Tameside Hospital NHS Foundation Trust v Mylott (Rev 1) (Unfair Dismissal: S.98A(2) ERA) [2010] UKEAT 0399_10_1304

EAT

Tameside Hospital NHS Foundation Trust v Mylott (Rev 1) (Unfair Dismissal: S.98A(2) ERA)

[2010] UKEAT 0399_10_1304 · 2011-03-11

[1]The Claimant was employed by the Tameside Hospital NHS Foundation Trust (“the Trust”) or its predecessor from August 1993 until his dismissal on 23 November 2006. He brought proceedings in the Employment Tribunal for unfair dismissal and under the Disability Discrimination Act 1995 . The issue of liability was heard in Manchester, before a Tribunal chaired by Employment Judge O’Hara, for twelve days, in three tranches, over January, February and March 2009. The Claimant appeared in person (although he had had some assistance from a solicitor during the interlocutory stages of the case) and Ms Rachel Wedderspoon of counsel appeared for the Trust. The Tribunal did not hear oral closing submissions but merely received written submissions from both parties, a procedure which this Tribunal has on several occasions deprecated. The Judgment and written Reasons were sent to the parties on 10 June 2009. The claims both of unfair dismissal and under the 1995 Act were upheld. The case proceeded to a remedy hearing in January 2010. By a Judgment with written Reasons sent to the parties on 9 February 2010 the Claimant was awarded £4,410 in respect of his unfair dismissal claim and £22,000 – comprising £16,000 for injury to feelings and £6,000 by way of “aggravated damages” – in respect of his claim of disability discrimination. In respect of neither claim was any award made for loss of earnings.

[2]The Trust has appealed to this Tribunal against the decision on liability. As regards the remedy decision there is both an appeal and a cross-appeal. The appeal against liability was heard first, and separately, in April last year. After deliberation we came to the conclusion that it was wrong (for reasons which will appear) to decide the liability appeal until we had heard the remedy appeal. Unfortunately it was not possible to find a date suitable both for counsel and for the members of the Tribunal until January this year.

[3]At both hearings before us the Trust was represented by Ms Wedderspoon and the Claimant by Ms Naomi Ling of counsel.

[4]Despite the potential overlap between the appeals to which we have referred it will be most convenient to consider them consecutively, taking the liability appeal first. THE LIABILITY APPEAL

[5]The Trust’s grounds of appeal as initially pleaded are set out in eight numbered paragraphs. At a preliminary hearing on 8 January 2010 a Tribunal chaired by HH Judge Reid QC dismissed ground 8 and several of the sub-paragraphs under ground 7. Ground 1 challenges the Tribunal’s finding of unfair dismissal; grounds 2-4 the findings of failure to make reasonable adjustments; and ground 5 the finding of disability-related discrimination. Ground 6 raises a particular point which we need not explain at this stage. Ground 7, so far as it survives, contains a number of perversity challenges to individual findings of fact.

[6]The bundles before us contain not only the core formal documents but a number of the contemporary documents referred to by the Tribunal, together with the witness statements and the Trust’s notes of the oral evidence. THE FACTS

[7]At the time of the events with which we are concerned the Claimant was an Accounts Payable Manager in the Trust’s Finance Department. In 2004 his line manager was a Mr Fogarty, the Financial Accountant. Mr Fogarty’s immediate superior was Ms Holroyd, the Deputy Director of Finance. The Tribunal was critical of the way in which the Finance Department, and more particularly the part for which Mr Fogarty was responsible, was managed. At para. 15.7 of the Reasons it found that the mechanism for the allocation of tasks was arbitrary and unclear, and depended too much on “personal favours and informal requests”. At para. 65 it described Mr Fogarty’s style of management as “wholly ineffective and entirely task-driven” – “akin to crisis management and fire fighting”. It was also critical of poor communication between Mr Fogarty and Ms Holroyd, who had very different estimates of the Claimant’s abilities.

[8]In the course of 2004 the Claimant was diagnosed as suffering from a pylonoidal cyst. From December 2004 until April 2005 he was absent from work in order to undergo an operation. During his convalescence he came under pressure from Mr Fogarty to come back to work, where he was badly needed. On his return he still had some symptoms from the cyst; but he also began to exhibit stress-related symptoms. The latter may have been – indeed, as we read the Reasons, were found by the Tribunal to be – contributed to by unsympathetic behaviour on the part of Mr Fogarty, who took little account of his health problems; but it was clear from evidence to which we will refer in due course that the Claimant was suffering from a mental health condition of long-standing.

[9]Mr Fogarty moved to another role in January 2006. He was succeeded by a Mrs Hassall. At this time the Claimant was working on a project to move the Trust over to new financial software. The Tribunal found that his precise responsibilities had never been made clear. Ms Holroyd e-mailed him on 24 January pressing him to complete some outstanding work. That work had been being done not by the Claimant but by Mr Fogarty. The Claimant asked to see Ms Holroyd. At a meeting on 25 January attended by himself, Ms Holroyd and Mr Fogarty he tried to explain that he was not responsible for the work in question. On the Tribunal’s findings both Ms Holroyd and Mr Fogarty were very rude to him (although Ms Holroyd was rude to Mr Fogarty too). The meeting ended with Ms Holroyd saying:

“you better get out of my sight the pair of you – it’s a disgrace”

. The Tribunal found that the Claimant justifiably felt humiliated and intimidated by the conduct of both Ms Holroyd and Mr Fogarty towards him at the meeting.

[10]Following the meeting of 25 January 2006 the Claimant’s stress-related symptoms got worse. On 7 February he went to see his doctor, who signed him off work. His early sick notes referred to “stress” and “situational anxiety”.

[11]The Claimant’s absence fell to be dealt with in accordance with the Trust’s Attendance Management Policy. On 15 March he was seen by the manager of the Occupational Health Department (“OHD”), Ms Greer. Her letter of that date to Mrs Hassall said: Michael has been off sick since 7 February 2006 with anxiety/stress. After discussion with Michael, this appears to be a process which has arisen over the last few months. There was an incident at work which appears to be “the straw which broke the camel’s back”. It was following this that Michael needed to resort to sickness absence. He reports that he has had some personal issues which have also affected him but these have now settled. Michael does remain unfit for work at present and I would suggest that this would be the case for at least the next 4-6 weeks. I have arranged for Michael to be seen by the Occupational Health Consultant on 10 April 2006.

[12]As arranged by Ms Greer, the Claimant saw a consultant occupational physician, Dr. Smith, on 10 April 2006. His letter to Mrs Hassall of the same date reads as follows: I saw Mr Mylott on 10.04.06, further to Halina Greer’s referral. I understand that you are aware, in outline, of the somewhat complex background to Mr Mylott’s current absence. Accepting this complexity, I wonder whether an independent management investigation of the issues might help clarify the situation, lead to action planning and a way forward such that Mr Mylott can normalise and then consider a return to work. Clearly, some of the issues are organisational in nature and not for Occupational Health to investigate which is why an independent review would be useful. Health-wise, I would describe Mr Mylott’s condition as one of situational anxiety. This is not likely to resolve unless the organisational issues underlying this have been resolved. Mr Mylott is keen that he is not committed to any particular course of action so could I ask that before any management intervention or investigation is undertaken, that Line Management discuss options with him directly.

[13]The same day – that is, 10 April 2006 - the Claimant saw Mrs Hassall and a Ms Flinn from the HR department. The meeting represented the first step under the Attendance Management Procedure. It is clear from the letter written following that meeting, dated 13 April, that the Claimant made it clear that what he felt was needed was to have the issues between himself and Mr Fogarty and the incident on 25 January “resolved”. By the time the letter was written – if not indeed at the meeting itself – Mrs Hassall and Ms Flinn were aware of Dr. Smith’s recommendation, since the letter noted that: From your appointment in occupational health, it has become apparent that you cannot move forward and thus consider a return to work until issues have been resolved following an incident that took place involving yourself, Kevin Fogarty and Suzanne Holroyd. It was agreed that they would meet again in two weeks’ time to review the situation.

[14]The Claimant met Mrs Hassall and Ms Flinn again on 26 April 2006. The meeting did not run its course because the Claimant suffered a panic attack. However, before it was abandoned he had made it clear that he was asking for an independent person to carry out a review as recommended by Dr. Smith. Ms Flinn advised him that the right way to achieve such a review was by the making of a complaint under the Trust’s Bullying and Harassment Procedure. The Claimant met Mrs Hassall and Ms Flinn again on 16 June 2006. The Claimant again referred to Dr. Smith’s recommendation of a “review” of what the note of the meeting describes as “the main incident which caused him to go off”, i.e. the meeting on 25 January. Ms Flinn said that she would arrange for this to occur. It seems clear, although the Tribunal does not expressly find, that it was now understood, in accordance with what Ms Flinn had said at the previous meeting, that the review would take the form of the investigation of a complaint under the Bullying and Harassment Procedure. At para. (xvi) of ground 7 of the Notice of Appeal it is contended that the Tribunal wrongly failed to find that the Claimant agreed to follow this procedural route. This seems to us a non-issue. It is apparent from the evidence to which Ms Wedderspoon herself referred us that Ms Flinn advised the Claimant that this was the correct route and that he accepted that advice: that is also what appears from the Reasons.

[15]The Tribunal found that Ms Holroyd was closely involved in the decisions taken by Mrs Hassall and Ms Flinn as to how to handle the Attendance and Management Procedure in the Claimant’s case and with the handling of his associated complaint. She had sent a briefing note to Mrs Hassall before the meeting of 10 April 2006, and e-mails from Ms Flinn following the meeting on 16 June show that she was expecting to meet Ms Holroyd to discuss how to proceed. At para. 15.40 of the Reasons the Tribunal said: … Ms Holroyd was directly involved in the preparation and investigation of a complaint which the Claimant presented under the Bullying and Harassment Procedure when she herself was the subject of that complaint. (The reference to “preparation … of a complaint” must, we think, mean the preparation for responding to the complaint.) It continued: The Tribunal agrees with Ms Holroyd’s evidence that it would be inappropriate for the subject of a complaint of bullying and harassment to be involved in its investigation but finds that the evidence in documentary form shows that this is in fact what happened in this case. The Tribunal invited comments from Ms Flinn and Ms Holroyd as to the content of these e-mails. Both denied that Ms Holroyd had met with Mr Neve at the preparation stage of the complaint. Even if this is accepted, which it is not, it is clear from the correspondence that the respondents involved Ms Holroyd directly in the investigation when the claimant had complained that Ms Holroyd had bullied him in the meeting of 25 January.

[16]It is not entirely clear when the Claimant’s complaint under the Bullying and Harassment Procedure was treated as having been commenced. The Tribunal was critical of the Trust for giving the Claimant the paperwork appropriate to a previous version of the procedure, which was superseded with effect from 1 July 2006; so it seems as though the procedure commenced sometime in July. The investigation was to be carried out by a Mr Neve. The Claimant submitted an outline of his complaint on 4 August. Mr Neve passed a copy of that complaint to Mr Fogarty, who produced a 15-page reply. Mr Neve met the Claimant on 30 August: he did not give him a copy of Mr Fogarty’s comments. On the same day, Mr Neve also met Mr Fogarty. Ms Holroyd was present at that meeting and participated in it, but she was not treated as being the subject of the complaint and was not herself interviewed by Mr Neve.

[17]On 27 September 2006 the Claimant met Mr Neve and Ms Flinn to be told the outcome of the investigation, and he was sent a formal copy of Mr Neve’s report on 29 September. He rejected criticisms that Mr Fogarty had harassed the Claimant during his sickness absence in 2005 or following his return. Surprisingly, in view of the genesis of the whole investigation, the report made no findings about the meeting of 25 January 2006 or the Claimant’s allegations of bullying and harassment against Mr Fogarty and Ms Holroyd on that occasion. However, he did, as the Tribunal summarised it at para. 15.51 of the Reasons … conclude that there appeared to be some issues relating to communication and that he recommended that the claimant meet with his new line manager to discuss his integration back into the department when he returned from sick leave and that there be a discussion of the claimant’s role and responsibilities so that both he and his manager had a clear understanding of the extent of his remit within the department. It may not be entirely clear from that summary, but it appears from a later passage in the Reasons (see para. 69) that to that limited extent Mr Neve upheld the Claimant’s complaint.

[18]Progress under the Attendance Management Procedure had been suspended pending the outcome of the investigation. It was now re-activated. On 2 November 2006 the Claimant was seen by an occupational physician, Dr. Tamin. He wrote: Speaking to Michael today, I understand that the outcome of the grievance procedure that he brought against his Line Manager has not been satisfactory to him. He tells me that he does not consider that the investigating manager has done a proper job and he has now been advised to take out a grievance against the Trust. Hence, for now, he tells me that he feels much worse in himself. He says that any improvement he may have made in recent times has all gone. At present he is not well enough to plan to return to work in the near future. I believe that this is unlikely to happen before he has the outcome of his grievance procedure available. He therefore continues with a problem of situational anxiety and would benefit from the ongoing procedures being resolved as soon as possible, one way or the other. I would advise that efforts are made to avoid any unnecessary delays. I plan to review him once we are told that his grievance has been dealt with. (In quoting from that letter at para. 49 (iv) of the Reasons the Tribunal emphasised the phrase in the second paragraph “one way or the other”.)

[19]The same day – that is, 2 November 2006 – the Claimant met Mrs Hassall and Ms Flinn under the Attendance Management Policy. He told them, as he had told Dr. Tamin, that he was dissatisfied with Mr Neve’s report and intended to pursue a grievance. He made the point that Ms Holroyd should have been formally interviewed and that she should not have been permitted to participate in the meeting with Mr Fogarty; he also said that Mr Neve should have interviewed other staff. There was considerable discussion of the relationship between the outcome of the investigation, and now the consequent grievance, and the possibility of the Claimant returning to work. The Claimant said that he did not want to return to his old job in the Finance Department but that the possibility of redeployment depended on the conclusion of the grievance procedure. The note of the meeting records him saying “if the Trust finds no case, MM does not think that he will be able to return to work”. Mrs Hassall said that the Claimant’s entitlement to sick pay was due to expire shortly (in fact, on 19 November) and that that was the point at which, if a suitable return to work date could not be established, it would be necessary for the Claimant to be dismissed or to seek redeployment. The Claimant objected that this was premature.

[20]As foreshadowed by Mrs Hassall at that meeting, the Claimant was on 9 November 2006 sent a letter inviting him to a meeting under the Attendance Management Procedure and warning him that dismissal was a possible outcome. The meeting duly occurred on 23 November. Ms Holroyd, Mrs Hassall and Ms Flinn attended on behalf of the Trust. Ms Holroyd asked the Claimant if he would consider redeployment. The Claimant asked for details but Ms Holroyd was unable to give him any. He said that in his condition he could not agree to something if he did not know what it entailed. He said that what he sought was a scheduled return to work once the issues had been resolved and his health had started to improve. Ms Holroyd dismissed this. In the end, Ms Holroyd told the Claimant that she was giving him his contractual twelve weeks’ notice. She said that if circumstances changed during the notice period, and OHD and his own doctor agreed, a return to work could be considered. Notice of dismissal was confirmed in a letter of the same date. The Claimant’s employment thus terminated on 14 th February 2007.

[21]In the course of the meeting of 23 November the subject of early retirement on ill-health grounds came up. It is not clear from the Tribunal’s findings who raised it. Ms Holroyd told the Claimant that if he was interested he would have to take the question up with OHD. That discussion was referred to in the dismissal letter as follows: You have informed us that you are considering Ill Health Retirement. To date Occupational Health have not recommended this as a course of action, however we suggested that you discuss this directly with them. The Claimant did not pursue the possibility of ill-health retirement.

[22]By letter of 14 December 2006 the Claimant appealed against his dismissal. The basis of the appeal was that the Respondent had acted too swiftly in dismissing him, had failed to consider ill-health retirement and had failed to consider reasonable adjustments. The original intention was for the appeal to be heard in April 2007; but in the meantime, on 20 December, the Claimant lodged his grievance against the outcome of the bullying and harassment complaint, and the decision was taken to postpone the hearing of the dismissal appeal until that grievance had been dealt with.

[23]The grievance was heard by Mr Stephens, the Director of Finance, at a meeting on 22 January 2007. Ms Holroyd presented the case for the Trust. Mr Stephens decided that Mr Neve’s investigation should be re-opened, although he made no express finding that the previous report had been inadequate. Mr Neve then interviewed a number of witnesses including Ms Holroyd. The grievance hearing was reconvened on 19 April. Ms Holroyd again presented the case for the Trust. Mr Stephens decided to dismiss the grievance. He treated the complaint as having been against Mr Fogarty alone. As recorded by the Tribunal at para. 15.59 of the Reasons: He found that although all three people present at the meeting on 25 January were obviously feeling harassed, as the incident was a “one off” it did not constitute harassment within the terms of the respondent’s policy on harassment. He found nothing unfair in the investigation. The claimant appealed against that decision but on or shortly after 4 September the appeal was rejected. In a passage in the Reasons assessing the individual witnesses – para. 39 - the Tribunal was critical of that conclusion, observing that it involved a misunderstanding of the definition of “harassment” in the Trust’s own policy, which does not require a course of conduct. The Claimant appealed against the dismissal of his grievance but the appeal was unsuccessful.

[24]Since the grievance process was now exhausted, the appeal against the Claimant’s dismissal was revived. There was a hearing on 17 December 2007. Again, the Claimant’s essential point was that the Trust had acted too quickly in dismissing him; that it failed to consider ill-health retirement; and that it had failed to consider reasonable adjustments. In the course of the meeting, as found by the Tribunal at para. 15.62 of the Reasons: The claimant said that he felt it was not fair that his employment should have been terminated in the way it was and that it would not be wise for him to return to work for the respondent in those circumstances. The claimant said that he sought a civil parting of the ways and a remedy as an outcome. The appeal was dismissed. DR. LONGSON’S REPORT

[25]There is one rather different aspect of the facts with which we should deal. The Claimant produced a report from a consultant psychiatrist, Dr. Longson, who examined him on 17 April 2008: the report itself is undated, but it was presumably written shortly after that examination. Dr. Longson’s report was commissioned in order to support the Claimant’s claim to be suffering from a psychiatric disability. Although the Trust subsequently conceded that he was “disabled within the meaning of [the 1995 Act] insofar as he has a depressive illness”, one or both parties apparently regarded the report as relevant to the remaining issues, and the Tribunal was referred to it at the liability hearing.

[26]Dr. Longson’s report contains a full account, based partly on the Claimant’s own history and partly on the GP notes which he had seen, of the Claimant’s psychiatric history over the previous ten years or so. This can be summarised, so far as relevant for present purposes, as follows:(1) The Claimant had for many years been taking class A and other illicit drugs. He attended A&E in 1996 with a heroin overdose. There is no subsequent reference in the notes to heroin, but from the late 1990s he was using cocaine on a regular and evidently quite heavy basis and also taking amphetamines.

(2) From the late 1990s onwards the Claimant had also been suffering mental health problems. He felt that other people, and in particular his then supervisor at work, were laughing at him and seemed to know things about him that they should not – although he recognised that these feelings might have been symptoms of his illness. He told Dr. Longson that he had been seeing a counsellor between 1998 and 2001.

(3) By 2005 the Claimant was clearly seriously ill. As he put it, his mind was “playing tricks on him”. He became obsessed by the feeling that people were talking about him, particularly at work. He told Dr. Longson that he made two suicide attempts, in April and June 2005. He was seen at a walk-in centre June 2005 for “acting paranoid”. He was referred to the drugs team. He tried to give up drugs but by November 2005 he was taking amphetamines and cocaine regularly again. In December 2005 he was prescribed anti-depressants.

(4) He was still taking illicit drugs in 2006. The extracts quoted from contemporary notes are not quite consistent but he seems to have been taking cocaine for at least part of the year and was certainly taking amphetamines for much or most of it.

(5) In February 2007 he attended his GP complaining of stress and anxiety; and at a further visit in June 2007 the GP noted “still very anxious and depressed, stress through work, gets panicky at the thought of returning to work”. In February 2008 he was referred to a psychiatrist for “severe OCD [obsessive compulsive disorder]”.

[27]The “opinion” section of Dr. Longson’s report reads as follows:51. There is no doubt in my mind that Mr Mylott has experienced an episode of severe mental illness, characterised by paranoid experiences, otherwise known as delusions of reference, as well as possible auditory hallucinations. The resolution of the acute phase of his illness into his current situation - characterised by social withdrawal, loss of friendships, loss of occupational ability etc tends to also support my view that he may well have a severe and enduring mental illness. I note the prominence of ritualistic behaviour, together with possible obsessions and compulsions which characterise his day to day life now. These associations have been described for over a century, and their presence is probably another part of the overall clinical jigsaw.

52. The clinical picture is very substantially complicated by the history of regular cocaine and intermittent amphetamine use, although this appears to have ceased around 2006. Based on the documents I have seen, his cocaine use commenced in 1999, at which time he would have been twenty eight This is within the age range normally associated with the onset of severe mental illness. There is a known association between stimulant use and severe mental illness. In a number of patients the stimulant use predates the onset of psychiatric symptoms and may therefore be considered to be part of the causation, whereas in others the stimulant use occurs In parallel to the mental illness, when it acts as an aggravating and maintaining factor. I'm afraid that there is simply insufficient Information on Mr Mylott to be absolutely clear about the nature of that relationship in his case. It should also be pointed out that stimulant drugs can completely mimic severe mental illness. However, given the severe disruption of his life two years after stopping any drug use, I am more inclined to think that he has also suffered from an Independent period of severe mental illness which is now in its chronic or residual phase.

53. Mr Mylott has recovered sufficiently to be able to reflect on his experiences in 2003 and 2004, to the point where he now wonders to what point his experiences were real, and to what point they were a reflection of his illness.

54. Mr Mylott's concerns about the behaviour of seniors, direct reports and others extended to neighbours and possibly to people he did not know. This generalisation tends to support the view that these experiences were symptoms of his illness. I asked Mr Mylott to support his concerns with objectively verifiable statements, but his concerns were more generalised - people laughing at him, talking about him and mocking him in a rather non specific way. I suspect that Mr Mylott became gradually more ill from 2000 or so onwards, escalating to a full blown illness in 2004 and 2005.

55. It may be, of course, that I have incorrectly formulated this situation. The problems here is having objectively verifiable evidence that Mr Mylott was being bullied, mocked and harassed at work, as opposed to his perceptions of that. An alternative formulation would be to state that he was increasingly bullied, he took stimulants to alleviate his distress and that these made him psychotic. That leaves us rather unable to explain the current clinical situation, and results in a rather incongruous overall clinical picture. However, I would be happy to review all of this if you feel that my construction of events is inaccurate.

56. In the meantime, Mr Mylott has, finally, been referred to the secondary care community mental health team for an assessment. This was in March 2008 and I do not know what the outcome was. I would be happy for this report to be forwarded to his GP, or the community mental health team if required.

[28]Generally, those conclusions speak for themselves. But it is fair to say that there seems to have been an issue before the Tribunal as to whether the effect of para. 54 is that Dr Longson’s (at least tentative) view was that his complaints about the conduct of his managers – specifically, Mr Fogarty and Ms Holroyd - in 2005 and early 2006 were “a function of his illness”. The Tribunal (which did not have the benefit of oral evidence from Dr Longson) said at para. 43 of the Reasons that it did not understand that to be the case; and that was in any event certainly not its own finding, having heard not only the Claimant’s evidence but that of the two other protagonists. UNFAIR DISMISSAL (GROUND 1)

[29]No issue arises as regards the application of section 98 of the Employment Rights Act 1996. It is, however, necessary to set out the terms of section 98A (2). This reads as follows: … [F]ailure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of s. 98 (4) (a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure. In Alexander v Brigden Enterprises Ltd.

[2006] ICR 1277

this Tribunal, Elias P. presiding, held that the term “procedure” referred, broadly, to any steps that ought to be taken by an employer before deciding to dismiss an employee (see paras. 55-57, at p. 1292); that approach was confirmed in Kelly-Madden v Manor Surgery

[2007] ICR 203

, again by a Tribunal chaired by Elias P. (see paras. 34-49, at pp. 209-213). Kelly-Madden also confirms that the question of whether the employer would have dismissed if a proper procedure had been followed is to be decided on the balance of probabilities (see para. 49, at p. 213G). The sub-section itself makes clear that the burden of proof that the outcome would have been the same is on the employer.

[30]The Tribunal dealt with the question of unfair dismissal at paras. 49-58 of the Reasons. The effect of those paragraphs can be summarised as follows:(1) At paras. 50-52 it held that Ms Holroyd should not have proceeded to a dismissal until the grievance procedure, considering the Claimant’s complaints about the inadequacies of Mr Neve’s review, had run its course. The recommendations from the OHD – and specifically the reports of Dr. Smith in April 2006 (see para. 12 above) and Dr. Tamin in November (see para. 18) – had suggested that no decision should be made about a possible return to work, or indeed redeployment, until that point. Although the Tribunal does not explicitly state that the decision to proceed in this way rendered the decision to dismiss unfair it seems clear from the structure of its reasoning that that was its view.

(2) At para. 53 the Tribunal addressed the Trust’s contention, in reliance on section 98A (2), that any procedural failings of the kind identified at paras. 50-52 would not have affected the outcome. As to that it said this: Ms Wedderspoon in submissions and Ms Holroyd in evidence made the point that the adoption of a different procedure would not have made a difference to the outcome. With respect, the Tribunal disagrees. Firstly, if the respondent had followed the OHD advice and carried out an independent management review, it might have come to a different conclusion. Given the findings of the Tribunal as to the management practices in the department, it is likely that such an investigation would have made findings which would have had an impact on the claimant’s situation. Secondly, if Ms Holroyd had deferred a decision until the outcome of the claimant’s grievance had been reached, the respondent could be said to have complied with advice from OHD. This advice was not that the claimant would not be fit unless the respondent upheld his grievance, but as the phrase emphasised at para. 49 (iv) above states, Dr. Tamin urged the respondent to seek further advice from OHD once the process had been completed “one way or the other”. This was in April 2007. The claimant could have remained on nil pay in accordance with his contract pending the resolution of the process and further advice from OHD could have been sought at that point. The reference to “the findings of the Tribunal as to the management practices in the department” is evidently to the criticisms summarised at para. 7 above and particularly to the problems about the lack of clarity in the allocation of work which had largely contributed to the incident of 25 January 2006.

(3) At para. 54 the Tribunal considered the involvement by Ms Holroyd in Mr Neve’s investigation and the subsequent grievance about the alleged deficiencies in that investigation. It said: Given that the complaint was against [Ms Holroyd], it was highly inappropriate that she should have been invited to meetings to organise the investigation. Both Ms Holroyd and Ms Flinn agreed that this was inappropriate. This fact robbed the review of independence and rendered it contrary to the OHD advice. The failure by Mr Neve to interview Ms Holroyd was also fatal. These failures were compounded by the fact that Ms Holroyd was invited to prepare and present the management case at the grievance hearing in January 2007. It was in the Tribunal’s review a gross error of judgment to permit Ms Holroyd to present the management case at a hearing to determine a grievance against her. The Tribunal concluded by stating that if “these matters had been dealt with correctly the outcome might have been different”. That observation is not very fully reasoned, but the thinking is self-evident, namely that if Ms Holroyd had not been so intimately involved at both stages either Mr Neve or Mr Stephens might have felt freer to criticise her and that such criticism might have satisfied the Claimant’s wish for a “resolution”.

(4) At para. 55 the Tribunal acknowledged the difficulties which long-term staff sickness absence can cause and applauded the Trust for having an appropriate attendance management policy. But it said that the problem in this case was the “poor application of that policy by the managers concerned”. It repeated its previous criticism – see (1) above - that Ms Holroyd should have sought further advice from the OHD once the grievance procedure had been concluded. It described her omission to do so as “a significant failure which in the Tribunal’s view rendered the dismissal unfair”.

(5) At the end of para. 55, and more fully in paras. 56-57, the Tribunal turned to the question of ill-health retirement, i.e., in practice, the right to receive an early pension from the NHS Pension Scheme on grounds of permanent incapacity. The decision whether an employee is entitled to ill-health retirement is ultimately for the NHS Pensions Agency and not the employers; but the Trust’s policy required it in appropriate cases to encourage and facilitate applications for ill-health retirement, in particular by obtaining the advice of the OHD, and not to proceed to a decision to dismiss until this option had been explored. The Tribunal said (para. 56): The terms of the policy indicate that the process will be considered by the line manager who would obtain a report from OHD. This was simply not considered in this case and no explanation for that omission was proffered by the respondents. Given that the decision to dismiss was predicated on a finding that the claimant could not indicate a return to work date, consideration of ill-health retirement ought to have been considered according to the terms of the policy. However, that did not take place. That point is amplified at para. 57, which concludes: The consequence of that is that the tribunal find that the decision to dismiss is not consistent with the [Attendance Management] Policy and is therefore unfair. At para. 58 the Tribunal held that that conclusion was not affected by section 98A (2) because it was not known what the OHD would have advised if its advice had been sought on an application for ill-health retirement, and reaching any conclusion as to whether the outcome would have been different was thus “too speculative”.

[31]Thus it appears that the decision to dismiss the Claimant was held to be unfair for three reasons, namely(1) the failure to await the outcome of the grievance process and to take the advice of the OHD at that point;

(2) the lack of independence of the process as a result of Ms Holroyd’s involvement; and

(3) the failure to consider the possibility of the Claimant taking early retirement on the grounds of ill-health. The Tribunal does not state explicitly whether each of those points is to be treated as a self-contained and sufficient ground of unfairness; but the better reading seems to be that the Tribunal regarded them as cumulative.

[32]The decision on the issue of unfair dismissal is challenged in ground 1 of the Notice of Appeal. The Trust does not challenge the Tribunal’s findings that it acted unreasonably in the respects identified above but relies only on section 98A (2), as follows: In deciding that the dismissal of the Claimant was unfair and that the Respondent had failed to show the dismissal was fair pursuant to s. 98A (2) of the Employment Rights Act 1996, the Employment Tribunal erred in that: -(i) It misdirected itself by failing to consider material evidence it could properly rely upon (following Software 2000 Ltd. v Andrews

[2007] IRLR 568

) including that: - (a) the Claimant continues to the present date to be under medication and medical treatment for his psychiatric illness; (b) the Claimant has not worked and has not been able to work since February 2006; (c) at the dismissal appeal hearing on 17 December 2007 (some 13 months post dismissal) the Claimant did not indicate a foreseeable date of return to work and did not seek to return to work for the Respondent; the Claimant sought a “civil parting”.

(ii) Misdirected itself (at para. 53) by looking at what “might” have occurred rather than what actually occurred and considering in context the reliable and material evidence: - (a) the investigation into the Claimant’s complaints of bullying and harassment at all three stages were not upheld by the Respondent; (b) had the Respondent waited for the outcome of the grievance, it would have made no difference to the decision to dismiss because the Claimant’s complaints were not upheld.

(iii) Was perverse in that the Claimant remains unfit for work.

[33]That is not very well expressed. The contention at (ii) that it was wrong to look at what “might” have happened as opposed to what actually happened is hard to understand in view of the fact that that is precisely the exercise required by section 98A (2). But the basic point as it emerged in oral submissions was simply that the Tribunal could not reasonably have come to the conclusion that it did at para. 53 of the Reasons in view of the subsequent history. To spell it out:(1) We know what would have happened if there had been a further and better investigation into the Claimant’s complaints because such an investigation occurred in spring 2007. The outcome was that the grievance was not upheld: see para. 23 above.

(2) Likewise we know what the Claimant’s response would have been if the outcome of the investigation had not been favourable, because we know what it was when the grievance was not upheld (and his subsequent appeal dismissed): he remained unable to return to work and sought “a civil parting of the ways”: see para. 24.

(3) In addition, we also know from Dr Longson’s report that the Claimant was in fact seriously mentally ill throughout this period, for reasons which may have been exacerbated by his treatment at work but which fundamentally derived from long-standing mental health problems and/or drug abuse: see paras. 25-27. In the light of those facts, it is submitted, the only possible conclusion was that even if a fair procedure had been followed prior to the decision to dismiss in November 2006 the outcome would probably have been the same.

[34]We have not all found this question easy. The Tribunal’s reasoning is not particularly full or well-expressed. Nevertheless, we have come to the conclusion that the Trust’s submissions must be rejected. The Tribunal’s finding in para. 53 of the Reasons is not wholly explicit. But its effect is that if there had been a proper independent review of the problems that had arisen between the Claimant on the one hand and Mr Fogarty and Ms Holroyd on the other, and in particular of the incident of 25 January 2006, followed by consultation with OHD, the Claimant might have been able to come back to work; and that that was so irrespective of the outcome of the investigation (although clearly the probability that he would have been able to return would have been higher if he had been vindicated by the investigation); and that it had not been shown that that chance was less than 50%. We might not have made the same finding, but it is a finding of fact and one which was open to the Tribunal on the evidence. It is important to bear in mind that the burden of proof was on the Trust. It was not necessary for the Tribunal to find that the Claimant would probably not have been dismissed if a fair procedure had been followed: it was enough for it to find that the Trust had not shown that he probably would have been. As to the particular points summarised at para. 33 above:(1) The problem about the Trust’s points (1) and

(2) is that the events of 2007 are not a reliable guide to what would have happened if a fair procedure had been followed, because on the Tribunal’s findings the handling of the grievance was not fair either (and the outcome of the appeal was essentially dependent on the outcome of the grievance). Specifically, it was found (see para. 24 above) that the Trust treated the grievance as being against Mr Fogarty alone, when that was patently not the case; and that that failure led to Ms Holroyd being allowed to present the Trust’s case at both the original and the resumed grievance hearings, notwithstanding that she was the subject of the grievance, a feature of which the Tribunal was highly critical: see para. 30 (4) above. It was also critical of Mr Stephens for rejecting the grievance on the basis that a one-off incident could not constitute harassment: see Reasons para. 39. It is important to emphasise that none of those criticisms are challenged in this appeal; but if they stand it is impossible to use the outcome of those procedures as demonstrating what would have happened had a fair procedure been followed. In that context the Claimant’s observation in December 2007 that he was not looking for a return to work but for a parting of the ways is neither surprising nor damaging: how he felt after a further year of failure properly to deal with his grievance is no guide to how he would have felt if the Trust had done what, on the Tribunal’s findings, it should have done. (2) As regards Dr Longson’s report, the short answer is that, as Ms. Wedderspoon candidly accepted, this was not relied on by the Trust in its submissions below as bearing on the section 98A (2) issue but only as giving grounds to question the reliability of the Claimant’s evidence. It would be wrong to allow it to be deployed now for a purpose for which it was not relied on in the Tribunal. The report was of course in any event prepared for a different purpose, and it does not directly address the question of whether the Claimant’s condition might have improved if his problems at work had resolved. Nor was it the subject of any oral evidence: neither Dr Longson himself nor any other doctor was a witness.

[35]The pleaded grounds of appeal do not in fact explicitly challenge the alternative basis of the Tribunal’s finding of unfair dismissal, namely that the Trust failed to obtain an OHR report on the possibility of ill-health retirement - see para. 30 (5) above. However, essentially the same point is taken as part of the disability discrimination claim, and it was addressed in the unfair dismissal context without objection in oral submissions. We are satisfied that the Tribunal was entitled to treat the Trust’s failures in this regard as contributing to its overall finding of unfairness.

[36]For those reasons, the appeal on this issue is dismissed. DISABILITY DISCRIMINATION (GROUNDS 2-5) The Statutory Provisions

[37]Section 4 (2) (d) of the Disability Discrimination Act 1995 provides that i t is unlawful for an employer to discriminate against a disabled employee “by dismissing him, or subjecting him to any other detriment”. For the purpose of Part II of the Act (to which section 4 belongs), discrimination is defined in section 3A. This reads:(1) … [A] person discriminates against a disabled person if – (a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat other to whom that reason does not or would not apply, and (b) he cannot show that the treatment in question is justified.

(2) For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.

(3) Treatment is justified for the purposes of subsection (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.

(4) But treatment of a disabled person cannot be justified under subsection (3) if it amounts to direct discrimination falling within subsection (5).

(5) A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.

(6) If, in a case falling within subsection (1), a person is under a duty to make reasonable adjustments in relation to a disabled person but fails to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with that duty. The duty to make reasonable adjustments referred to at sub-section (2) is provided for by section 4A, sub-section (1) of which reads: 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. (Section 18B of the Act contains provisions supplementing section 4A. The Trust relies on some of these, but they are more appropriately referred to at a later stage.)

[38]There are thus three distinct types of discrimination under section 3A:(a) “disability-related” discrimination, provided for in sub-section (1), as amplified at sub-sections (3) and (6);

(b) discrimination by failing to make reasonable adjustments, provided for at sub-section (2); and

(c) “direct discrimination”, as provided for by sub-section (5). (The origins of the distinction between disability-related and direct discrimination are explained in the judgment of this Tribunal in City of Edinburgh Council v Dickson (

UKEATS/0038/09

), at para. 32.) All this is should be trite law, but experience shows that tribunals still too often fail to observe the necessary distinctions, and that appears to have occurred in the present case: see para. 46 below. The Claims

[39]The Claimant’s original claim was pleaded without legal assistance and was subsequently clarified in correspondence and pursuant to directions from the Tribunal. So far as the claim of disability discrimination is concerned, the Claimant claimed that he was disabled both as a result of his pylonoidal cyst and as a result of his mental health problems. The Trust initially put him to proof that both conditions constituted disabilities for the purpose of the 1995 Act; but, as noted above, at a pre-hearing review on 28 August 2008 it made a concession in both respects.

[40]On that basis the claim, as eventually clarified and stated by the Tribunal at paras. 13.10-16 of the Reasons, resolved into two points:(a) that the Trust had discriminated against the Claimant, by reference to section 3A (2) of the Act by failing to comply with the duty to make reasonable adjustments under section 4A (see Reasons para. 13.10-12 and 13.16) - a number of specific adjustments were pleaded, but for present purposes we need be concerned only with those in respect of which the Tribunal made findings of discrimination, as to which see para. 44 below;

(b) that the Trust had discriminated against him by reference to section 3A (1) (see Reasons para. 13.13-15) - the principal act complained of was his dismissal, but several other instances of less favourable treatment were pleaded which it is unnecessary to itemise here.

[41]Many of the acts complained of for the purpose of the disability discrimination claim were out of time. To anticipate, the Tribunal held that it had no jurisdiction to determine any complaint based on an act or omission prior to 10 April 2006, which it took to be the date of the beginning of the application of the Attendance Management Procedure, although acts done prior to that date might be relevant by way of background. The Tribunal’s Reasoning

[42]At paras. 59-64 of the Reasons the Tribunal considered the limitation issue. As already noted, it held that it had jurisdiction in relation to all acts or omissions occurring on or after 10 April 2006. Since that conclusion is not challenged, we need say no more about the reasoning.

[43]At paras. 65-67 the Tribunal set out various matters by way of “background”. These included its findings on the deficiencies in the way the Finance Department was run: see para. 7 above. At para. 66 it said: The lack of clarity over the claimant’s work was the cause of much of the difficulty which he experienced during his employment. In terms of the claims being considered here, in the Tribunal’s view this was relevant to the claim of unfair dismissal and discrimination. The Tribunal finds that there was no transparent mechanism for allocation of duties in the department. The system depended on ad hoc arrangements being communicated by Mr Fogarty and Ms Holroyd which was subject to change in a random, unpredictable fashion. We should also note that the Tribunal made an express finding at para. 67 that the Trust was at all material times aware that the Claimant was suffering from both the disabilities of which he complained.

[44]At paras. 68-70 the Tribunal considered the claim that the Trust had discriminated against the Claimant within the meaning of section 3A (2) of the 1995 Act, by failing to make reasonable adjustments in accordance with its duty under section 4A. At para. 68 it made two findings of such failures, namely:(a) It held that the Trust should not have insisted on the Claimant seeking the independent review which he required by way of a complaint under the Bullying and Harassment Procedure but should rather itself have initiated an independent management review. It said: For someone suffering from a severe mental illness, it was not appropriate that he should have been encouraged to bring a complaint against his managers. It would have been a reasonable adjustment for the respondent to carry out an independent management review as recommended by OHD.

(b) It held that the Trust should have made a finding on the allegation that the Claimant was subjected to bullying and harassment by Ms Holroyd on 25 January 2006. As it put it: In the circumstances of this case, the application of the Bullying and Harassment Procedure to this claimant and the subsequent failure to make a finding in the light of the advice from OHD was a practice which placed the claimant at a substantial disadvantage in comparison with people who were not suffering from a disability. The respondent could have made a reasonable adjustment on following the advice of OHD to conduct an independent management review and make a finding on the allegations brought. At para. 70 the Tribunal made findings of two further failures to make reasonable adjustments, namely:

(c) It held that the Trust failed, in applying the Attendance Management Procedure, to take account of the OHD advice to revisit the question of a return to work once the recommended independent management review had been conducted and of “the findings of Mr Neve’s report in terms of looking at the claimant’s role” – it is clear from para. 69 that this is a reference to the finding which we have quoted at para. 17 above.

(d) It held that Ms Holroyd failed to “look into the possibility of early ill health retirement”, as required by the Trust’s policy (see para. 30 (5) above).

[45]Under the heading “Discrimination – disability related”, the Tribunal, at para. 71 of the Reasons, said this: Dismissing the claimant was less favourable treatment to which the respondent subjected the clamant. The Tribunal considered that his absence was the reason for that treatment. This is a disability related reason given that the absence was caused by the disability. The circumstances of a comparator for these purposes were someone who was on long term sick, who had exhausted their entitlement to sick pay and in respect of whom OHD had advised that their prognosis and likely ability to return to work was dependent on the completion of a procedure over which the respondent had control. The Tribunal found that the respondent would not have dismissed a comparator in those circumstances but would have obtained the further advice. In the claimant's case the procedure which was incomplete was the grievance. The advice on that from OHD was quite clear. They wished to review the claimant and give a final prognosis once the process had been completed. They advised management in the 2 November letter to conclude the procedure without delay. Dr Tamin said:

'He therefore continues with a problem of situational anxiety and would benefit from the ongoing procedures being resolved as soon as possible, one way or the other'

. The advice given was not to the effect that the claimant would only recover if the grievance was upheld. This was the view of Ms Holroyd based on the meeting on 23 rd November with the claimant. She had not obtained advice from OHD as to adjustments or ill health retirement. The advice from OHD was that a final review could be given only once the procedure was resolved one way or the other. The factor on which the respondent based their decision in this case was the exhaustion of sick pay entitlement. There is no reference to this as a factor in the Attendance Management Policy. No evidence was produced as to the circumstances in which other employees were dismissed after long term absence. In the circumstances, the Tribunal found this explanation lacking and therefore drew an inference that the claimant's disability was the reason for the dismissal.

[46]The Tribunal’s analysis in that paragraph is, with respect, confused. The claim which it had to consider was one of disability-related discrimination, i.e. discrimination falling within the terms of section 3A (1); and the heading and the language of the first two-thirds of the paragraph reflect that. It was entirely clear that, as the Tribunal indeed formally found in the second and third sentences, the Claimant was dismissed because of his absence and that his absence was disability-related. Thus the only questions that needed to be decided were(a) how the relevant comparator would have been treated (to the extent that that was a separate question) and

(b) justification. The former is considered in the fourth and fifth sentences. The latter is not explicitly addressed, but it is adequately clear from the remainder of the paragraph, and indeed the Reasons generally, that the Tribunal considered the Trust’s treatment of the Claimant to be unjustifiable. So far so good. But the final sentence, which purports to find that the Claimant’s disability was “the reason for the dismissal” would only be appropriate, to a claim of direct discrimination, within the terms of section 3A (5). No such claim was before the Tribunal: see para. 40 above. (Nor, we would add, was there anything in its findings of fact to support such a claim: see para. 59 below.) A similar confusion appears in the language of the formal Judgment, which refers at more than one point to the Trust having discriminated against the Claimant “on the grounds of his disability”, though at para. 3 of the Judgment that is glossed as meaning that he was “treated … less favourably for a reason related to his disability”. It must be clearly understood that, notwithstanding that language, the only basis on which liability under the Act was claimed was under section 3A (1) (and of course section 3A (2)): the Tribunal is not to be treated as having made a finding of liability under section 3A (5), which was not relied on before it.

[47]We consider separately the findings of failure to make reasonable adjustments and of disability-related discrimination. Reasonable Adjustments (Grounds 2-4)

[48]The three grounds of appeal which we consider under this head are directed in turn to the first three, which we have labelled (a)-(c), of the breaches of the section 4A duty found by the Tribunal – see para. 44 above – although ground 4 also incorporates rather tangentially a challenge to the finding of breach (d).

[49]All three grounds refer to the provisions of section 18B (1) of the 1995 Act. Section 18B is headed “Reasonable Adjustments: Supplementary”. Sub-section (1) reads, so far as material, as follows: 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)-(g) … .

[50]Grounds 2 and 3 are pleaded in elaborate though not particularly lucid detail, and it is unnecessary that we set them out in full here. The essential point made by the Trust in relation to breaches (a)-(c) is the same, namely that there was no evidence before the Tribunal to justify the conclusion that the steps in question would have “prevent[ed] the effect in relation to which the duty is imposed”. Here, the “effect” in question is the anxiety state which prevented the Claimant being able to work, and the Trust’s point is that there is no reason to suppose that handling the procedures differently in any of the respects identified would have reduced or mitigated his anxiety so as to enable him to return to work. The Tribunal appears, again, to rely on the OHD reports; but, it is submitted, they give no real basis for the conclusions drawn. The point is thus substantially the same as that considered in relation to section 98A (2); and our conclusion is the same. We cannot say that the Tribunal was not entitled to reach the conclusion that the steps pleaded would or might have mitigated the anxiety from which the Claimant was suffering and so have facilitated his return to work. The OHD reports formed part of the evidence supporting such a conclusion, but the Tribunal was also entitled to take a common-sense view: for example, in relation to breach (b), it was legitimate for it to take the view that the Trust’s continued failure to address his grievance about how he had been treated by Ms Holroyd on 25 January would have prolonged his “situational anxiety”, and thus conversely that making findings on that question would have helped to resolve it.

[51]Ground 4 reads as follows: In deciding that the application of the Attendance Management Policy by Ms. Holroyd placed the Claimant at a disadvantage as she failed to take account of the evidence from OHD; the findings of Mr. Neve's report at looking at the Claimant's role; or looked at early ill health retirement (at paragraph 70) the Tribunal erred in that when assessing whether such a step was reasonable failed to have regard to the mandatory criteria in section 18B (1) (a) of the Disability Discrimination Act 1995 namely the extent to which taking the step would prevent the effect in relation to which the duty is imposed; there was no evidence such steps would have ensured the Claimant's return to work; in fact the Claimant continues to the present date to be under medication and medical treatment for his psychiatric illness; he has not worked and has not been able to work since February 2006; and at the dismissal appeal hearing on December the Claimant did not seek to return to work for the Respondent.

[52]Subject to the question of ill-health retirement, which we consider below, this again raises essentially the same point, namely that there was no reason to believe that the adjustment in question would have made a difference. For the reasons already given we do not agree.

[53]We turn to breach (d), the failure to consider ill-health retirement. The only pleaded challenge on this aspect is in ground 4, set out at para. 51 above. Read literally, the Trust’s case is that there was no reason to suppose that facilitating an application by the Claimant for ill-health retirement would have helped to ensure his return to work. That is self-evidently true: ill-health retirement involves leaving the job, not doing it. That raises the question whether the duty under section 4A extends, in an appropriate case, to enabling a disabled employee who is no longer able to do the work (or any available alternative) to leave the employment on favourable terms. We find it hard to see how it can. We can identify in such a case no “provision, criterion or practice” which has an adverse “effect” on the employee which offering him ill-health retirement would prevent or mitigate. The whole concept of an adjustment seems to us to involve a step or steps which make it possible for the employee to remain in employment and does not extend to, in effect, compensation for being unable to do so.

[54]We are not in fact entirely sure that the point made in the preceding paragraph was that intended by the pleader the context suggests rather that the focus, as with the other findings challenged in ground 4, was on the issue of whether there was reason to suppose that the steps in question would have made any difference. Be that as it may, the point is there, and it seems to us to be good.

[55]We accordingly allow the appeal against the finding of “breach (d)”. It is doubtful whether this has any practical consequences. When it came to the remedy hearing (see below) the Appellant did not advance any case that he had suffered a loss as a result of the Trust’s failure, as the Tribunal had found, to encourage and facilitate an application for ill-health retirement. That may reflect the fact that it was undisputed that the option of making an application for ill-health retirement was discussed with the Claimant at the meeting on 23 November and expressly referred to in the dismissal letter but that he took no steps to pursue it. That might not be relevant to the issue of liability, but it might have made it difficult for the Claimant to advance a case that as a result of the Trust’s breach he had lost an opportunity to take ill-health retirement. Disability-Related Discrimination (Ground 5)

[56]Ground 5 reads as follows: In finding that the Respondent treated the Claimant less favourably for a reason related to his disability because it would not have dismissed a hypothetical comparator in the circumstances at paragraph 71 the Tribunal erred: -(i) in comparing the treatment of a non-disabled person in similar circumstances to the Claimant failed to use an actual comparator; the evidence of Ms. Holroyd was that the custom and practice was to dismiss employees (including non-disabled employees) following the exhaustion of sick pay; (Mayor and Burgess of the London Borough of Lewisham v Malcolm

(2008) UKHL 43

);

(ii) in so far there was a need for the Tribunal to use a hypothetical comparator, this should have been based on the uncontested evidence of the practice adopted by the Respondent given by Ms Holroyd.

[57]That pleading is somewhat opaque, but the reference to the decision of the House of Lords in Malcolm

[2008] IRLR 700

reveals the essential point. The House there held that it is necessary for the purpose of a claim under section 24 of the 1995 Act, which is in substantially similar terms to section 3A (1), to compare the treatment of the claimant to that which was or would have been received by a person whose circumstances were identical but who was not disabled. The effect of Malcolm is to render the scope of section 3A (1) for all practical purposes no wider than that of section 3A (5), since a finding that the employer would have treated more favourably a comparator whose only difference from the Claimant was that he was not disabled is necessarily a finding of direct discrimination. It has now been authoritatively confirmed that the ratio of Malcolm applies equally to section 3A (1): see Stockton-on-Tees Borough Council v Aylott

[2010] ICR 1278

[58]In the present case there is simply no basis for a finding that the Trust would have treated any differently an employee with the same absence record and employment history as the Claimant but who was not disabled – or, to put the same thing another way, that he was dismissed on the ground of his disability. The evidence of Ms Holroyd, as shown in the Trust’s notes, was that she dismissed the Claimant because “(1) [of] the length of absence, (2) the Claimant did not give a return to work date and (3) I had to run a department.” When questioned by the Judge she said that he was dismissed because he “was out of pay and couldn’t give a return to work date”. The Judge elicited answers from her that she had not obtained advice from the HR department about how long other people were off sick before the decision to dismiss was taken. (The Claimant was not in a position to agree that that was an accurate record of the evidence; but he was in no position to dispute it, and it is consistent with, although rather fuller than, the explanation attributed to Ms Holroyd in the Reasons.) There is nothing in the least surprising in that evidence; on the contrary, it is exactly what one would expect. There is certainly nothing in it suggesting that Ms Holroyd was influenced, consciously or unconsciously, by the fact that the Claimant was disabled or, therefore, that she would or might have treated a non-disabled person differently; indeed the Tribunal records her (at para. 15.63) as saying that she did not perceive the Claimant as being disabled, and it appears to have accepted that evidence.

[59]Notwithstanding the foregoing, the Tribunal was prepared at para. 71 of the Reasons to make what was in practice (although it may not have appreciated it) a finding of direct discrimination by applying the “reverse burden of proof” provision in section 17A (1) (c) of the 1995 Act. Even if such a case had been raised, that finding cannot be sustained. The only stated basis for it is the (related) facts that there is no reference in the Attendance Management Policy to exhaustion of sick pay as a factor triggering dismissal and that no evidence had been adduced about the circumstances in which other employees were dismissed after long-term absence. Neither factor is capable of raising a prima facie case of discrimination in the sense established in Madarassy v Nomura International plc

[2007] ICR 963

); nor, to put it more generally, would either justify an inference of a discriminatory motivation on the part of Ms Holroyd. In fact, we strongly suspect from the Tribunal’s language that it failed to appreciate that a finding of direct discrimination is, in a case of this kind, necessarily a finding about what Lord Nicholls in Nagarajan v London Regional Transport

[1999] ICR 877

, at p. 884F, called the “mental processes” of the decision-taker.

[60]In our view, therefore, the finding of disability-related discrimination cannot stand. That does not of course affect the finding of discrimination by reference to section 3A (2). GROUND 6

[61]We need not set out ground 6 in full. In summary, the Trust contends that the Tribunal ought not to have preferred the Claimant’s evidence to that of its own witnesses because of the history of mental ill health revealed by Dr Longson’s report. It is not in fact clear to us which of the dispositive issues depended on the Tribunal preferring the Claimant’s evidence on questions of primary fact; but the point is in any event hopeless. The question of the relative credibility of witnesses is quintessentially a question of fact. The Tribunal did in fact expressly consider the extent to which the reliability of the Claimant’s evidence was impugned by his illness and gave reasons for treating his account as broadly reliable: see paras. 41-43 of the Reasons. GROUND 7

[62]What remains of this ground following the sift consists of particular challenges to specific findings of fact made by the Tribunal on the basis that the findings in question were perverse, together with one sub-paragraph - (i) - which merely repeats ground 6. We have referred to one or two of those challenges at the point in our outline of the facts to which they relate; but the great majority of them relate to findings of no real significance and which certainly have no bearing on the basis on which the Tribunal decided the issues before it. In those circumstances we see no advantage in lengthening an already over-long judgment by going through each of them in turn. We would only say that none of the findings in question could be demonstrated from the notes to be clearly wrong, and the entire exercise seemed to us to betray a misunderstanding of the scope of review in this Tribunal. CONCLUSION ON LIABILITY

[63]We allow the appeal against the finding of disability-related discrimination and against the finding of failure to make a reasonable adjustment in relation to ill-health retirement. We dismiss the appeals against the findings of unfair dismissal and, save in that particular respect, discrimination by failure to make reasonable adjustments.

[64]We would conclude by saying this. Employees with mental health conditions of the kind suffered by the Claimant can pose difficult management problems for employers. The question of what steps may be reasonable in order to adjust to their needs is a sensitive one, in which proper regard must be had to the interests of both parties, and tribunals should not set unreasonable standards. We are, as we have already said, not all convinced that we would have reached the same decision as the Tribunal, but we must respect the assessment made by the Employment Tribunal as the primary fact-finder; and none of the grounds advanced in the Notice of Appeal seems to us to demonstrate any error of law on its part. THE REMEDY APPEAL THE INTERLOCUTORY HISTORY

[65]The Judgment on liability, which was, as we have said, sent to the parties on 10 June 2009, fixed a remedy hearing for 1 July. We are bound to say that we find that rather surprising: we are all for expedition, but it must have been evident that significant preparation was likely to be necessary to deal with the remedy issues. The Trust applied for a postponement. The Claimant indicated that he would not object, and he understood that in those circumstances the hearing would not proceed and accordingly did not turn up. In fact, the Tribunal refused the postponement, but on the Claimant’s non-attendance it treated the hearing as a case management discussion (though inevitably the “discussion” was somewhat one-sided).

[66]Although no definitive Schedule of Loss had been served, it was known that the Claimant was intending to claim loss of earnings and pension loss on the basis that but for his treatment by the Trust he would have been able to return to work and to have remained in employment indefinitely. The Trust did not accept that that was the case. In those circumstances the order sent to the parties on 14 July was in the following terms: The parties shall agree a latter of instruction to Dr. Damien Longson, Psychiatrist, by the 31 July 2009. Any report from Dr. Longson should include up-to-date evidence on the claimant’s current state of health and fitness for work and an opinion on the cause of the claimant’s disability in view of the findings made by the Tribunal in its judgment on liability in this case. (Dr. Longson was of course the psychiatrist who had provided the report on the disability issue referred to at paras. 24-27 above.) We were told that the making of an order in those precise terms had not been adumbrated in the course of the discussion; but the making of some such order was plainly sensible in view of the dispute to which we have referred.

[67]On 21 July the Claimant wrote to the Tribunal about the terms of the order made at the CMD. In relation to order 6 he said: At point 6 it is requested that parties shall agree a letter of instruction to Dr. Damien Longson and any report by him should include up to date evidence on the claimant’s current state of health and fitness for work. I can understand the need for me to be assessed by Dr. Longson in this respect with regard to remedy. However that it should contain his opinion on the cause of the claimant’s disability in view of the findings made by the Tribunal in its judgment on liability on this case [ sic ]. I wonder if you could expand on the relevance of obtaining this information and its significance with regards to the remedy. The letter does not spell the nature of the Claimant’s concern. However, in a witness statement lodged for the purpose of this appeal he says – at least as we understand it – that he believed that the Tribunal’s findings on liability conclusively established that the Trust’s conduct had “exacerbated my ill health”; and he did not see why that issue needed to be revisited. We consider below whether that approach was correct.

[68]On the same day the Trust’s solicitors wrote as follows: We refer to the above matter and to the Case Management Order made on 1 st July 2009 by Employment Judge O’Hara. Under paragraph (6) of the Order, the parties are required to agree a letter of instruction to Dr. Damien Longson, Psychiatrist , by 31 st July 2009. It is Ordered that any report from Dr Longson should include up-to-date evidence on the Claimant’s current state of health and fitness for work and “an Opinion on the cause of the Claimant’s disability in view of the findings made by the Tribunal in its judgment on liability in this case”. With respect, the Respondent submits that the medical evidence of Dr. Longson should be independent. His opinion as to the cause of the Claimant’s disability is a matter for his medical opinion and should not be adopted from the Employment Tribunal’s findings. In those circumstances we would ask that the Case Management Order be amended accordingly to exclude in paragraph (6) the words “in view of the findings made by the Tribunal in its judgment on liability in this case”. (We note in passing that that was not a good point. The purpose of the Tribunal’s formulation was evidently to ensure that Dr. Longson’s report was based on the primary facts as it had found them to be. That was legitimate, and indeed necessary, and in no way compromised the independence on the issues on which his opinion was sought. But nothing turns on this for present purposes.)

[69]By letter dated 30 July the Claimant, while drawing attention to the query raised by his earlier letter, made it clear that he believed that any order made should indeed require Dr Longson to have regard to the Tribunal’s findings in the liability judgment.

[70]In response to that correspondence (and to some other points made) Judge O’Hara wrote to the parties on 22 August varying the earlier order. Inter alia she directed that “paragraph 6 is amended by deleting the reference to the opinion of Dr Longson as to the cause of the claimant’s disability”. The upshot was that the only matter on which Dr. Longson’s opinion was specifically to be sought was “the claimant’s current state of health and fitness for work”. Quite why Judge O’Hara made this change is unclear. It did not correspond to the change sought by the Trust. As for the Claimant, he had asked for clarification of the purpose of the “causation question”; but he had not explicitly sought its deletion, and on the face of it the issue was one on which the Tribunal was likely to need expert assistance.

[71]It remained to agree the terms of the letter of instruction to Dr. Longson. The Claimant instructed solicitors to handle this aspect. A letter of instruction in agreed terms was duly sent on 26 August 2009. It asked nothing about the cause of the Claimant’s symptoms. Indeed in the witness statement to which we have referred to the Claimant says that he and his solicitor deliberately decided not to include such a question.

[72]Dr. Longson saw the Claimant on 17 September 2009. He produced a report shortly afterwards (though, confusingly, it is undated; it refers to his having seen the Claimant on 17 September 200 8 ; and it bears the running header “17 April 2008”). It was, in accordance with the instructions received, limited to consideration of the Claimant’s present condition and prognosis. Dr. Longson’s diagnosis was that he was suffering symptoms of depression and anxiety which were residual from his previous episode of severe mental illness; but he observed that such symptoms can be intractable. The Claimant’s depression was characterised as being “of moderate severity”. He was cautious about the prospects of future employment, commenting that the Claimant “has now been ill for a number of years”.

[73]On 13 October 2009 the Trust’s Solicitors wrote to Dr. Longson asking a number of questions on his report, as follows:(1) Can you confirm that Mr. Mylott (the Claimant) has consistently suffered from psychiatric illness since 1993?

(2) On the balance of probabilities, was the Claimant’s psychiatric condition affected by his illicit drug-taking?

(3) If so, what ways has the Claimant’s illicit drug-taking affected his psychiatric condition?

(4) How, if at all, has the Claimant’s illicit drug-taking affected the prognosis for his medical/psychiatric condition?

(5) On the balance of probabilities, has the Claimant’s inability to return to his previous employment as an accountant been as a result of his deterioration in psychiatric condition?

(6) In the absence of the Claimant’s perceived treatment by the Respondent of himself, is it likely on the balance of probabilities that the deterioration of the Claimant’s psychiatric condition would have led to the Claimant being unable to undertake his role as an accountant?

(7) If so, when on the balance of probabilities would that have occurred bearing in mind the Claimant’s psychiatric history?

[74]By letter dated 16 November 2009 the Claimant’s solicitors objected to the raising of those further questions on the basis that they were designed “to introduce ‘cause’ by the back door” and were thus contrary to the Judge’s order of 22 August (see para 70 above). In a further letter dated 23 November they moderated their position a little. They made it clear that their primary position was that the questions proposed by the Trust should not be asked; but they said that if the Tribunal took a different view they would not object (subject to certain safeguards). They proposed a further case management discussion.

[75]A case management discussion took place on 4 December 2009. We have the Judge’s “minute” accompanying the order eventually made; and we also have a very short account of the CMD in the witness statement from the Appellant to which we have referred. It is impossible to reconstruct the exact course which the hearing took. But the Appellant makes clear that he and his solicitors were still opposing what he understood to be the re-opening of an issue already decided. And it is clear from the Judge’s minute that the question was eventually resolved by the Trust’s solicitor deciding no longer to press for further evidence from Dr. Longson. In those circumstances the Judge formally directed that there be “no order for further medical evidence”. Directions were given for a Schedule of Loss and Counter-Schedule.

[76]The Claimant’s Schedule of Loss states that: The claimant is currently not working and is claiming Incapacity Benefit and Disability Living Allowance. The Claimant is still certified by his GP as unfit to work and on anti-depressant medication (Escitalopram and Clonazepam) and is therefore unable to seek alternative employment at the moment. The Claimant will say that but for the Respondent’s treatment of him he would have continued to work for the Respondent for the foreseeable future. The summary is as follows: DDA claim loss of salary to date of hearing £53,198.25 DDA claim future losses £64,556,83 Aggravated damages £TBA Unfair dismissal claim £4,280.00 Pension Loss £123,942.87 TOTAL CLAIM £245,987 .95 We need not at this stage set out the terms of the Trust’s Counter-Schedule, save to note that in relation to the claim for loss of earnings it pleads that “the Claimant would not have been able to work in any event by reason of his ill health induced by drug-taking”.

[77]At the hearing the Tribunal had, in addition to Dr. Longson’s two reports, witness statements from the Claimant and from the Trust’s Head of Human Resources, both of whom gave evidence. THE TRIBUNAL’S REASONS

[78]Paras. 1-6 of the Reasons are introductory. Para. 7 sets out the Tribunal’s findings of fact. At para. 7.7 it found as follows: The Tribunal also finds that the evidence does not support the conclusion that, had the respondent not failed to make reasonable adjustments as the tribunal found in its judgment on liability, the claimant would not have become incapacitated. On the evidence from Dr. Longson, this conclusion is not supported. The claimant was suffering from mental illness prior to the events in this case and Dr. Longson believes that this was an episode of severe mental illness which can happen to people at the age the claimant was when it began. Whilst the treatment which he received from the respondent may have exacerbated the symptoms. The evidence here does not support the conclusion that it caused the illness. The extent to which they may have exacerbated the symptoms is not sufficiently certain from the evidence and the Tribunal is therefore unable to find that the claimant has suffered a loss of earnings or pension by reason of an act or acts of the respondent. At para. 7.9 it said: The claimant had fragile health during the period when the Attendance Management Policy was being applied from early 2006 until November when he was told that the respondent had decided to dismiss him. The claimant had worked for the respondent from the age of 23. He had hoped and intended that he would devote his career to this employment. The claimant was a person who needed structure and order in his life. According to his witness statement:

‘I do not respond well to unforeseeable and uncontrollable circumstances which affect my routine. This can lead to a whole host of problems including a rapid decline of my sense of security and an acute loss of confidence. This in turn can cause severe anxiety and a relentless quest/obsession to understand when is happening so I can overcome and regain some kind of order and structure to my routine and restore the stability back into my life.’

After setting out the law, in terms which we need not consider, it gave its conclusions at para. 15-20 as follows: 15. The first issue considered by the Tribunal was whether the acts found to be unlawful had caused the claimant's incapacity for work. This was the claim made by him. The Tribunal would clearly need to have medical evidence to uphold a claim of this nature. Whilst the fact that the claimant has been medically examined and found to be unfit for work by the Department of Work and Pensions is relevant, it is not conclusive on this issue. The Tribunal are aware of the decision of the EAT in Sheffield Forgemasters International Limited v Fox

2009 IRLR 192

. This decision is authority for the proposition that a person in receipt of incapacity benefit (now known as employment and support allowance) is not necessarily incapable of work. Further, receipt of the benefit does not preclude a claimant from obtaining compensation for loss of wages for the same period. Although in written submissions Ms Wedderspoon sought to distinguish the decision, the Tribunal find that the relevant principle applies in this case. The consequence is that receipt of incapacity benefit is not conclusive of the fact of capacity for work. However the issue being determined here is not incapacity but its cause. 16. The evidence of Dr Longson, did not go as far as to say that the respondent had caused the claimant’s incapacity. The claimant clearly considers that the treatment which he received had made him ill however the Tribunal could not reach a finding on this claim without medical evidence. As stated above, the highest that this could be put on the basis of the two reports from Dr Longson is that the treatment in general which he received might have exacerbated his pre existing condition. This is simply not sufficient, to go, on and find that, the respondent is responsible for the loss of wages and pension. As stated above, the evidence on the extent and fact of the exacerbation is not sufficiently certain to conclude that the incapacity was made worse to any tangible degree. In these circumstances, the Tribunal did not make an award of compensation for these losses. 17. The Tribunal does not have jurisdiction to make an award of damages for personal injury. The Tribunal did consider the loss for unfair dismissal. The amount of the basic award was not disputed. The key item under the compensation head was loss of wages. See above. The Tribunal considered that it was appropriate to award £380 for loss of the right not to be unfairly dismissed and statutory notice rights. This is the maximum amount of a week's pay for the purposes of section 227 of the 1996 Act. 18. Turning to the award for injury to feelings. Considering the Vento bands the Tribunal found that this was a case which came at the higher end of the middle band. The effect of what happened on the claimant was evident from both his evidence and the two reports from Dr Longson. The nature and extent of the symptoms from which he suffered are described in both and referred to above. The Tribunal considered that the events had a significant impact of the claimant . Even though it was not possible for the purposes of an award of loss of wages and pension to find with sufficient certainty that the unlawful acts had caused the incapacity for work, the Tribunal was able to conclude that the claimant had suffered significant injury to feelings and that this was more than might be compensated by an award in the lower band. 'The claimant made two attempts at suicide in 2005. His symptoms were worse during the time that he was working in 2005 and have improved since he was dismissed and since the grievance and disciplinary processes have been completed. The Tribunal also considered that the fact of his loss of trust in the respondents was relevant to its decision on this part of the award. Finally, the Tribunal took account of the feelings of uncertainty about the workplace and job security which the claimant suffered during and after his employment. 19. So far as aggravated damages were concerned the Tribunal found that the actions of Ms. Holroyd were certainly high handed and malicious. The acts and omissions of her colleagues were not considered to be within the category which might attract an award under this heading. However Ms Holroyd seemed to be driven in her pursuit of the claimant to his dismissal such that, for example, she rejected his request that ill health retirement be considered and never really applied the Attendance Management Policy except to achieve the outcome of dismissal. Her involvement in the investigation was inappropriate even on her own evidence. The Tribunal therefore considered that an award of £6,000 under this head was fair. 20. For these reasons the Tribunal makes the award of £26,410.

[79]We should make two points by way of clarification of that reasoning, particularly as it relates to the claim for pecuniary loss.(1) The Tribunal appears to consider the claim for loss of earnings specifically, and apparently only, in the context of the claim under the 1995 Act. In this it seems to have been following how the Claimant formulated it in his Schedule of Loss: see para. 75 above. On the face of it, the same claim could have been made way of compensation for unfair dismissal; but presumably the Claimant preferred to put it in the way that he did in order to avoid the impact of the statutory cap.

(2) Ms. Ling submitted that the first sentence of para. 17 was plainly wrong: although the Tribunal had no jurisdiction to make an award of damages for personal injury as such (or as an alleged consequence of unfair dismissal) it did have jurisdiction to do so as a consequence of disability discrimination. That is correct, but the error appears to have had no impact on the Tribunal’s actual reasoning. It is true that the Claimant had, in the context of his claim for pecuniary loss, claimed that his treatment by the Trust had materially exacerbated his mental illness, and the logical corollary of that claim is that he had suffered personal injury. But he had made no claim under that head, and it is very doubtful whether it would have been right for the Tribunal, even having regard to the fact that he was acting in person (though not without advice), to treat him as having made one. In any event it is not a ground of appeal that no award was made for personal injury. (In this connection it is worth noting that there is a recognised overlap between an award for psychiatric injury and an award for injury to feelings (see HM Prison Service v Salmon

[2001] IRLR 425

), so that in a “low-level” case adequate compensation can be obtained even where the claim is not expressed as being for personal injury.) THE CLAIMANT’S APPEAL

[80]The Claimant appeals against the Tribunal’s refusal to make any award for pecuniary loss (i.e. either loss of earnings or pension loss). There are four grounds of appeal, which we consider in turn. Ground 1

[81]The Claimant’s essential point under this head derives from the interlocutory history which we have set out above. His complaint is that it was unfair for the Tribunal to reject his claim on the basis that there was no sufficient evidence that the acts complained of had caused, or at least exacerbated, his disabling condition when it had itself directed that no such evidence be adduced.

[82]At first sight that argument seems to have some force. But it is necessary to look carefully at exactly what happened. The Claimant might perhaps have cause to complain about the Tribunal’s initial decision to remove the issue of causation from the matters on which Dr. Longson was to be asked to report (see para. 74 above): it is true that he himself had queried the relevance of the issue, but he had not gone so far as to seek its removal. But the story did not end there. The causation issue re-emerged in October 2009, on the initiative of the Trust’s solicitors, and it was the Claimant’s solicitors who specifically objected to Dr. Longson being asked about it. Although it seems from his solicitors’ letter of 23 November 2009 that the Claimant hoped for some guidance from the Judge at the CMD on 1 December we can see no evidence that she was asked to, or did, rule on what evidence was necessary in order to prove his case – which in any event was ultimately not her responsibility. The Claimant continued to oppose the asking of questions about “causation” and the Trust eventually withdrew its proposed questions. In those circumstances it does not seem to us that the Tribunal can fairly be blamed for proceeding at the remedy hearing on the basis of the evidence which it was given.

[83]The underlying reason why there was no evidence before the Tribunal as to the cause of the Claimant’s incapacity for work at the time of his dismissal and subsequently was his belief that the facts on which he needed to rely for the purpose of the remedy hearing had been definitively determined by the liability judgment. That belief was in our view wrong. The Tribunal’s rejection of the Trust’s case under section 98A (2) of the 1996 Act, and its (implicit) findings under section 18B (1) (a) of the 1995 Act, could not be determinative of the issues which it had to resolve for the purpose of the remedy hearing. In order to assess whether the Claimant had suffered any loss of earnings as a result of the Trust’s failure to make the adjustments in question, and if so in what amount, the Tribunal had to form a view, based on evidence, as to the chance that but for those failures the Claimant would have recovered sufficiently to return to work, and indeed have remained fit for work on an indefinite basis thereafter. That was not an exercise which it had had to undertake, or had undertaken, for the purpose of its liability decision. All that had been necessary for the purpose of section 18B (1) (a) was that the Tribunal should be of the view that the adjustments in questions might ameliorate the effect of his disability (we do not of course say that that would itself mean that the adjustments were required, but it represents the irreducible minimum that had to be proved). The Tribunal went no further than that: there is indeed no express finding on the point at all, but its thinking is ascertainable from what it found in relation to section 98A (2). As regards that section, its reasoning amounts to no more than that the Trust had not proved its case – on which it of course bore the burden of proof. At para. 58 of the Reasons (para. 30 (5)) above, it says simply that to consider whether – in effect – the Claimant would have recovered his health sufficiently to be able to return to work if he had been fairly treated was “too speculative”. It should have been apparent to the Claimant and those advising him that such a finding could not possibly be a sufficient basis for a compensation claim based on the contention – on which he bore the burden of proof – that he would, or at least might, have been able to return to work but for the discrimination complained of. Expert evidence supporting that contention was essential; but it was he who kept such evidence out.

[84]We should observe at this point that the reasoning in the previous paragraph also disposes of the concern, which contributed to our decision to defer a decision on the liability issue until we had considered remedy, that there was an inherent inconsistency between the two decisions. Ms. Ling had in fact in the course of the hearing of the liability appeal insisted that, having regard in particular to the difference in the burden of proof, the Tribunal’s finding on the section 98A (2) issue was not inconsistent with its subsequent decision to make no award for loss of earnings. We accept that she was right.

[85]It will be a matter for regret if the Claimant is left with the feeling that he never got the chance to put his case on remedy as a result of a misunderstanding about the effect of what the Tribunal had already decided in its liability judgment, and that he should in justice have been given the chance to correct the results of that misunderstanding. But that regret must be tempered by three considerations. First, the misunderstanding was not the responsibility of the Tribunal or the Trust: indeed it was the Trust which consistently sought a direction for expert evidence on the causation issue. Secondly, and relatedly, it is not only the interests of the Claimant that have to be considered. It would have been very unfair to the Trust if the remedy hearing had had to be adjourned – and a fortiori if the present appeal were to be allowed – in order to allow the Claimant to adduce evidence of a kind whose introduction he had resisted in the interlocutory stages. Thirdly, there must be a real doubt how far further evidence from Dr. Longson would have helped the Claimant. While of course we do not know what he would have said on the issue of causation, it is clear from the contents of both his existing reports that the Claimant suffered from a serious mental illness which was originally nothing to do with the Trust; and it must be, to put it no higher, strongly arguable that this would have affected his employment with the Trust irrespective of the particular, and limited, breaches established in these proceedings. It must be very debatable whether the omitted adjustments would have made a substantial difference to his recovery, given that the substantive problems which led to him going off sick in the first place – that is, his falling-out with Mr. Fogarty and, perhaps, his treatment on 25 January – were not matters for which the Tribunal on the basis of its findings could award compensation. It seems to us likely that, whatever Dr. Longson’s precise evidence, any award for future loss of earnings would have had to be substantially discounted; and the discount might well have been very large indeed.

[86]We should also say that we were told by Ms. Wedderspoon that evidence had been called at the remedy hearing to the effect that it remained open to the Claimant, notwithstanding his dismissal, to apply for an ill-health retirement pension, which would substantially mitigate, if not entirely extinguish, the loss for which he claims. That evidence is not referred to in the Reasons: presumably the Tribunal thought it was unnecessary to address it in view of its rejection of the claim on other grounds. If we had found that rejection to be flawed it might have been necessary, though we heard no argument on the point, to remit the claim for consideration of whether the Claimant had failed to mitigate his loss. If this option remains open to him we would encourage the Claimant to consider it. Grounds 2 and 3

[87]The substance of these grounds is that the Tribunal was wrong to say at para. 7.7 of the Reasons, and to imply at para. 16, that there was no medical evidence supporting his claim that he would have recovered if a fair process had been followed: it is said that that overlooks the letters/reports from OHD referred to at paras. 11, 12 and 18 above. But in our view the Tribunal was entirely justified in regarding that material as affording no relevant assistance. To say, which is all that those reports do say, that the Claimant was unlikely to recover until his grievance was resolved is not the same as to say that he would recover if it were resolved. Ground 4

[88]Under this head the Claimant contends that the Tribunal was wrong to take the view that his claim for loss of earnings could not succeed without the support of medical evidence. We do not agree. The issues involved were of such a character that it was entitled to proceed on the basis that the claim could not reliably be allowed, even on a loss of a chance basis, without expert evidence addressing the question of the impact on the Claimant’s condition of the (limited and specific) breaches which he had established. Conclusion

[89]We accordingly dismiss the Claimant’s appeal. THE CROSS-APPEAL

[90]The cross-appeal challenges(1) the quantum of the award for injury to feelings and

(2) the award of aggravated damages. (1) Injury to Feelings

[91]Three grounds of appeal are pleaded in the Respondent’s Answer; but the first was abandoned by Ms. Wedderspoon in her skeleton argument.

[92]The first of the two surviving grounds of appeal is that the Tribunal erred in law: … in taking into account at paragraph 18 of the Judgment the fact that the Claimant made two attempts at suicide in 2005; his symptoms were worse during the time he was working in 2005; improved since he was dismissed and since the grievance and disciplinary processes were completed the Tribunal erred because there was no evidence that the Trust had caused or contributed to his ill health at work or that these matters related to any discriminatory treatment. That made a general and a specific point. We take them in turn.

[93]The general point is that there was no evidence that the discriminatory acts found caused or contributed to the Claimant’s ill-health at work. We start by observing that the Claimant’s case under this head did not depend on his establishing that he had been caused any ill-health as such. The claim was for injury to feelings. In our view there was ample evidence before the Tribunal to support the conclusion that he suffered considerable distress and upset from the way in which his grievance was handled, including by the acts and omissions which the Tribunal found to constitute breaches of the Trust’s duty under section 4A of the 1995 Act. That was the Claimant’s own evidence, and the Tribunal was entitled to accept it.

[94]The specific point is that the Tribunal referred to suicide attempts made by the Claimant in 2005, which of course pre-dates any of the acts in respect of which it found liability. This has troubled us. Plainly if the Tribunal was taking those attempts into account as evidence of the impact of the Trust’s unlawful behaviour it was wrong to do so. But it is hard to believe that it made so elementary an error. The reference to the Claimant’s suicide attempts immediately precedes a sentence in which the Tribunal is making a point about the difference in his condition when he was at work (that is, up to early February 2006) and his condition thereafter. We have some difficulty in understanding what that point is; but the Trust did not seek to challenge it as such, and what matters for present purposes is that the Tribunal seems to have been referring to the position in 2005 in order to make a point about the later period rather than simply conflating the two periods. Not without hesitation, we are prepared to regard this as an example of unclear expression on the part of the Tribunal (of which, we have to say, there are several in both sets of Reasons) rather than of substantive error.

[95]The second ground of appeal is that the Tribunal … erred in making a manifestly excessive award in the circumstances that(i) the Appellant’s real complaint was that he had been dismissed; such a one off act should fall into the lowest band of awards (Vento v Chief Constable of West Yorkshire Police

2002 EWCA Civ 1871

);

(ii) took account of factors which did not result (on the evidence) from any discriminatory treatment such as his suicide attempts; ill health at work; loss of trust in his employer; uncertainty about the workplace and job security

[96]As to point (i), we do not think it is correct to say that the Claimant’s “real” complaint was that he had been dismissed, at least if that means that that was his only complaint. As we understand it, what the Claimant was primarily complaining of, and what the Tribunal found, was that the grievance process had been mishandled over many months in a way which involved breaches of the Trust’s duty under section 4A of the 1995 Act. It is true that, on his case, a consequence of that mishandling was that he failed to recover his health and was eventually dismissed as a result; but that is not the totality of the complaint. This was not therefore a case of compensation for a “one-off event”. We would, however, add that we do not accept that injury to feelings caused by a discriminatory dismissal would always fall within “ Vento band 1” simply because it was “one-off”.

[97]As to point (ii), we have already dealt with the question of the Claimant’s suicide attempts, and our observations at para. 94 cover also the reference to “ill-health at work”. As regards “loss of trust in his employer” and “uncertainty about the workplace and job security”, we can see nothing wrong in the Tribunal referring to these as components in the injury to feelings which the Claimant suffered.

[98]We accordingly dismiss the appeal against the award of £16,000 for injury to feelings. We would not want it thought that we regard the Tribunal’s expression of its reasoning in the relevant paragraphs as a model of clarity. Nor are we ourselves convinced that we would have awarded so high a figure. But it was the Tribunal which heard the relevant evidence, and we are in any event concerned only with the grounds of appeal pleaded.

[99]We would add that we have considered whether the award requires to be reconsidered in the light of our dismissal of the claim based on section 3A(1) of the 1995 Act. We do not believe that it does. In so far as the Tribunal may in assessing injury to feelings have taken into account matters which it regarded as the consequence of disability-related discrimination, the same matters would in any event come into account under section 3A (2).

(2) Aggravated Damages

[100]The Tribunal’s finding at para. 19 that Ms. Holroyd’s conduct towards the Appellant was “high-handed and malicious” is very briefly reasoned and short on particulars. Only two specific matters are mentioned. We take them in turn.

[101]The first is what is referred to as Ms. Holroyd’s “reject[ion] of [the Claimant’s] request that ill-health retirement be considered”. This is a reference to the meeting of 23 November 2006: see para. 21 above. We do not see how the fact that Ms. Holroyd told the Claimant, as was the case, that any application for ill-health retirement would have to be pursued by him with HR (a point which she reiterated in her dismissal letter) was either high-handed or malicious.

[102]The second matter referred to by the Tribunal is Ms. Holroyd’s involvement in the investigation of the claimant’s grievance: see para. 15 above. It was common ground that that was inappropriate, but again we do not see that, without more, it was necessarily either high-handed or malicious. As Ms. Wedderspoon pointed out in her skeleton argument, there was no finding that she sought the role in question: the criticism of her at para. 54 of the liability Reasons is that she did not decline the invitation to be involved.

[103]We are conscious that the Tribunal was entitled to consider Ms. Holroyd’s conduct as a whole and cumulatively; and thus that to hold, as we do, that the individual instances cited do not by themselves support its conclusion may not be a complete answer. But the fact remains that a finding of malice against a manager is a serious finding, which is not to be made lightly and which must be fully supported if made. We have read through the liability Reasons again, and while the Tribunal’s findings about individual episodes may justify the conclusion that Ms. Holroyd was on occasion brusque and insensitive – or indeed the conclusion at para. 19 that she saw the Claimant’s dismissals as the only possible outcome of the attendance management procedure (though we are less sure that that was conclusively established) – we cannot see that individually or cumulatively they justify the conclusion reached.

[104]We should mention also that at para. 7.10 of the Reasons the Tribunal says that it has made in its liability Reasons findings of fact relevant for the purposes of the claim for aggravated damages and in that context refers not only to paras. 51 and 54 but also to its findings on the credibility of the witnesses. But so far as Ms. Holroyd is concerned those findings say only that she had a “dismissive” manner in giving evidence and that her answers were sometimes evasive. Those observations cannot support a finding of aggravated damages. CONCLUSION ON REMEDY

[105]The Claimant’s appeal is dismissed. The Trust’s cross-appeal is allowed only to the extent that the award of aggravated damages is quashed and the Claimant’s compensation reduced accordingly to £16,000.

Tameside Hospital NHS Foundation Trust v Mylott (Rev 1) (Unfair Dismissal: S.98A(2) ERA) [2010] UKEAT 0399_10_1304

Cited in 2 later judgments