MR A CARTER v 1) LONDON UNDERGROUND LTD 2) TRANSPORT FOR LONDON [2009] UKEAT 0292_08_0805

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0292_08_0805Case No Appeal No. UKEAT/0292/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A CARTERAPPELLANT1) LONDON UNDERGROUND LTD 2) TRANSPORT FOR LONDONRESPONDENT
Before
Mr Justice UnderhillDate 8 May 2009
[1]APPEARANCES For the Appellant MISS ANYA PALMER Instructed by: Messrs Morrish & Co. Solicitors Oxford House Oxford Row Leeds LS1 3BE For the Respondents MS JILLIAN BROWN Instructed by: Messrs Eversheds LLP Solicitors Kett House Station Road Cambridge CB1 2JY SUMMARY DISABILITY DISCRIMINATION – Disability related discrimination JURISDICTIONAL POINTS – Extension of time: just and equitable UNFAIR DISMISSAL – Reasonableness of dismissal Employee dismissed after being off sick for two years suffering from depression – Claims for disability discrimination and unfair dismissal Disability discrimination claims held to be unsustainable in the light of London Borough of Lewisham v Malcolm , Child Support Agency v Truman , Stockton-on-Tees Borough Council v Aylott and Hose Express Thurrock Ltd. v Jacomb followed Part of disability discrimination claim prima facie out of time – Employment Tribunal wrong to hold that reg. 15 of Employment Act 2002 ( Dispute Resolution) Regulations 2004 excluded the jurisdiction to extend time on "just and equitable" grounds – Time should have been extended if claim had otherwise been viable No inconsistency between Tribunal's reasoning on discrimination and unfair dismissal claims. THE HONOURABLE MR JUSTICE UNDERHILL INTRODUCTION The Appellant was employed by the Respondents, London Underground Ltd, from 27 February 1984 until his dismissal with effect from 2 September 2006. On 23 November 2006 he commenced proceedings in the Employment Tribunal alleging unfair dismissal and disability discrimination. By a Judgment and Reasons sent to the parties on 10 December 2007 a Tribunal sitting at London Central, chaired by Employment Judge Carstairs, found in his favour as regards one element of the alleged disability discrimination but dismissed the balance of his claim. He appeals against certain aspects of the decision which we will particularise in due course. The Respondents cross-appeals on the one element on which the Appellant succeeded.[2]The Appellant has been represented before us by Ms Anya Palmer and the Respondents by Ms Jillian Brown, both of counsel. We are grateful to them both for their careful submissions. THE FACTS[3]In July 2002 the Appellant was appointed Line Standards Manager for the Northern Line of the London Underground. In September 2003 he was seconded to a more senior role as a Performance Manager in the Learning and Development Department: his duties as Line Standards Manager were taken over on a temporary basis by his deputy, Mr Petersen.[4]In the course of 2004 the Appellant was the subject of two complaints by other employees. One of the complaints, by a Ms Bains, led to disciplinary proceedings being brought against him: these were subsequently dismissed, and an internal report concluded that they should never have been brought, but Ms Bains proceeded also to bring employment tribunal proceedings against the Appellant personally. The other matter took the form simply of a grievance. It is clear that the Respondents' handling of both matters – and in particular of Ms Bains's complaint and the subsequent tribunal proceedings (of which it had the carriage) - was inept.[5]Partly at least because of those matters, in mid-2004 the Appellant developed a depressive illness. He first went off sick on 16 September 2004, initially with a 14-day sick note. His secondment to the Learning and Development Department was ended, prematurely, ten days after he went off sick. Shortly after that, the Appellant lodged a grievance complaining of a number of matters, including but not limited to the Respondents' handling of Ms Bain's complaint.[6]The Appellant's condition did not improve. The Respondents sought to operate its sickness absence procedure, which should have involved him being assessed by its occupational health consultants. For a variety of reasons into which we need not go, this proved difficult to arrange, and no such assessment took place until 8 July 2005. Mr Alan Burton, the Performance Manager for Northern Line Trains, was increasingly frustrated by the delay. He regarded it as unsatisfactory that Mr Petersen should have to go on doing the Appellant's substantive job as Line Standards Manager on a temporary basis for an indefinite period: he had already been doing so for nearly two years.[7]Following the occupational health assessment the view of both Mr Burton and the Human Resources Department was that there was no prospect of the Appellant returning to work in the near future. The HR advice, however, was that the position should be discussed at a case conference with the Appellant. A conference was fixed for 22 August, but the Appellant did not attend. A further date was fixed for 1 September. On this occasion the Appellant did attend, accompanied by a union representative: the conference was adjourned in order to allow the Appellant to obtain a letter from his GP.[8]On 2 September 2005 the Appellant's GP wrote a letter to Dr Morgans, the occupational health adviser, reporting that he was now "showing a lot of improvement" and that she expected him to be able to return to work in about four to six weeks. The substance of that letter was passed on by Dr Morgans to Mr Burton. The same day he discussed the matter with the General Manager of the Northern Line, Mr Millard, and decided that the time had come for Mr Petersen to replace the Appellant as Line Standards Manager: if the Appellant did indeed return, he would have to be accommodated in some other post. Mr Petersen was formally confirmed in his position with effect from 5 September.[9]The adjourned case conference took place on 7 September 2005. The Appellant was again accompanied by Mr Knowles. He was told that he had now been replaced as Line Standards Manager and that he would go into the Respondents' redeployment procedure. The Appellant was due to see his GP again on the following day and he was asked to obtain confirmation that his medication was being discontinued, following which there would be a further assessment by occupational health and a further case conference leading, hopefully, to his return to work.[10]The Appellant was badly affected by the news that his job had not been held open for him. When he saw his GP the following day she was not prepared to reduce his medication. There were a series of contacts between the Appellant and the Respondents over the following months. It soon became clear that the Appellant was not fit to return to work. However, in mid-December there was a case conference at which it was agreed that the Respondents' formal redeployment process, which was aimed at finding him a new position within thirteen weeks, would commence in the New Year. The process involved an induction meeting and other measures designed to help employees who had lost their post to be successfully redeployed. Vacancies within London Underground were posted on the intranet, to which the Appellant was able to gain access: for an initial period of two weeks they would appear in a special "redeployment zone", accessible only to persons in the redeployment process, before being advertised to the rest of the organisation. There was also a process, of which the Appellant was given details, by which he could specify jobs falling within particular parameters and would receive e-mail alerts as soon as any such vacancy occurred.[11]No doubt because of his condition, the Appellant did not participate effectively in the process. He failed to answer letters and e-mails or to attend meetings. He accordingly found no new job within the initial thirteen-week period, which came to an end on 2 May 2006. However, at a series of case conferences beginning on 22 May he was, in the light of a cautiously improved medical prognosis, given what was in effect a second chance. At a conference on 6 June the Appellant said that in a "worst case scenario" he would be able to return to work in nine weeks, and it was agreed that he would be put back in the redeployment process. Over the following weeks there were several more case conferences, and Mr Burton, as the Tribunal expressly found, did a good deal to try to assist in finding the Appellant a vacancy. The Appellant had of course access himself to the notices of vacancies advertised on the intranet. He should also have had the advantage of the e-mail alert facility referred to above: Mr Burton understood that this had been set up – and indeed the Appellant told him that that was the case – but it subsequently transpired that it had not been. The later meetings proceeded on the basis that the Appellant expected to be certified fit to work on 29 August. Mr Burton made it clear to the Appellant that if he had not found a job by that date it was likely that he would have to be dismissed, although if there were applications in the pipeline the position would be reviewed.[12]On 24 August 2006 Mr Burton learnt that there was a vacancy for a Line Standards Manager on the Central Line. The closing date for applications was 26 August. The Appellant should have already been aware of this vacancy through the intranet and, more particularly, through the e-mail alert system; but Mr Burton nevertheless e-mailed his opposite number on the Central Line, Mr Whelan, to draw his attention to the Appellant's position and to the fact that, as a person in the redeployment process, he was entitled to an interview in advance of candidates who had already applied. Mr Burton was due to have a case conference with the Appellant the following day: he asked Mr Whelan what paperwork the Appellant would require and said that he would discuss with the Appellant why he had not already applied for the job and would keep Mr Whelan in touch.[13]Just over an hour after that conversation the Appellant sent an e-mail to Mr Burton, mentioning two possible vacancies (which did not include the Line Standards Manager job on the Central Line) but also saying that his GP's advice was now that he would not be fit to return to duty on 29 August and that he should remain off work for at least a further four weeks. He said that he would not be attending the case conference the following day because he could not arrange union representation and he suggested that it be postponed to 29 or 30 August or 1 September.[14]In the light of that e-mail Mr Burton wrote to the Appellant setting out the history, including the fact that they had been proceeding on the basis that he would be fit to return to work on 29 August, which was now no longer the case. He confirmed a case conference for 1 September "to review the recent change of circumstances in relation to your return to work, your future employment and options going forward": he said that one of the options would be the termination of his employment on medical grounds. He delivered the letter by hand to the Appellant's home and took the opportunity to have a short conversation with him when doing so. He did not, either in the letter or in that conversation, mention the vacancy for a Line Standards Manager on the Central Line which earlier that very day he had been encouraging Mr Whelan to keep open. It is – to anticipate - that omission which is at the heart of much of the Appellant's complaint in these proceedings. Somewhat surprisingly, the Tribunal makes no express finding as to the reason for it; but the inference must be that the revelation that the Appellant had still not made the long-anticipated recovery and had again postponed his return to work made Mr Burton have second thoughts.[15]The case conference duly took place on 1 September. At the end of it the Appellant was informed of the Respondents' decision to terminate his employment. He received a formal letter confirming that decision on 4 September. On 11 September he appealed against his dismissal, with the assistance of his union: in that context he alleged that the Respondents had acted in breach of the 1995 Act. The appeal was unsuccessful.[16]It is common ground that from 14 September 2004 onwards the Appellant was suffering from a disability, namely a depressive illness, within the meaning of the Disability Discrimination Act 1995 . A report from a consultant psychiatrist, Dr Savla, showed that, although his problems at work undoubtedly played a part in his condition, there were also significant problems in his personal life. THE ISSUES BEFORE THE TRIBUNAL AND ON THIS APPEAL[17]The Tribunal's Reasons are carefully structured and set out the issues clearly and methodically. We will consider in turn the issues relating to disability discrimination and unfair dismissal. DISABILITY DISCRIMINATION[18]The Appellant initially identified ten acts of alleged disability discrimination, which are set out at para. 1.7 of the Reasons. Four – nos. 2, 5, 6 & 7 – were not pursued. No. 4 was acknowledged to duplicate no. 8. Nos. 1 and 9 were dismissed on the facts, and no issue now arises in relation to them. That leaves three heads of discrimination which it is necessary for us to consider in more detail. (3) Replacing the Appellant as Line Standards Manager[19]The act complained of under this head was the decision to replace the Appellant as Line Standards Manager in September 2005, at a time when the indication from his GP was that he should be able to return to work within four to six weeks: see para. 8 above.[20]At para. 6.4 of the Reasons the Tribunal held that it had no jurisdiction to consider this claim. The act complained of had occurred outside the six-month period prior to the commencement of proceedings constituted by the primary three-month time limit under para. 3(1) of Schedule 3 to the 1995 Act, as extended by reg. 15 (1) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 . (It was not suggested that the Act was one which extended over a period within the meaning of para. 3 (3) (b).) By para. 3(2) of Schedule 3 the Tribunal had, on the face of it, jurisdiction to consider the claim, notwithstanding that it was out of time, if it considered it just and equitable to do so; but it held that the effect of reg. 15 of the 2004 Regulations was that the six-month period produced by the combination of para 3 (1) and reg. 15 (1) was "absolute" and that the operation of para. 3 (2) was excluded: see para. 6.4 of the Reasons.[21]The Tribunal nevertheless proceeded at paras. 6.5–6.8 of the Reasons to consider whether, if the claim had been allowed to proceed, it would have succeeded. It held that the reason for replacing the Appellant with Mr Petersen was plainly disability-related and that it could not be justified within the meaning of s. 3A (1) (b) and (3) of the 1995 Act. It summarised its conclusion as follows:
"6.7 The tribunal has therefore concluded that Mr Burton did not want the Claimant back because he was not certain that the Claimant would be able to return full time. The Respondent has not shown why would be necessary have the Claimant return to work full time immediately; at the time, there was no indication whether or not the Claimant would have been taking medication if he returned which might have impeded his ability to do the job which was a safety critical job. 6.8 As a result, the Tribunal has concluded that the Respondent has not shown that the reason for the treatment was both material to the circumstances of the case and substantial. If it were not for the fact this complaint was out of time, it would have succeeded."
[22]The Appellant appeals against the decision that the Tribunal had no jurisdiction to extend time. Following a suggestion made at an earlier hearing under rule 3 (10) of the Employment Appeal Tribunal Rules 1993 , both parties are agreed that if that appeal succeeds this Tribunal should use its powers under s. 35(1) of the Employment Tribunals Act 1996 itself to determine the question under para. 3(2) of Schedule 3 to the 1995 Act whether it is just and equitable to consider the claim notwithstanding that it is out of time.[23]If time is extended, then on the face of it the Tribunal's finding set out at para. 21 above will take effect. But the Respondents would in those circumstances submit that that finding was itself wrong in law on the basis of the " Malcolm point" which we consider below. (8) Failure to inform the Appellant of the vacancy in August 2006[24]The act complained of here is the failure by Mr Burton to inform the Appellant of the vacancy for a Line Standards Manager on the Central Line of which he became aware on 24 August 2006: see para. 12 above. This was the element of the claim on which the Appellant succeeded. We should set out the Tribunal's reasoning in full:
"6.12 The matter which is still complained about is the fact that Mr Burton did not inform the Claimant about the vacant LSM post for the Central line. When Mr Burton became aware of this on 24 August, he took action to ensure that the relevant manager, Mr Whelan, was aware that the Claimant would be entitled to an interview before the other seven applicants. He explained to that manager that he, Mr Burton, needed to ask the Claimant a number of questions to determine why he had not yet applied for or raised this job earlier and he would then report back to Mr Whelan. Mr Burton did intend to ensure that the Claimant had seen the vacancy and encourage him to apply for it when they met the next day. However, the Claimant was unable to attend the 25 August meeting. On 25 August, Mr Burton had hand delivered the letter calling the Claimant to the 1 September meeting. When delivering that letter he had buzzed the Claimant on the intercom and had a short conversation with him. He still did not say anything about the LSM post and had not included anything about it in his letter. The reason that Mr Burton did not himself tell the Claimant about the LSM position was because the Claimant did not attend the 25 August meeting because he was feeling too unwell. His sickness absence was related to his disability. Accordingly, the Claimant was treated less favourably than the Respondent treats or would treat others who would not have been absent from work. 6.13 The Tribunal therefore had to consider whether the Respondent had shown that the reason for the treatment was both material to the circumstances of the case and substantial. Mr Burton had intended to ensure that the Claimant was aware of the vacancy. He gave evidence that he did not tell the Claimant about the vacancy not only because the Claimant did not attend the meeting on 25 August but also because it was his view that the Claimant must have seen the advertisement through the redeployment website. However, the Tribunal did not accept that explanation; the reason that Mr Burton had intended to raise the matter with the Claimant on 25 August, one day before time expired to apply for the post, was to ensure that the Claimant had seen the vacancy. That suggested to the Tribunal that Mr Burton was concerned that the Claimant might not have seen the advertisement. The mere fact that the Claimant was not, now, going to see Mr Burton on 25 August would not have altered that understanding; accordingly, the possibility that the Claimant might have seen the advertisement on the website was not enough in the circumstances of this case to be a substantial reason for not informing the Claimant about the vacancy. 6.14 Accordingly, this complaint succeeds."
[25]The Respondents cross-appeal against that decision. Its primary case is that the Tribunal's reasoning is vitiated by the over-ruling of Clark v Novacold [1999] ICR 951 by the decision in the House of Lords in London Borough of Lewisham v. Malcolm [2008] AC 1399 . It also contend that the decision was perverse. [1] (10) Dismissal[26]The Appellant's case under this head was that his dismissal itself constituted disability-related discrimination. As to that, the Tribunal's conclusion was as follows:
"6.17 The last complaint of disability related discrimination relates to the dismissal (paragraph 1.7.10). Miss Palmer refers to the process from the decision to remove the Claimant from his substantive post in September 2005, the failure to advise him of the LSM post in the summer of 2006 and the decision to dismiss which was, she submits, informed by resentment of the Claimant's time off work and his unreliability in attending meetings, both of which were functions of the Claimant's disability. She submits that Mr Burton lost patience with the Claimant as early as 10 March 2005 when he failed to attend a third appointment with the occupational health department. From then on it is clear from Mr Burton's e-mails that he wanted the Claimant to be dismissed. 6.18 Mr Allen submits that the dismissal of the Claimant was justified on the basis that the Respondent had offered the Claimant reasonable adjustments, had attempted to encourage the Claimant to consider alternative posts and that the Claimant was not able to suggest a return to work date on 1 September 2006. The Claimant would not have been dismissed but for the fact that he was absent on sick leave because of his disability. Accordingly, he was treated less favourably than the responded would have treated a person who was not absent on sick leave because of a disability. 6.19 The Tribunal went on to consider whether the Respondent had shown that the reason for the dismissal was material to the circumstances of the case and substantial. The Claimant had been absent on sick leave for two years and, although there had been a number of occasions when he had anticipated returning to work within six weeks, the Claimant still was not able to give the Respondent a likely date of return. The Tribunal is satisfied that that was the reason chosen by Mr Burton for the dismissal. It is certainly correct that Mr Burton was frustrated that he had no medical advice about the Claimant's condition in March 2005, but matters had progressed over the subsequent eighteen months with possibilities that the Claimant was returning to work but the Claimant then not returning to work. There is no indication, and the Tribunal does not find, that the dismissal had anything to do with a resentment of the Claimant's time off and any unreliability in attending meetings. The Respondent had waited two years before finally concluding that the Claimant should be dismissed. The Tribunal has therefore concluded that the treatment by way of dismissal was material to the circumstances of the case and substantial."
[27]The Appellant appeals against that conclusion on the basis that it was perverse. Reasonable Adjustment[28]At paras. 6.12-6.25 of the Reasons the Tribunal considered whether the Respondents' conduct in any of the respects complained of constituted a breach of its duty to make reasonable adjustments under s. 4A of the 1995 Act. It concluded that it did not. There is no appeal against that finding. UNFAIR DISMISSAL[29]After considering whether the Respondents had followed the statutory disciplinary and dismissal procedure, as to which no issue now arises, the Tribunal held at paras. 6.30-6.33 of the Reasons that the reason for the Appellant's dismissal was capability and that it was procedurally fair. Those conclusions are not challenged. It continued as follows:
"6.34 Turning to the reasonableness of the decision, the Tribunal has first considered the submission relating to the fact that the Claimant's substantive role had been removed from him in September 2005. It is suggested that this should be taken into account in considering the fairness of the dismissal a year later. It is submitted that the Claimant would have found it easier to return to work if his substantive position had been maintained for him; however, there is no medical evidence to support that contention. The Tribunal has observed that in September 2005 it was said on the Claimant's behalf for the first time that he would be able to return in four to six weeks' time. That was repeated on a number of occasions throughout the following year but was never realised. 6.35 The next matter is Mr Burton's failure to notify the Claimant of the LSM vacancy for the central line in August/September 2006. The Tribunal is satisfied that Mr Burton suspected that the Claimant was not aware of it; however, the Tribunal has also concluded that it had been advertised on the redeployment site. Notwithstanding Mr Burton's suspicion, he was entitled to rely on the fact that the Claimant had told him he was checking the site daily and therefore that he ought to have been aware of the vacancy. 6.36 Miss Palmer refers to the fact that the Respondent was at least in part responsible for the Claimant's continued depression by reason of the failure to deal with the grievance in a timely manner. However, it appears to the Tribunal that the grievance process was finalised, albeit not to the Claimant's satisfaction, by August 2005 when he received a limited apology from Mrs Johnson for the fact that the Claimant had been referred to a disciplinary board when he ought not to have been. The Tribunal has had regard to Dr Savla's report which indicates that there were a number of factors that lead to the Claimant's depression; he ahs highlighted the death of the Claimant's father, the Claimant's estrangement from his mother and the termination of a long term relationship. The Tribunal is satisfied that contributing factors included Miss Bains's action against him, for which the Respondent cannot be held responsible, the failure by Mr Nichol to produce a final report, again a matter which appears to lie at the feet of TFL rather than the Respondent, the failure to deal with the grievance in a timely manner and the fact that the Claimant had lost his substantive role in September 2005. That last matter, clearly, was not the cause of the Claimant's initial illness a year earlier. In McAdie it was suggested that it might be necessary for an employer to go "the extra mile" in finding alternative employment for an employee or to put up with a longer period of sickness absence than would otherwise be reasonable. However, it is also noted that Tribunals should resist the temptation in effect to make an award for a personal injury. In this case, the Respondent retained the Claimant on its books for a period of two years during the course of his sickness absence. This included a period where the Claimant's pay had been reinstated from 31 January (albeit the payments did not commence until a back payment was made in March) until the Claimant's employment ended. Furthermore, the Claimant was placed within the auspices of the redeployment section for a longer period than the procedure required. 6.37 It was anticipated within the procedure that there would only be a further four weeks after the initial thirteen weeks. Mr Carter had the opportunity therefore for a longer period than would be normal to have himself matched to other jobs. Furthermore, Mr Burton drew various posts to his attention during this period but the Claimant did not wish to take those posts, for example the duty manager post, because they were a lower level than his previous job notwithstanding that the Claimant's salary would be protected for seven years. Accordingly, the Tribunal is satisfied that the Respondent went the 'extra mile' so far as it was required to do so. 6.38 The Tribunal has concluded that in circumstances where the Claimant had not applied for the LSM post, which the Respondent believed he would have been aware of, as it had been advertised on the LSM site and the Claimant had indicated he was checking the site every day, the Respondent was entitled to conclude that there were grounds for dismissing the Claimant. 6.39 Additionally, the Tribunal has also concluded, having regard to the fact that the Claimant had been absent on sick leave for two years, still did not have a return to work date and had not been matched to any vacancy, that dismissal was within the range of reasonable responses."
[30]The Appellant appeals against that conclusion. It is his case that it was irrational in the light of the Tribunal's prior decision that Mr Burton's failure to inform him of the Line Standards Manager vacancy could not be justified: see para. 24 above. As it is put in the Notice of Appeal:
"The tribunal erred in holding that the failure by Mr Burton in August 2006 to inform the Appellant of a suitable vacancy until it was too late did not render the dismissal unfair. The Respondent was under a duty to make reasonable efforts to find suitable alternative employment for the Appellant before dismissing him."
SHAPE OF THE ISSUES[31]The Respondents' submissions based on Malcolm apply to the entirety of the disability discrimination claim. We will therefore consider them first. As regards the other issues, it is convenient to deal separately with the alleged discrimination in September 2005 and with the events of late August and early September 2006 (i.e. both the failure to inform the Appellant of the Line Standards Manager vacancy and his dismissal). The issues in relation to the latter episode overlap with the appeal against the Tribunal's dismissal of the unfair dismissal claim, and we will deal with that under the same head.

(A) THE EFFECT OF THE DECISION IN MALCOLM

[32]We should start by setting out the statutory background. The Disability Discrimination Act 1995 as originally enacted outlawed discrimination in various "fields" or "areas". Discrimination in the field of employment was, and still is, dealt with in Part II. Part III was, and still is, is entitled "Discrimination in Other Areas". Within Part II, ss. 19 and 20 prohibited discrimination in relation to goods, facilities and services, and ss. 22 and 24 prohibited discrimination in relation to premises. In the case of each such area or field there was and is a section defining discrimination – respectively s. 5 (though this has subsequently been re-numbered – see below); s. 20; and s. 24.[33]For the purpose of explaining the present issue the sections with which we are concerned are ss. 5 and 24. In the case of each section, s-s. (1) was and is in (substantially) identical terms. S. 5 (1) read:
"For the purposes of this Part, a person discriminates against a disabled person if – (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and (b) he cannot show that the treatment in question is justified."
Likewise, s. 24 (1) read:
"For the purposes of s. 22, a person ("
A") discriminates against a disabled person if – (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and (b) he cannot show that the treatment is justified." However, the sections differ in the provisions relating to the requirement of justification. S. 5 (3) read:
"Treatment is justified for the purposes of subsection (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial."
S. 24 (2), by contrast, read : "For the purposes of this section, treatment is justified only if – (a) in A's opinion, one or more of the conditions mentioned in subsection (3) are satisfied; and (b) it is reasonable, in all the circumstances of the case, for him to hold that opinion." (We need not set out the terms of s. 24 (3): it is sufficient to say that it sets out a number of specific, and fairly limited conditions.)[34]As already noted, the 1995 Act has since been amended in various respects. In particular, Part II was amended by the Disability Discrimination Act 1995 (Amendment) Regulations 2003 , with effect from 1 st October 2004, in order to bring it into line with the requirements of EU Council Directive 2000/78/EC (the so-called "Framework Directive"); and as a result what was s. 5 now appears as s. 3A. But there is for present purposes no material difference between the old s. 5 and the new s. 3A. The changes in relation to the group of sections which includes s. 24 are extensive but are not material for our purposes.[35]In Clark v Novacold (above) the Court of Appeal considered the nature of the comparison required by the phrase in s. 5 (1) (a) "… than he treats or would treat others to whom that reason does not or would not apply". Mummery LJ delivered the only substantive judgment. He said, at pp. 961H-962F:
"The two questions posed by the statutory provisions are: (1) Was the applicant dismissed for a reason which relates to his disability ? (2) If so, did the employers treat him less favourably than they would treat others to whom that reason would not apply ? In order to answer question (2), it is necessary to compare the employers' treatment of the applicant with the treatment of others to whom "that reason" would not apply. What is meant by "that reason" ? On the one hand, it is argued on behalf of the employers that it refers to the whole of the first clause of paragraph (a) of section 5(1). That imports two requirements: first, the existence of "a reason" for the treatment (in this case, the dismissal); secondly, the causal link between the reason and the disabled person's disability. It must be a reason "which relates to the disabled person's disability."
Thus "that reason" embraces the significant causal link to the disability. On this approach the person to whom "that reason" would not apply would be one who, like the disabled person, is incapable of performing the main functions of his job, but for a reason which doesnot relate to disability. This is the interpretation favoured both by the industrial tribunal and the appeal tribunal. On the factual findings of the tribunal, this interpretation leads to the conclusion that the applicant was not treated less favourably than others incapable of performing the main functions of their job for a non-disability reason. A contrary interpretation is submitted on behalf of the applicant. His argument is that "that reason" refers only to the first three words of paragraph (a) - "for a reason." The causal link between the reason for the treatment and the disability is not the reason for the treatment. It is not included in the reason for the treatment. The expression "which relates to the disability" are words added not to identify or amplify the reason, but to specify a link between the reason for the treatment and his disability which enables the disabled person (as opposed to an able-bodied person) to complain of his treatment. That link is irrelevant to the question whether the treatment of the disabled person is for a reason which does not or would not apply to others. On this interpretation the others to whom "that reason" would not apply are persons who would be capable of carrying out the main functions of their job. Those are the "others" proposed as the proper comparators. This comparison leads to the conclusion that the applicant has been treated less favourably: he was dismissed for the reason that he could not perform the main functions of his job, whereas a person capable of performing the main functions of his job would not be dismissed." After a review of the competing arguments Mummery LJ held that the latter construction was to be preferred. As he said, at pp. 963F:
"In the context of the special sense in which "discrimination" is defined in section 5 of the Act of 1995 it is more probable that Parliament meant "that reason" to refer only to the facts constituting the reason for the treatment, and not to include within that reason the added requirement of a causal link with disability: that is more properly regarded as the cause of the reason for the treatment than as in itself a reason for the treatment."
[36]That, accordingly, has been the construction which has been followed by employment tribunals over the last nine years. However, in Malcolm the House of Lords had to consider the effect of the (so far as material) identically-worded s. 24. By a majority of four to one it was held that the appropriate comparison was the so-called "narrower comparison" – that is, with a person whose circumstances were the same as those of the claimant but who was not disabled.[37]In the present case the Tribunal clearly applied Clark v Novacold . It did not say expressly that it was doing so, but it did not need to: it would not have occurred to it to do otherwise. But it is common ground that if it should have applied the comparison adopted in Malcolm the Appellant would be unable to establish disability discrimination in any of the respects complained of, since it is clear that in those respects the Respondents treated the Appellant in the same way that it would have treated anyone in the same circumstances who was not suffering from a disability.[38]Accordingly, the question for us is whether the decision of the House of Lords in Malcolm as to the effect of s. 24 applies equally to the effect of s. 5; or, to put it another way, whether the House of Lords in Malcolm over-ruled Clark v Novacold . If it did, the Appellant's appeal, so far as concerns the discrimination claim, must be dismissed and the Respondents' cross-appeal must be allowed. If it did not, then, equally, the Tribunal's decision – subject to the particular points relating to the September 2005 episode – is unassailable. Either way, we would be bound by authority – in the former case by Malcolm , and in the latter by Clark v Novacold . It is not for us to consider whether the decision in Malcolm was wrong, or undesirable in its effects, but simply to analyse its ratio .[39]At the time that the appeal was argued there were already three decisions of this Tribunal in which Malcolm had been followed, namely Miller v Ridings High School (UKEAT/0204/08), Countrywide Estate Agents v Rice (UKEAT/0392/08) and Child Support Agency (Dudley) v Truman . It is fair to say that in the first two of those cases no argument to the contrary had been advanced, but in the last a Tribunal chaired by HH Judge Clark had considered the point explicitly. Since the argument in this case the point has again been fully considered by Tribunals chaired by Slade J. - Stockton-on-Tees Borough Council v Aylott (UKEAT/0401/08), handed down on 11 th March 2009 – and Silber J. – Hose Express Thurrock Ltd. v Jacomb (UKEAT/0389/08), handed down on 31 st March 2009. Both the latter judgments relied on the decision of the Court of Appeal in R (N) v London Borough of Dagenham and Barking Independent Appeal Panel [2009] EWCA Civ 108 , handed down on 11 th February 2009. Although this was concerned with a different section of the 1995 Act, namely s. 28B (1) (a) - being part of a group of sections introduced by amendment which prohibits discrimination in education and which uses the same language as ss. 3A(1) and s. 24 - it treats Clark v Novacold as having been over-ruled by Malcolm on the basis that it is inconceivable that identically worded provisions in the same statute could have different meanings: see in particular per Toulson LJ at paras. 46-47.[40]Following the decision in N counsel asked for the opportunity to put in further written submissions, which we granted; and in fact by the time that submissions were lodged Aylott also had been decided. That hiatus accounts for the delay in promulgating this decision. On a very strict view, it might be arguable that N itself is not binding on us, since (like Malcolm ) it is concerned with a different section of the Act. But, on established principles, we should follow the decisions in Child Support Agency , Aylott and Hose Express unless we were satisfied that they were plainly wrong. We are not, and it might be sufficient for us to say no more than that. However, we had in fact already reached the same conclusion; and in case the matter goes further, and in deference to Ms Palmer's sustained argument on the question, we believe that we should briefly give our reasons.[41]The starting-point is that it must be acknowledged that Malcolm was concerned with a different statutory provision than we are concerned with in the present case – that is, with s. 24 rather than s. 3A (or s. 5, as it then was). Thus it is not automatically, and without more, decisive for our purposes. It is true that it would be remarkable for identically-worded provisions in different parts of the same statute to have different meanings; but, as Lord Neuberger observed in Malcolm (see para. 158), it is not impossible. The real task for us is to establish the ratio of the majority and to see whether that ratio is equally applicable to both sections. As to that, the position can be summarised as follows (we will not overload an already lengthy judgment by setting out long passages from the speeches): (1) Lord Scott adopted the narrower construction because he believed that the broader construction rendered the statutory comparison pointless: see paras. 32-33 (pp. 1414-5). The same point had been made by Toulson LJ in the Court of Appeal. He said, as quoted by Lord Bingham at para. 14 (p.1407 E):
"…the complainant is logically bound to be able to satisfy the requirement of showing that his treatment is less favourable than would be accorded to others to whom the reason for his treatment did not apply. For without the reason there would not be the treatment."
If that reasoning is correct, it must apply equally to s. 3A, with the result that Clark v Novacold was wrongly decided. Lord Scott so held in terms: see para. 34 (p. 1415 E). (2) Lord Brown explicitly adopted Lord Scott's reasoning: see in particular paras. 112-113 (p. 1437). He did not, as Lord Scott had done, say in so many words that Clark v Novacold was wrongly decided; but that is necessarily implicit in the entire passage. In any event, when referring to the "pointlessness" argument (that is, the argument identified by Toulson LJ) he referred explicitly not only to s. 24 but also to s. 5 (and indeed s. 25): see para. 112 at p. 1437 E. (3) Thus two members of the House held explicitly that their ratio applied to s. 5 as well as to s. 24. (4) The position as regards the other two members of the majority is not quite so clear-cut. Both Lord Bingham, at para. 15 (1407 H), and Lord Neuberger, at para. 158 (p.1447), formally left open the possibility that their decision on s. 24 might not apply to s. 5. But the terms in which they did so could hardly have been fainter. Lord Bingham concluded his discussion of the issue by saying:
"I find it hard to accept that Novacold was rightly decided. I am in any event satisfied that a different principle must be applied in the present context."
Lord Neuberger's consideration of the question was more extensive, and we should quote para. 158 in full:
"It would, on the face of it at least, be very surprising if section 24(1)(a) had a different meaning from the effectively identically worded section 5(1)(a), but it would not be an impossible conclusion. While the 1995 Act has a single definition of "disability" which is generally applicable, it has three effectively identical definitions of "discrimination", each of which applies in different fields (employment, goods, facilities and services, and premises). The combination of the contrast between section 5(3) and section 24(3), and the fact that the wider construction of section 5(1)(a) has been assumed to be right for some years—perhaps together with other factors, such as subsequent implied parliamentary approval—could conceivably justify the decision in Clark v Novacold Ltd [1999] ICR 951 being correct as to the effect of section 5(1)(a), despite the conclusion I have reached as to the meaning of section 24(1)(a). However, no party argued for such a conclusion, and, as at present advised, it seems to me that this was realistic. As Lord Brown points out in para 111, the principle reasons for rejecting the wider construction of section 24(3) is its potentially extraordinarily penal consequences for property owners and the apparent pointlessness of the comparison exercise, and the same arguments apply to the wider construction of section 5(1)(a) in relation to employers."
Thus, while he recognised the theoretical possibility that ss. 5 and 24 might have different meanings, he acknowledged that that would be "very surprising", and he accepted (at least "as at present advised") that the parties had been "realistic" in not arguing for such a position. More importantly, he acknowledged in the final sentence that the reasons for adopting the narrower construction of s. 24 applied equally to s. 5. That, surely, is the crucial point. If one examines the reasons why both Lord Bingham and Lord Neuberger adopted the narrower construction, it can be seen that they – like Lord Scott and Lord Brown – were most influenced by the "pointlessness" argument: see per Lord Bingham at para. 14 ( loc . cit .) and per Lord Neuberger (not only in the comment to which we have referred but also more fully at para. 140). That reasoning, as we have observed and as Lord Neuberger acknowledged, is equally applicable to s. 5 as to s. 24. That being so, their Lordships' reservations, made no doubt out of abundance of caution, do not in fact on analysis leave it open to us to reach a different conclusion. (5) Strictly, the reasoning of Lady Hale, who dissented, cannot be brought into account on this point. But we cannot forebear to note that she clearly understood that the effect of the reasoning of the majority was to over-rule Clark v Novacold ; and indeed she regarded it as self-evident that s. 5 and s. 24 would have to be construed in the same way: see paras. 70-81 of her speech (pp. 1425-9).[42]We accept, therefore, that Malcolm has indeed over-ruled Clark v Novacold and must be taken to prescribe the correct approach to s. 3A (1). That conclusion makes it unnecessary, and indeed inappropriate, for us to consider most of Ms Palmer's submissions, which were in truth addressed not so much to showing that Malcolm was not binding as that it was wrongly decided.

(B) SEPTEMBER 2005

[43]Our decision on the Malcolm issue means that the claim in relation to the events of September 2005 must fail; but we deal with the issues arising under it, partly in case the appeal goes further but also because the first such issue may be some general importance, at least so long as the 2004 Regulations continue to fall to be applied (which may regrettably be for some time yet). (1) REGULATION 15[44]Reg. 15 (1) of the 2004 Regulations provides that where, as is common ground was the case here, the statutory grievance procedure has been engaged:
"… the normal time limit for presenting the claim is extended for a period of three months beginning with the day after the day on which it would otherwise have expired."
Reg 15 (5) reads (so far as material) as follows:
"In this regulation "the normal time limit" means – (a) … the period within which a complaint under the relevant jurisdiction must be presented if there is to be no need for the tribunal, in order to be entitled to consider it to – (i) exercise any discretion, or (ii) make any determination as to whether it is required to consider the complaint, that the tribunal would have to exercise or make in order to consider a complaint presented outside that period; and (b) … ."
[45]In an earlier decision called King v Quastels Avery Midgen , promulgated on 19 th October 2006, Employment

Judge Carstairs said this (at para. 5.9 of the Reasons):

"The expression in Regulation 15 is "normal time limit"
. It is defined in Regulation 15 (5) as, in effect, meaning the time limit without any addition to it as a result of … the Tribunal exercising any discretion to extend time. In other words, Regulation 15 provides that the claim must be brought within six months of the matter complained about and that time limit is absolute and cannot be extended." His decision in that case was the subject of an appeal to this Tribunal. The Appellant was notified under rule 3 (7) of the Employment Appeal Tribunal Rules 1993 that no further action would be taken on the appeal. The letter from the Deputy Registrar contained an observation from HHJ Clark to the effect that:
"… the six month period under Regulation 15 of the 2004 Regulations is absolute (regulation 15 (5))."
Apparently the Appellant took matters no further. It was on that reasoning – and its endorsement by HHJ Clark – that the Tribunal relied in reaching its decision on head (3) of the disability discrimination case: see para. 20 above. The Appeal Tribunal was informed at the rule 3 (10) hearing in this case that there was reason to believe that a similar view was being regularly taken by at least some Judges at London Central.[46]In our view Judge Carstairs' decision in King v Quastels Avery Midgen , and thus the Tribunal's decision in this case, was wrong; and indeed Ms Brown made no real attempt to defend it. The purpose of reg. 15 of the 2004 Regulations is, in effect, to impose a moratorium of three months before the normal time limit kicks in, in order to allow for the statutory procedures to run their course. That apart, its effect on the operation of the time limit contained in the relevant primary legislation should be entirely neutral. It would be extraordinary if its effect were to deprive employees of the benefit of the Tribunal's jurisdiction to consider an out-of-time complaint when it was just and equitable to do so. We cannot see that the words of reg. 15(1) and (5) have that effect. To say that the primary time limit is extended from three months to six has no bearing on the separate question whether a claim falling outside that extended time limit may nevertheless be considered.(2) SHOULD TIME HAVE BEEN EXTENDED ?[47]As noted at para. 22 above, the parties agreed that if we upheld the appeal on the prior issue this Tribunal should consider the question whether it was just and equitable to consider the claim in relation to September 2005 notwithstanding that it was commenced some fourteen months out of time. Both parties lodged written submissions on that question, and there was also a witness statement from the Appellant.[48]That exercise has to be performed on the basis, contrary to our view, that the Appellant's claim is otherwise viable – that is, that Clark v Novacold remains good law. The burden is of course on the Appellant to show reasons why, exceptionally, the normal time limits should not apply: see Robertson v Bexley Community Centre [2003] IRLR 434 . The delay in this case was substantial. We have not found the question straightforward, and we regard the case as falling near the borderline. But, on balance, had the question been live, we would have considered it just and equitable to allow the claim to proceed, for essentially four reasons:(1) The Appellant's evidence was that he was throughout 2005 and the first part of 2006 too depressed to give any serious consideration to commencing legal proceedings. That account is broadly supported by both the contemporary medical evidence (in the form of the correspondence from his GP and from Dr. Morgans) and the report from Dr. Savla. It is true that, as Ms Brown points out, that evidence does not specifically address the question of the Appellant's ability to consider and decide about legal proceedings; and it would have been better if there had been medical evidence directed to that question. But it is reasonable to accept that a depression of the kind described by them would have had a serious impact on the Appellant's ability to take decisions of this character.(2) The Appellant says that, both over that period but also and more importantly over the period from May 2006 when (on his case) he was beginning to recover, his focus was on getting back to work and not on suing his employer. It was only when he was dismissed that the question of seeking any legal remedy arose; and he acted reasonably promptly from that point on. This kind of point is often made in cases of this kind. It needs to be viewed with some caution because, attractive as it is that parties should be thinking in terms of future relationships rather than legal rights, if they choose that course they must generally take the consequences of doing so: it will often not be acceptable to say "I let the time limit go by because I hoped things would turn out alright; but now that they have gone wrong I would like to turn back the clock". But each case depends on its own facts; and in the particular circumstances of this case we do find it reasonable for the Appellant to have ignored the possibility of legal proceedings in mid-2006.(3) The Respondents' decision in September 2005, though not forming part of a "continuing act" extending up to the Appellant's dismissal, is nevertheless part of a single story surrounding his sickness absence which the Tribunal would be having to consider as background in any event. We acknowledge a contrary argument as regards this aspect. As Ms Brown submitted to us, it is in fact the "2006 claim" which represents the Appellant's primary claim and his major loss. There is force in the point that a tribunal's discretion should not be exercised to save out-of-time claims which are of marginal significance in themselves and/or as regards remedy, particularly where they would involve a disproportionate amount of investigation. But we were not satisfied that that was the case here: on the Appellant's case the removal of his post in September 2005 played an important part in his subsequent deterioration.(4) We accept Ms Palmer's submission that the delay in a complaint about the events of September 2005 created no serious evidential prejudice to the Respondents. Ms Brown indeed did not suggest to the contrary. She did remind us, and we readily accept, that absence of specific evidential prejudice to the respondent is not by itself a sufficient reason for extending time in a claimant's favour. But it is nevertheless a point which requires to be noted.[49]Cases where a claimant has failed to bring a claim within the primary time limits allegedly as a result of depression are not uncommon. We would not wish our decision (or, rather, quasi-decision) in this case to be treated as establishing that in all, or even most, such cases it will be just and equitable to extend time. Each case will, we repeat, depend on its own facts. A person suffering from depression will not necessarily be disabled from taking the decision to bring proceedings: indeed they will ex hypothesi have eventually done so, and by no means always only after their condition has resolved. Our decision goes no further than that an extension is, on balance, justified in the present case.

(C) AUGUST/SEPTEMBER 2006

[50]Ms Palmer's submission is straightforward. The Tribunal having held that Mr Burton had no good reason for failing to inform the Appellant of the Line Standards Manager vacancy on 24 th August (see para. 24 above), it was inconsistent of it to hold that his dismissal a week later was fair. It is the duty of an employer considering the dismissal of an employee whose original job has been lost to take reasonable steps to find him alternative employment: the Respondents, on the Tribunal's own finding, had not done so.[51]We do not accept that there is any necessary inconsistency between the Tribunal's two findings. In considering the Appellant's discrimination claim the Tribunal was obliged to focus on a particular omission which was the subject of the pleaded case. But in considering the unfair dismissal claim it was concerned with the broader question of whether the Appellant's dismissal, for incapacity, was reasonable in all the circumstances. Whether any particular deficiency in the process was such as to render the dismissal unreasonable was a matter for its judgment. The Tribunal evidently took the view that Mr Burton's failure was not fatal to the fairness of the dismissal. We can see nothing perverse in that conclusion. One factor which the Tribunal avowedly took into account was that the Appellant was supposed to be – and, so far as Mr Burton was aware, was – checking the website for himself and should himself have been aware of the vacancy, so that what went wrong was the failure of a failsafe and not a primary failure in itself. But it also took into account the relevant background. The Appellant had been told that if he had not found a job by his estimated return-to-work date of 29 th August he was likely to be dismissed, though the position would be reviewed if there were applications in the pipeline (see para. 11 above). After an absence of almost two years that was, as the Tribunal plainly believed, hardly unreasonable. As at that date, not only was there no application in the pipeline, but the Appellant was not fit for work after all and there was no certainty when he would be: thus even if he had applied for the Line Standards Manager vacancy he might not have been able to take it up. Ms Palmer's reference here to suitable alternative employment slurs over this important consideration. This was a case of dismissal not for redundancy but for incapacity.[52]In our view, therefore, the Tribunal's conclusion on the unfair dismissal claim should stand. The conclusion on the disability discrimination claim, as it relates to August 2006, falls because of our earlier decision on the Malcolm issue. CONCLUSION[53]We allow the cross-appeal and dismiss the Appellant's claims of disability discrimination in their entirety. We dismiss the appeal against the Tribunal's dismissal of the unfair dismissal claim. Note 1 It seems to us that there might also have been room for argument about the Tribunal’s characterisation of the reason for Mr Burton’s failure to inform the Appellant of the vacancy as being the Appellant’s failure to attend the meeting of 25th August. In one sense no doubt that is correct; but in this area of the law the “reason” in question has (at least in a case of this sort) to be sought in the “mental processes” of the putative discriminator see Nagarajan v London Regional Transport [1999] ICR 877 ( per Lord Nicholls at pp. 884-5) and Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 ( per Lord Nicholls at para. 29 (p. 1072)). There is, as we have observed see para. 14 above), no explicit finding about Mr Burton’s reason, in that sense, for not informing the Appellant of the vacancy, but it seems likely that it was that he thought it pointless in view of the new uncertainty about his return-date. Such a reason might have been justifiable. But this point was not argued before us and we need express no final view on it.