CUMBRIA PROBATION BOARD v MR S COLLINGWOOD [2008] UKEAT 0079_08_2805

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0079_08_2805Case No Appeal No. UKEAT/0079/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
CUMBRIA PROBATION BOARDAPPELLANTMR S COLLINGWOODRESPONDENT
Before
His Honour Judge McMullenDate 28 May 2008
[1]APPEARANCES For the Appellant MR H MENON (of Counsel) Instructed by: Messrs Burnett Solicitors 6 Victoria Place Carlisle Cumbria CA1 1ES For the Respondent MR J RATLEDGE (of Counsel) Instructed by: Messrs Hough Halton & Soal Solicitors 32 Abbey Street Cumbria CA3 8RJ SUMMARY DISABILITY DISCRIMINATION Disability / Disability related discrimination / Reasonable adjustments JURISDICTIONAL POINTS 2002 Act and pre-action requirements The date of disability is a fact found by an Employment Tribunal on the basis of medical and other evidence. When a consultant gave a range of dates for the onset of a condition, the Employment Tribunal did not err in taking the outside bracket in context with the Claimant's own account. The Employment Tribunal's findings of discrimination taking the form of failure to adjust and harassment were upheld, the EAT rejecting appeals on preliminary points on the statutory grievance procedure and the meaning of disability. HIS HONOUR JUDGE McMULLEN QC This case is about disability discrimination taking the form of failure to make reasonable adjustments and of harassment. It also concerns the application of the steps in the Statutory Grievance Procedure under the Employment Act 2002 . The judgment represents the views of all three members. We will refer to the parties as the Claimant and the Respondent. Introduction[2]It is an appeal by the Respondent in those proceedings against a Reserved Judgment of an Employment Tribunal chaired by Employment Judge Mrs Singleton sitting over ten days plus one day of discussion at Carlisle, registered with reasons on 21 November 2007. As here the parties are represented respectively by Mr Menon and Mr Ratledge of counsel.[3]The Claimant claimed discrimination as a disabled person taking the form of a failure to make reasonable adjustments, and harassment.[4]The Respondent denied the claims on the merits and took two jurisdictional points. The essential issues as defined by the Employment Tribunal and as now relevant on appeal were:
"(i) At what point in time did the claimant become a disabled person within the scope of the Disability Discrimination Act 1995? (ii) At what point in time did the respondent know or should reasonably have known that the claimant suffered from a disability? (iii) From the point in time when the respondent knew or ought reasonably to have known of the claimant's disability was there a failure on its part to make reasonable adjustments? (iv)Did the respondent subject the claimant to harassment for a reason which relates to his disability? (v) Prior to presenting his claim did the claimant submit a grievance in respect of the complaints that he is advancing before the Tribunal."
[5]The Tribunal decided in favour of the Claimant on some, but not all of his many claims. The Respondent appeals. Directions sending this appeal to a full hearing were given in chambers by Elias P and his contemporaneous note shows that he did not think any of them was "so obviously hopeless as to warrant being struck out at this stage". The legislation[6]The relevant provisions of the legislation are not in dispute, and the Tribunal's exposition of them has not been disputed. The law to be applied is that in force before 5 December 2005 which controlled the issue of mental impairment as a form of disability. The Tribunal said this:
"3.1 The Meaning of Disability Section 1 of the Disability Discrimination Act as amended provides that a person has a disability for the purposes of the Act 'if he has a physical or mental impairment which has a substantial and long term effect on his ability to carry out normal day to day activities'. Schedule 1 of the Act gives guidance on what amounts to an impairment together with the provisions of section 18 Disability Discrimination Act 2005 and the Disability Discrimination (Meaning of Disability) Regulations 1996 and 2006. Prior to 5 December 2005 it was necessary for a mental impairment resulting from or consisting of a mental illness to be clinically well recognised. Since that date that is no longer a requirement. 3.2 Meaning of Discrimination Section 3A(2) states that a person 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. 3.3 Section 3B(1) provides that 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 and intimidating, hostile, degrading, humiliating or offensive environment for him. Subsection (2) provides that conduct shall be regarded as having the above effect only if having regard to all the circumstances, including the perception of the disabled person, it should reasonably be considered as having that effect. 3.4 Section 4A of the Act provides in subsection (1) that where a provision, criterion or practice 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 is reasonable in all the circumstances of the case for him to have to take in order to prevent the provision, criterion or practice having that effect. Subsection (3) provides that there is no duty to make adjustments if the employer did not know or could not reasonably be expected to know that the person has a disability and is likely to be affected in the way mentioned in subsection (1). Where a duty to make reasonable adjustments arises s18B sets out supplementary provisions to be taken into account when determining whether it is reasonable for a person to have to take a particular step setting out particular matters which regard shall be had to and also giving examples of steps which a person may need to take to comply with the duty. 3.5 Section 4(2)(d) provides that it is unlawful for an employer to discriminate against a disabled person whom he employs… by subjecting him to any other detriment. Section 4(3)(a) provides that it is unlawful for an employer, in relation to employment by him, to subject to harassment a disabled person whom he employs."
[7]As can be seen, the Tribunal directed itself to the relevant provisions and Code of Practice. The facts[8]The Respondent is the Probation Authority for Cumbria. The work of the Probation Board and its officers is described in the judgment I gave in Pay v Lancashire Probation Service [2004] IRLR 129 at paragraphs 7 to 10.[9]The Claimant was employed by the Respondent on a permanent basis having previously been employed temporarily as a Probation Service Officer in April 2003. He continues to be so employed although he is off work sick and receiving no pay.[10]The actors in this drama, apart from the Claimant, are Ms Christine Davidson, the Claimant's line manager during the latter part of the events in this case, and Ms Gillian Martin, the Respondent's HR manager. The parties instructed a joint expert, Dr Peter Taylor, consultant psychiatrist.[11]In early July 2005 Ms Davidson took over and the Claimant met her for the first time. They did not get on. The Claimant was involved in suggestions that he take up the position of CRP (Community Reintegration Post). On 22 September he went off sick. There was a number of discussions relating to the CRP.[12]In November/December 2005 a view was taken as to the Claimant's position as a disabled person within the meaning of the DDA. The Tribunal found that the relevant date was 1 November 2005.[13]On 14 November 2005 the Claimant had a conversation with Ms Martin which led to one of the matters which is the substance of the finding in this case. It is that she applied a policy of the Respondent which was that she could not discuss matters in confidence with him. This is finding 1.[14]On 17 November 2005 Ms Martin and Ms Davidson visited the Claimant at his home. The relevant findings are described as findings 1 and 5.[15]On 11 January 2006 in a conversation between the Claimant and Ms Martin when he wished to deal with matters in his history going back 18 months, she told him that she could not do so and could not indicate whether he was allocated to the CRP.[16]The Claimant raised a number of further matters culminating in a sequence of letters. The Employment Tribunal held that letters written on 8, 14 and 26 March 2006, together with their attachments, constituted a grievance for the purpose of discharging the obligation on the Claimant for the purposes of the claims which he subsequently brought, set up by the Employment Act 2002 . That is the Statutory Disputes Resolution Procedure.[17]A meeting was conducted on 30 March 2006 to discuss whether or not the Claimant's grievance could be resolved. The Claimant presented a claim to the Employment Tribunal on 6 June 2006. The Claimant's grievance was rejected shortly thereafter and an Appeal against this rejection was rejected by the Chief Executive of the Respondent on 6 December 2006.[18]The Claimant suffered from mood swings from September 2004 and his symptoms got progressively worse over the following months. See paragraph 2.4.[19]Dr Taylor concluded in response to a question, "What would the prognosis for Steven Collingwood be if he were back at work?":
"The question assumes (I think) that he is returning to his employment with the probation service. The prognosis would be better than if he were not in work. However a lot would depend on how the underlying issues had been resolved and how Steven Collingwood perceived the resolution."
[20]In notes agreed as to his examination at the hearing he said in answer to the question:
"Is your reference to the perception how the Claimant felt issues had been resolved appear to be a subjective perception?" he said, "
By perception of resolution, I mean his subjective perception." Question, "Could the Claimant's perception with you as being persecuted be skewed?" Answer, "Yes. A depressed person often interprets events negatively."[21]The Tribunal found that the Claimant began to suffer as a result of his clinically recognised mental impairment on 1 November 2004 and thus became a disabled person within one of the three routes to such status under the Disability Discrimination Act one year thereafter, 1 November 2005.[22]The Tribunal concluded that there was jurisdiction to hear the case in the light of its finding as to the date of disability and it rejected the contention of the Respondent that the Claimant did not submit a grievance in accordance with the 2002 Act. It thus descended upon the merits of the case and made findings now relevant on appeal in respect of six matters, two for reasonable adjustment and four for harassment.[23]The Claimant was found to have been placed at a substantial disadvantage by the application of a practice which was to refuse to have confidential conversations with employees. The Tribunal found that that was a failure to make a reasonable adjustment for him because of the depression which he was suffering, and he needed to speak in confidence.[24]The Tribunal upheld the Claimant's second principal claim which was that the Respondent was prepared only to look forward and not to deal with matters going back more than six months into the history. Since the Tribunal identified an aspect of the Claimant's illness as needing to have issues properly addressed in order to move forward, and his inability to verbalise and discuss issues in his past, this placed him at a substantial disadvantage.[25]As to harassment, the Tribunal made four findings adverse to the Respondent. These were as follow:
"4.11 Harassment The claimant's claim in respect of harassment was broken down by Mr Ratledge into five heads being allocation to the claimant of cases, line management, absence management, reallocation to the CRP job and the grievance. The claims relating to allocation of cases and line management occurred prior to 1 st November 2005 being the time that the claimant became a disabled person and therefore these claims must fail as do the claims relating to absence management with regard to the failure to notify human resources of the claimant's sickness absence straight away together with the failure to complete the absence notification form, however, the Tribunal found that Mrs Martin's refusal to discuss matters in confidence with the claimant together with her suggestion that she was unaware of staffing issues and which subsequently led to Mrs Davidson attending the first home visit with the claimant did amount to harassment as did the respondent's continued refusal to discuss the issues that the claimant said were making him ill. The Tribunal found that the actions of the respondent were for a reason related to the claimant's disability and whilst the Tribunal accepted that they were not done with the purpose of violation the claimant's dignity or creating a hostile or offensive environment for him it accepted the claimant's evidence that it had this effect. The Tribunal considered all of the circumstances, including the particular perception of the claimant and found that it should reasonably be considered as having that effect. The remaining issues under this head which related to the lack of discussion of the occupational health service reports at the case conferences, the letter from Mrs Martin of 1 February 2006 being evasive and the minutes of the meetings on the 15 and 27 February 2006 being biased, were found by the Tribunal not to amount to harassment. The Tribunal then went on to consider the respondent's conduct in the meetings on 15 and 27 February 2006 and the respondent's insistence upon repeatedly discussing the three options to terminate the claimant's employment and the effect that his had on the claimant having regard to all of the circumstances and the reasonableness of the claimant's perception and found that this did amount to harassment this conduct creating an intimidating and offensive environment for the claimant. 4.12 When considering the claimant's reallocation to the CRP role the Tribunal considered very carefully the evidence of Mrs Davidson and that of Mr Kimberley together with the emails and letters in September and October 2005. The Tribunal also considered Mrs Martin's refusal to tell the claimant on 11 January 2006 whether or not he had been allocated to the CRP post and found that this refusal to tell him about his allocation to the role was because Mrs Davidson had decided that she no longer wished to have the claimant in her team because of his absence from work through illness and therefore she and Mr Kimberley had allocated him to the CRP role and that Mrs Martin was aware of what they had done and why. The claimant was clearly very distressed about this. Again the Tribunal found that this was for a reason related to the claimant's disability and that it had the effect of making the claimant feel degraded and humiliated, the claimant's perception in this respect being reasonable. Accordingly the Tribunal found that this did amount to harassment and which continued through to the time these proceedings were issues."
The preliminary points[26]We will deal with the jurisdiction points and the arguments of the parties first. Grievance[27]As to the statutory grievance procedure, the principles were set out by Elias P in Canary Wharf Management Limited v Edebi [2006] IRLR 416 . Broadly speaking a grievance in writing must contain sufficient indication to the employer on a fair reading and in context to indicate what grievance the Claimant had if it is to be presented at an Employment Tribunal:[28]In this case it is contended that the aggregate of the Claimant's letters did not constitute a grievance. Both superficially and on detailed analysis through which we have been taken by Mr Ratledge, that submission must fail. Superficially the documents are replete with references to discrimination, harassment, bullying and so on. Analytically on page after page the Claimant asserts his illness, the cause of his illness as his employment environment and that he is dissatisfied about the way in which he is being treated by the Respondent including specifically a reference to the grievance procedure operated by the Respondent.[29]It is important to note also from the President's judgment in Canary Wharf that the context is important and it was known to the Respondent that the Claimant was absent on account of depression and that his letters were the more difficult for him to articulate because of that.[30]In our judgment, Step 1 of the procedure can be achieved simply and in a rudimentary way. As a matter of analysis of these three letters and the documents attached, the grievances were fully ventilated so as to pass the test of a Step 1 grievance and thus open the gateway to the claims which subsequently were made at the Employment Tribunal save for two (which are conceded on Appeal) . As to those two, the Appeal will be allowed in part. Disability[31]This is the date of disability point. The Tribunal considered the evidence of Dr Taylor who placed the onset of the condition as, "November/December 2004" but could not be more specific than that. The Tribunal had the evidence of the Claimant including aspects relating to the onset of symptoms in September 2004.[32]The question for the Tribunal was one of fact. It had two contenders, 1 November 2005, that is one year from the onset of the symptoms and the outside bracket of Dr Taylor. And 1 December 2005 which was described as the midpoint between 1 November and 31 December.[33]The issue was important because of the change in the law on 5 December 2005 and because of two events upheld by the Employment Tribunal as constituting a failure to make reasonable adjustments occurring in November 2005.[34]On this matter we prefer the submissions of the Claimant. Being a question of fact other material than the evidence of Dr Taylor is relevant. But even taking the Respondent's approach there was evidence before the Employment Tribunal of the onset of this condition in November/December 2004 and for it to have chosen any particular part of that period one year on was a matter of fact and appreciation. True it is, 1 November is on the outside edge but it cannot be said that it was an impermissible option even on the evidence of Dr Taylor. But that was not all it had. It had the evidence of the Claimant and it was its job, not simply to rehearse the evidence of Dr Taylor but to make a conclusion as a matter of fact in the light of that evidence. So, the Tribunal reached a conclusion which was open to it.[35]It is today argued that the correct date was 31 December 2005. We reject that contention. First it was not made at the Employment Tribunal for in writing it was argued by Mr Menon that the date was 1 December 2005. No reasons are given by the Tribunal other than that relating to 1 November. We accept Mr Ratledge's submission that the case would have to go back to the Employment Tribunal for further reasons to explain if it did, why it would reject if the point were put to it, 31 December 2005. It is difficult for new points to be argued before us which have not been ventilated before the Employment Tribunal, the principles are set out in the judgment I gave called Secretary of State for Health v Rance [2007] IRLR 665 .[36]This case does not disclose a hard-edged question of law, nor is it one we can resolve without going back to the Tribunal even if we were in favour of the submission of Mr Menon, which we are not.[37]So those two preliminary points having been resolved in the Claimant's favour we now ourselves can look at the arguments of the parties and at the findings. In order to do so we will set out the legal principles to be applied. The legal principles[38]The legal principles appear to us to follow from the authorities which we now give. An Employment Tribunal must decide the issues which are put before it and should not decide issues which are not. See Chapman v Simon [1994] IRLR 124 CA.[39]An Employment Tribunal must give adequate reasons for its judgment. See Meek v Birmingham City Council [1987] IRLR 250 CA.[40]The burden of proof in a discrimination case has been explained by the Court of Appeal most recently in Madarassay v Nomura International plc [2007] IRLR 246 CA expanding upon the judgment of that Court in Igen Ltd v Wong [2005] IRLR 258 CA.[41]When consideration is given to discrimination for a reason relating to disability and the same words appear in relation to harassment the holding in Taylor v OCS Group Ltd [2006] IRLR 613 CA is to be applied. The judgment of the Court given by Smith LJ for herself, Brooke and Dyson LJJ said this: 72. In our view, the argument accepted by the EAT and advanced before us by Ms Gill is fallacious. These provisions of the DDA are concerned with discrimination by an employer. Discrimination requires that the employer should have a certain state of mind. In the context of the DDA, an employer cannot discriminate against the employee unless he treats the disabled employee differently for a reason (present in his, the employer's mind) which is related to the employee's disability. It may be that in some cases an employer might have more than one reason for dismissing an employee; one reason might be misconduct and there might also be present in the employer's mind another reason which does relate to his disability such as the fact that the employee took a lot of time off work or had a lower productivity than other employees. The employer might decide to dismiss the employee for those combined reasons. In such a case, we would say that, if the disability-related reason had a significant influence on the employer's decision, that would be enough to found the conclusion that the dismissal was for a reason related to the employee's disability. We would add that it would be open to an ET to find that the employer's decision had been affected by the disability-related reason even though the employer had not consciously allowed that reason to affect his thinking. We would certainly accept that an employer could have an innate prejudice against disabled people just as some are prejudiced on the grounds of race or gender. What is important is that the disability-related reason must affect the employer's mind, whether consciously or sub-consciously. Unless that reason has affected his mind, he cannot discriminate."[42]That was applied by the EAT in Equant Integration Services Ltd v Blitz UKEAT0259/07 a judgment which was not available to the Employment Tribunal in the instant case where Burton J on behalf of the EAT said this: 33. "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." Also since the date of the judgment in this case is Chief Constable of Avon and Somerset Constabulary v Dolan UKEAT0522/07 where HHJ Peter Clark giving the judgment of the EAT said this:
"27. The proper approach for an Employment Tribunal to take when considering an alleged breach of s4A(1), read with s18B (and now bearing in mind the application of the 'reverse burden of proof'; s17A(1C)) was considered and guidance given by HHJ Serota QC in Smiths Detection v Berriman (UKEAT/0712/04 and 0144/05/CK. 9 August 2005. Unreported); see para. 85. That approach was endorsed by HHJ McMullen QC in Ferguson v London Borough of Barnet [2006] All E.R. (D) 192; applied by a division on which I sat in Romec v Rudham (UKEAT/0069/07/DA. 13 July 2007. Unreported); see particularly paras. 39 - 40 and further affirmed by Judge Serota in Environment Agency v Rowan [2008] IRLR 20 , paras. 26 - 27. 28. The Employment Tribunal should identify: (1) the provision, criterion or practice (PCP) applied by or on behalf of an employer, or (2) the physical features of premises occupied by the employer; (3) the identity of non-disabled comparators (where appropriate) and (4) the nature and extent of the substantial disadvantage suffered by the Claimant. 38. Whilst we agree with Miss Smith that in Berriman Judge Serota was not laying down an inflexible rule that in the circumstances there mentioned there must always be medical evidence supporting a conclusion that a proposed adjustment had a real prospect of preventing the disadvantage identified, it is nevertheless necessary for the Employment Tribunal to explain, on the evidence which it has heard and the facts found, why and how far the proposed adjustment would prevent the disadvantage. On this aspect we accept Miss Fatima's submission that the Employment Tribunal, at paras. 50 and 51, has failed to answer the Romec question, which I there articulated at para. 39."
[43]For the EAT to overturn a judgment of an Employment Tribunal on the grounds of perversity an overwhelming case must be made. See Yeboah v Crofton [2002] IRLR 634 CA.[44]When remission is to be considered to an Employment Tribunal for the purposes of disposing an appeal the principles in Sinclair Roche & Temperley v Heard [2004] IRLR 763 should be observed. Discussion and conclusions Finding 1[45]The Tribunal found a practice of refusing confidential conversations with employees. It is accepted by the Respondent that this constitutes a practice for the purposes of the DDA. The Tribunal found that this practice was neutral but it placed the Claimant at a substantial disadvantage.[46]In our judgment it made the correct comparison with a non-disabled person. The Claimant was suffering from depression; his concern was about his treatment by his line manager. It will be recalled that his line manager and he had crossed swords at their first meeting, and the Tribunal recorded at least four events in the summer of 2005 between the Claimant and Ms Davidson from which the Tribunal concluded that Ms Davidson had taken a dislike to the Claimant and had picked on him and sought to make an example of him in front of his colleagues.[47]The Tribunal held that the policy put the Claimant at a disadvantage because he wished to have conversations but the person he was supposed to talk to was his line manager and he was complaining about her. He was denied the opportunity to do that and the visit of Ms Davidson to his house caused him further distress.[48]The contention on behalf of the Respondent is that the Tribunal misunderstood the medical evidence and operated on a false premise. The Tribunal included in its discussion of this matter the perception of the Claimant whereas resolution did not depend upon his being satisfied of it.[49]It was contended there was no medical evidence of a substantial disadvantage. In our judgment Mr Ratledge is correct in the approach to the evidence of Dr Taylor. It is not that the Claimant had a veto by his own perception on the operation of this practice; it is that properly construed in its context, the evidence of Dr Taylor was that in order to stand a chance of getting better the Claimant would need to be back at work and if so, the progress would depend on how the issue had been resolved, and also how he perceived it. It did not mean that his subjective approach was crucial, all that was required was that he should be given the chance, which he was not, to have the issue addressed in a way which did not put him at a disadvantage.[50]The Tribunal made a correct judgment in upholding the Claimant's claim that this was an adjustment that the Respondent did not make which it reasonably should have. It is not a requirement in a reasonable adjustment case that the Claimant prove that the suggestion made will remove the substantial disadvantage. In this case the proper approach to Dr Taylor's evidence in the context of the other material was that the Claimant should be given a chance; not that the matter should be concluded to his satisfaction irrespective of whether that was reasonable or not. Finding 2[51]The second claim was that the Respondent was only forward-looking. It was contended that this too was dependent upon the evidence of Dr Taylor. The Tribunal is criticised by Mr Menon for paying attention to what was said by its own occupational health service and by the Claimant's GP. But it must be borne in mind that those are matters which were substantially supported by Dr Taylor. As Mr Menon engagingly put it, "The Employment Tribunal put a premium on the Claimant's state of mind, he would not return until things were done as he wanted them done."[52]We reject that contention as a matter of construction of the evidence which was given. It is that the Claimant here had a history of depression caused by his environment at work and to put a block on consideration of events at the previous six months was a matter which could reasonably have been adjusted for him, since he sought to go back and seek resolution of matters for the previous 18 months.[53]This is a surprising policy for a Probation Board to adopt given its core product is dealing with offenders who obviously have long histories in matters which need to be resolved. It is also surprising given that the statute allows a number of ways for historical matters to be brought to account. They are in Schedule 3 para 3.(contracts, continuing acts) and in resort to evidentiary background material for any in time complaints, see for example, Qureshi v Victoria University of Manchester [2002] ICR 863 EAT approved in Anya v University of Oxford [2002] ICR 847 CA.[54]In our judgment no error was committed by the Employment Tribunal when it found that it would have been reasonable for the Respondent to allow the Claimant to properly verbalise his concerns and to discuss the matters. Harassment[55]A generic complaint is made about this aspect of the judgment by Mr Menon. In a sense, he has a point because Mr Ratledge accepts that the harassment findings are short, but as he says, pithy.[56]The central complaint is that the Tribunal did not address the burden of proof under section 17A(1C). It will be noted no complaint is made by Mr Menon about the Tribunal's approach to reasonable adjustments, which of course, attract the same burden of proof. True it is the Tribunal does not mention in it[57]Initially this created a problem for us. A Tribunal is not obliged to set out all of the law. It may well be that by 2007 Employment Tribunals engaged daily in discrimination claims over roughly ten strands of jurisprudence will know the burden of proof without being reminded of it. In this case after ten days it had the advantage of written submissions by two experienced counsel. Neither of them cited the burden of proof in their written submissions. The highest it went was Mr Menon mentioned it, but nothing further was said.[58]The question for us, of course, is whether in this part of its judgment, irrespective of other parts, it made an error which can be attributed to a failure to apply the burden of proof. We do not consider it did. It must be borne in mind that the whole of this case is based upon knowledge by the Respondent of the Claimant's illness and his absence on account of that. Throughout this judgment that is the background to all of the actions of the relevant parties.[59]Did the Tribunal err by failing to make a finding that the Claimant had not made out a prima facie case of discrimination which satisfied the terms set out in Madarassy , which can more conveniently be cited as follows: 52. Much of what Mr Allen said about the effect of reversing the burden of proof is correct. Mr Allen is obviously right in saying that the subsection does not require Ms Madarassy to prove a "conclusive case" of unlawful discrimination. She only has to prove facts from which the tribunal "could" conclude that there had been unlawful discrimination by Nomura, in other words she has to set up a "prima facie" case. 53. I do not, however, read paragraph 175 (or any of the other paragraphs of the tribunal's decision) as requiring Ms Madarassy to prove a "conclusive case." If the tribunal were saying that she had to do that, the latter part of its direction in paragraph 175 following the second "if so" would have been superfluous. 54. I am unable to agree with Mr Allen's contention that the burden of proof shifts to Nomura simply on Ms Madarassy establishing the facts of a difference in status and a difference in the treatment of her. This analysis is not supported by Igen v. Wong nor by any of the later cases in this court and in the Employment Appeal Tribunal. It was not accepted by the Employment Appeal Tribunal in the above mentioned cases of Network Rail Infrastructure ...paragraph 15) and Fernandez (paragraphs 23 and 24) and by the Court of Appeal in Fox (paragraphs 9-18 see above). 55. In my judgment, the correct legal position is made plain in paragraphs 28 and 29 of the judgment in Igen v. Wong. '28. …The language of the statutory amendments [to section 63A(2)] seems to us plain. It is for the complainant to prove the facts from which, if the amendments had not been passed, the employment tribunal could conclude, in the absence of an adequate explanation, that the respondent committed an unlawful act of discrimination. It does not say that the facts to be proved are those from which the employment tribunal could conclude that the complainant "could have committed" such act. 29. The relevant act is, in a race discrimination case …., that(a) in circumstances relevant for the purposes of any provision of the 1976 Act (for example, in relation to employment in the circumstances specified in section 4 of the Act),(b) the alleged discriminator treats another person less favourably and(c) does so on racial grounds. All those facts are facts which the complainant, in our judgment, needs to prove on the balance of probabilities.[The court then proceeded to criticise the Employment Appeal Tribunal for not adopting this construction and in regarding "a possibility" of discrimination by the complainant as sufficient to shift the burden of proof to the respondent.]' 56. The court in Igen v. Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent "could have" committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal "could conclude" that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. 57. 'Could conclude' in section 63A(2) must mean that "a reasonable tribunal could properly conclude" from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory "absence of an adequate explanation" at this stage (which I shall discuss later), the tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by section 5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment. 58. The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent. The absence of an adequate explanation only becomes relevant if a prima facie case is proved by the complainant. The consideration of the tribunal then moves to the second stage. The burden is on the respondent to prove that he has not committed an act of unlawful discrimination. He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If he does not, the tribunal must uphold the discrimination claim."[60]It is submitted that the Tribunal here had nothing more than a finding that the Claimant was disabled and that he was treated differently, but with no connection to the reason, which was disability. It is further contended that the Tribunal had to consider the mental processes of Ms Davidson in order for it to apply the approach in Equant . Generally speaking, explanations are given by a Respondent witness. Examination for the purposes of meeting the test in Taylor v OCS , that is a reason related to disability, consciously or subconsciously held by the Respondent, cannot be conducted until the witness has been called.[61]It is true that these reasons are short. But against the background of its previous findings relating to disability each of these findings passes the test. There is only one principal issue at the outset which is whether or not what was done related to the Claimant's disability. The Tribunal in the passages we have cited has come to conclusions on findings 5 and 6, that is the arrival of Ms Davidson at the house and the refusal to discuss the issue. A refusal to discuss constitutes a positive act which can be a form of harassment. The finding about Ms Davidson cannot be equated to her application of a policy. Both counsel before us accept that the application of a practice or policy for the purpose of reasonable adjustments will not also be an act of harassment, which is individuated and requires a personal approach to the Claimant and to the harasser.[62]So if all that was being done is to replicate this time under the heading of harassment those findings in relation to adjustments, there would be an error. But that is not what occurred. The finding about Ms Davidson's visit was predicated upon a refusal to discuss matters, her assertion she was unaware of staffing issues which loomed large, and the fact that she attended on a home visit: all against the background which, as a matter of logic, was that the Claimant being absent on account of illness, depression, was to do with his work.[63]The finding by the Tribunal in both of these findings is firm. It related to the Claimant's disability. The Tribunal accepted that the purpose of the acts was not to violate the Claimant's dignity but it had that effect: s 3B(1). That is a strongly fact-sensitive finding for it to make and one with which we will not interfere, holding as we do that the Tribunal pointed to disability related action by Ms Davidson.[64]As to the finding relating to the meetings, the Tribunal again took an analytic approach, dismissing some and upholding others of the Claimant's claims. Focussing on the claims it upheld relating to meetings on 15 February and 27 February 2006, the Tribunal found that these were harassment. They concerned the Respondent's conduct at both of them and repeated insistence upon discussing only three options. The Tribunal found that this created an intimidating and offensive environment, again, a fact-sensitive matter for it, with which we will not interfere.[65]Finally the Tribunal found in what became finding 8 before us that the Respondent harassed the Claimant by refusing to tell him whether he had been allocated to the CRP. A time point was taken by Mr Menon. It is that the first iteration of this was prior to his becoming disabled, which of course, is true. But that is not the finding of the Tribunal. The language of the Tribunal is date specific, 11 January 2006, after the date of disability and after the date of the new statutory provisions. The Tribunal not only talks of that date but reinforces it by the use of the word, "this". So the Tribunal made the correct decision in relation and we reject the argument based upon time. If the finding had been in relation to the first iteration it would be wrong but the Tribunal is careful to focus on a date within our timeframe.[66]The Employment Tribunal's judgment will be upheld and the Appeal is dismissed.

Cited in 2 later judgments