MS M GARRETT v LIDL LTD [2009] UKEAT 0541_09_1612

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0541_09_1612Case No Appeal No. UKEAT/0541/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS M GARRETTAPPELLANTLIDL LTDRESPONDENT
Before
His Honour Judge Ansell Mr B R Gibbs Mrs M McArthur Ba FcipdDate 16 December 2009
[1]APPEARANCES For the Appellant MS C RAYNER (of Counsel) Instructed by: Messrs Thompsons Solicitors Transport House 50-52 New Road Dagenham RM9 6YS For the Respondent MR D CHRISTIE (of Counsel) Instructed by: Messrs Gregsons Solicitors St Christopher's House Tabor Grove London SW19 4EX SUMMARY DISABILITY DISCRIMINATION: Reasonable adjustments VICTIMISATION DISCRIMINATION HARASSMENT A move to a different store could amount to a reasonable adjustment. In considering harassment it is important to consider the effect on the alleged victim irrespective of the motive. HIS HONOUR JUDGE ANSELL Introduction This has been the hearing of an appeal from a judgment of a London (South) Tribunal chaired by Employment Judge Martin, who, following a five-day hearing in July 2008, dismissed claims of discrimination contrary to the Disability Discrimination Act 1995 (DDA). The discrimination alleged was both direct and disability-related discrimination, failure to make reasonable adjustments, three allegations of harassment and victimisation relating to all the acts of unlawful discrimination.[2]This appeal relates to one of the proposed adjustments, namely the failure to make the Appellant a supernumerary manager at the Respondent's Woolwich store, victimisation in relation to the Appellant's move from the Woolwich to the Welling store, and two of the allegations of harassment, namely a letter written by her manager, Martin Pritchard, and remarks made by Joe Kourea. Leave for this hearing was given at a preliminary hearing presided over by HHJ McMullen QC on 20 March 2009. That hearing also dealt with a conditional cross-appeal relating to the Tribunal's failure to consider whether the ET1 was issued beyond the time limits in relation to one of the harassment allegations and a failure to consider the "just and equitable" extension. This cross-appeal was concerned in particular with the Joe Kourea incident. The EAT referred this matter back to the ET for Further Reasons on the time-limit issue under the Burns-Barke principle since the issue had been clearly raised before the Tribunal but they appeared to have overlooked it when giving Reasons.[3]Further Reasons were provided by the Tribunal on 8 June 2009 based on the original evidence and submissions. The Tribunal determined that the Kourea incident had occurred in late 2006 and was an isolated specific act. A grievance had been lodged on 3 January 2007, which would have extended time to the end of June 2007. The Tribunal determined that it was just and equitable to extend time to the date of issue of the claim, namely 2 November 2007. The Respondent cross-appeals that decision before us. Background Facts[4]The background facts taken from the Tribunal's findings are that the Appellant started work for the Respondents on 7 August 2002. The Respondent is a well-known chain of supermarkets. The Appellant was promoted to shop manager in September 2003. Her contract included a mobility clause:
"The Company may require the Employee to work at any place within the United Kingdom on either a temporary or indefinite basis. The Employee will be given reasonable notice of any change in his principal place of work."
In paragraph 42 to the judgment, the Tribunal described the particular circumstances of the Woolwich store in the following terms:
"The Claimant was expected as part of her role to undertake the full range of roles within the store as required including working on the tills, working in the chilled and freezer areas and moving pallets. There was no set system for breaks. The Claimant was a store manager and should have been able to organise her own breaks taking into account the needs of the business. The Woolwich store had particular difficulties in setting prescribed breaks due to the high volume of customers with a low conversion rate per customer. This meant that the numbers of staff on duty at any one time had to be limited otherwise this would have affected the store's productivity. This also impacted on the Claimant being able to take breaks away from the store. She would normally be the only store manager and had responsibility for the store key. Managers who have the key are not allowed to leave the store during breaks."
[5]In November 2003, the Appellant was diagnosed with Fibromyalgia Syndrome, which causes pain, fatigue and muscle stiffness, and at times she had to take morphine as pain relief. There was no dispute that she was a disabled person in relation to that condition.[6]The condition was first diagnosed in 2003, and in early 2004 the Respondent undertook a risk assessment. There was then discussion about a possible change of store but shortly afterwards the Appellant was diagnosed with a blood clot behind her left eye, and thereafter had an extended period of absence due to sickness from January 2004 to September 2004. In early 2005, following various discussions, it was agreed that the Appellant would move to the Woolwich store, which was convenient to her, particularly in relation to her son's school and her concerns to be near him as he suffered from severe allergies. Further risk assessment was carried out on 3 March 2005, and there were various periods of sickness leave during this time.[7]In early January 2007, the Appellant lodged a grievance in relation to harassment at the Woolwich store from the Store Manager, Steve Shorter, and the district manager, Joe Kourea. The complaint against Joe Kourea related to his suggestion that the Appellant only needed one arm to check the "C" dates, which are the dates relating to product life and freshness. The Appellant's arm had been giving her much pain and she was, therefore, doing this task with only one arm. The Respondent rejected the claim that the treatment was discriminatory although they did find that some of the treatment was unprofessional.[8]Further risk assessments were carried out in early 2007, and during those assessments the Appellant asked for various adjustments at the Woolwich store including gloves for her hands, a retractable knife, at least two breaks per shift and variety in duties so that she could keep mobile, and also she asked to refrain from repetitive tasks as these could exacerbate her symptoms.[9]A further risk assessment determined that she could undertake most of her tasks but expressed concerns that she would not be able to cope in the event of emergency, and concluded that the Appellant could not carry out the role of store manager. As a result of the risk assessment, the Appellant was suspended from work on full pay pending a report from Occupational Health. Mr Pritchard, her manager, wrote to the Occupational Health advisors referring to the Appellant being, "unable to do large parts of her job role". Thereafter, there were various further meetings, and in May a suggestion was made that the Appellant move to Belvedere, which was considered to be a safer working environment. But the Appellant did not agree to this, indicating that she wanted to continue working at Woolwich with adjustments. A grievance was raised by her on 12 July alleging a failure to make reasonable adjustments. By the end of July, the Respondents had determined that the Appellant should move to the Welling store. Their reasons were set out by the Tribunal in paragraph 59:
"..The Respondent wanted the Claimant to move to the Welling store which was a training store on the basis that it was easier for it to accommodate the adjustments required there. This was because there were more staff on duty as it was a training store and the spend per customer was higher meaning that there was less time required on the tills which the Claimant could not undertake for any prolonged period of time."
Further, in paragraph 60, the Tribunal found that, at the Welling store, there were several store managers so the Appellant would not have to be a keyholder and could therefore leave the store if required. Thereafter, the Appellant indicated that she would not return to work until adjustments had been investigated at Woolwich, and the Respondents stopped paying her from 31 July. Eventually, on 1 October, the Appellant returned to work at the Welling store as a manager. It emerged during the Tribunal hearing that she was on the payroll as a supernumerary, i.e. her salary costs did not count towards the store's productivity calculation. Paragraph 76 records that the Appellant told the Tribunal that she was happy at the Welling store and that all the adjustments she wanted had been made. Her only complaint was the location although we note that before us Ms Rayner, on behalf of the Appellant, disputed that finding. The Employment Tribunal Decision[10]We therefore turn to the Tribunal's findings under the four headings of reasonable adjustments, victimisation, harassment and time limits. Failure to make reasonable adjustments[11]The Appellant's complaints before the Tribunal fell into two parts. Firstly, whether the Respondents failed to make reasonable adjustments while she was working at the Woolwich store and, secondly, whether they failed to make reasonable adjustments when they moved her to Welling. The appeal, however, concerns only one finding, namely the failure to make adjustments at Woolwich and, in particular, to appoint her a supernumerary manager. The Tribunal's conclusions were set out in paragraphs 71, 77 and 78 as follows:
"71. We first considered whether there was a provision, criteria or practice or physical feature which placed the Claimant at a substantial disadvantage. We are satisfied that there was. The practice at the Woolwich store was that all members of staff had to undertake all roles within the store, including working on the tills, checking c-dates, moving stock etc. The Tribunal note that the nature of the Woolwich store was of a high footfall with relatively small amounts being purchased by each person. This requirement to work on the tills and the nature of the work which [sic] made it difficult to take breaks at prescribed times. Consequently the duty to make reasonable adjustments arose. We then considered what adjustments the Respondent did make, and whether they were reasonable. In so doing we considered the code of guidance. 77. The Tribunal were troubled that the Claimant was a supernumerary at the Welling Store and wondered why this arrangement could not have been arranged at the Woolwich store as productivity would not be affected by having an extra member of staff. The Tribunal considered the provisions of s6(4) of the code of practice. It is clear that as [sic] the move to Welling was effective as it prevented the problems relating to till work, taking breaks where and when required, etc. were catered for as confirmed by the Claimant in her evidence. The question therefore is whether it was practical for the Respondent to have made these adjustments at the Woolwich store. The Tribunal is satisfied that there was not difficulty in relation to finance and the other costs of adjustments as the Claimant was paid as a supernumerary and the Respondent has significant resources. 78. The Tribunal also considered the code of practice and find that it was reasonable for the Respondent to require the Claimant to be moved to the Welling store as the evidence was that it was much easier to make adjustments there than at Woolwich as the pressures were not the same as at Woolwich especially as there were more staff on duty so that more flexibility for the Claimant could be given. The Tribunal find that the distance from the Welling store from the Claimant's home, General Practitioner and hospital was not significant. The Tribunal also note that there is provision in the Claimant's contract for her to move from store to store as required by the Respondent. In all the circumstances the Tribunal find that the Respondent discharged its duty to make reasonable adjustments by making them at the Welling store."
The Appellant's Case[12]In her submissions on this issue, Ms Rayner first of all took us to the statutory provisions contained in section 4A and sections 18B(1) and 18B(2) of the Disability Discrimination Act 1995 :
"Section 4A Employers: duty to make adjustments (1) Where- (a) a provision, criterion or practice applied by or on behalf of an employer, or (b) any physical feature of premises occupied by the employer, places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect. (2) In subsection (1), "the disabled person concerned" means- (a) in the case of a provision, criterion or practice for determining to whom employment should be offered, any disabled person who is, or has notified the employer that he may be, and applicant for that employment; (b) In any other case, a disabled person who is- (I) an applicant for the employment concerned, or (ii) An employee of the employer concerned. (3) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know- (a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the employment; or (b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).] Section 18B Reasonable adjustments: supplementary (1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to- (a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed; (b) the extent to which it is practicable for him to take the step; (c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities; (d) the extent of his financial and other resources; (e) the availability to him of financial or other assistance with respect to taking the step; (f) the nature of his activities and the size of his undertaking; (g) where the step would be taken in relation to a private household, the extent to which taking it would – (i) disrupt that household, or (ii) disturb any person residing there. (2) The following are examples of steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments- (a) making adjustments to premises; (b) allocating some of the disabled person's duties to another person; (c) transferring him to fill an existing vacancy; (d) altering his hours of working or training; (e) assigning him to a different place of work or training; (f) allowing him to be absent during working or training hours for rehabilitation, assessment or treatment; (g) giving, or arranging for, training or mentoring (whether for the disabled person or any other person); (h) acquiring or modifying equipment; (i) modifying instructions or reference manuals; (j) modifying procedures for testing or assessment; (k) providing a reader or interpreter (l) providing supervision or other support."
There was no dispute that the Tribunal had found in paragraph 71 that the nature of the work at the Woolwich store did place the Appellant at a substantial disadvantage, and therefore the duty to make reasonable adjustments arose.[13]Ms Rayner's substantial complaint in this area was that the Tribunal erroneously focused on the move to Welling, and by their findings sought to justify the Respondent's actions in making that move rather than focusing on whether the necessary adjustments could have been achieved at Woolwich by making the Appellant a supernumerary manager and thereby relieving her of some of her responsibilities, it being found by the Tribunal that there were no difficulties in relation to finance and other costs of adjustment.[14]Ms Rayner complained that the Tribunal in their conclusions, although mentioning the Code of Practice, failed to mention either at the beginning of their decision when they set out the statutory provisions or in their conclusions on this area the provisions of Section 18 DDA. She argued that the provisions of Section 18B(2) primarily place responsibility on the employers having to make adjustments at the existing place of work although she conceded that assigning an employee to "a different place of work or training" was included within the examples of possible adjustments. She argued before us that if it was possible for the Appellant to be made a supernumerary at Welling why could this not have been done at Woolwich, in which case it would then be a breach of duty to then transfer the Appellant to another store. She argued that by making the Appellant a supernumerary at her original and preferred place of work the Respondent would have been in a position to transfer some of the duties to others as and when necessary in accordance with Section 18B(2)(b). She argued that the correct legal test for the Tribunal to have adopted would be, firstly, consideration of the adjustments that could be made at the place where the Appellant worked.[15]As a further ground in this area, she argued that the Tribunal had erred in law in that they had applied a subjective test rather than an objective test by accepting the evidence of the Respondent that the move to Welling was easier for them as opposed to applying an objective test, which would be whether or not there were adjustments that could be made at Woolwich. She submitted that the legal test to be applied to the question of reasonableness was an objective one; see Smith v Churchill Stair Lifts plc [2006] IRLR 41.[16]Finally, in this area she raises a perversity argument, submitting that, on the evidence before the Tribunal, it was quite clear, firstly, that the Respondent had the resources to make the adjustments necessary to enable her to become a supernumerary at Woolwich but, further, it was clear that no-one had considered making that adjustment it had only been considered at Welling. The Respondent's case[17]In response, Mr Christie on behalf of the Respondent, whilst conceding that the Tribunal did not make specific reference to Section 18 in their judgment, had been referred to the provisions by both Counsel in their closing submissions, and, moreover, had made reference to the Code of Guidance and Code of Practice. The DRC Code of Practice; Employment and Occupation (2004) at paragraph 5.18 contains a detailed list of "what adjustments might an employer have to make?" In particular, he referred us to Section 18B(2)(e) relating to the assignment of the disabled person to a different place of work as an example of a step that employers may have to take, and reminded us that in this case there was a mobility clause and clear evidence that the Appellant had worked in a number of the Respondent's stores. He argued that there was no obligation on an employer to create a post specifically that was not otherwise necessary merely to create a job for a disabled person; see Tarbuck v Sainsbury's [2006] IRLR 664. He argued that the Tribunal did approach the matter on an objective basis and, indeed, had reminded themselves of that approach in paragraph 70 of the judgment.[18]He argued that the Tribunal in their conclusions did, indeed, pose the correct question as to whether it was practical for the Respondent to have made the adjustments at the Woolwich store against a possible background of the Appellant being made a supernumerary at that store but had concluded that the adjustments could best be achieved even taking into account the supernumerary issue by a move to Welling. Conclusion[19]We agree with the Respondent's submissions. Although Section 18 had not been specifically mentioned, the Tribunal clearly had been referred to that section by both Counsel, and moreover had referred to the Code of Practice, which makes detailed reference to the examples of possible adjustments set out in Section 18B(2). The Tribunal had in mind the correct objective test and, indeed, did ask themselves the correct question in determining whether, first of all, those adjustments could have been achieved at the Appellant's existing place of work. Whilst within a large organisation it seems to us that there is no fetter on the adjustments best being achieved at an alternative place of work, it clearly makes good industrial sense for employers to consider first of all whether, if possible, those adjustments can be put in place at the existing workplace. However, we do not consider it unreasonable for employers to conclude, particularly where there is a mobility clause and the employee has worked at several stores, that the adjustments required can best be achieved by a move to another place of work. We read paragraph 78 as the Tribunal concluding that, notwithstanding the possibility of creating a supernumerary position at Woolwich, the aim of the necessary adjustments was best achieved by a move to Welling. We cannot find fault with the Tribunal's approach on this issue. Victimisation The Appellant's Case[20]The Appellant claimed before the Employment Tribunal that the decision of the Respondent to move her from the Woolwich branch to Welling against her express wishes was an act of victimisation. The Tribunal's conclusions are set out in paragraphs 92 and 93 of their judgment as follows:
"92. The protected acts relied upon by the Claimant are her grievances dated 3 January 2007, 12 July 2007 and 1 September 2007. The Claimant contends that all the allegations of unlawful discrimination relied upon her which took place after the protected acts relied upon are also allegations of victimisation. 93 In order to succeed the Claimant must show that the less favourable treatment was afforded to her by reason of carrying out the protected act. As the Tribunal has rejected the Claimant's claims of discrimination, this part of her claim must therefore also fail."
The Appellant contended that this part of the judgment was an error of law both because the Tribunal had misapplied the law and because the finding was perverse and was contrary to the evidence that was before the Tribunal. The statutory provisions are set out in Section 55 of the DDA as follows:
"55 Victimisation "(1) For the purposes of Part 2or Part 3, a person ("
A") discriminates against another person ("B") if— (a) he treats B less favourably than he treats or would treat other persons whose circumstances are the same as B's; and (b) he does so for a reason mentioned in subsection (2). (2) The reasons are that— (a) B has— (i) brought proceedings against A or any other person under this Act; or (ii) given evidence or information in connection with such proceedings brought by any person; or (iii) otherwise done anything under this Act in relation to A or any other person; or (iv) alleged that A or any other person has (whether or not the allegation so states) contravened this Act; or (b) A believes or suspects that B has done or intends to do any of those things.

(a) "

[21]The Appellant contended that the legal test that the Tribunal ought to have applied required them to determine the following questions. (a) Has the Appellant been treated less favourably than another comparable person has been or would have been treated? If yes (b), has the Appellant done a protected act? If yes (c), is the protected act the reason or part of the reason for the less favourable treatment?[22]Ms Rayner contended that the proper question for the Tribunal to ask, if it finds that the protected act has taken place and that a claimant has been subjected to detriment, is, "Why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason?" See Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48 per Lord Nicholls paragraph 29. She argued that the Tribunal were therefore required to address the question of the motivation of the alleged discriminator for the detrimental treatment, and contended that the protected act had to be a motivating factor but need not be the only or even principal reason for the treatment. She contended that the Equal Treatment Directive 2000/78/EC chapter 1 article 2.1 prohibits any discrimination whatsoever on the grounds of a person's disability.[23]She argued that the Tribunal's approach in simply dismissing the victimisation claims because the Tribunal had rejected the claims of discrimination was an incorrect approach, and that the legal principles of victimisation are distinct from and not dependent at all upon the claim for direct discrimination or harassment succeeding, firstly because the comparator is different and, secondly, the causative factor to be considered is different. The Tribunal had failed to ask themselves the key question, namely whether the fact that the Appellant submitted a grievance was any part of the reason or cause for her being moved to Welling, notwithstanding that it may also have been a reasonable adjustment. Linked to this ground was a perversity appeal in which Ms Rayner contends that there was clear evidence before the Tribunal that one reason for the move to Welling was the fact that the Appellant had done a protected act. She sets out the particulars in paragraphs 13 - 17 of her Grounds of Appeal. In particular, she refers to paragraph 14, namely notes of a hearing on 23 July 2007 where Ms Gregory, in her decision to move the Claimant, records the following:
"there was a break down in the relationship in the store, …" and "
There would be bad feeling, you put in a grievance which we found not to be the case, why would you want to return there?" and "There was bad feeling between the store manager and Mandy that's why we would like Mandy to go to Welling, ..." Ms Rayner also referred to evidence before the Tribunal that, when Ms Gregory considered moving her; 30 per cent of her thinking was that it was because she thought that the Appellant would be disliked at Woolwich and 70 per cent was the practicality for the Respondent. Ms Rayner contended that 30 per cent was sufficient for the Tribunal to find that the grievances lodged by the Appellant had a significant influence on the decision to move her to Welling, and she relies on a passage in the speech of Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572, paragraphs 18 and 19:
"18. Thus far I have been considering the position under s.1(1)(a). I can see no reason to apply a different approach to s.2. 'On [racial] grounds' in s.1(1)(a) and 'by reason that' in s.2(1) are interchangeable expressions in this context. The key question under s.2 is the same as under s.1(1)(a): why did the complainant receive less favourable treatment? The considerations mentioned above regarding direct discrimination under s.1(1)(a) are correspondingly appropriate under s.2. If the answer to this question is that the discriminator treated the person victimised less favourably by reason of his having done one of the acts ('protected acts') listed in s.2(1), the case falls within the section. It does so, even if the discriminator did not consciously realise that, for example, he was prejudiced because the job applicant had previously brought claims against him under the Act. In so far as the dictum in Aziz v Trinity Street Taxis Ltd [1988] IRLR 204 , at 211, 59, ('a motive which is consciously connected with the race relations legislation') suggests otherwise, it cannot be taken as a correct statement of the law. The Aziz case, it should be noted, antedates the decisions in R v Birmingham City Council ex parte Equal Opportunities Commission [1989] IRLR 173 and James v Eastleigh Borough Council [1990] IRLR 288 . Although victimisation has a ring of conscious targeting, this is an insufficient basis for excluding cases of unrecognised prejudice from the scope of s.2. Such an exclusion would partially undermine the protection s.2 seeks to give those who have sought to rely on the Act or been involved in the operation of the Act in other ways. 19. Decisions are frequently reached for more than one reason. Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out. Read in context, that was the industrial tribunal's finding in the present case. The tribunal found that the interviewers were 'consciously or subconsciously influenced by the fact that the applicant had previously brought tribunal proceedings against the respondent'."
The Respondent's Case[24]However, in response, Mr Christie argued that it was always part of the Appellant's case that there was a substantial overlap between the allegations of unlawful discrimination and the allegations of victimisation as the Tribunal put it in paragraph 26 of their decision:
"The Claimant contends that all the allegations of unlawful discrimination relied upon [by] her which took place after the protected acts relied upon are also allegations of victimisation."
He submitted that the Tribunal reminded themselves of Section 55, as can be seen from paragraph 33 of their decision. Further, he cited paragraph 163.1 of the Appellant's closing submissions before the Tribunal wherein a specific invitation was made by the Appellant that:
"Where claims were made in the alternative, it is recognised that an action which is explained as victimisation, may there not be needed to be examined for other forms of discrimination."
Whilst it is true that this invitation was predicated on findings favourable to the Appellant, he contended that the invitation was the same when adverse findings were made. He contended that a reading of the judgment as a whole and in its proper context could lead only to the conclusion that the Tribunal found that the move to Welling only took place because reasonable adjustments could be accommodated there. He argued that in this case the Appellant had identified the matters relied upon as constituting less favourable treatment by having done the protected act as being exactly the same as she alleged constituted a claim of discrimination and therefore the Tribunal were entitled to find on the facts as they did. He also contended the alleged bad feeling at the Woolwich store was specifically found by the Tribunal not to be related to any disability discrimination issues. Conclusion[25]However, on this issue, we agree with the Appellant's submissions. It was not appropriate to dismiss the victimisation claims simply because they had rejected all the claims of discrimination. The move to Welling, as far as discrimination was concerned, was the result of a failure to make reasonable adjustments at Woolwich. As far as victimisation was concerned, the move to Welling, against the Appellant's wishes, was said to have been caused, certainly in part, by the bad feeling engendered at Woolwich following the lodging of grievances. Even if the major reason for the move was, as the Tribunal found, the legitimate business and operational reason, namely the implementation of a reasonable adjustment, it seemed to us that the Tribunal failed, firstly, to analyse the correct test for victimisation and also to determine whether the lodging of grievances had a significant influence on the decision to move the Appellant to Welling. Harassment[26]The appeal relates to Mr Pritchard's letter and Mr Kourea's remarks as set out above. The Tribunal correctly set out the statutory provisions at paragraph 34, and their conclusions were contained in paragraphs 90 and 91. The relevant statutory provisions are contained in Section 3B DDA 1995: 3B Meaning of "harassment"(1) For the purposes of this Part, a person subjects a disabled person to harassment where, for a reason which relates to the disabled person's disability, he engages in unwanted conduct which has the purpose or effect of – (a) violating the disabled person's dignity, or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.(2) Conduct shall be regarded as having the effect referred to in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect." The Appellant's Case[27]Ms Rayner took us to an analysis of these provisions in Richmond Pharmacology v Dhaliwal [2008] UKEAT/0458/08, a decision of the EAT given by the President. This decision related to mirror-image provisions relating to harassment in section 3A of the Race Relations Act 1976. In paragraph 10, Underhill J said this:
"10. As a matter of formal analysis, it is not difficult to break down the necessary elements of liability under s. 3A. They can be expressed as threefold: (1) The unwanted conduct . Did the respondent engage in unwanted conduct? (2) The purpose or effect of that conduct . Did the conduct in question either : (a) have the purpose or (b) have the effect of either (i) violating the claimant's dignity or (ii) creating an adverse environment for her? (We will refer to (i) and (ii) as "the proscribed consequences".) (3) The grounds for the conduct . Was that conduct on the grounds of the claimant's race (or ethnic or national origins)? And at paragraphs 14 – 15: "14. Secondly, it is important to note the formal breakdown of "element (2)" into two alternative bases of liability – "purpose" and "effect"
. That means that a respondent may be held liable on the basis that the effect of his conduct has been to produce the proscribed consequences even if that was not his purpose; and, conversely, that he may be liable if he acted for the purposes of producing the proscribed consequences but did not in fact do so (or in any event has not been shown to have done so). ] It might be thought that successful claims of the latter kind will be rare, since in a case where the respondent has intended http://www.bailii.org/uk/cases/UKEAT/2009/0458_08_1202.html - note4#note4 to bring about the proscribed consequences, and his conduct has had a sufficient impact on the claimant for her to bring proceedings, it would be prima facie surprising if the tribunal were not to find that those consequences had occurred. For that reason we suspect that in most cases the primary focus will be on the effect of the unwanted conduct rather than on the respondent's purpose (though that does not necessarily exclude consideration of the respondent's mental processes because of "element (3)" as discussed below). 15. Thirdly, although the proviso in s-s. (2) is rather clumsily expressed, its broad thrust seems to us to be clear. A respondent should not be held liable merely because his conduct has had the effect of producing a proscribed consequence: it should be reasonable that that consequence has occurred. That, as Mr Majumdar rightly submitted to us, creates an objective standard. However, he suggested that, that being so, the phrase "having regard to … the perception of that other person" was liable to cause confusion and to lead tribunals to apply a "subjective" test by the back door. We do not believe that there is a real difficulty here. The proscribed consequences are, of their nature, concerned with the feelings of the putative victim: that is, the victim must have felt, or perceived, her dignity to have been violated or an adverse environment to have been created. That can, if you like, be described as introducing a "subjective" element; but overall the criterion is objective because what the tribunal is required to consider is whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so. Thus if, for example, the tribunal believes that the claimant was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of the section. Whether it was reasonable for a claimant to have felt her dignity to have been violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt. See also our observations at para. 22 below."[28]Ms Rayner submits that the Tribunal, having found that the remarks made by Mr Pritchard were hurtful, went on to find that was not an act of harassment because it was not based on her disability although the subject matter of the letter was disability related; and further added that there was no evidence that the reason that it was written was on the grounds of her disability but rather through inexperience. She argued that the Tribunal erred in law by importing a requirement for intention or purpose, and finding that there was no harassment because Mr Pritchard did not intend the consequences, rather than ignoring the second part of the second element of the test as set out in Underhill J, namely the question of whether or not Mr Pritchard's actions had the effect set out in section 3B(1)(a) or (b). She argued that had they asked this question the Tribunal would have been bound to find the letter did have that effect. She argued that the Tribunal erred in law in apparently requiring some form of intention or motivation in the mind of the alleged harasser that related the action to the disability, and that the phrase in the statute "for a reason which relates to a disability" did not require anything more than a link of fact between the purpose or cause of the activity, namely the writing of the letter, and the disability. The Respondent's Case[29]In response, Mr Christie, although conceding that the Tribunal had dealt with the harassment issues quite shortly, contended that it had clearly come to a view that the elements of harassment had not been made out. In particular, he referred to the finding of the Tribunal in relation to discrimination at paragraph 89, namely that:
"On the facts the Tribunal do not find that there were hurtful remarks made between February and April 2007 that related to the Claimant's disability."
He also argued that the inference to be drawn from the Tribunal's conclusions in paragraph 90 were that no reasonable person should have been upset or taken offence at the content of the letter as opposed to pointing out the perceived inaccuracies. Conclusion[30]It does seem to us that the Tribunal have, on this issue, once again through an excessive brevity, failed to set out the elements under section 3A and determined key issues, namely, firstly, whether the letter could amount to unwanted conduct; secondly, whether in all the circumstances including the perception of the Appellant it could reasonably be considered to have an effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her; thirdly, whether the letter was written for a reason that related to her disability. It may be that, at the end of the day, having analysed these elements correctly, the Tribunal would have decided that no reasonable person should have been upset or taken offence at the content but that was for the Tribunal to determine. The Appellant's Case[31]As regards the harassment by Mr Kourea, Ms Rayner complains about paragraph 91 and contends that the Tribunal have erred in law in that they considered that the question of whether or not the comments were made to the Appellant for a reason relating to disability as being a question of conscious motivation or intention rather than whether the disability was causative of the comments is a matter of logic or commonsense. She argued that the phrase "related to disability" was not a question of conscious motive but a question of the motivation for the comments, and contended that, as a matter of commonsense, they must relate to the disability because a comment was made because the Appellant was using one arm and it only occurred because she was disabled. Secondly, she repeated the argument in relation to Mr Pritchard, namely that the Tribunal had imported a requirement of intention to the harasser as opposed to considering whether harassment can occur simply if the treatment or behaviour has the effect even if the alleged discriminator does not intend the consequences. She submitted that the consideration of causation required only that the Tribunal consider a simple test asking but for the disability would she have been treated as she was. She refers to a passage in English v Thomas Sanderson [2008] EWCA Civ 1421 , paragraph 40 from Sedley LJ. "I particularly question the view that the word 'grounds' imports more than is postulated by Lord Nicholls' question in Nagarajan : why did the other employees harass the claimant? It is not necessary to demand a logician's or a lawyer's answer by looking for motive or purpose or cause and effect. If the harassment was based on his sexual orientation, whether real or imagined, the question 'Why?' is answered. If one uses the 'but for' test adopted by the House of Lords in James v Eastleigh Borough Council [1990] IRLR 288 , then but for the sexual orientation they chose to attribute to him the appellant's fellow employees would not have harassed him. Even if the entirety of the assumed facts is taken to be material and a cause-and-effect test is applied, the claimant was harassed because his fellow employees thought it was funny to taunt a man they knew to be heterosexual with being homosexual. Whichever approach is taken, the case in my judgment comes within the legislative intent, both domestically and under the Directive: the claimant was being harassed on grounds of sexual orientation." Conclusion[32]Again we agree with the Appellant's submissions namely that the Tribunal failed to analyse the three elements of harassment, namely unwanted conduct, the purpose or effect and the grounds for the conduct. As far as effect is concerned, the Tribunal found that the Appellant was upset by the remark, and the Tribunal should, therefore, have considered whether the comments had the effect of causing distress or a hostile environment even if the alleged discriminator did not intend the consequences. Secondly, the Tribunal were in error in that they have considered whether "a reason relating to disability" as being one of a question of conscious motivation as opposed to whether as a matter of logic or commonsense the disability was causative of the comments. Time Limits[33]Finally, the issue of time limits. The Tribunal's additional reasons confirmed that the Kourea comments made in late December 2006 were not the subject of a claim until 9 November 2007. The grievance made on 3 January 2007 would have had the effect of extending time to the end of June. The Tribunal considered that it was just and equitable to extend time and set out their reasons in paragraphs 12 and 13 of their Additional Reasons. The Respondent's Case[34]Mr Christie submits that the Tribunal's approach was wrong, firstly, that they failed to apply the test in Robinson v Bexley Community Centre [2003] IRLR 434, namely that no Tribunal should hear a complaint out of time unless the Applicant convinces it that it is just and equitable to extend time, and that the exercise of discretion is, therefore, an exception rather than the rule. He contended in evidence before the Tribunal the Appellant addressed no evidence as to the just and equitable test. No explanation at all was placed by her in evidence before the Tribunal as to why she had not made the complaint in time. Although the Tribunal had referred to a number of issues such as a grievance procedure, issues relating to her suspension and the subsequent redeployment to Welling again with her medical condition, none of these circumstances was put forward by the Appellant in evidence as a reason for not issuing proceedings in time. Mr Christie reminded us that the grievance appeal was rejected on 23 March 2007, and the complaint itself formed no part of any later separate grievances raised by the Appellant. In addition, he contended that at all times the Appellant had had the benefit of advice from a trades union representative who should, at the very least, have been fully cognisant of the time limits involved. The Appellant's Case[35]Ms Rayner argues that the Tribunal's decision to extend time on the basis that it is just and equitable was one within their inherent jurisdiction, and that this Tribunal should be loathe to interfere with that discretion unless it can be clearly shown to have been improperly exercised. The ET gave reasons as to the exercise of their discretion. Those reasons were reasonable and supported by the facts found, and there was clear evidence given to the Tribunal in relation to the events that had occurred and the timing of those events, none of which were in dispute. She argued that the Tribunal exercised their discretion by taking into account matters that they were entitled to take into account, and that, if we were to overturn that discretion, we would have to be satisfied that the decision was so unreasonable in all the circumstances that no reasonably instructed Tribunal could have reached it. Conclusion[36]Whilst we accept that decisions as to extensions of times are normally within the Tribunal's discretion, we are concerned that this decision was arrived at without any clear evidence from the Appellant as to why she failed to issue within time, particularly bearing in mind that she had the benefit of the three-month extension because of the grievance letter. She was also being advised throughout by a trades union representative. The circumstances that the Tribunal rely on at paragraph 13 would be those experienced by many applicants involved in employment disputes yet it cannot be assumed that their existence means that automatically time periods are extended. The grievance appeal had been concluded in March 2007, there is no clear evidence as to why she could not have commenced proceedings by the end of June 2007.[37]It follows, therefore, from our comments that we are prepared to allow the appeals in relation to the findings concerning victimisation, harassment and time limits, and we propose to send these matters back to the same Tribunal for fresh consideration.