1) STAFFORD AND RURAL HOMES LTD 2) MS K ARMITAGE v MR D HUGHES [2009] UKEAT 0360_08_0903

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0360_08_0903Case No Appeal No. UKEAT/0360/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
1) STAFFORD AND RURAL HOMES LTD 2) MS K ARMITAGEAPPELLANTSMR D HUGHESRESPONDENT
Before
His Honour Judge ReidDate 9 March 2009
[1]APPEARANCES For the Appellant MR TARIQ SADIQ (of Counsel) Instructed by: Messrs Shoosmiths Solicitors 7th Floor 125 Colmore Row Birmingham B3 3SH For the Respondent MISS LORNA FINDLAY (of Counsel) Instructed by: Messrs Shakespeare Putsman LLP Solicitors Somerset House Temple Street Birmingham B3 5DJ SUMMARY DISABILITY DISCRIMINATION: Reasonable adjustments Effect of Malcolm : on the facts of the case the decision in Malcolm did not make any difference to the conclusion. There is no requirement in law to set out a decision by reference to Berriman when dealing with failure to make reasonable adjustments so long as the statutory requirements are met. On the facts the decision was Meek compliant. HIS HONOUR JUDGE REID QC Introduction The Appellants (Respondents below) are Stafford and Rural Homes Limited ("SARH") and Karen Armitage ("Ms Armitage"). The Respondent is Mr Hughes ("the Claimant"). The Appellants appeal from the judgment of an Employment Tribunal sitting at Birmingham (Employment Judge Kearsley) which was promulgated on the 29 May 2008. In its decision, the Tribunal found that:(a) the Claimant was unfairly dismissed;(b) SARH had failed in its duty to make reasonable adjustments and discriminated against the Claimant for a reason relating to his disability, which had not been justified; and(c) Ms Armitage had subjected the Claimant to harassment for a reason relating to his disability and victimised the Claimant by reason of doing a protected act.[2]The grounds upon which this appeal is brought are that:(1) The findings of disability-related discrimination are unsustainable following the House of Lords decision in London Borough of Lewisham v Malcolm (2008) IRLR 700 and amount to an error of law.(2) As regards the findings of the failure to make reasonable adjustments, the Tribunal failed to follow the schematic approach required by the statute in accordance with the guidance given in Smiths Detection Watford v Berriman UKEAT/0712/04, and this amounted to an error of law.(3) The Tribunal failed to give adequate reasons for its findings (a) of disability related discrimination and failure to make reasonable adjustments (b) that SARH had committed acts of victimisation and harassment and (c) that the Claimant's dismissal was an act of victimisation and disability related discrimination and these findings amounted to errors of law.(4) The Tribunal's finding that the Claimant had been unfairly dismissed was an error of law. Other grounds alleging perversity were not pursued.[3]The Claimant's response was:(1) In the circumstances of the case it was immaterial that the Tribunal had applied the law as it was understood before the decision in Malcolm .(2) The Tribunal expressly applied Environment Agency v Rowan [2008] IRLR 20 which itself cited Smiths Detection Watford with approval and in any event failure to follow the schematic approach set out would not have amounted to an error of law.(3) The Tribunal gave perfectly good reasons for its decision and there was no error of law in finding that the dismissal was unfair.[4]The main grounds of appeal were identified as the " Malcolm " point, the " Berriman " point, the " Meek " point and the Unfair Dismissal point. The Background[5]The Claimant was employed by Stafford Borough Council ("SBC") from 1 May 1996 as a senior housing manager. In 2002 SBC became interested in a transfer of the Council's housing stock. The Claimant carried out work in connection with this proposal. In 2005 a shadow board was created for the proposed new landlord and with the assistance of outside consultants it set about recruiting a chief executive for the new housing association, SARH. The Claimant applied for the post of Chief Executive but was unsuccessful. The successful candidate was Ms Armitage. The Claimant took her appointment badly.[6]In June 2005 the Claimant and a colleague, Carla Rendell, were seconded to the transfer project on a full time basis. By this time the Claimant was under considerable pressure and in May or June Miss Gorrara, a solicitor who had had dealings with him in the past, was sufficiently concerned to recommend a form of psycho-therapy ("TA") to him. Among other things he was contemplating his "Plan B", early retirement.[7]Ms Armitage was unable formally to take up her post till 1 November as she had to work four months notice with her previous employer. She did however in the meanwhile attend board meetings, meet managers and keep abreast of matters. In the interim the principal housing officer Mr Bellingham was given the head of housing management post on an "acting up" basis. .[8]In late June and July the Claimant was out of the office on courses more than was usual and after he had sent his apologies for not attending a board meeting on 13 July Mr Rawlings, the Chief Executive of SBC, and Mr Raby, the head of HR at SBC, decided to speak to the Claimant on an informal basis. This they did on 20 July. He spoke of his disappointment at not being interviewed for the post of Chief Executive of SARH and of his continuing high workload. He was advised to put his disappointment behind him. At the meeting he mentioned his desire to seek assistance with his disappointment and at a subsequent private meeting with Mr Raby told him about his desire to explore TA. Mr Raby agreed that SBC would pay for this.[9]On 29 July the Claimant had his first meeting with Ms Armitage. It was not successful.[10]Mr Hughes found a psychotherapist, Mr Dennis, and on 31 August the Claimant confided his misgivings to Mr Raby in an e-mail in which he told Mr Raby about having found Mr Dennis, suggested it might be helpful for him to contact Mr Dennis direct and complained about Ms Armitage's management style saying "I'm not doomed but I will have to put a lot of energy into coping with her".[11]In September Ms Armitage had a second meeting with the SARH management team. In the course of this she said to Mr McCoig, a colleague of Mr Hughes, "If Donal is awkward I have the Board on my side." This concerned Mr McCoig enough to warn Mr Hughes to be careful.[12]On 6 October 2005 Mr Dennis reported to Mr Raby. In his report he noted "a significant level of work related stress associated with his responsibilities over a period of several years." On 4 November Mr Dennis reported again:
"In Donal's case it seems he has come close to burnout ie a severe state of over-arousal and tension involving physical as well as emotional symptoms."
The Claimant commented to Mr Raby about that report by e-mail.[13]On 8 November the Claimant had his first minuted one to one meeting with Ms Armitage. Thereafter there were to be regular weekly management meetings but following a meeting on 28 November the Claimant had a meeting with Ms Collins of Tribal, the consultants, and berated her for failing to offer him support in the summer when he had been under a lot of stress. This caused Ms Collins concern and she communicated her concerns to Ms Armitage. The following day the Claimant held a disastrous meeting with his reports and those who reported to them. Ms Armitage attended the meeting and gave a short introduction. The Claimant then made a report after which the meeting was a fiasco. The Claimant was unable to rescue the meeting and so sat in silence. He described the situation to the Tribunal "I lit the fuse and forgot to run away." Following the meeting Ms Armitage visited the managers the next day to discuss the meeting.[14]From 5 December 2005 the Claimant (as the Tribunal found on the evidence of Dr Briscoe, a Clinical Psychiatrist who prepared a joint medical report) was suffering from a mental impairment "due to the effects he was experiencing from burnout". [This was the date the definition of a disability was relaxed i.e. there no longer being a requirement for the illness to be clinically well recognised.][15]On 6 December Ms Armitage had a meeting with the Claimant at which she expressed her concerns about the meeting of 28 November. She had a further one to one meeting with the Claimant on 19 December at which she suggested quarterly one to one meetings. After the meeting the Claimant went to meet Ms McDonald who had begun her employment with SARH as Senior Human Resources Manager that day. At that meeting he was noted as saying that he was carrying Ms Armitage, that she did not know anything, that the board had treated him badly, that he was having TA counselling and had been made ill. Ms McDonald reported this meeting to Ms Armitage the same day.[16]On 20 December the Claimant began annual leave and did not return until 3 January 2006. Whilst he was on leave Ms Armitage, concerned at his negative attitude to her and his perceived undermining of her, obtained authority from Mr Rawlings to suspend the Claimant if it proved necessary. On the Claimant's return from leave on 3 January she had a meeting with him at which her perception that he was undermining her was discussed. Her conclusion at the end of the meeting was that she "was drawing a line after a difficult start." A day or so later Mr Dennis's third report was received. In it he reported:
"Having identified the vulnerabilities in Donal's script, we've now moved on to identify changes that will help to ease future situation such as actively seeking and asking for support help and encouragement."
[17]On 11 January 2006 the Claimant chaired a meeting with the unions at which Ms McDonald attended. He sent Ms Armitage the minutes on about 18 January.[18]On 17 January the Claimant made a short presentation to staff (who were well-known to him) in the absence of Ms Armitage and Mr Matthews (Head of Finance). He conducted the meeting in demotic terms, saying he had been conned into chairing the meeting and describing Mr Matthews as "the daft bugger in charge of finance". Ms McDonald's typed note of the meeting records him as "getting used to her [Ms Armitage] and what she wants" and "she's not as bad". The intention of the meeting had been to boost morale and it succeeded. Ms McDonald's formal evaluation produced very positive results and no complaints, but she nevertheless reported what she saw as "inappropriate comments" to Ms Armitage. The Tribunal found that Ms McDonald took his remarks out of context and that his behaviour did not justify her making an adverse report to Ms Armitage.[19]On 22 January Ms Armitage e-mailed the Claimant expressing surprise at the delay in producing the minutes of the meeting of 11 January. The Claimant responded the next day "I produced the minutes asap."[20]On 24 January the Claimant was displaying symptoms of flu and Ms McDonald tried to persuade him to go home. That evening she overheard a loud conversation which the Claimant had with Ms Rendell in the open office. He let off steam saying how rubbish the SBC staff (none of whom were present or even worked in that building) were and how the communication group had completely failed to deliver. She formed the view that Ms Rendell was uncomfortable about the conversation, though Ms Rendell did not complain about it either then or in her evidence to the Tribunal. Without investigating whether anyone else had heard the conversation Ms McDonald reported it to Ms Armitage. The Claimant went off sick from that day with a "flu type illness".[21]On 27 January Ms Armitage, on the basis of Ms McDonald's report, went to see Mr Rawlings and arranged for a disciplinary letter to be sent to the Claimant. At this stage the Claimant was still employed by SBC but on secondment to SARH. His employment was due to be "TUPE transferred" to SARH on 6 February 2006.[22]The policies of SBC include the following:
"In general informal conciliation is to be preferred to formal procedures if it can bring about a mutually agreed solution to the problems that have arisen."
[23]On 1 February 2006 Mr Rawlings, without making any attempt at informal conciliation, prepared and sent a letter to the Claimant regarding a disciplinary investigation into allegations that he had undermined Ms Armitage and other managers, which was received by the Claimant on 3 February 2006. The letter set out the five steps in the disciplinary process, the first of which was a preliminary investigation to consider whether a substantive case existed to warrant a formal investigation. The letter stated "This will involve as a minimum interviews with the chief executive and yourself to set out the evidence in support of the allegations made and your initial response."[24]The Tribunal found that this letter had led to the Claimant's total breakdown.[25]From 3 February 2006 in the opinion of Dr Briscoe (accepted by the Tribunal and not the subject of appeal) the Claimant was a disabled person by reason of an Adjustment Disorder with Prolonged Depression.[26]On 6 February 2006 the entire housing stock of the SBC was transferred to SARH. At the same time the Claimant's employment was transferred to SARH under TUPE.[27]From 14 February 2006 the Claimant received sick notes for depression.[28]On 17 February Mr Cork was appointed to conduct the preliminary investigation. Despite the terms of the letter no attempt was ever made to interview the Claimant. The only interview Mr Cork conducted for his preliminary investigation was with Ms Armitage.[29]On 19 February the Claimant wrote to Mr Rawlings stating he wished to lodge a grievance against Ms Armitage when he was fit to do so.[30]On 20 June Ms McDonald instructed Mr Cork to widen his investigation.[31]On 27 June Dr Richard, sent an occupational health report to Ms McDonald which identified the letter of 1 February as the final straw which broke the Claimant's health. It stated that the Claimant's health was slowly improving but he was not yet fit to return to work though he was fit to deal with the disciplinary process. It expressed the hope that he would be fit to return to work within 6 to 8 weeks of the conclusion of the disciplinary process.[32]On 24 July the Claimant sent in his response to the initial disciplinary allegations.[33]On 27 July 2006, the Claimant lodged a detailed grievance alleging discrimination on the grounds of disability and bullying and harassment by Ms Armitage, Mr Rawlings and others. Ms Armitage's response alleged that the Claimant had lied on 28 occasions.[34]On 18 August Mr Cork sent further statements he had obtained to the Claimant. On or about 20 August the Claimant suffered a relapse.[35]A grievance hearing took place on 30 January 2007. Despite having been led to believe that he would be able to call witnesses the Claimant was not allowed to do so. Mr Cork upheld two of the Claimant's grievance complaints but rejected most of the complaints, in particular in relation to Ms Armitage. The grievance appeal meeting took place on 2 March 2007. The grievance was not upheld.[36]A disciplinary investigation report was sent to the Claimant's solicitors on 12 March 2007 and a disciplinary hearing took place on 18 April 2007. Two additional charges were included i.e. that the Claimant had made vexatious claims against SBC, SARH and Ms Armitage and that there had been an irretrievable breakdown in the relationship between Mr Hughes and his employer. On 4 June 2007 the disciplinary panel reached a decision to dismiss the Claimant. An appeal was heard on 12 July 2007 and 2 August 2007. The second day of the hearing was held in the absence of the Claimant who was again unwell. On 8 August SARH raised a number of queries with the Claimant and required a response by 16 August. It refused a request for an extension of time. The panel reached a decision on 3 September 2007, upholding the decision of the disciplinary panel. The Tribunal's conclusions[37]The Tribunal, after making detailed findings of fact, set out the law as it understood it. It then set out its conclusions of the issues which had been identified by the parties. The parties had identified no fewer than 82 issues, a number of which were themselves divided into sub-issues. It is unnecessary for the purposes of this appeal to refer to more than a few of them. In our view the identification of such a multitude of issues did little to clarify the matters of substance between the parties and made the task in producing a clear and coherent decision more difficult. It is to the great credit of the Tribunal that, although the decision could never be described as an easy read, it provides coherent and intelligible answers to the real issues between the parties.[38]The Tribunal found that after 5 December 2005 SARH should reasonably have been aware that Mr Hughes was a disabled person; that at their first meeting on 19 December Mr Hughes alerted Ms McDonald to the fact he had been ill and was receiving counselling; that Ms McDonald should have then sought information about the Claimant's mental state, including copies of Mr Dennis's reports but instead chose to report Mr Hughes' incautious remarks to Ms Armitage without carrying out any investigation as his senior HR manager; and that the outcome of the meeting on 3 January 2006 was that Ms Armitage agreed to draw a line under her concerns about Mr Hughes and her perception that he was seeking to undermine her.[39]The Tribunal went on to hold that Ms McDonald's decision to report Mr Hughes' conduct at the meeting of 17 January 2006 to Ms Armitage was precipitate, was for a reason related to his disability, and was to his detriment. His conduct did not justify her making the adverse report she made. In doing so she took the remarks he had made out of context. Her next report in relation to what she overheard of Mr Hughes' conversation with Ms Rendell (when he had flu, although she did not mention that she had tried to get him to go home because he was unwell when she reported the incident) and was letting off steam about colleagues who were not even in the same building) was what precipitated the commencement of the disciplinary proceedings.[40]To the extent that SBC had concerns about the Claimant's behaviour they should have discussed those concerns both with him and, if necessary, with his counsellor Mr Dennis before embarking on disciplinary action. Initial discussion and investigation would, on a balance of probabilities, have led to the matter being resolved with, if necessary, further support to avoid the risk of further burn out. Instead, SBC chose to initiate a disciplinary action which led to the Claimant's mental collapse. The speed with which this was done was because SBC was influenced by advice that it must begin the process before 6 February. The precipitate commencement of disciplinary proceedings was done for reasons related to his disability and could not be justified because it was undertaken without any proper investigation or prior discussion. The Tribunal went on to hold that the allegations put in the letter of 1 February were excessively general and there was an unjustified delay in providing further information until June 2006. There was also an unexplained delay in obtaining occupational health advice.[41]The commencement of the disciplinary proceedings without a proper investigation and without prior discussion and the subsequent delays were all ways in which the Claimant was treated less favourably than a person who was not disabled as the Claimant was would have been treated.[42]The Claimant's absence for a disability related reason clearly placed him at a disadvantage in that he was unable to partake in the first stage of the process, namely a discussion of the complaints made against him with Mr Cork. The Claimant had been advised in the letter from Mr Rawlings dated 1 February that as a minimum there would be interviews with the Chief Executive and himself to consider the evidence in support of the allegations and the Claimant's initial response. This failure constituted a breach of the Claimant's contractual terms in relation to the disciplinary investigation. It would have been a reasonable adjustment for SARH to pause the investigation whilst it obtained appropriate medical advice. Its failure to do so resulted in the extension and continuation of the disciplinary proceedings to the detriment of the Claimant.[43]Ms McDonald instructed Mr Cork on 20 June 2006 to widen his investigations. SARH was not justified in widening the investigation before the Claimant had had an opportunity to take part in the preliminary discussions with Mr Cork which the process envisaged. The instructions were prompted by the fact that the Claimant, for a disability related reason, was unable to engage in the process and was therefore placed at a disadvantage. The obtaining of additional statements, the contents of which subsequently greatly distressed the Claimant was to his detriment. This resulted from a failure to carry out the reasonable adjustment of allowing the Claimant to complete the initial stage of the investigatory process. The additional statements were sent to the Claimant despite the advice in the occupational health report of the need for the Claimant to feel more supported in his job and the need to resolve any interpersonal relationships. They resulted from an unnecessary widening of the investigation. The reason for widening the investigation, namely the desire to minimise delay caused by the disability by responding to his initial grievance before he provided full details of it, did not justify the disability-based discrimination. The initial grievance contained sufficient detail to merit a response[44]The Tribunal held that had SARH taken the appropriate action and refrained from expanding the investigation the Claimant would have returned to work before his pay was reduced to half pay on 27 July 2007. It would have been a reasonable adjustment, accordingly, to maintain full pay. The reduction to half pay placed the Claimant at a substantial disadvantage.[45]The Tribunal went on to find that the intemperate response by Ms Armitage to the Claimant's detailed grievance constituted an act of victimisation. The Claimant had invoked the Council's bullying and harassment policy and had complained of disability discrimination. Because of the Claimant's then distorted perception of events he did, in moderate terms, make certain allegations which were not factually correct but nothing in the grievance justified a chief executive, in a superior position, choosing to describe the Claimant as a liar or a blatant liar on 28 occasions. The Tribunal was not satisfied that either the original grievance or the subsequent detailed grievance was presented in bad faith. Accordingly both grievances were protected acts. They represented the Claimant's perception of the way in which he had been treated. They made unequivocal allegations of disability discrimination. They took as a comparator an employee who had not raised a grievance. Describing the Claimant as a liar and a blatant liar was a detriment. Furthermore the tone and content of the response constituted an act of harassment because Ms Armitage remained unable to accept that the Claimant was a disabled person and was therefore unable to make any allowance for the Claimant's distorted perception of events. Accordingly, for a reason relating to his disability, she chose to respond in a manner which could reasonably be considered as having the effect of creating an intimidating environment for the Claimant.[46]The Claimant and his representative were led to believe that they could call witnesses at the grievance hearing and attended with witnesses. SARH knew or should reasonably have known that the Claimant was a disabled person. The provision that witnesses should not be called placed him at a substantial disadvantage. SARH failed to make a reasonable adjustment in allowing the Claimant to call his witnesses which caused the Claimant visible distress to the extent that Mr Round, the Claimant's representative, had to complete the reading of the Claimant's witness statement. The decision also limited the ability of the Claimant to present his grievance fully.[47]The panel considering the Claimant's grievance took no account of his disability because it was an invisible rather than a visible disability. This influenced its decision to dismiss the grievance totally, taking no account of those parts of the grievance which Mr Cork had upheld. This constituted a potential example of less favourable treatment for a reason relating to the Claimant's disability which was not justified. In the absence of any satisfactory explanation for the panel's conduct the Tribunal concluded that the panel did discriminate for a reason relating to the Claimant's disability.[48]SARH failed to make the reasonable adjustment of providing the Claimant with agreed minutes of the grievance hearing to enable him to prepare for the grievance appeal meeting. The difficulty which the Claimant had with memory and concentration as a consequence of his illness placed him at a substantial disadvantage. It was unfair for SARH to conclude that there was a case to answer on the disciplinary allegations before the outcome of the Claimant's grievance appeal was known. The fact the Claimant had raised grievances against both SARH and Ms Armitage and alleged disability discrimination clearly prompted the addition of the two further allegations against the Claimant. They were a response to the protected acts. They constituted acts of victimisation. They also had the effect of creating an intimidating environment in that they questioned the fact of the Claimant's illness and alleged that he was vexatious. This constituted harassment.[49]The appeal panel failed to take proper account of the origins, severity and duration of the Claimant's ill health. Whilst treating the Claimant sympathetically during the course of the grievance appeal hearing itself they were at pains to point out in their conclusions they were not there to decide whether or not he had actually been ill. They stated that they did not know whether the Claimant had had a true illness. The Claimant was complaining in his grievance that his illness had been discounted. The panel managed to conclude a grievance which included complaints of disability discrimination without addressing the central issue of the Claimant's disability. Although parts of the Claimant's grievance were upheld the overall conclusion was to the detriment of the Claimant and for a disability-related reason which SARH failed to justify.[50]At no stage did Mr Cork identify what evidence attached to each of the five allegations made initially against the Claimant. The Claimant was placed at a substantial disadvantage given that his reactive depression made it more difficult for him to remember and to concentrate. Furthermore he had to wait until the start of the disciplinary hearing to learn that the witness statement of Ms Armitage was intended to encompass both the allegations and the evidence in support of them. Those assisting the Claimant struggled to make sense of the allegations by preparing the Scott schedule but the onus was on SARH to set out the allegations clearly together with the evidence in support. That was not done and represented a failure to make a reasonable adjustment.[51]SARH gave the Claimant very short notice once it ultimately accepted that he had a right to call witnesses. The disciplinary panel made no attempt to address the fact that the Claimant wished to call Mr Dennis but had been unable to do so at the first date of the disciplinary hearing. Of greater significant was the failure of the panel to allow any questions concerning the Claimant's ill health and SARH's knowledge of it. Although Ms Armitage was now relying on the detailed grievance as the main plank of the charges against the Claimant the panel ruled that any questions concerning his mental state were irrelevant to the issue of liability. This represented a failure to engage with the reality of the Claimant's disability representing a difference in attitude between visible and invisible disability and was to the detriment of the Claimant.[52]The Tribunal concluded that the panel had a genuine belief that the Claimant had committed misconduct although it reached that conclusion after an investigation which had not been fair. Further, the decision to dismiss was outside the range of responses of an employer acting reasonably. The Tribunal decided that the Claimant's protected acts which constituted the main allegations against the Claimant, had a significant effect on the decision to dismiss. The decision to dismiss accordingly was an act of victimisation. Furthermore to the extent that the panel genuinely concluded that the Claimant's actions fell short of those of a reasonable manager, they were the actions of an individual suffering from the effects of burnout who had become a disabled person within the protection of the Act on 5 December 2005. The disciplinary panel clearly took into account their view that the Claimant had difficulty in controlling his behaviour and even acknowledged being influenced by his behaviour during the disciplinary hearing itself.[53]The Claimant's behaviour on 17 and 24 January 2006 was, on the evidence, out of character and there had been no concerns about the Claimant's behaviour before he suffered close to burnout in 2005. The disciplinary panel discounted the fact that the Claimant was receiving psychotherapy and appear simply to have disregarded the fact that since February 2006 the Claimant had been disabled with reactive depression. Furthermore if SARH had made the reasonable adjustments identified at the start of the disciplinary process and if Mr Cork had not been instructed to widen his disciplinary investigation, it is more likely than not that a disciplinary hearing would not have been necessary. The matter would have been resolved in accordance with the first stage of the disciplinary process. SARH did not satisfy the Tribunal that, to the extent the Claimant's actions were for a reason relating to a disability, that disability played no part in the decision to dismiss. Accordingly the decision to dismiss was for a disability related reason following a failure to make the reasonable adjustments identified earlier.[54]The Tribunal held that the failure to provide the Claimant with notes of the first day of the appeal hearing so he could raise any relevant issue in writing by the second day amounted to a failure to make a reasonable adjustment. It was also a failure to make a reasonable adjustment to hold the second day of the hearing in the Claimant's absence as by then he had been dismissed and there was no urgency. Further it was a failure to make reasonable adjustments to allow inadequate time for the Claimant to respond to the queries put to him on 8 August 2007. The Claimant was placed at a substantial disadvantage by reason of his difficulties with concentration and memory.[55]The disciplinary appeal panel failed to comprehend that the Claimant's disability might have affected his behaviour particularly in the manner in which he constructed the detailed grievance. The appeal panel continued to discount the Claimant's illness. This was for a reason relating to disability and that failure could not be justified. At no stage did SARH ask occupational health to advise on whether the Claimant was a disabled person. This failure contributed to the deficiencies in the procedure which the Tribunal has identified above.[56]The Tribunal considered separately whether the dismissal was unfair having already concluded that the dismissal was an act of disability related discrimination following a failure to make reasonable adjustments. It accepted that the dismissal was for a reason of conduct which is a potentially fair reason but the defects in the process in connection with the disability claims rendered the dismissal both substantively and procedurally unfair. The process was initiated after two incidents of what Ms McDonald and Ms Armitage considered to be misconduct but no attempt was made to discuss those incidents with the Claimant. There was no justification in widening the investigation before the Claimant had been interviewed about the initial allegations. The process increased in momentum without any effective reference to the Claimant's illness and the Claimant was deprived of an opportunity to put his case properly at the disciplinary hearing. The disciplinary panel discounted any reference to the grievance and refused to accept that the Claimant's illness and subsequent disability had any relevance to the matters it had to decide.[57]The addition of two further allegations were acts of victimisation but were treated by the panel as examples of gross misconduct. The panel ignored the circumstances which led to the grievance being raised and the mental state of the Claimant when he wrote his detailed grievance. The panel concluded that the grievance was a vexatious act without doing more than, at best, speed reading the grievance. In reaching its conclusions the disciplinary panel relied on stale information, including an e-mail of July 2004 and the private e mail to Mr Raby which had not been referred to by Ms Armitage in her discussions with Mr Cork in February 2006 and which had not been considered to merit any disciplinary action at the time. A reasonable employer would not have attached weight to that evidence and would not have ignored the fact that Ms Armitage had drawn a line under matters on 3 January 2006. The Claimant's actions on 28 and 29 November had not prompted a disciplinary warning and he had assured Ms Armitage that he would not again adopt the approach he used on 29 November 2005. Even if a reasonable employer could be entitled to conclude that the incidents on 17 and 24 January, being the only incidents to occur after the 3 January meeting, constituted potential misconduct, the decision to dismiss for those actions was outside the range of responses of an employer acting reasonably. They were in any event not sufficiently serious to reactivate any previous concerns. The appeal panel upheld the original decision to dismiss after reviewing the evidence. In doing so it discounted the Claimant's illness. The appeal did not, in the Tribunal's view, cure the procedural defects that had occurred throughout the disciplinary process. The Malcolm point[58]The Appellants submitted that following the decision of the House of Lords allowing the appeal in London Borough of Lewisham v Malcolm [2008] IRLR 700 (four weeks after the Tribunal promulgated its decision) contrary to previous case law knowledge was required for there to be disability-related discrimination. The focus had to be on the reason which operated on the mind of the alleged discriminator. The correct comparator in this case, it was said, was a person who had acted as Mr Hughes had but was not disabled in the way in which he was. There was no indication that the Tribunal had acted in accordance with those principles in approaching its task and it repeatedly used the wrong comparator. It followed that the entire decision was flawed and the case should be remitted to a fresh tribunal for re-hearing.[59]So far as Ms McDonald's initial report to Ms Armitage was concerned, the correct question, in the Appellants' submission, was whether Ms McDonald had knowledge of the Claimant's disability and/or was aware that his disability was linked to the Claimant's behaviour. The Employment Tribunal's finding that the decision of Ms McDonald to report Mr Hughes to Ms Armitage without first carrying out an investigation was for a reason related to the Claimant's disability was not justified. There was no evidence that Ms. McDonald was aware of either matter. It was her first day at work and she had not seen copies of the reports from Mr Dennis. Although the Tribunal made a finding that Ms McDonald should have carried out further investigations before reporting the matter to Ms Armitage, there was no evidence that either the Claimant's disability or a potential link between his disability and his conduct was present in the mind of Ms McDonald when the decision was taken. The reason for Ms McDonald's decision to inform Ms Armitage was that she was concerned about the Claimant's negative comments about the Chief Executive and others. This had nothing to do with the Claimant's disability. Following Malcolm the correct comparator was a person without Mr Hughes' disability who had made negative and disparaging comments to Ms McDonald about Ms Armitage. Such a comparator would have been treated the same. The Tribunal failed to give any adequate reasons for the finding that the decision to report the Claimant was for a reason relating to the Claimant's disability.[60]Counsel next submitted that the Employment Tribunal's finding that the decision to initiate the disciplinary process was for reasons relating to Mr Hughes' disability was not justified. The correct question was whether those responsible for initiating the disciplinary process were aware of Mr Hughes' disability and/or that his conduct was related to his disability at the time the decision was taken. Those persons were Ms Armitage and Mr Rawlings. There was no evidence that they were aware. At this point Mr Hughes was off sick with flu which was not for a reason relating to his disability. Even if Ms Armitage and/or Mr. Rawlings were aware of Mr Hughes' disability, the correct question is whether his mental illness was present in their minds when the decision was taken to initiate the disciplinary process. The Tribunal did not make any finding that it was. There is no evidence that the mental illness played any part in the decision to initiate the disciplinary process. The reason for initiating the disciplinary process was the honest and genuine belief that he was guilty of misconduct in undermining the Chief Executive and other senior managers. The correct comparator was a non-disabled senior employee who was alleged to have undermined the Chief Executive and other senior managers. Such a comparator would have been treated the same. The Tribunal failed to give adequate reasons for the finding that the decision to initiate a disciplinary process was for reasons related to the Claimant's disability, which was not justified.[61]So far as the decision to dismiss was concerned, the Appellants submitted, the correct question after Malcolm was whether the Claimant's mental illness or the potential link between the Claimant's conduct and mental illness played any motivating part in the minds of the disciplinary panel's decision to dismiss. Had the Tribunal asked the correct question, there was no evidence that the Claimant's mental illness or potential link with the conduct played any part in the disciplinary panel's decision. Indeed, the panel had not allowed any questions regarding the Claimant's mental condition stating that it was irrelevant to the issue of liability. The Tribunal found that the panel had a genuine belief that the Claimant had committed misconduct and gave reasons for dismissing the Claimant. The correct comparator was said to be a non-disabled senior employee who was the subject of similar disciplinary charges who the disciplinary panel believed was guilty of the gross misconduct. Such a comparator would have been treated the same. In fact, within the disciplinary outcome letter, the panel addressed this very point:
"...The panel find that the disciplinary proceedings had been brought for reasons relating to Mr Hughes conduct not his health i.e. any other employee would have been taken through the disciplinary procedure for similar actions and the outcome of the hearing will be based on the finding of the respective panel."
[62]The Claimant responded that the Malcolm point was purely academic in the context of this case. Every finding of disability related discrimination was underpinned by findings of a failure to make a reasonable adjustment which meant not only, as the Tribunal stated, that the disability-related discrimination found could not be justified, but that the Claimant's treatment was unlawful in any event. Whatever the merits of the Malcolm argument, it added nothing to this case, as Mr Hughes' losses were caused in any event by unlawful failure to make reasonable adjustments.[63]The Claimant did not seek to argue before us that the Malcolm decision was not applicable to employment cases but reserved the point for argument should the appeal go further. At the time of the hearing The Child Support Agency (Dudley) v Truman UKEAT/0239/08 had been heard but judgment had not yet been delivered.[64]So far as the decision of the panel to dismiss was concerned, it was submitted on behalf of the Claimant that nothing in the Malcolm decision affected the decision of the Tribunal. He was at a substantial disadvantage as compared with the hypothetical non-disabled comparator because of the failures to make reasonable adjustments and the practice adopted by SARH. He had not had the advantage of any attempt at informal resolution or of participation in the investigation process; there had been delay in sending him the initial disciplinary allegations; there had been a widening of the allegations; the disciplinary hearing dealt with two charges over and above those which had been the subject of Mr Cork's initial investigation; the evidence in support of each charge was not identified until it emerged at the hearing that Ms Armitage's statement was intended to encompass both the allegations and the evidence in support. The panel was aware of his disability but he was faced, despite having a mental impairment which had a substantial adverse effect on his ability to carry out day to day activities, with a panel which had determined that what was at the least very substantial mitigation was irrelevant. The manner in which the whole disciplinary process was conducted did therefore treat him in a manner less favourable than it would have treated someone not suffering from his disability.[65]In our judgment the submissions on behalf of the Claimant are correct. This was a case in which the treatment of the Claimant by SARH and Ms Armitage was on the findings of the Tribunal in any event unlawful. There were multiple findings of failure to make reasonable adjustments. Assuming that the House of Lords' decision showed the Tribunal to have used a wrong comparator, the error would have made no difference to the outcome of the case. That does not of course answer the question whether the Tribunal was correct in its findings about failure to make reasonable adjustments. The "Berriman" point[66]The Appellant argued that the Tribunal failed to apply the schematic approach identified by HHJ Serota QC in Smith Detection Ltd v Berriman UKEAT/712/04 at para.85 where he set out the questions the Tribunal should ask in deciding whether the duty to make reasonable adjustments is triggered. They are:(a) the relevant arrangements made by the employer(b) the relevant physical features of the premises occupied by the employer(c) the identity of non-disabled comparators (where appropriate) and(d) the nature and extent of the substantial disadvantage suffered by the Claimant. Only then would it be possible to determine the question as to what adjustments it would be reasonable for the employer to make, bearing in mind the extent to which such adjustments would prevent the arrangements made by the employer placing the disabled Claimant at a substantial disadvantage when compared with the non-disabled comparator.[67]SARH argued that although the Tribunal found that after 5 December 2005 SARH should have reasonably been aware that Mr Hughes was a disabled person within the Act and should have instructed occupational health to consider the issue of disability and to consider what adjustments could be implemented to reduce the effects of burnout and stress, the Tribunal made no finding that the SARH had in fact failed to comply with a duty to make reasonable adjustments, which was the complaint made. The Tribunal failed to identify any provision criterion or practice applied by the employer which put Mr Hughes at a substantial disadvantage with a non-disabled comparator or whether any proposed adjustment would have prevented the substantial disadvantage caused by the provision, criterion or practice. The failure to consult with occupational health was not itself a failure to make a reasonable adjustment - see Tarbuck v. Sainsburys Supermarket Limited (2006) IRLR 664 , EAT.[68]In response counsel for the Claimant submitted that the Tribunal not only set out section 4A and 18B of the Disability Discrimination Act in full but expressly directed itself in accordance with Environment Agency v Rowan [2008] IRLR 20 , at para 210 of its decision. This case at paragraph 26 cites the Smith's Detection case with approval. It was apparent that the Tribunal had it in mind. Failure to follow guidelines is, in any event, not in itself an error of law if the Tribunal in fact applies the law correctly, as it did here.[69]The Claimant's counsel further submitted that the "provision, criterion or practice" applied by or on behalf of the employer was the sending of the letter commencing the formal disciplinary proceedings to the Claimant because of allegations about his behaviour on 17 and 24 January 2006 without either the Claimant's then employer, SBC, or Ms Armitage having discussed the recent disciplinary allegations, which had triggered the sending of the letter, with the Claimant or his counsellor Mr Dennis. This did not involve a physical feature of the employer's premises or an actual non disabled comparator as opposed to a hypothetical one, so there was no need to identify the matters set out at Judge Serota's questions (b) and (c). The Tribunal had already found that the Claimant was a disabled person from 5 December 2005 and that his mental impairment had an adverse effect on his memory and ability to concentrate. It accepted Mr Dennis' report that the Claimant had suffered "burnout" and that the pressures upon him had reached a point where he was unable to tolerate any more pressure. It had accepted and recorded Mr Dennis' evidence that "The description of Mr Hughes "using foul language, derogatory terms, being critical and unpredictable" were all symptoms I have seen many times in employees who are under severe strain" and that receipt of the disciplinary letter had caused Mr Hughes to have a "total breakdown so that, due to this breakdown he was "unable to engage" in the disciplinary process."[70]In the Claimant's submission the Tribunal considered that the sending of the disciplinary letter without prior discussion with the Claimant or Mr Dennis placed the Claimant at a substantial disadvantage in comparison to persons who are not disabled, both because the alleged misconduct in question was linked to his mental impairment (as it meant that he was less able to control his conduct than non disabled individuals) and hence not meriting disciplinary action but rather support and because it triggered a mental breakdown because of his inability to tolerate any more pressure. This would not have been the case in a non-disabled employee. The result was that he was unable to engage in the disciplinary process as a non-disabled employee would have been. The Tribunal found that it would have been a reasonable step to have discussed the concerns about his behaviour with the Claimant and Mr Dennis (quite apart from being in accordance with SBC's own code of conduct) and that this would have prevented the arrangements having the discriminatory effect because it would not, then, have been necessary to send the disciplinary letter or commence formal disciplinary proceedings.[71]Again, we prefer the submissions on behalf of the Claimant. Although oral submissions centred on the sending of the initial disciplinary letter of 1 February this was only the first of a substantial number of points at which SBC and its successor SARH failed to make reasonable adjustments. SBC chose to send the letter without having made any attempt (despite is own code of practice) to resolve the situation by informal discussion. It was or should have been aware of the Claimant's health problems by this stage. Whatever Ms McDonald's position at the time of her first encounter with the Claimant, by the time the letter was sent those sending it were or should have been well aware of the contents of Mr Dennis's reports. The fact that the Claimant was at the time off sick with flu rather than because of his mental health problems is immaterial. The sending of the letter was an act done in haste in order to set disciplinary proceedings in train before the handover date on 6 February. Thereafter there were repeated failures to make reasonable adjustments from the norm of disciplinary process to prevent the Claimant being disadvantaged as were set out in the Tribunal's findings.[72]Put in very short form the provision, practice or criterion which disadvantaged the Claimant was the manner of conducting the disciplinary and grievance process and repeatedly during that process, as the Tribunal found, SARH failed to make reasonable adjustments to prevent the Claimant being disadvantaged. The Tribunal made detailed findings as to the disadvantages suffered and the reasonable adjustments that could and should have been made. There is no error of law in the Tribunal's approach. The "Meek" point[73]Counsel for SARH submitted that the Employment Tribunal failed in its duty to give adequate reasons for its judgment. To use the expression coined by Sedley LJ in Tran v Greenwich Vietnam Community Project (2002) IRLR 735 , para. 17, the reasons were not "Meek compliant", a reference to the judgment of Bingham LJ in Meek v City of Birmingham District Council (1987) IRLR 250 .[74]Dealing with the detail of the decision, counsel made a number of submissions. In essence these were ingenious attempts to re-argue issues of fact on which the Appellants had failed before the Employment Tribunal. In each case in our view the Appellants could see from a proper reading of the whole of the Tribunal's decision why it was that each point had been concluded against them. The obligation on a tribunal when giving reasons is to enable a party to know why it has won or lost. There is no obligation to spell everything out in minute detail or to repeat the same points at different stages in its decision.[75]We shall deal with the points raised one by one.(i) The Tribunal found that the "Claimant's behaviour on that day [the day of his first meeting with Ms McDonald] was a manifestation of his mental impairment..." In finding that the Claimant's behaviour was causally connected with his illness, it is said the Tribunal failed to identify the evidence in support and failed to give adequate reasons for the finding. In our view the Tribunal's conclusion was an obvious and reasonable conclusion supported by the evidence of Mr Dennis which was accepted by the Tribunal.(ii) The Employment Tribunal made a finding that initial discussion and investigation would have led on the balance of probabilities, to the matter being resolved but that instead SBC and SARH chose to initiate disciplinary action which led to the Claimant's mental collapse. The Tribunal, it was said, failed to give any adequate reasons for the finding that initial discussion and investigation would have on the balance of probabilities led to the matter being resolved. There was no indication as to what initial discussion or investigation would have led to a resolution or what the resolution would have been and the Tribunal failed to ask the correct question namely if SARH had not initiated disciplinary action, would this have prevented the Claimant's mental collapse at this point or some time in the future? Again in our view these were issues on which the Tribunal had to come to a justifiable conclusion on the basis of the evidence before it. There was ample evidence not only from Mr Dennis's third report but also from the later prognosis of Dr Richards from which the Tribunal could conclude that if the Claimant's problems had been addressed in accordance with the policies of SBC and SARH with support, help and encouragement the Claimant's difficulties would have been overcome without any need to resort to disciplinary proceedings.(iii) "The Employment Tribunal's finding that because of the delay in providing Mr Hughes with further information regarding the disciplinary charges until June 2006, SARH had treated the Claimant less favourably than an individual facing disciplinary charges who had no disability was not justified." The person responsible for this delay was Ms McDonald who had knowledge of Mr Hughes' mental illness. The question was whether his mental illness was present in her mind and was a motivating factor for the delay. The Tribunal inferred that because SARH had provided no explanation for the three month delay this amounted to disability-related discrimination. The Tribunal stated that a non-disabled comparator facing the same/similar charges would have been treated more favourably, which is the correct test after Malcolm . It was submitted that there was no evidence that such a comparator would have been treated more favourably i.e. not faced the same delay. This lengthy complaint is capable of a short answer. The point was conceded in the Appellants' final submissions before the Tribunal and even if it had not been the Tribunal was quite entitled to draw the inference it did from the delay. Ms McDonald waited until 6 June before seeking advice from Dr Richards as to whether the additional information should be given to the Claimant, and (having received the advice the same day) gave the information reasonably promptly. The fact she did this plainly entitled the Tribunal to conclude that delay related to the Claimant's disability. A person not suffering from would not have suffered the same delay.(iv) "The Employment Tribunal, without giving adequate reasons, made a finding that it would have been a reasonable adjustment to pause the disciplinary investigation whilst SARH obtained appropriate medical advice and that its failure to do so amounted to a breach of the duty to make reasonable adjustments." The provision, criterion or practice which placed the Claimant at a substantial disadvantage with the non-disabled comparator was the continued prosecution of the disciplinary process unpaused. The Tribunal was entitled to hold that pausing the investigation to obtain medical advice would have prevented the Claimant being placed at a substantial disadvantage. Pausing the process until the Claimant was fit to speak to Mr Cork (i.e. to take part in what ought to have been the initial part of the process) would have prevented the widening of the investigation and the exacerbation of his illness. All this appears from a fair reading of the decision.(v) "The Employment Tribunal made a finding that the reason for widening the disciplinary investigation, that is, the desire to minimise delay caused by the Claimant's ill health, did not constitute "justification for this disability related discrimination". Ms. McDonald, the person responsible for widening the disciplinary investigation, was aware at this stage that Mr Hughes was suffering from a mental illness. The reason for widening the investigation was the desire to minimise the delay caused by the Claimant's ill health. The disadvantage suffered by the Claimant as against the correct comparator, a non-disabled senior employee who faced similar charges of misconduct like the Claimant, was his inability to respond to what ought to have been the initial stage of the widened proceedings. A non-disabled comparator would have been asked (and have been able to) respond to the initial part of the widened investigation. This is apparent from the decision.(vi) "The Employment Tribunal found that Ms Armitage's response to Mr Hughes' written grievance was an act of victimisation and harassment on the grounds of the Claimant's disability. The Tribunal failed to give any adequate reasons that Ms Armitage's description of Mr Hughes as a liar was made on the grounds of a protected act as opposed to Ms Armitage's genuine and honest belief that the Claimant had in fact lied." The Tribunal accepted that the Claimant had a distorted perception of events and had made certain allegations "in moderate terms" in his grievance which invoked the SBC's bullying and harassment policy which were not factually correct. The Tribunal found that nothing justified her in her "intemperate response" referring on 28 occasions in bold type to matters raised in the grievance as "lies" or "blatant lies". The Tribunal was entitled to find that because Ms Armitage "remained unable to accept that the Claimant was a disabled person" she chose to respond to the Claimant's protected act in a manner which could reasonably be considered as creating an intimidating environment for the Claimant and to amount to harassment. The Tribunal was also entitled to categorise her conduct as it did and having selected an appropriate comparator in accordance with para 27 of the speech of Lord Nicholls in Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 was entitled to find as it did.(vii) "The Employment Tribunal made a finding that SARH failed to make a reasonable adjustment by not allowing the Claimant to call his witnesses at the grievance hearing. No witnesses were allowed to be called at the grievance hearing by either party. The Tribunal failed to identify clearly the nature and extent of the substantial disadvantage suffered by the Claimant in comparison with the non-disabled comparator as a result of the decision not to allow witnesses to be called at the hearing. The Tribunal also failed to explain how allowing witnesses to be called would have overcome any substantial disadvantage suffered by the Claimant." It is self-evident that when, as the Tribunal found, the Claimant had been led to believe that he could call witnesses and had arranged for the attendance of witnesses, the refusal to hear those witnesses was a detriment. He was suffering from a mental illness, he was unable to concentrate properly and his memory was affected. His case had been prepared on the basis he could call witnesses. To deprive him of that advantage at the last moment manifestly was a substantial disadvantage to him.(viii) "The Employment Tribunal made a finding that in dismissing the Claimant's grievance, the grievance panel discriminated against the Claimant for a reason relating to his disability. It is accepted that there was evidence that the grievance panel was aware that the Claimant was suffering from a mental illness but not that his conduct was connected with his illness." It was an obvious inference which the Tribunal clearly drew that the grievance panel was aware that his conduct was connected with his illness. The Tribunal took into account the suggestion by Mr Perkins that the Claimant did not appear ill with the implication that he might be feigning ill health. It went on to find that "Mr Perkins and his panel took no account of the Claimant's disability because it was an invisible rather than a visible disability" and this influenced its decision to dismiss the grievance totally. The Tribunal was entitled to hold that in the absence of any satisfactory explanation for the panel's conduct the panel did discriminate by reason of the Claimant's disability.(ix) "The Employment Tribunal made a finding that the addition of two further disciplinary allegations were acts of victimisation. They were that the Claimant had made vexatious claims against Ms Armitage and that there had been an irretrievable breakdown in the relationship between Mr Hughes and the employer. The Tribunal simply found that the fact Mr Hughes had raised grievances against the Respondents alleging disability discrimination clearly prompted the addition of two further allegations against the Claimant, without giving any reasons for such a finding. It also failed to consider how the correct comparator would have been treated." In fact the allegation was that the addition of these charges amounted to harassment as well as victimisation and there is no appeal against the finding of harassment. Ms Armitage's case before the Tribunal had been that it was because of the nature of the allegations against her (which included protected acts) that she responded as she did. The Tribunal implicitly rejected that submission. It had already correctly referred to the statement of Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572 that in deciding whether an individual has been treated less favourably by reason of a protected act, decisions are frequently reached for more than one reason. If a protected act had a significant influence on the outcome, discrimination is made out: there is no need for conscious motivation. The Tribunal had already identified the correct comparator in accordance with Khan and had no need to do more. It is implicit in the paragraph that it was rejecting the suggestion that the comparator would have been treated in the same way.(x) "The Employment Tribunal made a finding that the grievance appeal panel's overall conclusion amounted to disability related discrimination, which was not justified."… "However, the correct question after Malcolm was whether the Claimant's mental illness played any motivating part in the minds of the grievance appeal panel's overall conclusion to reject the appeal. Had it done so, there was no evidence that the Claimant's mental illness played any part in the grievance appeal panel's overall decision." SARH accepted that the grievance appeal panel was aware of the Claimant's mental illness at the time, though it was careful not to accept that the illness was genuine. As the Tribunal stated that the appeal panel was "at pains to point out in their conclusions that they were not there to decide whether or not he had actually been ill. They stated that they did not know whether the Claimant had had a true illness." The panel, as the Tribunal pointed out, "managed to conclude a grievance which included complaints about disability discrimination without addressing the central issue of the Claimant's disability". Assuming (as the Appellants submitted) the correct comparator was a non-disabled senior employee who brought a similar grievance, it is clear that the Tribunal were of the view that such a comparator would not have had his grievance disposed of without the central issue being addressed. The Tribunal was fully entitled to take the view it did.(xi) "The Employment Tribunal found that the disciplinary panel's decision not to allow any questions regarding the Claimant's ill health and the Respondent's knowledge of it which were regarded by the panel as irrelevant to the issue of liability and that this was to the detriment of the Claimant [sic]". "In fact the Tribunal failed to make any finding that the employer had failed to make any reasonable adjustment and/or were guilty of disability related discrimination, which were the complaints that had been made." The paragraph of the judgment (para 268) concludes "This again represents a failure to engage with the reality of the Claimant's disability representing a different attitude between visible and invisible disability which was to the detriment of the Claimant." The findings in the paragraph are unexceptionable. The word "again" clearly refers back to the previous paragraph which makes it plain that the failure in the manner in which the appeal process was conducted amounted to a failure to make a reasonable adjustment (i.e. by allowing questions and evidence as to the state of the Claimant's health)..(xii) "At paragraph 269, the Employment Tribunal made a finding that the decision to dismiss the Claimant was an act of victimisation and was an act of disability related discrimination. As regards the victimisation finding, on the one hand the Tribunal found that the disciplinary panel had a genuine belief that the Claimant had been guilty of misconduct and on the other hand that the protected acts of the Claimant had a significant effect on the decision to dismiss. The Tribunal failed to give any reasons for the finding that the protected acts had a significant effect on the decision to dismiss as opposed to the panel's genuine belief that the Claimant was guilty of gross misconduct." "The Tribunal failed to give any reasons for rejecting [the panel's reasons for dismissing him]." The Tribunal identified the failures to make reasonable adjustments and also identified the failure of the panel to consider or take account of the Claimant's illness (other than negative references to his conduct during the course of the hearing before it). A fair reading of the Tribunal's decision shows the Appellants why the Tribunal reached the conclusion it did. The medical evidence and the picture of the Claimant's previous unblemished history of employment with SBC provided compelling evidence that the Claimant's conduct was influenced by his illness. The Tribunal was entitled to take the view that SARH had not satisfied it that "to the extent the Claimant's actions were for a reason relating to his disability, that disability played no part in the decision to dismiss." The decision also reveals clearly why the Tribunal found (as on the facts found in its judgment it was entitled to do) that if SARH had made the reasonable adjustments which the Tribunal identified at the start of the disciplinary process it was more likely than not that no disciplinary hearing would have been necessary. The Unfair Dismissal point[76]In the submission of the Appellants the issues related to reasonable adjustments and disability related discrimination were closely intertwined with the decision to dismiss. If the findings regarding the failure to make reasonable adjustments and disability related discrimination were legally flawed, it necessarily followed that the findings of unfair dismissal could not stand.[77]In our view the disability discrimination findings can stand.[78]As regards any procedural defects identified by the Tribunal, it was submitted that the Tribunal failed to consider what the outcome would have been if SARH had followed a fair procedure and whether the Claimant would have been dismissed in any event. In our view the Tribunal did consider this point. The answer it gave was that even if a reasonable employer was entitled to conclude that the incidents of 17 and 14 January 2006 (being the only two incidents after "a line had been drawn" under previous difficulties by Ms Armitage) the decision to dismiss for those actions was outside the range of responses of an employer acting reasonably. This view is in line with the view the Tribunal had expressed earlier that if the Appellants (or SBC) had followed its own policies the matter would never have got to a disciplinary hearing. Conclusion[79]It follows that none of the grounds of appeal have been made out and the appeal must be dismissed.