THE CITY OF EDINBURGH COUNCIL v MR ALISTAIR DICKSON [2009] UKEAT 0038_09_0212

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0038_09_0212Case No Appeal No. UKEATS/0038/09/B1Venue 56 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
THE CITY OF EDINBURGH COUNCILAPPELLANTMR ALISTAIR DICKSONRESPONDENT
Before
Mr Justice UnderhillDate 2 December 2009
[1]APPEARANCES For the Appellant MR DAVID HAY (Of Counsel) Instructed by: Council Solicitor City of Edinburgh High Street Edinburgh EH1 1YJ For the Respondent MR TONY HADDEN (Solicitor) Messrs Brodies LLP Solicitors 15 Atholl Crescent Edinburgh EH3 8HA SUMMARY UNFAIR DISMISSAL – Reasonableness of dismissal UNFAIR DISMISSAL – Reinstatement/re-engagement DISABILITY DISCRIMINATION – Disability-related discrimination DISABILITY DISCRIMINATION – Direct disability discrimination Claimant, a diabetic, dismissed for watching pornographic material on a computer at work – Defence that he was suffering a hypoglycaemic episode and not responsible for his actions – Defence rejected – Tribunal holds(a) that dismissal unfair because the decision-taker refused to "engage with" the defence notwithstanding material adduced in support of it; and that if the defence had been properly considered it would have been accepted; reinstatement ordered(b) that dismissal constituted direct disability discrimination, alternatively disability-related discrimination. Held : (1) Tribunal entitled on the evidence before it to reach the conclusions that it did, and to order reinstatement. (2) The Council's conduct did not constitute either direct or disability-related discrimination. The fact that the explanation which the Council rejected related to the Claimant's disability did not mean that the rejection was on the ground of that disability or of a reason related to it. It was necessary that the disability should be (at least part of) the reason for that rejection in the sense explained in such cases as Nagarajan and Taylor v OCS . (Also, if the Claimant failed to establish direct discrimination he would not in any event, since Malcolm , be able to succeed on disability-related discrimination.) THE HONOURABLE MR JUSTICE UNDERHILL INTRODUCTION The Claimant, the respondent to this appeal, is aged 54. From June 1980 until his dismissal with effect from 28 February 2008 he was employed by Edinburgh City Council, the appellant, latterly as a community learning and development worker. He was based at the community wing of Craigmount High School in Edinburgh. That wing has, in addition to his and other offices, a computer suite intended for community use.[2]The Claimant has for over thirty years suffered from type 1 diabetes. His condition has in recent years been poorly controlled and was exacerbated by the unnoticed mis-prescription of insulin of the wrong strength. In August 2007 three of his toes had to be amputated as a result of neuropathy. It is (now) common ground that he has at all material times been disabled within the meaning of the Disability Discrimination Act 1995 .[3]On 6 June 2007 the Claimant's manager received a complaint from the organiser of a youth club whose members had been visiting the computer suite at Craigmount the previous afternoon. The complaint was to the effect that the Claimant had been seen both by children and by the adults accompanying them viewing images of sexual activity on one of the computers at the suite: the description of the material makes it clear that it was seriously pornographic. He was suspended two days later and a disciplinary investigation ensued. As part of that investigation the Claimant's use of his office computer was checked, and it was found that in the course of the morning he had visited a site called "Maximmag", which is associated with the "lads' mag" Maxim : the Council believed that the site contained sexual imagery and was inappropriate for the Claimant to be viewing whilst at work.[4]In due course a disciplinary hearing was convened, to consider two charges, one relating to the visit to the Maximmag site and the other relating to the viewing of pornographic images in the computer suite. It is common ground that it is the latter which is much the more serious: while the Maximmag site might have been "inappropriate", it has not been suggested that it contained anything in the nature of hard pornography.[5]A disciplinary hearing took place on 28 February 2008 before John Fraser, the Council's Neighbourhood Manager for West Edinburgh. The Claimant's case was, in summary, that he had no recollection of either incident but that if, as he accepted that the evidence appeared to show, they had occurred, then his behaviour must have been as a result of his diabetic condition. A diabetic undergoing a hypoglycaemic episode can behave wholly out of character and subsequently have no recollection of what he has done. The Claimant's diabetes was, as we have noted, at the time of the incidents particularly poorly controlled: the neuropathy which led to the amputation of his toes occurred shortly afterwards, and it was only in the aftermath of that surgery that the mis-prescription of insulin to which we have referred was discovered. Mr Fraser did not accept that explanation. He believed that the Claimant's conduct was conscious and deliberate. He decided that he should be summarily dismissed for misconduct.[6]The Claimant appealed. The appeal hearing took place on 3 November 2008 before a committee chaired by Councillor Paisley. (We should observe in passing that the long intervals before both the initial disciplinary hearing and the appeal hearing have not been criticised: they seem to have been principally as a result of the Claimant's ill health.) The appeal was unsuccessful.[7]The Claimant brought proceedings in the employment tribunal claiming both for unfair dismissal and that his dismissal constituted unlawful discrimination on account of his disability. The claim was heard before a Tribunal sitting at Edinburgh presided over by Employment Judge Craig over four days in March 2009, with a fifth day in May. The Claimant was represented by his brother and the Council by Mr Mohammed, a solicitor in its legal department.[8]A Judgment and written Reasons were sent to the parties on 1 July. The Tribunal's findings can be summarised as follows: Unfair Dismissal(1) The Tribunal found that the initial decision to dismiss the Claimant was unfair. We shall have to return to the details of its reasoning in due course. At this stage we need only say that the Tribunal held that the Council could not satisfy either the second or the third elements of the Burchell test (as to which, see para. 12 below), essentially because Mr Fraser made no real attempt to investigate or understand the defence that the Claimant's conduct was the result of his medical condition and simply discounted it without any proper basis for doing so.(2) It found that the unfairness of the initial dismissal was not remedied by the appeal process, which it found to have been both procedurally and substantively flawed. At para. 274 of the Reasons it said:
"Indeed the Tribunal considered that the matter was so substantially unfairly conducted that this would be one of those rare cases where the unfair appeal would render the whole process unfair even if the initial decision appeared to be fair."
Since there is now no challenge to that conclusion we need not set out the flaws in question. (3) It held that if Mr Fraser and/or the appeal committee had acted fairly the Claimant would probably not have been dismissed because the Council would have accepted that the medical evidence exculpated him. (4) By way of remedy for the Claimant's unfair dismissal it made a reinstatement order under s. 114 of the Employment Rights Act 1996 . As part of its consideration, in accordance with s. 116 (1) of the Act, it held that it was practicable for the employer to comply with such an order and it found that the Claimant had not caused or contributed to his dismissal. It follows from the making of a reinstatement order that the question of compensation did not arise, although an order was made for the payment of arrears. (We are told that that order has not been complied with, but that is not a matter which is before us on this appeal.) Disability Discrimination (5) The Tribunal held that the Claimant's dismissal constituted direct disability discrimination within the meaning of s. 3A (5) of the 1995 Act. In reaching that conclusion it relied on the "reverse burden of proof" provisions at s. 17A (1C) of the Act. (6) It held that, even if it had not found the dismissal to constitute direct discrimination, it would have found it to constitute "disability-related discrimination" within the meaning of s. 3A (1). Again, it relied on s. 17A (1C). (7) It dismissed a claim on the part of the Claimant for failure to make reasonable adjustments. (8) It made an award for injury to the Claimant's mental health and/or to his feelings in the sum of £25,000, together with interest.[9]The Tribunal's Reasons are very lengthy, perhaps unnecessarily so: they run to 80 pages and 327 paragraphs. There are some oddities in their structure (as noted, for example, at para. 12 below), but it is nevertheless apparent that the Tribunal approached its task with great care and conscientiousness.[10]The Council appeals against the decisions as regards both unfair dismissal and disability discrimination. It also appeals against the order for reinstatement and the award for injury to health/feelings. It was represented before us by Mr David Hay of counsel. The Claimant was represented by Mr Tony Hadden of Brodies. It will be most convenient to consider the Council's grounds of appeal by reference to the various elements in the Tribunal's decision which we have identified above. (1) MR FRASER'S DECISION TO DISMISS[11]We should start by setting out the essential facts about the process which led to the dismissal decision. These can be summarised as follows:(1) A disciplinary investigation was carried out by a Mr Alan Stewart. He produced a report dated 12 December 2007. This attached witness statements from the four adults who had been present at the incident of 5 June 2007; a witness statement from the Claimant, together with notes of two interviews with him; and a report of an investigation by BT into the use of the computers in question. As to the last item, this confirmed the Claimant's visit to the Maximmag website but also revealed that none of the three PCs in the computer suite had been used for "any web access" on 5 June.(2) In December 2007 the Council referred the Claimant to their occupational health adviser, a Dr. Leckie, for an assessment of "his ongoing health problems, in particular his diabetes". Dr. Leckie was asked "whether his condition in any way could affect his work performance as aCL & D worker" and whether his condition constituted a disability for the purpose of the 1995 Act. Dr. Leckie saw the Claimant on 11 December. His note records the history of his various diabetes-related problems and treatment. Under the heading "action and advice" it certifies him unfit for work and then reads:
"Inappropriate behaviour at work. Could it be caused by a hypo – yes. No evidence either way whether hypo or not"
It is common ground that "hypo" is a reference to a hypoglycaemic episode. Dr Leckie's formal letter to the Council summarised his condition and observed that it almost certainly amounted to a disability within the meaning of the Act; but it said nothing more about the issue of any relationship between that condition and his alleged misconduct. Mr Fraser accepted in his evidence before the Tribunal that not only the letter but the notes were available to him at the time of the hearing: indeed he claimed to have read and digested both, although the Tribunal was sceptical about this. (3) The Council had arranged for three of the witnesses whose statements were attached to Mr Stewart's report to attend the hearing. The Claimant, who was represented at the disciplinary hearing by his union representative, made clear that he did not wish to question them. His position was that, since he had no recollection of the events of the day, he was not in a position to challenge what they said. His essential case was, therefore, not that he had not done what was alleged but that he had done so at a time when he was not responsible for his actions as a result of a hypoglycaemic episode. Such a defence does not clearly emerge from the materials annexed to Mr Stewart's report, although there are statements recorded by him which appear to imply it. Nevertheless, it appears to have been clear to the Council in advance of the disciplinary hearing that that was his case. (4) Mr Fraser was receiving HR advice from a Mr Kerr. Mr Kerr's wife is a pharmacist. On the evening before the hearing he told her about the case and asked whether the Claimant's condition could explain his behaviour. She apparently told him that it could not. Mr Kerr told Mr Fraser what his wife had told him, and – to anticipate - the Tribunal made an express finding that Mr Fraser took account of her opinion in deciding to reject the Claimant's defence. The Tribunal held, at paras. 72 and 73 of the Reasons, that Mrs Kerr had no proper basis for the view which she expressed and that it was wrong of Mr Kerr to have sought her opinion and, more particularly, to have shared it with Mr Fraser. (5) The Claimant's representative gave Mr Fraser a quantity of material printed out from the internet about the effects of hypoglycaemia. Much of the material was of little relevance, but there were references to such manifestations of hypoglycaemia as personality change, amnesia, cognitive impairment and automatism. There was also an article about the phenomenon of "hypoglycaemia unawareness", i.e. where a sufferer falls into a hypoglycaemic state without any premonitory signs. (6) The Tribunal summarised the case presented by the Claimant and his representative at the disciplinary hearing as follows:
"It was the claimant's position throughout the disciplinary hearing that he could not remember the critical events. He sought to explain, through his representative, that as a type 1 diabetic he could suffer from hypoglycaemia, and the effects of such an incident. In particular he sought to explain to Mr Fraser that it could explain why he had no memory of the incidents, why he would have been behaving out of character, and why it might have occurred on a day of significant stress and activity, given that it was the AGM."
The reference to the AGM is to the fact that 5 June was the day on which the Annual General Meeting of the community organisations based at Craigmount took place. The organisation of this event was the responsibility of the Claimant, and the Tribunal found that it involved him working exceptionally long hours and undertaking a number of physical tasks as well as responsibility for the general organisation. The material provided by the Claimant suggested that stress was likely to increase the risk of a hypoglycaemic episode. (7) The Tribunal's finding as to Mr Fraser's decision, at para. 78 of the Reasons, was as follows:
"Mr Fraser dismissed the claimant's explanations. He concluded that the claimant had not been suffering from memory loss. Mr Fraser concluded that if he had he would have mentioned it sooner; that he would not have been able to produce, a few days after 5 June, what appeared to be a detailed account of his day; that if he suffered from memory loss that he would not be allowed to drive a car; that Mrs Kerr had said it did not explain the incidents; that the internet printouts were general and not specific to the claimant." (The reference to the Claimant having given a detailed account of the events of 5 June is to the first of his statements to Mr Stewart. The reference to his not being prohibited from driving a car may derive from one of the internet printouts, which describes the dangers of allowing patients with a history of hypoglycaemic unawareness to drive.) The Tribunal continued, in the first sentence of para. 79 of the Reasons: "
Mr Fraser decided that the claimant was lying and that he was guilty of the misconduct alleged."[12]The Tribunal gives its reasons for finding Mr Fraser's decision to have been unfair at paras. 248-276 of the Reasons. (Oddly, the findings appear to be pre-figured, in rather different terms, at paras. 79-84 of the Reasons, in the section where the Tribunal gives its findings of primary fact; and there are also relevant observations at paras. 156-169. But those passages are apparently not intended to contain the Tribunal's definitive reasoning.) After setting out the terms of s. 98 (4) of the 1996 Act and referring to the well-known decision of this Tribunal in British Home Stores Ltd v Burchell [1980] ICR 303 n, it goes on to consider the three elements in the " Burchell test", which are too well known to require to be reproduced here. Taking those three elements in turn:(1) At para. 256 it found that Mr Fraser genuinely believed that the Claimant was guilty of the misconduct alleged. That necessarily involves a finding also that he did not believe that the Claimant had been acting under the influence of a hypoglycaemic episode: that is in any event apparent from the findings at paras. 78 and 79 to which we have already referred.(2) As to the second element, the Tribunal found that Mr Fraser did not have reasonable grounds for that belief: see Reasons paras. 257-261. The essence of its reasoning was that, although the materials attached to the investigation report no doubt established a prima facie case, the Claimant's explanation based on his diabetic condition raised a plausible answer which Mr Fraser should have considered but did not. The Tribunal observed that Mr Fraser was unduly affected by the fact that the Claimant had not sought to challenge the contents of the witness statements. It also referred to the odd feature of the case that the BT report said that the computers in the suite had not been used to access the web at any point on that day. (It may be convenient to observe here that this point, though puzzling, is essentially secondary. The Claimant's principal case, as we have already recorded, was not that the incident did not occur but that he must have been suffering from a hypoglycaemic episode at the time. The explanation for the apparent conundrum posed by the BT evidence may be that he was watching a DVD, and there are indications that this appears to be what the Council thought.)(3) As to the third element, the Tribunal found that Mr Fraser had carried out an inadequate investigation: see Reasons paras. 261-270. The essence of its reasoning was that he failed to appreciate that the case raised by the Claimant was one which required careful consideration and full information. As it put it at para. 268:
"Instead of recognising that he ought to seek advice about these explanations, Mr Fraser dismissed them. He did so because he did not properly understand what was being said to him. He did not recognise that the claimant, a type one diabetic, could have been hypoglycaemic at the times in question; that if he had it could explain not only the behaviour – which Mr Fraser accepted was out of character – but that the claimant had no memory of the incidents. It could explain how that memory loss was confined to a very short period of time and that not even realising that he had been hypoglycaemic was entirely consistent with such an event. Had Mr Fraser understood the explanation he would have understood that the claimant's incorrect strength of the insulin used was likely to promote hypoglycaemia, especially around mealtimes."
We should also set out the findings at paras. 79-80, which, although they appear in the findings of fact, express conclusions which clearly formed part of the Tribunal's thinking:
"79. Mr Fraser decided that the claimant was lying and that he was guilty of the misconduct alleged. In so concluding Mr Fraser came to a decision that no reasonable employer could have come to. He did not understand the evidence before him. He took no proper steps to understand the information about the claimant's medical condition. He placed weight on irrelevant matters, and dismissed relevant explanations. He took into account an uninformed opinion from a third party - Mrs Kerr - who was neither present at the hearing nor in proper command of the facts while at the same time dismissing an informed opinion that did support the claimant's position - Dr Leckie's. 80. Mr Fraser failed to recognise that the explanation given to him by the claimant was a reasonable one. He refused to accept the claimant's explanation that even if there was a basis for concluding that the incidents under consideration had occurred that the claimant might not be culpable; that he might have been in an automatic state as a result of hypoglycaemia. That was the thrust of the explanation given to him by the claimant but Mr Fraser refused to accept it, concluding instead that the claimant was lying."
Finally, there is a passage in the Tribunal's consideration of the discrimination issues which gives its thinking on this point in rather more detail. Paras. 222-226 read as follows:
"222. Mr Fraser compounded the problem when, for reasons that seemed to have no rational basis, he rejected the claimant's (and for that matter Dr Leckie's) explanation but instead took at least some account of the unqualified and uninformed opinion of a third party – Mrs Kerr – who was not even present at the Hearing. The information relayed to him by Mr Kerr must have been flawed in that Mr Kerr did not have a sufficient command of the issues to ask proper questions of his wife even if it was the case that she had some pharmacological knowledge of insulin. At the very least Mr Fraser who was aware that there was an issue of disability at large – and he must have had otherwise the issue would not have been discussed in the first place – should have cautioned Mr Kerr for contributing what ought to have been recognised as unhelpful information. 223. However, he did not. Instead Mr Fraser took into account matters that were wholly irrelevant – such as that the claimant was in possession of a driving licence – and discounted matters that were highly relevant – that the claimant could not remember the incidents themselves but could remember times before and after them. 224. On the issue of the driving licence if eh had paused Mr Fraser could have learned that's its possession played no role at all in the question of whether or not, on the day in question, the claimant might have had low blood sugars. 225. On the question of the memory loss, had Mr Fraser taken the time to understand the information urged on him by the claimant – through his representative – he would have understood that such a memory pattern could be wholly consistent with hypoglycaemia. That it happened twice on the same day was, for Mr Fraser, a further indicator that the claimant's explanation should be discounted. Had he paused and read the information before him he would have learned that that was entirely consistent with hypoglycaemia, particularly given that the alleged incidents appear to have occurred at around mealtimes. 226. All of these matters the Tribunal learned from the claimant's GP. Even if the information before him was not sufficient to address all of the questions that Mr Fraser should have had, then he could easily have obtained it from a suitably medically qualified person such as Dr Schofield or Dr Leckie. Instead he places at least some weight on the unqualified opinion of a third party who was not even present."
[13]The Tribunal's overall thinking as set out in the paragraphs referred to is reasonably clear, but it is not perhaps neatly classifiable in Burchell terms. There were, in one sense, plainly "reasonable grounds" for a finding of guilt. A number of independent witnesses – unchallenged – had seen the Claimant watching pornography; and although his diabetic condition might have provided an explanation for that conduct on his part, it was in principle plainly open to Mr Fraser to disbelieve that explanation. Likewise, while the evidence of the BT report raised a puzzle, the puzzle was not necessarily insoluble: see para. 12 (2) above. Thus, if it were shown that Mr Fraser had engaged with the Claimant's defence but had reached a considered view that it should be rejected, it is hard to see how that conclusion could be said not to have been open to it. But the Tribunal's point is that that was not the case. On the contrary, Mr Fraser had simply not taken the defence seriously: he had not, as it put it at para. 81 of the Reasons, "engaged with" the information available to him. Mr Fraser gave evidence before the Tribunal, and it explained in some detail at paras. 164-169 of the Reasons why it found his evidence unsatisfactory; it also of course criticised the weight given to Mrs Kerr's opinion. A decision-maker who approaches the material before him in the way which the Tribunal found that Mr Fraser did in the present case can properly be said not to be acting fairly, even if he might have had grounds for a legitimate decision to dismiss had he set about his task in the right way. As regards the question of further investigation, the Tribunal observed in the opening sentence of para. 268, quoted above, that Mr Fraser ought to have sought advice about the explanations advanced by the Claimant. That observation is not developed, but in our view it does represent a significant element in the Tribunal's decision. There would be nothing surprising in Mr Fraser feeling troubled, or indeed out of his depth, in having to assess the probability of an explanation which depended on the effects of a medical condition of which he may well have had no previous experience: indeed he could be forgiven for being more than a little sceptical. But the fair course in such circumstances would have been to take advice. An employer with the resources of the Council would have no difficulty in accessing information about hypoglycaemia and its effects. The most obvious course would have been to consult Dr. Leckie, whose short note on the point was already available.[14]Against that background, we turn to consider the grounds of appeal. Those relevant to this part of the decision appear in paras. 1 and 3 of the Grounds. We will take them in the order that they there appear. We should record that para. 1.4 of the Grounds was abandoned by Mr Hay.[15]Para. 1.1 . The Council contends that the Tribunal wrongly regarded Dr. Leckie's note, set out at para. 11 (2) above, not only as providing evidence that a hypoglycaemic episode could provide a possible explanation for the conduct alleged against the Claimant but as providing positive support for that explanation. We can see no sign that the Tribunal fell into that error. Indeed at para. 266 of the Reasons it expressly described the note as "neutral". It is true that the Tribunal attached considerable importance to Dr. Leckie's opinion, but it did so simply because it should have put Mr Fraser on notice, so to speak, that the explanation proffered by the Claimant was one which had to be taken seriously. That is the only relevance of the note to the Tribunal's reasoning on this issue. Of course, to the extent that it was necessary, in relation to other issues, for the Tribunal itself to form a view as to the probability of the Claimant's explanation being true, fuller evidence was required (and was in fact considered – see para. 23 below); but that is at a different stage of the argument.[16]Para. 1.2 . The Council draws attention to the fact that the witness statements annexed to Mr Stewart's report showed that the Claimant was, at the time that he was observed:
"… apparently sufficiently alert to react and respond to a knocked door a short time prior to being viewed watching inappropriate material and, shortly thereafter, able to leave the room with an envelope of photocopied materials contained in a brown envelope."
The Council's contention is that "such evidence was consistent with the Claimant not suffering from a hypoglycaemic episode" and that "no tribunal would have concluded that the Claimant's explanation was established as a matter of fact". The answer to this point is essentially the same as to the last. The Tribunal's reasoning, as regards this issue, did not require it to make any finding that "the Claimant's explanation was established as a matter of fact". Some such finding was made, in relation to a different issue (see, again, para. 23 below). But as regards the issue of unfair dismissal the Tribunal's reasoning went no further than that Mr Fraser had failed to take his explanation seriously. It does not appear to be suggested that the facts referred to under this paragraph – which are said to be no more than "consistent with" the Claimant not suffering from a hypoglycaemic episode – were so weighty that Mr Fraser could simply ignore the Claimant's explanation. If that were being suggested, it is plainly wrong.[17]Para. 1.3 . This paragraph reads as follows:
"The evidence available to support the Claimant's explanation that he had a hypoglycaemic episode in the late afternoon of 5 June 2007 was insufficient to conclude that such an explanation was indeed made out. No express finding in contained within the tribunal's reasons that the Claimant suffered such an episode at the material time. Further, no tribunal properly directing itself, could rely upon the absence of evidence available to support the explanation as of itself being supportive evidence (para. 88)."
The points which we have made above in relation to paras. 1.2 and 1.3 effectively dispose of this ground. The Tribunal did not – as indeed the Council itself asserts – conclude that the Claimant's explanation "was … made out". Nor did it, as alleged, "rely upon the absence of evidence … as of itself being supportive evidence".[18]Para. 3.1 . The essential point made by the Council under this ground is that the Tribunal's conclusion that the second element in the Burchell test was not satisfied involved it in impermissibly substituting its own view for that of Mr Fraser: views might differ as to whether the Claimant's explanation should be accepted, but Mr Fraser's view that it should not was a legitimate one. We do not think that this fairly reflects the basis on which the Tribunal reached its conclusion, which we have sought to elucidate at para. 13 above. The Tribunal did not simply take a different view of the evidence from that taken by Mr Fraser: it believed that Mr Fraser had not considered that evidence fairly.[19]We would accordingly uphold the Tribunal's conclusion that the initial dismissal decision taken by Mr Fraser was unfair. We are conscious that the explanation which the Claimant put forward for his conduct might reasonably have struck any employer as suspicious. It is, regrettably, the case that even employees with a long and unblemished record do sometimes succumb to the temptation to watch pornographic material at work; and such employees will often take advantage of any available excuse in an attempt to exculpate themselves. A degree of scepticism on the part of Mr Fraser and the Council was thus entirely justifiable. But scepticism is one thing and a refusal seriously to consider the explanation proffered is another. The Tribunal in this case was well placed both to assess whether, surprising as it may initially have seemed, the Claimant's explanation, supported by the materials available to the Council, might in fact have been true. It was also well placed to assess the way in which Mr Fraser approached the assessment of that evidence. It would be wrong for us to try to second-guess its conclusions unless they were indeed perverse on in some other way legally flawed. (2) THE APPEAL PROCESS[20]Initially the Council's grounds of appeal included, as part of para. 1.4, a challenge to at least some elements of the Tribunal's criticism of the way in which Councillor Paisley conducted the appeal. That challenge was abandoned before us, and thus, as we have already noted, the Tribunal's findings about the unfairness of the appeal proceeding, which were trenchant, are now unchallenged.[21]However, one ground of appeal under this head does remain. At para. 3.2 of the notice of appeal the Council pleads:
"The tribunal, in concluding that the appeal against dismissal was so unfair it would have vitiated an otherwise fair dismissal (see para. 274) is unreasoned and unfounded in evidence."
Since we have upheld the Tribunal's findings on the unfairness of the initial dismissal, this ground of appeal does not now arise. We should, however, say that even if we had upheld the appeal as regards Mr Fraser's decision we would have been disinclined to interfere with the Tribunal's assessment at para. 274. It is well established that the denial of a right of appeal may render an otherwise fair dismissal unfair: see West Midlands Co-operative Society Ltd v Tipton [1986] ICR 192. We agree with the editors of Harvey on Industrial Relations and Employment Law (see para. DI [1015]) that it would seem to follow that, in principle, serious defects in the handling of an appeal should also be capable of rendering the dismissal unfair – at least where, as here, those defects prevented the employee from advancing evidence and arguments which might have led to a different outcome. But we were not taken to all the authorities on this point, which include the decision of this Tribunal in Post Office v Marney [1990] IRLR 170, where Knox J appears to have taken a restrictive view on this issue; and since the point does not arise we need express no concluded opinion. (3) THE FINDING THAT THE CLAIMANT WOULD NOT HAVE BEEN DISMISSED IF THE INVESTIGATION HAD BEEN FAIR[22]This finding is made in two places. At para. 81 of the Reasons the Tribunal says that if the Claimant's explanation had been properly investigated "… the respondents would not have reached the decision to dismiss the employee. They would not decide to dismiss because such an explanation, properly investigated and understood, would have excused the employee from responsibility." And at para. 276 it said this:
"The unfairness was so extensive that it can not be said that this is a case where, if a proper procedure had been followed, [it] would have produced the same or similar result. A fair procedure would have resulted in a proper examination of the medical evidence which would, in the view of the Tribunal and on the balance of probabilities, have resulted in a dismissal of the complaint against the claimant."
That was a necessary finding for the purpose of s. 98A (2) of the 1996 Act, at least to the extent that the failings found by the Tribunal could be characterised as "procedural".[23]The challenge pleaded at para. 1.2 of the notice of appeal – see para. 16 above – is in principle relevant to this issue. We do not however believe that it is well-founded. No doubt, as we have already observed, there were points to be made about the credibility of the Claimant's explanation, and they may indeed be thought to have been strong points. But their weight had to be assessed in the light of a proper understanding of the potential effects of hypoglycaemia. As to that, Mr Fraser did not have, and took no steps to get, such an understanding. The Tribunal, by contrast, was in the position which Mr Fraser could and should have been in if he had taken such steps. Specifically, it had oral expert evidence from Dr. Schofield, the Claimant's general practitioner, who had a specialist interest in diabetes and had worked as a clinical assistant at the department of diabetes at the Royal Infirmary in Edinburgh. The Tribunal does not in terms record what evidence Dr. Schofield gave. It would have been better if it had done so, but no point is taken by the Council that the Tribunal's conclusions are unsupported by the medical evidence; and it can in fact reasonably be inferred that the extensive account of the nature and effects of hypoglycaemia which appears at paras. 14-24 of the Reasons primarily derives from Dr. Schofield's evidence. The following points emerge from that summary: - Long-term type 1 diabetics typically lose their ability to recognise that their blood glucose levels are low and "may slip into hypoglycaemia without realising"; and that was true of the Claimant. - The onset of hypoglycaemia can be very rapid and, equally, it can pass very quickly once normal blood glucose levels are restored. There can be more than one episode of hypoglycaemia on a given day. - At the time of these incidents the Claimant's blood glucose levels were poorly controlled. - A person undergoing an episode of hypoglycaemia may exhibit "irrational … unusual or atypical behaviour". His thinking can be "fuzzy" and he can appear "awake but with no awareness". Taking that evidence together with the other matters on which the Claimant relied – in particular his evidence that he had no recollection of the events of the day, that it was a particularly stressful day because of the AGM, and that his behaviour was out of character – it seems to us that the Tribunal was entitled to conclude that a fair investigation would probably have held that the Claimant was not responsible for his actions on the occasion in question. That conclusion was certainly not inevitable, but the Tribunal heard the evidence and its conclusion cannot be said to have been perverse. (4) REINSTATEMENT[24]In considering whether to make a reinstatement order the Tribunal was obliged by s. 116 (1) of the 1996 Act to take into account (a) whether the Claimant wished to be reinstated; (b) whether it was practicable for the Council to comply with an order for reinstatement; and (c) whether the Claimant "caused or contributed to some extent to the dismissal", and if so whether it would be just to order reinstatement. The Council opposed the making of a reinstatement order, on the basis both that it was impracticable for it to continue to employ the Claimant, because it had lost confidence in him as a result of his conduct and because he had contributed to his dismissal by that conduct, and it would not be just to order reinstatement.[25]The Tribunal's explicit consideration of remedy for unfair dismissal is at paras. 306-311 of the Reasons, but there is also an important paragraph in the course of its findings of fact as follows:
"126. There is no impediment to the claimant being reinstated to his previous role. The claimant has a clean and unblemished work record. He enjoyed good working relationships with his colleagues and was considered to be a good, capable and competent employee. It is practicable that the respondent reinstate him. The claimant did not cause or contribute to his dismissal. There has been no breakdown in trust between the claimant and those with whom he would require to work. Mr Fraser believes that he would be able to work with the claimant and harbours no bad feelings towards him. The respondents would reinstate the claimant if required to do so."
The points made in that paragraph about the practicability of the Claimant being reinstated, and in particular Mr Fraser's evidence, are amplified at paras. 306-309, which we need not reproduce here. There is no further consideration of the question of contributory conduct.[26]The finding that the Claimant had not contributed to his dismissal is in practice an acceptance by the Tribunal of his explanation of his conduct, i.e. that he was acting under the influence of hypoglycaemia and could not fairly be regarded as responsible for his actions. That, in principle, goes further than the finding considered under head (3), which is only that the Council would have so decided if it had acted fairly: in this context the Tribunal itself reaches that conclusion. However, the distinction is more theoretical than real. The Tribunal will necessarily have carried out substantially the same assessment for the purpose of either conclusion.[27]The Council's challenge to the order of reinstatement is to be found in the second and third sentences of para. 4.3 of the Notice of Appeal. (The first sentence, which challenges "the award of compensation" made for unfair dismissal is, as Mr Hay acknowledged, plainly a nonsense, since no such award was made.) What is said is that:
"… the tribunal failed to consider properly the extent of the Claimant's contribution to his own dismissal and the nature of the conduct in question in the context of the Claimant's place of work (a school)."
[28]As regards the first part of that plea, it is true that the Tribunal's express consideration of the contribution issue is limited to a single sentence in the course of para. 126. But in our view it is, for the reasons given above, sufficiently apparent that the Tribunal was simply adopting the findings which it had made, much more fully, for the purpose of the s. 98A (2) issue, and we do not believe that it was necessary that it should say more.[29]As regards the second part of the plea, the Council's submission is necessarily premised on the basis that the Claimant was responsible for his actions. If that premise were correct, it would indeed be entirely reasonable to take into account the fact that the Claimant had not simply been watching pornography but had been doing so in a school and had been observed by children doing so: indeed, as Mr Hay formulated it in the course of his submissions before us, such conduct would go to the issue of trust and confidence and thus also of reasonable practicability. But the premise is not correct. Once the Tribunal had found that the Claimant was not responsible for his actions, the heinousness of the conduct is irrelevant. (It might be possible to conceive of circumstances in which, say, the action of a teacher had been so extreme that it was unreasonable to expect him to work again in the same school, even if it were fully proved that the conduct in question was the result of automatism; but the case was not put in that way, and this was plainly not a case of that kind. Likewise, no case appears to have been run that there was such a risk of recurrence of inappropriate behaviour, albeit non-culpable, that it would not be right to allow the Claimant to return to work: again, given that, on the case which the Tribunal accepted, at least part of the problem was that he had been on inappropriate medication, it is unlikely that such a case was available on the facts.) (5)/(6) DIRECT/DISABILITY-RELATED DISABILITY DISCRIMINATION[30]For reasons which will appear, it is convenient to take these two findings together.[31]We should begin with the terms of s. 3A, which defines "discrimination" for the purposes of Part 2 of the Act (being the part concerned with discrimination in employment). It provides for two distinct kinds of discrimination. S. 3A (5) provides that:
"A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person."
Discrimination of this kind is conceptually identical to direct discrimination of the kind familiar from the other anti-discrimination legislation. However, s. 3A (1) provides for a different form of discrimination, defined as follows:
"… [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 who that reason does not or would not apply, and (b) he cannot show that that the treatment in question is justified."
Such discrimination is conventionally described as "disability-related discrimination", in contradistinction to "direct discrimination" under s-s. (5). "Justification" is defined in s-s. (3): we need not set that out here. S-s. (4) provides:
"But treatment of a disabled person cannot be justified under subsection (3) if it amounts to direct discrimination falling within subsection (5)."
[32]This rather convoluted drafting is a product of history. As originally enacted, the 1995 Act provided only for disability-related discrimination, i.e. in the terms of what is now s. 3A (1). The definition of disability-related discrimination is wider than that of direct discrimination. It extends to cases where a disabled employee is subjected to a detriment on a ground other than the disability itself but which is nevertheless related to it. (An example often given is where an employer genuinely has no objections to employing a blind person but will not accept the presence of a guide-dog; but it can equally apply to cases where the employer acts on the ground of difficulties with the employee's poor performance in some particular respect, but those difficulties result from his or her disability). The intention was to cast the net more widely than the conventional definition of direct discrimination would allow - but to give the employer the opportunity to justify, which is typically not permissible in cases of direct discrimination. However, the enactment of the EU "Framework Directive" (EC/2000/78) gave rise to a difficulty. This required member states to prohibit direct discrimination, conventionally defined, on the grounds of disability. Although there was no problem as such with the definition of "disability-related" discrimination, since it would cover all cases of direct discrimination, the provision permitting justification was not in accordance with the requirements of the Directive. The 1995 Act was accordingly amended so as to provide for the separate proscription of direct discrimination (which is not subject to a defence of justification), while preserving – as a distinct provision not deriving from EU law – the proscription of disability-related discrimination in order to continue to catch the cases falling outside the definition of direct discrimination.[33]There was thus until recently a real and well-recognised difference between the two types of discrimination. But in London Borough of Lewisham v Malcolm [2008] IRLR 700 the House of Lords construed the language of a section of the Act whose terms were substantially identical to s. 3A (1) in such a way as to render its scope for all practical purposes no different from that of direct discrimination. That is because it defined the comparator as a person whose case was in all respects identical to that of the claimant but who was not disabled: on that basis, less favourable treatment would in practice only be established where the disability constituted the ground for the treatment, i.e. in a case of direct discrimination. That this was the effect of the House's decision was expressly recognised by Lord Brown – see at para. 114 (p. 715) – and also by Lady Hale in her dissenting speech – see para. 81 (p. 712). It has since been confirmed that the reasoning of Malcolm applies to cases under Part 2 of the Act: see, most recently, Carter v London Underground Ltd (UKEAT/0292/08), which reviews the earlier authorities.[34]The Tribunal, as we have noted, found for the Claimant primarily on the basis of direct discrimination, but it made it clear that, if it were wrong, it would also find for him on the basis of disability-related discrimination. For the reasons explained above, we do not think that a fall-back position of this kind was open to the Tribunal. On the present state of authority, the two ways of putting the case stand or fall together. However, for good order's sake, we will consider them in turn.[35]We start with the claim of direct discrimination. The Tribunal addressed this at paras. 188-231 of the Reasons. Its analysis is extremely discursive, and we have to say that we have not found it easy to follow every twist and turn of its reasoning. However, the essential points as we understand them can be summarised as follows:(1) It directed itself, by reference in particular to the speech of Lord Nicholls in Shamoon v Chief Constable Royal Ulster Constabulary [2003] ICR 337 , that it was legitimate to approach the question posed by s. 3A (5) by considering either whether the Claimant was less favourably treated than an appropriate hypothetical comparator (the "less favourable treatment question") or whether the treatment complained of was on the grounds of his disability (the "reason why question"), the two questions being "intertwined". That direction is correct as far as it goes.(2) So far as the less favourable treatment question was concerned, it considered that the correct comparator was:
"… someone who offered an explanation that was, prima facie, equally capable of being a complete answer to the same kind of allegation of misconduct. Examples might be someone who offered to prove that they had been sleepwalking or had had a seizure, perhaps even have offered to prove temporary insanity. It would be an explanation that was not based in an employee's disability but that would nonetheless be one that meant that the comparator would not be held culpable for their actions" (Reasons para. 206). (3) It held, at para. 227 of the Reasons, that such a comparator would have been treated more favourably in that his "non-disability explanation" would have been investigated. At para. 228 it said: "
Thus there was no evidence to suggest that a non-disability explanation would have been treated in the same way – i.e. discounted - if given by the comparator. There was every reason to suggest that Mr Fraser would have taken account of it and have it properly investigated. A proper investigation of a comparator's explanation of automatic behaviour would, on the balance of probabilities, have resulted in a dismissal of the charges against the comparator." (4) There is no explicit consideration of the "reason why" question, but we suspect that the Tribunal intended to deal with it at para. 229 of the Reasons, which reads as follows: "What resulted in the less favourable treatment of the claimant was the weight that Mr Fraser attached to the claimant's explanation – i.e. none. However, that was in error and that error occurred because Mr Fraser did not understand the explanation. That explanation was a disability explanation. The Tribunal was satisfied that, on the balance of probabilities, that a non-disability explanation would not have produced the same result." (5) Having reached that point, the Tribunal concluded, at para. 230, that the evidence before it was sufficient to shift the burden of proof to the Council, having regard to s. 17A (1C) of the Act. At para. 232 it went on to hold on that the Council had not discharged that burden.[36]We should say by way of preliminary that the Tribunal's reference to s. 17A (1C) seems to us unnecessary (and for that reason we need not set it out here). It had already made positive findings on the issues raised by s. 3A (5), and the issue of the burden of proof simply did not arise. (We would observe in passing that this over-complication of analysis by reference to the burden of proof provisions is all too common.) The real question is whether those substantive findings were open to the Tribunal in law.[37]In addressing that question, we think it is most helpful to start with the "reason why question". As Lord Nicholls observed in para. 11 of his speech in Shamoon (see p. 342), concentration on that question tends to avoid "arid and confusing disputes about the identification of the appropriate comparator". As he also observed, at para. 8 (see p. 341), "the twofold analysis adopted by the Tribunal in the present case may give rise to needless problems". Those observations, though several times cited and endorsed in this Tribunal (see, e.g., per Elias P in Ladele v London Borough of Islington [2009] ICR 387 , at paras. 35-37 (p. 395); and per Underhill J in D'Silva v NATFHE [2008] IRLR 412 at para. 30 (p. 417)) – are still not in our experience sufficiently heeded by tribunals. The present case affords a good example of the complication and artificiality that can be involved in seeking to define the characteristics of the hypothetical comparator.[38]In our view, if the question is asked whether Mr Fraser failed to take the Claimant's case seriously "on the ground that" he was a diabetic – that is, "the reason why question" - the answer is obvious. What has to be established in any case of direct discrimination (or indeed discrimination-related discrimination) is what was influencing the mind of the decision-taker. That was established in context of race discrimination by the classic speech of Lord Nicholls in Nagarajan v London Regional Transport [1999] ICR 877 (see at pp 884-5) (discussed but not departed from in the recent decision of the Supreme Court in the Jewish Free School case ( [2009] UKSC 15 )); and it was also clearly asserted in the context of discrimination claims by the Court of Appeal in Taylor v OCS Group Ltd [2006] ICR 1602 , at para. 72 (pp. 1621-2), in a passage expressly approved by Lord Scott in Malcolm (see para. 39, at p. 707). In the present case there is no reason, either in the particular evidence or as a matter of general probability, to suppose, even for the purpose of " Igen stage 1", that the fact that the Claimant was a diabetic influenced Mr Fraser's thinking about the case at all. Why should it have ? It was simply irrelevant except if it explained the Claimant's conduct; but, as the Tribunal found, Mr Fraser did not believe that it did. The Tribunal's thinking seems to have been that because the explanation which Mr Fraser (unreasonably) rejected was a "disability explanation" – see para. 229 – it followed that the rejection was on the ground of that disability. But that, with respect, is a confusion. The fact that the rejected explanation related to the Claimant's disability does not mean that the rejection was on the ground of that disability. Nor does the fact that an employer treats a disabled person unreasonably, even in a matter related to his disability, mean that he does so because the person is disabled (see HM Prison Service v Johnson [2007] IRLR 951 , at para. 63 (p. 963)).[39]Once that point is reached, it is evident that the Tribunal's conclusion on the less favourable treatment question can also not be sustained: as pointed out in Shamoon (and Ladele ), the two questions are simply different ways of addressing the same issue. If however it were necessary to analyse where the Tribunal went wrong in this respect, it would appear to be in failing to build in to its description of the case of the hypothetical comparator the feature that his defence - that is, of some non-disability-related automatism – was also one which the Council "failed to understand".[40]We turn to the question of disability-related discrimination. At para. 232 of the Reasons, the Tribunal said:
"While the Tribunal is satisfied that in the present case there was direct discrimination, if it is wrong in that it would nevertheless have concluded that there was disability related discrimination."
[41]Again, the reasoning which follows is very lengthy, and we need not set it out in full. The Tribunal's essential point is that, since Mr Fraser's decision to dismiss was as a result of a (culpable) failure to engage with the Claimant's "disability explanation" "… the claimant's disability, and the explanations for the conduct that were explicitly linked to it, played a causative part in the decision making process. It was thus a motivating factor in Mr Fraser's reasoning in deciding to dismiss the claimant. His refusal to engage with and properly investigate or understand the explanations given to him was causally linked to his decision to dismiss. He decided to reject the claimant's explanation in knowledge that they were said to relate to the claimant's disability" (para. 236). In para. 237 the Tribunal makes again essentially the same point, i.e. that Mr Fraser had "the disability related explanation" in mind but dismissed it for an inadequate reason. It concludes:
"Looked at objectively, the Tribunal would have concluded that the disability played a causative and motivating role in the decision to dismiss the claimant."
[42]For the reasons given at para. 33 above, it does not seem to us to have been open to the Tribunal to find discrimination contrary to s. 3 A (1) in circumstances where disability contrary to s. 3A (5) had not been established. The Tribunal acknowledged that the effect of Malcolm was to "significantly restrain" claims of disability-related discrimination; but it seems to us that on a proper analysis it is now practically impossible for the one to succeed where the other would not. But in any event the Tribunal's reasoning is flawed even in its own terms, for essentially the same reasons as we have considered in relation to direct discrimination. The fact that the explanation which Mr Fraser rejected was based on the Claimant's disability does not mean that the ground on which he rejected it was itself "disability-related": the fact that an employee's disability is part of the story does not mean that it formed part of what motivated the decision-taker – "his mental processes", in Lord Nicholls' phrase. We recognise that the Tribunal in the passages quoted purported to find that the Claimant's disability was a "motivating factor" or played a "motivating role". But we can see no basis for that finding, and we think, with respect, that it must reflect the same misunderstanding of the principles enunciated in Nagarajan and OCS that we have identified at para. 38 above. No doubt Mr Fraser knew that the Claimant was a diabetic, and that factor was present to his mind, because the Claimant himself was relying on it. But the question is why he rejected the Claimant's explanation; and, as we have already said, there is no reason whatsoever to suppose that he did so because the Claimant was a diabetic - that would indeed be highly implausible. Nor is it relevant that the Claimant's disability may in some sense have played a "causative role" in what occurred (though we are not in fact sure that it did), unless it formed part of Mr Fraser's "ground" for acting as he did: as appears from Lord Nicholls' speech in Chief Constable of Yorkshire Police v Khan [2001] ICR 1065 (see at para. 29 (p. 1072)), the language of causation tends to be misleading in this context.[43]We must therefore allow the Council's appeal against the finding of disability discrimination and dismiss the Claimant's claims under both s. 3A (1) and (5). (7) REASONABLE ADJUSTMENTS[44]There is no cross-appeal against the Tribunal's rejection of this claim. (8) COMPENSATION[45]The Council initially appealed against the quantum of the Tribunal's award under this head. In the event, that appeal was not pursued before us; but in view of our finding on the issue of liability the point falls away in any event. CONCLUSION[46]The appeal against the findings of unfair dismissal and the order for reinstatement is dismissed. The appeal in relation to the claims under the Disability Discrimination Act 1995 succeeds.