimant for gross misconduct, namely that the Claimants "were involved in the mismanagement of the Practice by the former Practice Manager, Colin Elrington. You permitted additional unauthorized overtime claims to be submitted, contrary to company procedure." He told the Employment Tribunal that the reason for dismissal was in relation to irregular claims for overtime.[15]The Claimants promptly appealed against dismissal by a letter dated 8 March 2005. The appeals were heard by the Respondent on 4 July. He dismissed those appeals by letter dated 8 July.[16]Based on their findings of fact and applying the well-known Burchell test the Employment Tribunal concluded.(1) That the reason for dismissal related to the Claimants' conduct, namely for claiming and being paid for unauthorised overtime.(2) The Respondent carried out a thorough and painstaking investigation into the Practice records and requested information from the Claimants, comparing the one with the other.(3) For the purposes of the disciplinary hearings the Claimants were supplied with an appendix detailing the discrepancies.(4) The Claimants did not seriously challenge the findings. One Claimant, Sharon Wilmot, told the Employment Tribunal "she did not recall putting forward any defence to the allegations". We repeat the Employment Tribunal's finding at paragraph 25; " the Claimants admitted that they had been paid overtime they had not worked and intended to pay it back".(5) The Claimants were accompanied by their trade union representative and had the opportunity to either seek further information or put forward information in their defence, for instance by reference to their diaries which they neither produced to the Respondent nor the Employment Tribunal.(6) In these circumstances the Employment Tribunal found that the Respondent carried out a reasonable investigation and had a reasonable belief in the Claimants' misconduct. Dismissal fell within the band of reasonable responses open to the Respondent.[17]In this part of the appeal Mr Draycott raises a number of challenges to the findings of fair dismissal.[18]First, in his written submissions, Mr Draycott contends that the Employment Tribunal failed to engage with the reason advanced for the dismissals in the Respondent's forms ET3. It is there said, under the heading 'Background':
"The Claimants and Mr Colin Elrington were involved in a fraudulent scheme and/or collaboration whereby they all received/awarded themselves unauthorised pay rises and undertook overtime without the Respondent's consent."
[19]In developing that submission Mr Draycott referred us to the wording of the Respondent's dismissal letters dated 5 March 2005, reflected in the Employment Tribunal's formulation of the Respondent's reason for dismissal at paragraph 36 of their reasons and sought to contrast that articulations of the reason with the language of the Forms ET3, settled by solicitors.[20]We can see nothing in this point. As Miss Woodward submits, the employer's reason for dismissal is a set of facts known to him, or it may be of beliefs held by him, which cause him to dismiss the employee (see Abernethy v Mott Hay & Anderson [1974] ICR 323, per Cairns LJ, approved by the House of Lords in Devis v Atkins [1977] ICR 662 ).[21]The reason put forward by the Respondent in his letters of dismissal and in evidence before the Employment Tribunal (reasons paragraph 26) was accepted by the Employment Tribunal and set out at paragraph 36. We do not accept that the wording of the Form ET3, that is a fraudulent scheme and/ or collaboration, is inconsistent with the Respondent's own evidence. If it was, then the Employment Tribunal accepted his evidence.[22]As to the Employment Tribunal's finding of reasonableness under s98(4) of the Employment Rights Act 1996 , Mr Draycortt raises what we would characterize as a number of factual matters arising in the course of the hearing below; they included evidence about a temporary employee, Daxa Patel; sick leave/time off in lieu; the annual leave year; Sharon and Sandra Wilmot's response to the allegations and when overtime could permissibly be worked. Alternatively, he submits that in failing to deal with these matters explicitly, the Employment Tribunal's reasons were not 'Meek compliant'.[23]We do not propose to set out the detail of those submissions; we agree with Miss Woodward that they raise no point of law on appeal. An Employment Tribunal need not deal with every point made in the evidence and in submissions (see James v Mid-Glamorgan County Council [1997] ICR 815 (CA)). Their reasons adequately explain to the parties why they won or lost.[24]However, we should deal specifically with a point of natural justice raised by Mr Draycott. He submits that the source documents on which the 3 page appendix of allegations provided to the Claimants ran to 192 pages. They were not produced by the Respondent, nor was other material considered by the Respondent, including the overtime claims submitted by the Claimant; their time sheets; a wall chart marking their absences, their payslips and the Vogan report. Further, he contends that the Respondent was asked to provide supporting documents by the Claimants' trade union.[25]In these circumstances, he submits, the Claimants did not fully know the nature of the case against them so that they could properly argue their defence. (See Bentley Engineering Co. Ltd. v Misty [1978] IRLR 436, para. 7; Spink v Express Food Groups Lt d [1990] IRLR 320, para. 23.) Further the failure to give adequate disclosure offended the ACAS Code of Practice and there is no indication that the Employment Tribunal took into account the Code: see Lock v Cardiff Railway Co. Ltd [1978] IRLR 358 (EAT) endorsed by the Scottish Court of Sessions in Diosynth Ltd v Thomson [2006] IRLR 284 . See also AvB [2003] IRLR 405 , paragraphs 39, 84-85, per Elias J.[26]We do not doubt the principle of natural justice invoked by Mr Draycott by reference to the cases cited. The question here is whether, on the facts of the present case, these Claimants were denied a proper opportunity to meet the charges levelled against them.[27]Miss Woodward has taken us to the appendix setting out the hours said to have been falsely claimed. It is not suggested on behalf of the Claimants that this summary misrepresents the underlying documents. We also bear in mind the Employment Tribunal's findings that the Claimants did not dispute the proposition that they had claimed overtime to which they were not entitled; indeed they stated that they had intended to pay it back.[28]In these circumstances we are not persuaded that there has been any breach of natural justice such as to undermine the Employment Tribunal's conclusion that the dismissals were fair under s98(4) of the Employment Rights Act 1996 . The nature of the charges was sufficiently put to the Claimants: their difficulty was that they had no defence to the core allegations.[29]It follows that we reject the appeal against the Employment Tribunal's finding that the dismissals were fair under s98 of the Employment Rights Act 1996 . Automatically Unfair Dismissal[30]Section 98A of the Employment Rights Act 1996 provides: 98A Procedural fairness(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if— (a) one of the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal, (b) the procedure has not been completed, and (c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements."(2) …(3) For the purposes of this section, any question as to the application of a procedure set out in Part 1 of Schedule 2 to the Employment Act 2002, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under section 31 of that Act.[31]The issue in the present appeal may be shortly stated; can the Dismissal and Disciplinary Procedure (DDP) be completed where the employer has failed to comply with one of the requirements under the procedure?[32]Before embarking on an analysis of the relevant statutory provisions and EAT cases in which they have been considered we make this observation. The employer's failure relied on by the Claimants in the present case is the General Requirement under Part 3 of Schedule 2 to the Employment Act 2002 , paragraph 12, 'that each step and action under the procedure must be taken without unreasonable delay' (the paragraph 12 requirement). The particular step in the DDP (Schedule 2, chapter 1) is the step 3 appeal. Once the employee informs the employer that he wishes to appeal, the employer must invite him to attend a further meeting (the appeal meeting). What is said here is that the delay between the Claimants notifying the Respondent of their wish to appeal on 8 March 2005 and the appeal meeting held on 4 July 2005 was unreasonable, and thus breached the paragraph 12 requirement.[33]The observation we make is this. Take the facts of the present case. This was a small GP's practice. Once Mr Elrington had resigned there was no layer of management above or below the Respondent himself. If he dismissed the employees who was to hear the appeal against dismissal? Answer; the Respondent. Thus he heard an appeal against his own decision. True it is that he might, like the 19th century Chancery Judge who, following his elevation to the Court of Appeal, heard an appeal against his own first instance judgment and concurred in the Court's decision to allow the appeal, stating that the case did not appear to him now as it appears to have appeared to him then, but the prospects of a favourable result to the appellant employee are in practice limited. And the DDP allows of no exception to the employee's right to an appeal hearing, even where there is no one else to hear the appeal.[34]We simply make that comment in passing. The natural justice point is not taken by Mr Draycott in this appeal; nor does Miss Woodward submit that no appeal was required in these circumstances. The case has proceeded on the basis that there was an appeal and it was heard by the Respondent.[35]Returning to the issue, was the procedure completed for the purposes of s98A(1)(b)? Yes, submits Miss Woodward. Step 3 was in fact completed. An appeal was lodged and determined following an appeal hearing. No, argues Mr Draycott; failure by the Respondent to comply with the paragraph 12 requirement means that the procedure was not completed. That submission proceeds on the assumption, the Employment Tribunal having made no finding on the point, that the delay between 5 March and 4 July 2005 was unreasonable.[36]The point is not free from Employment Appeal Tribunal (EAT) authority.[37]In Khan and another v The Home Office (UKEAT/0026 and 0250/06/LA 17 November 2006) an issue arose as to whether the employer had complied with step 3 of the DDP. The EAT held that it had not; a 3 month delay was unreasonable. Therefore the dismissals were automatically unfair per His Honour Judge McMullen QC, paragraphs 86-88.[38]In Patel v Leicester City Council (UKEAT/0368/06/MAA 20 December 2006 Keith J presiding) an argument was presented on behalf of the employer that, notwithstanding a delay of 6 months between the employees internal Notice of Appeal and the hearing of that appeal, the statutory procedure had been completed within the meaning of s98A(1)(b). The Step 3 procedure had been completed (Judgment para 31). The EAT rejected that submission. At paragraph 32 Keith J said:
"32. We cannot go along with this argument. A procedure will only have been completed if it has been completed in accordance with the requirements of Schedule 2 to the 2002 Act. One of those requirements is that the steps required to be taken be taken without unreasonable delay. If a step is not taken without unreasonable delay, the procedure will not have been completed in accordance with the requirements of Schedule 2. If the position was otherwise, there would be no sanction for employers who unreasonably delay completing any of the steps set out in the statutory procedures."
[39]Finally, in additional written submissions on this point following our hearing, Mr Draycott drew attention to the recent judgment of Underhill J in Sovereign Business Integration Plc v Trybus (2007) UKEAT/0107/07/DM 15 June 2007, a case in which the employee did not see a notification of the internal appeal meeting before it was held. The EAT held that the Employment Tribunal was entitled to find that the employer was in breach of the General Requirement under Schedule 2, Part 3, paragraph 13 of the Employment Act 2002 , that the timing and location of meetings must be reasonable. The dismissal was automatically unfair.[40]It follows that the weight of authority favours Mr Draycott's submission in the present case. Whilst we are not strictly bound by earlier EAT authorities, in the interests of comity we strive to follow earlier decisions unless they appear to be manifestly incorrect. It is against that background that we nevertheless turn to the submission of Miss Woodward.[41]Her best point, if we may be permitted to say so, is a pure point of construction of the statutory language. The scheme of s98A(1) provides that a dismissal is automatically unfair if three conditions are met:(a) the DDP applies,(b) the relevant procedure has not been completed and(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.[42]Miss Woodward submits that non-completion and non-compliance are distinct concepts. To complete means to finish.[43]Thus, looking at the earlier EAT cases, in Trybus Step 3 was not completed; the employee was not invited to attend the appeal meeting because he did not receive notice of that meeting before it took place and therefore did not attend. However, in the present case and in the cases of both Khan and Patel Step 3 was completed. All the 5 stages were completed. Had they not been, as in Trybus , the non-completion would have been due to the employers non-compliance and would thus render the dismissals unfair under s98A(1).[44]In her further written submissions following our hearing Miss Woodward draws attention to the interpretation of 'non-completion' of a statutory procedure in regulation 2(1) of the Employment Act 2002 (Dispute Resolutions) Regulations 2004 (the 2004 Regulations, referred to in s98A(3) of the Employment Rights Act 1996 . The language is unhelpful, in our view:
'Non-completion' of a statutory procedure includes non-commencement of such a procedure except where the term is used in relation to the non-completion of an identified requirement of a procedure or to circumstances where a procedure has already been commenced.'
[45]What is abundantly clear is that that is not a comprehensive definition of what is and is not 'non-completion of a statutory procedure'.[46]We have also been taken to s31 of the Employment Act 2002 , which is headed 'Non-completion of statutory procedure: adjustment of awards': By s31(3) If, in the case of proceedings to which this section applies, it appears to the Employment Tribunal that –(a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,(b) the statutory procedure was not completed before the proceedings were begun, and(c) the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure, the Employment Tribunal must (subject to subsection (4)) increase any (compensation: see s124A, ERA) award which it makes to the employee by a further amount between 10 and 50 per cent.[47]We have compared the wording of s31(3) Employment Act 2002 with that of s98A(1) Employment Rights Act 1996 .[48]In the context of the present factual matrix the Claimants presented the relevant Forms ET1, alleging unfair dismissal, on 3 June 2005. Their internal appeals, submitted on 5 March, had not then been determined. Step 3 had not then been completed. Had the employer's delay at that point been deemed unreasonable by the Employment Tribunal the dismissals would have been(a) automatically unfair under s98A(1)and(b) have attracted an uplift of between 10 and 50 per cent of any uplift award made by the Employment Tribunal under s31(3) Employment Act 2002 . We note that the requirement on the employer to complete the DDP before proceedings are begun for the purposes of s31(3) is not replicated in s98A(1)(b).[49]Notwithstanding the forceful argument presented by Miss Woodward, we are not persuaded that we should depart from the earlier decisions of Khan , Patel and Trybus . These cases all proceed on the basis that a failure to comply with the requirements of the statutory procedure preclude completion of that procedure. In particular, the passage cited from the judgment of Keith J in Patel demonstrates that the argument advanced by Miss Woodward in the present case was considered and rejected in that case.[50]It follows that we shall allow the Claimants' appeal against the finding that they were not automatically unfairly dismissed because the statutory procedure had been completed. Disability discrimination[51]This aspect of the appeal concerns Sandra Wilmot only. It was common ground that she was disabled. She suffered from severe loss of vision due to retinal detachment.[52]The Employment Tribunal found as fact (reasons paragraphs 29-32) that her duties consisted of obtaining patients records for the Respondent, answering the telephone, making appointments, generally manually because she could not use the computer. She said in evidence that she had no difficulty with those duties.[53]It was alleged by her that on 29 June 2004 the Respondent had suggested she should retire because of her age. A witness called on behalf of the Claimant, Mrs Taylor, said that the Respondent suggested that he could retire her because of her deteriorating eyesight. The Respondent denied both accounts. The Employment Tribunal accepted his version of events, finding as fact that he did not say that he was retiring Sandra Wilmot either because of her age or her eyesight.[54]At paragraphs 31-32 the Employment Tribunal made findings as to computer aids for Sandra Wilmot to assist with her visual disability. These were not put in place by the time of her dismissal.[55]In directing themselves as to the law relating to reasonable adjustments (reasons paragraph 35) the Employment Tribunal referred to s3A(1) and (5) DDA and at paragraph 45 to s3A(2). They made no express reference either to s4A (Employers: duty to make adjustments) nor to s18B (Reasonable adjustments: supplementary).[56]The relevant conclusions on this Claimant's complaint of failure to make reasonable adjustments are set out at paragraphs 45-47. The Employment Tribunal said:
"45. Mr Draycotte submitted that Sandra Wilmot's primary claim of disability discrimination was that the respondent had failed to comply with his duty to make reasonable adjustments pursuant to section 3A(2) Disability Discrimination Act 1995. In considering whether the respondent had failed to make reasonable adjustments and whether Sandra Wilmot had thereby suffered a detriment the Tribunal took into account the duties that she had to perform, the adjustments recommended by Access to Work and what, if any adjustments were implemented. The Tribunal's findings in relation to these matters are set out in paragraphs 29, 31 and 32 above. 46. Prior to June 2004 Sandra Wilmot's evidence was that she was managing her duties. Following the recommendations of Access to Work the adjustments relating to non-computer related activities were provided. The non-computer adjustments provided were sufficient to enable Sandra Wilmot to carry out her duties. Sandra Wilmot's duties did not require her to use a computer apart from sometimes making appointments on the computer. It was clear to the Tribunal that until she was trained in how to use a computer she would continue to undertake her duties in her normal way. Until the BPCT had assessed the Lunar software and had decided that it was compatible with the existing system Sandra Wilmot would not be required to use the computer. At that stage she would receive appropriate training from the RNIB. Accordingly the Tribunal were not satisfied that Sandra Wilmot had suffered a detriment because the Lunar software and associated computer equipment and training were not in place. 47. It was submitted that the failure to recognise that Sandra Wilmot was disabled within the meaning of section 1 Disability Discrimination Act 1995 was of direct relevance to the obligation to make reasonable adjustments. It was clear that the respondent was aware of Sandra Wilmot's condition and no action was taken until receipt of the access to work recommendations. However, this must be placed in context. Sandra Wilmot's evidence to the Tribunal was that she had no difficulty in undertaking her duties and there was no evidence that any complaint was made to the respondent. Although no formal admission of disability was made by the respondent's solicitors until October 2005 following receipt of the Access to Work report adjustments were put in place."
[57]In this appeal Mr Draycott submits that the Employment Tribunal fell into error in failing to consider the employer's statutory duty under s4A. Further, in requiring the claimant to show a 'detriment' under s4(2)(d) DDA.[58]We deal first with the application of s4A, which provides:
"(1) Where – (a) a provision, criterion or practice (PCP) applied by or on behalf of an employer … places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to take in order to prevent the [PCP] … having that effect."
[59]It follows that the Employment Tribunal is required to identify:(1) the relevant PCP made by the employer.(2) the identity of the non-disabled comparators (where appropriate) and(3) the nature and extent of the substantial disadvantage suffered by the Claimant.[60]Only then will the duty to make adjustments arise. Mr Draycott submits that the Employment Tribunal erred in applying the detriment test and failed to consider whether Sandra Wilmot was at a substantial disadvantage in comparison with her able bodied colleagues.[61]That submission raised an interesting question on which we invited further written submissions from counsel. Is the statutory tort of unlawful disability discrimination made out simply by the Claimant establishing a breach of the employer's duty to make reasonable adjustments under s4A, or must she go on to show unlawfulness under s4 (applying the 'reverse burden of proof', see s.17A(1c)?[62]Mr Draycott submits that the amendments to the DDA effected by S1 2003/1673 (the 2004 Regulations) with effect from 1 October 2004 give effect to Council Directive 2000/78/EC, which do not require the Claimant to show more than a breach of the duty to make reasonable adjustments.[63]Section 3A(2) includes, as a discrete form of discrimination, an employer's failure to comply with an s4A duty to make reasonable adjustments. However, we can see no warrant in the statutory wording to exclude that particular form of discrimination from the further requirement to show that discrimination to be unlawful in accordance with s4.[64]Nevertheless, we think that in practice the position is covered by s4(2)(b), which renders it unlawful to discriminate against a disabled employee:
'in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit.'
[65]Those last words, as Mr Draycott submits, are wide enough to include the benefit of any reasonable adjustment which the employer is under a duty to make under s4A, read with s18B. It is not necessary to rely on 'detriment' under s4(2)(d).[66]Returning to the present case, the first question, before any duty to make adjustments can arise, is what was the PCP applied to Sandra Wilmot?[67]Mr Draycott summarizes her reasonable adjustments claim at paragraph 34 of his further written submissions. It concerned the Respondent's failure to provide her with suitable equipment such that she would not be placed at a disadvantage by reason of her 'severe loss of vision by reason of retinal detachment'. Her claim particularly concerns the Respondent's failure to purchase the computer equipment recommended by Access to Works' report of 27 August 2004 (reasons paragraph 31), notwithstanding the fact that the surgery's manual records were increasingly being transferred onto a computer system, with the result that the duties that she could undertake gradually diminished.[68]That was her case and in our view it failed on the facts as found. The relevant PCP would have to be a requirement that this Claimant used the computer: she would then, by virtue of her deteriorating eyesight, be placed at a substantial disadvantage compared with a colleague who did not suffer from visual impairment.[69]However, on the Employment Tribunal's finding of fact that PCP was not applied to her. They found (paragraph 29) that she had no difficulty in carrying out her duties, which did not require her to use a computer, apart from making some appointments on the computer (paragraph 46). Put another way, an adjustment had been made, not requiring her to use a computer in the same way as her colleagues, which prevented her from being put at a disadvantage when compared with her able-bodied colleagues. In either event the duty to make adjustments of the kind advanced had not been triggered by the time of her dismissal (which the Employment Tribunal found to be unrelated to her disability: reasons paragraph 44; a finding which is not under appeal).[70]For these reasons we dismiss this part of the appeal also. Victimisation[71]The test is the same under the RRA, the DDA and the 2003 RB Regs . It has been considered by the House of Lords, first in Chief Constable of the West Yorkshire Police v Khan [2001] ICR 1065 and more recently in St Helens Borough Council v Derbyshire [2007] UKHL 16 .[72]The question is whether the Respondent discriminated against the Claimants by treating them less favourably than it treated or would treat others who had not done a protected act because (by reason that) the Claimants had done a protected act. In the present case the protected act in each case was the bringing of the first proceedings by the Claimants alleging, in one form or another, unlawful discrimination on grounds of race, disability and/or religious belief.[73]The Claimants lodged their first ET1s on 3 June 2005. The Employment Tribunal found (reasons paragraph 33) that during the last week in June 2005 the Respondent had a first meeting with the police about his concerns that criminal offences had been committed by the Claimants. The Respondent's solicitors informed the Claimants' solicitors of that fact on 7 July 2005. The Respondent had further meetings with the police on 5 October and in early December 2005.[74]The Claimants' second ET1s lodged on 18 October 2005 alleged that the Respondent had victimised them by reporting the matter to the police because they had brought the earlier claims alleging discrimination.[75]The Employment Tribunal found (paragraph 34) that the Respondent genuinely considered that the Claimants had been guilty of criminal behaviour and that it was a matter for the police to investigate. Having directed themselves to the statutory test (paragraph 49) the Employment Tribunal concluded (paragraph 50), having repeated their finding as to the Respondent's genuine belief that the Claimants had committed criminal acts, 'that the Respondent's actions in reporting matters to the police was not because of the proceedings that they had brought against him'.[76]In this part of the Claimants' appeal Mr Draycott submits that Employment Tribunal fell into error by failing to consider whether subconsciously, if not consciously, the fact of the first proceedings had a significant influence on the Respondent's decision to report the matter to the police.[77]We are not persuaded that the Employment Tribunal overlooked the possibility of subconscious notification on the part of the Respondent, not least because, as Mr Draycott points out in his skeleton argument, they were referred to Nagrajan v London Regional Transport [1999] IRLR 572 , see particularly the speech of Lord Nicholls at paragraphs 17-18. Lord Nicholls returned to that theme in Khan , paragraph 29, a passage adapted by Baroness Hale in Derbyshire , paragraph 41.[78]The question (of fact) for the Employment Tribunal was, why did the Respondent go to the police? The answer, clearly, from the Employment Tribunal was, because he genuinely believed that the Claimants had committed criminal acts; it was not because they had brought the first complaints to the Employment Tribunal. That is an end to the victimisation complaints.[79]It follows that it is not strictly necessary to consider the Respondent's cross-appeal against the Employment Tribunal's finding (reasons paragraph 51) that "the claims alleging victimisation were not made in good faith. Had it been necessary to consider the cross-appeal, that is, had we upheld the Claimants' appeal against the finding of no victimisation, we should have upheld the cross-appeal.[80]It seems to us that the Employment Tribunal misdirected themselves in law in considering whether the claims of victimisation were made in good faith, rather than the underlying claims of direct discrimination raised in the first set of Employment Tribunal proceedings. It follows that we would then have had to remit the good faith issue for further consideration. Disposal[81]The appeal is allowed in part. As to the claims of automatically unfair dismissal we have rejected the Employment Tribunal's reasoning based on the proposition that the statutory DDP had been completed. Mr Draycott urges us to substitute a finding of automatically unfair dismissal under s98A(1), rather than remit the matter for a finding as to whether or not the delay in holding the internal appeal was reasonable. The former course was taken by the EAT in Khan ; the latter in Patel .[82]We have considered the skeleton argument presented below by Miss Woodward and dated 17 February 2006. The question of unreasonable delay was plainly in issue. The facts were not determined by the Employment Tribunal, presumably in light of their finding that the statutory procedure was completed. In these circumstances, we shall remit the question of the reasonableness or otherwise of the delay in holding the internal appeal to the same Employment Tribunal for determination, in the light of our judgment on the issue of completion.[83]All other grounds of appeal are dismissed.[84]We make no order on the cross-appeal. Postscript[85]Having sought and received counsel's timeous written submissions following the oral hearing before us we make it clear that we have taken those submissions into account in relation to(a) the s98A issue and(b) whether a failure to make reasonable adjustments completes the statutory tort of unlawful disability discrimination. We have not taken into account the further submissions of Mr Draycott at paragraphs 36-39 of his additional written submissions dated 21 June 2007: nor his yet further and unsolicited written submissions dated 6 August 2007.