Royal Bank Of Scotland Plc v Morris (Race Discrimination : Direct) [2011] UKEAT 0436_10_1910

EAT
Royal Bank Of Scotland Plc v Morris (Race Discrimination : Direct)
[2011] UKEAT 0436_10_1910 · 2012-03-12
[1]The Claimant in these proceedings, the Respondent before us, is a software engineer. He is of Afro-Caribbean ethnic origin. He was first employed by National Westminster Bank Plc in November 1998 and became an employee of the Appellant (“RBS”) when it took over the National Westminster Bank in December 2001. On 2 September 2007 he resigned. On 1 October 2007 he presented a claim in the Employment Tribunal complaining of racial discrimination. On 27 February 2008 he presented a further claim alleging unfair (constructive) dismissal: that claim had been adumbrated in the first proceedings but was held up pending completion of the statutory grievance procedures. In the second proceedings he also made a claim of disability discrimination: he subsequently clarified that the disability complained of was “clinical depression”. He also made claims for arrears of wages and holiday pay. The cases were ordered to be case-managed and heard together, and there were a number of case management discussions.[2]The claims were heard at Stratford, and subsequently at the East London Hearing Centre, before a Tribunal chaired by Employment Judge Gilbert. The hearing lasted 19 days in three tranches between 7 September and 23 November 2009. The Tribunal’s Judgment and Reasons were not promulgated until 8 June 2010, i.e. over six months after the conclusion of the hearing. That was a very long delay. Ordinarily, employment tribunals should promulgate their decisions, and reasons, within three and a half months (see Kwamin v Abbey National Plc [2004] ICR 841 ). The workload of employment judges is very heavy and occasionally there are cases where, for some particular reason, a judgment cannot be promulgated within that timescale. But where, as here, the limit is exceeded by a very substantial margin, that should be expressly acknowledged and, so far as possible, explained. There is no such explanation in the Reasons in this case; nor, we understand, has any been volunteered to the parties in separate correspondence. We suspect that the principal reason for the delay is the extraordinary degree of detail in which the Tribunal made its findings. The Reasons are 161 pages long and run to 327 paragraphs (though the total length is slightly inflated by the Tribunal’s practice of repeating verbatim in the Conclusions section of the Reasons lengthy passages from the narrative findings). We note that the Tribunal met in chambers to consider the case on no fewer than twelve occasions following the end of the hearing. We would never wish to criticise a tribunal for conscientiousness, and we are impressed by the care and thought this Tribunal evidently put into its task; but we have to say that fact-finding at this level of detail was a self-imposed burden which we do not believe was necessary.[3]The Tribunal found that RBS had discriminated against the Claimant contrary to both the Race Relations Act 1976 and the Disability Discrimination Act 1995 : we give the details below. It also found that he had been constructively dismissed and that that dismissal was unfair. On the basis that some at least of the conduct which it had held entitled the Claimant to resign was racially discriminatory, the Tribunal held (see para. 325 of the Reasons) that “his dismissal was … itself race discrimination”. It also found for the Claimant on the holiday pay claim.[4]RBS appeals against the decisions that it unlawfully discriminated against the Claimant. It does not challenge the finding of unfair dismissal, although it challenges the conclusion that the dismissal itself constituted racial discrimination. The Claimant in his Answer has raised what is described as a “conditional cross appeal”, but it is not a cross appeal in the strict sense. Before us RBS has been represented by David Reade QC, leading Mr Martin Palmer (who appeared in the Tribunal). The Claimant appears in person, as he also did below: he is articulate and intelligent and he made his submissions well.[5]We are conscious, particularly in the light of our strictures on the delay in the Tribunal, that this judgment has itself been too long delayed. We regret this. The delay is principally the result of the very heavy workload in this Tribunal; but it reflects also the somewhat intractable nature of the Reasons. THE FACTS IN OUTLINE[6]The facts are set out by the Tribunal in, as we have said, enormous detail. For present purposes we need only give a bare summary.[7]We need not say anything about the early years of the Claimant’s employment. He is clearly a talented software engineer. In late 2003 or early 2004 he moved to a team where he was managed by Linda Rae. They did not get on. The Tribunal in its Reasons devotes many pages of its narrative to this period, but we are bound to say that we do not understand its relevance. In November 2004 he moved to a different team where he was managed by Brian Tighe, with whom he had worked before, within the Group Technology Department.[8]Over the course of late 2005 and early 2006 various tensions developed between the Claimant and other members of the team, and in particular Mr Tighe. There were a series of incidents of which we need not give the details. On at least one occasion high words passed between the Claimant and Mr Tighe. Arising out of these incidents there was a meeting between the Claimant and Mr Tighe’s manager, Simon Arnett, on 3 March 2006. What happened at that meeting is central to one aspect of the Claimant’s claim and we will have to return to it below. It is sufficient to note at this stage that Mr Arnett said something to the effect that he understood the Claimant to be alleging that Mr Tighe’s conduct towards him was connected with his race. The Claimant denied that he had made any such allegation. He resented what he understood to be the suggestion that he was “playing the race card”. It is not suggested that Mr Arnett himself used that particular phrase, but it did in fact find its way onto the Claimant’s “Peoplesoft” file (i.e. his personnel file) a couple of months later, probably reflecting something that he had said to his “people manager”, Carrie Mason, immediately after the meeting with Mr Arnett. We will refer to this as “the Arnett comment” or “the Arnett episode”.[9]We ought to say something more about the phrase “playing the race card”, since it features a good deal in the Reasons. Unfortunately the Tribunal does not make a finding about what the Claimant, or whoever put it on his Peoplesoft record (probably quoting him), meant by it. It clearly means more than simply “making an allegation of racial discrimination” and has a pejorative overtone. In some contexts it can mean that a complainant is cynically deploying his race in order to bolster a complaint which is unjustified or in any event has in truth no racial element. But we do not get the impression from the Claimant’s various contemporary comments, as recorded, that that is quite what he thought Mr Arnett was suggesting he was doing. Rather, what he resented was the implication that Mr Arnett was not seeing this as a straightforward complaint by one colleague against another, requiring to be treated on its merits, but as a complaint by a black employee against a white employee: that is subtly but genuinely demeaning.[10]Shortly after that meeting the Claimant went off sick. He reported some physical symptoms, but his sick notes also referred to stress and anxiety. In the event he never returned to work before his resignation. He saw his GP on a number of occasions and was in due course referred to a psychiatrist, who diagnosed a severe reactive depression. He was also seen by Capita, who were retained by RBS as occupational health consultants. We give more details below.[11]In the first months of his absence the Claimant was in contact with Ms Mason about the events which had preceded his going off sick. It was eventually decided that the best way forward was for him to lodge a grievance under RBS’s Dignity at Work procedures. He did so on 1 August 2006. The process involved an investigation by an “Investigating Manager” and a decision, on the basis of the investigation report, by a “Complaints Manager”. The Investigating Manager eventually appointed was Rob Bayliss. The Complaints Manager was Jane Saunders. The process overall was overseen by, and Mr Bayliss received advice from, RBS’s Human Resources Advice Centre (the “HRAC”) in Edinburgh, and specifically by a “Dignity at Work consultant” called Kelleigh Peters.[12]The Claimant’s original grievance document focused almost entirely on Mr Tighe’s conduct towards him, which was not alleged to be in any way racially motivated; but there were two passing allusions (unexplained) to the Arnett comment, described as “Simon’s racial concern” and “Simon’s racial observation”. The Tribunal found at para. 119 of the Reasons:
“There was some discussion at HRAC as to whether it was a grievance or of Dignity at Work complaint and Kelleigh Peters … took the view that it was really a grievance and that alright to park the race issue for the time being”
. It is clear from that finding that HRAC, possibly with input from Carrie Mason, had picked up the references to the Arnett comment and had at least some idea of what it referred to; but the view was taken that it was peripheral to the main complaint. That view seems to us not unreasonable on the grievance document as it then stood. However, in his subsequent interviews with Mr Bayliss, and more particularly in a 19-page document which he sent to Mr Bayliss on 9 October 2006, the Claimant explicitly articulated a criticism of Mr Arnett, saying that he had:
“… tried to play the race card in relation to my thinking. The interjection of racism into the equation. I found it disturbing and worrying the more I thought about it. For the simple fact that a senior manager could take such a negative and insulting attitude to my complaint.”
He also said that he had told Carrie Mason:
“… that Simon said that I was suggesting that the incident involved race, and also suggesting I am saying that it’s a witch hunt, which I denied …”
. It is right to say, however, that the complaints made in the interviews, and in the 19-page document, covered a wide range of other matters, including not only the problems between himself and Mr Tighe but also problems earlier in his career with RBS and specifically those with Ms Rae. The Tribunal records that Mr Bayliss told the Claimant: “… that he could only investigate stuff about Brian and that where other individuals were concerned the Claimant would need to consider whether he wished to make a separate case” (see Reasons para. 134).[13]Mr Bayliss did not report until 21 December 2006. The report did not uphold the Claimant’s criticisms of Mr Tighe. In line with the indications Mr Bayliss had already given, it did not address the Arnett episode at all. The Tribunal was highly critical of Mr Bayliss’s investigation and report. It found that his investigation of the incidents which had precipitated the problem with Mr Tighe was confused and partial. It found that it was more of an investigation of the Claimant than of Mr Tighe. It believed that Mr Bayliss was aware of, and had been influenced by, an anonymous allegation (never substantiated) which had been received by RBS to the effect that the Claimant was involved in fraudulent activity and that he had made threats against certain colleagues. It pointed out that Mr Bayliss had never conducted an investigation before and speculated that he was hoping to earn favour by exonerating Mr Tighe. Most relevantly for present purposes, the Tribunal was critical of Mr Bayliss’s failure to investigate the Arnett comment or to make any findings about it in his report. Although, as we have said, it did not significantly feature in the original grievance, it was the Tribunal’s view that it had become sufficiently clear during the investigation that this was a substantial complaint and that Mr Bayliss should accordingly have dealt with it.[14]The Claimant was sent the investigation report and encouraged to comment on it. He did so. One of the points which he made was that the Arnett episode had not been investigated. Mr Bayliss replied that his investigation was confined to the allegations contained in the original grievance and that any other complaint should be raised separately: he asked the Claimant in terms if he was wishing to make a separate complaint against Mr Arnett (see Reasons, para. 174).[15]The next step was for Ms Saunders as Complaints Manager to reach a decision. An “outcome meeting” was arranged for 2 February 2007, but the Claimant did not attend because he believed that Mr Bayliss’s report was too flawed to allow sensible progress. Accordingly, Ms Saunders communicated her decision by letter to the Claimant dated 26 February. Unsurprisingly in the light of Mr Bayliss’s report, she did not uphold the complaint against Mr Tighe. The Tribunal was, again, very critical of Ms Saunders’ approach and conclusion. It did not believe that she had taken on board the Claimant’s criticisms of Mr Bayliss’ report. It found that she, like Mr Bayliss, was consciously or sub-consciously influenced by her knowledge of the fraud investigation against the Claimant. It was doubtful about how carefully she had read the papers. Specifically as regards the Arnett episode, it recorded her evidence that she had overlooked it entirely, saying that “maybe she missed it from all the documentation that was presented to her” (Reasons para. 194). She had simply not considered any racial issue at all: indeed she said that she was unaware that the Claimant was black until a late stage in the process. She apparently acknowledged that, in retrospect, she should have considered the Claimant’s complaint that Mr Bayliss had not dealt with the Arnett episode.[16]The Claimant then invoked stage 2 of the Dignity at Work process, which is in effect an appeal. His appeal document contained a wide variety of criticisms – in the light of the Tribunal’s findings, justified criticisms – of the quality of the investigation and the report. Among his complaints was that Mr Bayliss had failed to investigate the Arnett episode. The manager designated to consider the appeal was Chris Berry. He met the Claimant on 26 April 2007, by which time he said that he would have read all the previous documentation. There was no discussion at the meeting of the failure by Mr Bayliss or Ms Saunders to address the Arnett episode (see Reasons, para. 221). Mr Berry gave his decision by letter dated 30 May 2007. He acknowledged various deficiencies in the investigation and report. So far as the Arnett episode is concerned, however, he said that such reference as there had been to it in the original grievance documents had not constituted a complaint and that it accordingly did not form part of the grievance and there was no need for it to have been addressed in the investigation report.[17]The final stage in the Dignity at Work grievance process was a “stage 3”, which, however, could only be entertained with the permission of a senior HR manager. The Claimant made such an application by e-mail dated 19 June 2007 to a manager called Elaine Arden. He raised a number of challenges to Mr Berry’s decision. One of the points that he made was that his complaints about Mr Arnett did, contrary to Mr Berry’s view, form part of the grievance and should have been investigated. As he put it, “all the contents of the grievance documents submitted as part of the grievance process are the complaint” (Reasons, para. 242), the clear implication being that the explicit complaints in his document of 9 October 2006 should have been taken into account. Ms Arden appointed Elsa Critchley, a HR Business Partner for Group Technology, to review whether the Claimant had grounds for a further appeal. On 29 June she wrote to him to say that the criteria for such an appeal were not satisfied. It thus appears that although Ms Arden had nominal responsibility the actual decision-taker was Ms Critchley.[18]In the meantime, other issues had arisen. In December 2006, Richard Docketty, who had become the Claimant’s People Manager, had decided that his pay should be stopped in view of the length of his absence from work. The decision was taken without prior notice to the Claimant, and indeed he was asked to make a repayment on the basis that his entitlement had ceased prior to the payroll department being told to stop payment. The Claimant raised grievances about these matters. The Tribunal was highly critical of Mr Docketty’s actions. The Claimant raised the question of whether he was entitled to holiday pay during his sickness absence (a hot topic in employment law). He understood Ms Mason to have told him that he was, but Mr Docketty subsequently decided that he was not. The Claimant’s relationship with Mr Docketty deteriorated and he asked to be assigned a new People Manager. This request was acceded to, and in July 2007 Mr Docketty was replaced by Dawn Hollyoak. There were several discussions between them about a possible return to work. The Tribunal found that in the course of one such conversation, on 17 or 18 July, there was the following exchange:
“The Claimant said he wanted to work away from GT (Group Technology). She explained they could deal with that on his return. She said they had a mechanism to look at vacancies outside GT which she cannot access if she is away from work. She said that if he came back to work they could begin to address issues such as working outside GT. He said he understood what she was saying.”
The Tribunal subsequently refers to what it calls RBS’s “transfer policy”: that is, as we understand it, a reference to what Ms Hollyoak referred to as her inability to consider the Claimant working outside Group Technology until after he had returned to work. In mid-July there were two abortive meetings – the first because the Claimant was not prepared to attend and the second because Ms Hollyoak cancelled the meeting on the, possibly mistaken, understanding that the Claimant had said that he was too ill to attend. Ms Hollyoak then tried to set up a consultation on the telephone between the Claimant and Capita. He said that he wanted any meeting to be face-to-face.[19]It was against the background of those events that the Claimant sent an e-mail to Ms Hollyoak on 2 September 2007 resigning with immediate effect. In giving his reasons for the resignation, he refers to the recent abortive meetings and the, as he saw it, inappropriate suggestion of a telephone consultation with Capita. He said that although he had had several telephone conversations with Ms Hollyoak, he had had nothing from her in writing and that “you have no ideas of how to resolve the work situation”. THE ISSUES BEFORE THE TRIBUNAL[20]Paragraphs 2-11 of the Reasons set out the issues which the Tribunal had to decide. These are based on the issues agreed by the parties at a case management discussion on 10 July 2009, but they are somewhat elaborated. We need not set them out in full. The essential parts are as follows:[21]Race Discrimination.

(a) of the 1976 Act and particularises it as follows:

“3.1 the comments made by Mr Simon Arnett on 03.03.06 when he said to the Claimant in respect of a complaint made by the Claimant “you are suggesting racism”, the Claimant says that as a result and to his detriment an entry was placed on his file “ MOS [i.e. the Claimant] is now playing the race card ”; 3.2 the manner in which the Claimant’s complaints against Mr Tighe’s conduct were dealt with by the Respondent between March 2006 and July 2007. The Claimant says: - 3.2.1 Rob Bayliss’ assessments and decisions were perverse; 3.2.2 Jane Saunders assessments and decisions were perverse; 3.2.3 Chris Berry’s assessments and decisions were perverse; 3.2.4 Elaine Arden’s assessments and decisions were perverse; 3.2.5 Elaine Arden’s assessments and decisions were perverse in regard to the refusal to correct her previous assessment of stage III appeal, and the refusal to accept any further correspondence are race discrimination [ sic ].”
Essentially, therefore, there were two elements to the claim – the original Arnett episode and the way in which the Claimant’s subsequent grievance was handled.[22]Disability Discrimination. The issues in relation to the claim of disability discrimination are set out at paragraphs 7-10 of the Reasons but not, with respect to the Tribunal, in the most helpful format. We can, however, summarise them as follows:(1) Was the Claimant at the material time (being from March 2006 to September 2007) suffering from a disability (in the form of “clinical depression”) within the meaning of the 1995 Act ? If so:(2) Did the application to the Claimant of RBS’s “transfer policy” (see paragraph 18 above) constitute a breach by it of its duty under section 4A (1) to make reasonable adjustments and accordingly constitute discrimination within the meaning of section 3A (2) ( not section 3A (5) as stated at paragraph 10.4 of the Reasons) ?(3) Had the Claimant failed to raise a grievance in relation to that complaint prior to the issue of proceedings so that the Tribunal was deprived of jurisdiction by section 32 (2) of the Employment Act 2002 ? (To anticipate, on this appeal we are concerned only with issues (1) and (2).)[23]We need not set out the issues in relation to the unfair dismissal claim since they are not material to the appeal.

(A) THE RACE DISCRIMINATION APPEAL THE BACKGROUND LAW

[24]Section 4 (2) (c) of the 1976 Act makes it unlawful for a person to discriminate against an employee by, inter alia, subjecting him to any “detriment”. Discrimination is defined in section 1. We are only concerned with sub-section (1) (a), which provides that a person discriminates against another if “… on racial grounds he treats that other less favourably than he treats or would treat other persons.” As a matter of pure verbal analysis, that provision provides for a two-part test, namely whether the complainant has been treated less favourably than another person has, or would have, been treated (“the less favourable treatment question”) and, if so, whether that treatment was on racial grounds (“the reason why question”). However, it has frequently been pointed out, starting with the well-known speech of Lord Nicholls in Shamoon v Chief Constable of Royal Ulster Constabulary [2003] ICR 337 , at paras. 7-12 (pp. 340-2), that the two tests are in most circumstances simply two ways of answering the same question.[25]Section 54A of the Act provides for the “reverse burden of proof”. Sub-section (2) provides (so far as material) that “Where on the hearing of complaint the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent –(a) has committed … an act of discrimination … against the complainant …(b) …(c) The tribunal shall uphold the complaint unless the respondent proves that he did not commit … that act.” The effect of those and the cognate provisions in the other anti-discrimination legislation has been the subject of a good deal of authority. The most recent guidance is that given by the Court of Appeal in Madarassy v Nomura International Plc [2007] ICR 867 .[26]There is also a good deal of case-law about the correct approach to claims of direct discrimination. The most recent decision of high authority is that of the Supreme Court in R (E) v Governing Body of JFS [2010] IRLR 136 . However, since the reasoning of the majority in that case appears in four separate judgments, we attempted in Martin v Devonshires [2011] ICR 352 to summarise where the law now stands: see in particular paras. 32-36 (pp. 368-371). We do not repeat that analysis here. However it is important to note that it remains the law that what a tribunal is concerned with, at least in a case of this kind, is – to use the terminology of Lord Nicholls in Nagarajan v London Regional Transport [1999] ICR 877 (approved by the majority in the JFS case) – the “mental processes” of the relevant decision-taker, or, as it is sometimes put, his or her “motivation” (though not, NB, the “motive”) in order to establish the grounds on which he or she acted.[27]We take in turn the two elements in the discrimination claim as identified at paragraph 21 above. (1) ISSUE 3.1: THE ARNETT EPISODE[28]This constitutes “issue 3.1” – see paragraph 21 above. The Tribunal’s reasoning in relation to this issue appears in the Conclusions section of the Reasons, at paragraph 304, as follows for ease of reference we have inserted the letters and numbers which appear in square brackets:
“304 The Tribunal has made findings of fact which show the Claimant is adamant that nothing he said would have given rise to anyone saying to him he was alleging race discrimination. Simon Arnett has not told the Tribunal what it was the Claimant said that led to him raising race. He could not remember. He does not deny that he did raise race as an issue. He simply said the Claimant stood up and sat back down. Later on he said he did not know what the Claimant said that led him to say “ Are you suggesting there is a racial problem with your relationship with Brian ”
The Claimant says it was not “ Are you ” but “ I am concerned you are .” From the Claimant’s perspective what now happened was Simon was labelling him as someone trying to play the race card. He was very distressed. The Claimant says that Simon Arnett was by saying: “ I am concerned you are raising a race grievance ” treating him less favourably on racial grounds. The Claimant agrees it is all right to ask if someone is raising a race issue if it seems they may be alleging a difference in treatment. The Claimant says the Respondent would not in the same relevant circumstances have said this to a White Caucasian employee of English origin who raised a complaint about a Black African Caribbean line manager. The Claimant says there was nothing to suggest he was raising race as an issue and in those same relevant circumstances the Respondent would not have accused a White Caucasian employee of English origin of raising race as an issue. [(A)] The Tribunal finds Simon Arnett did say he was concerned the Claimant was raising race as an issue in his relationship with Brian Tighe. He does not deny it. [(B)] The Tribunal further finds Simon Arnett would not have in the same relevant circumstances accused a White Caucasian comparator of English origin of raising a race complaint. [(C)] The Tribunal finds Simon was in effect accusing the Claimant of raising the race card to his detriment. It clearly upset the Claimant and when he expressed his frustrations to Carrie Mason in May 2006 about the ways things had gone and his annoyance of race having been brought into it a people soft note was entered which recorded he was playing a race card. [(D)] There is a difference in race and a difference in treatment. [(E)] The Tribunal has found other facts from which it could conclude in the absence of an explanation in no sense on racial grounds this was less favourable treatment of the Claimant. Some of those other facts are [(1)] the people soft note of May 22 2006, “ MOS is now playing a race card ”; [(2)] the fact that no enquiry was made as to what the Claimant was referring to at this time or later in his grievance supporting document R1, [(3)] the decision taken when the Claimant did raise his dignity at work grievance that was not an issue that needed immediate attention and to park it; [(4)] the continuing failure to consider it when it was spelled out in the document to aid the minutes for his dignity at work complaint submitted in October 2007; [(5)] the failure at any stage of the dignity at work process to investigate the race allegation at all, and, in particular the failure at any stage to identify what the race allegation the Claimant was making was, [(6)] the failure of the Grievance decision maker complaint Manager to even identify the Claimant was not white and therefore how any complaint of race discrimination might be being made. [(F)] The Tribunal has looked to Simon Arnett for an explanation in no sense on grounds of race. He says he has no recollection of what it was that led him to suggest the Claimant was playing the race card. He has no explanation. In the absence of an explanation in no sense on grounds of race the Tribunal finds this was less favourable treatment of the Claimant on racial grounds.” (We should in passing deprecate the use of the, in this context, obsolete term “Caucasian”.)[29]With all respect to the Tribunal, the flow of the reasoning in that very lengthy and undifferentiated paragraph is not very easy to follow. However, the steps in the analysis appear to be as follows.(1) The first half, down to the letter (A), recites both evidence and submissions relevant to the finding of fact which the Tribunal makes at that point, namely that Mr Arnett did say to the Claimant that he was concerned that the Claimant was raising race as an issue in his relationship with Mr Tighe. The passage starts by referring to earlier findings of fact. These appear at paragraph 57 of the Reasons; but they are repeated, virtually verbatim, in paragraph 304.(2) The single sentence at (B) appears to be directed to the first element in the two-stage test as discussed at paragraph 24 above, i.e. “less favourable treatment” – though, if so, it is rather out of place. No reasons are given for the Tribunal’s conclusion: it does not follow from the preceding passage, nor is it explained in the passage which immediately follows.(3) The two sentences which follow (C) appear to be intended as a finding of “detriment”, as required by section 4 (2) (c), although the first sentence is a little awkwardly worded for that purpose.(4) In the remainder of the paragraph the Tribunal is considering the linked questions of less favourable treatment and whether any such treatment was on racial grounds – though it does not appear to appreciate that it had already, at least apparently, answered one of those questions (and, therefore, implicitly also the other) earlier in the paragraph: see (2) above. It does so by applying the two-stage process inherent in section 54A. The observation at (D) that “there is a difference in race and a difference in treatment”, followed by the reference at (E) to “other facts” is a clear, albeit tacit, acknowledgement of the point made by Mummery LJ in Madarassy to the effect that the burden of proof of discrimination does not shift merely by showing a difference in race and a difference in treatment (see para. 56 of his judgment, at pp. 878-9). The “other facts” are itemised at (1)-(6). On the basis of those facts, the Tribunal, as it says at (E), finds that the burden of proof has shifted. Since Mr Arnett had no explanation of his conduct, the Tribunal held that it was bound to infer discrimination: this is the point made following (F). It is clear (though the finding is not quite explicit) that the Tribunal accepted the Claimant’s uncontradicted evidence that he had said nothing himself to suggest that he believed there was a racial element in his treatment by Mr Tighe.[30]Mr Reade accepts that he cannot challenge the Tribunal’s finding about what Mr Arnett said. Nor can he challenge its finding that the Claimant had said nothing to give rise to Mr Arnett’s comment. The latter aspect is crucial, because it is what justifies the Tribunal’s finding that Mr Arnett’s comment carried the implication that the Claimant was “playing the race card”: we should emphasise that if the Claimant had in fact said anything, or there was anything in the circumstances, which suggested that he might be alleging a racial motivation on the part of Mr Tighe, an attempt by Mr Arnett to clarify or confirm what he was saying would have been wholly unobjectionable.[31]Mr Reade did not contend that, that being so, the Tribunal was not entitled to find that Mr Arnett’s comment was “less favourable treatment” of the Claimant and (which follows) constituted a “detriment” within the meaning of section 4 (2) (c). We accept that he was right not to do so. Although the detriment may not have been grave – a point to which we return below – we can see how it might reasonably be regarded as upsetting for a black employee for an “ordinary” grievance, with no racial element, to be perceived by the manager to whom it is made as being related to his race: cf. paragraph 9 above. On the Tribunal’s findings the Claimant was indeed. It should be clearly appreciated, however, that the subsequent appearance in the Peoplesoft record of the suggestion, apparently emanating from Ms Morris (though she in turn may only have been quoting the Claimant), that the Claimant was playing the race card is not part of the act complained of against Mr Arnett: indeed the Claimant, did not, as we understand it, hear about it until after the commencement of these proceedings. Its (potential) relevance is simply as part of the story of the handling of his grievance.[32]The real issue is thus whether Mr Arnett’s comment constituted discrimination within the meaning of section 1(1) (a). We accept Mr Reade’s submission that the Tribunal’s reasoning on this issue is seriously flawed. The finding of less favourable treatment by reference to a (hypothetical) white comparator is wholly unreasoned: see paragraph 28(2) above. As for the finding on the “reason why question”, the Tribunal relied on the series of facts which it enumerated and which we have identified as (1)-(6). But we cannot see how these are relevant to the only issue with which it was concerned, namely the ground for Mr Arnett’s action. Each of those six facts is concerned with the conduct of other people at other (later) stages of the story, and they can have no bearing on Mr Arnett’s mental processes. The Tribunal’s approach is a good illustration of how tribunals purporting to apply the burden of proof provisions in section 54A and its cognates can too often be led into an inappropriately mechanistic approach. The exercise required by the section remains one of fact-finding not box-ticking. If the Tribunal had in a different context asked itself whether the fact that, say, Ms Saunders failed to appreciate that the Claimant was not white (“point (6)”) threw any light whatever on the reason why Mr Arnett, several months earlier, had asked the Claimant if he was alleging a racial motivation on the part of Mr Tighe, we are sure that it would have appreciated that it had no probative value whatever. That is not magically changed by the cloak of section 54A being thrown over the question.[33]However, the fact that the Tribunal took the wrong route to its conclusion does not mean that the conclusion itself was wrong. We have considered whether we need to remit “issue 3.1” to the Tribunal for reconsideration. We are satisfied that we need not do so. In our view we are in as good a position as the Tribunal to reach a conclusion on the basis of its unchallenged findings of primary fact. The relevant findings are in fact very stark. Mr Arnett made a comment to the Claimant to the effect that he was alleging racial discrimination. Crucially, the Claimant had said nothing to provoke that comment. It must follow that Mr Arnett said what he did as a result of an assumption – or, to use another word, the application of a stereotype:
“he is a black employee complaining about his treatment by a white colleague – he must, or at least may, be alleging race discrimination”
. In our view, on the Tribunal’s factual findings, Mr Arnett must have been motivated by some such assumption; and it follows that his comment was made on racial grounds.[34]This issue was fully debated by us with the Claimant and Mr Reade during oral argument. Mr Reade submitted that even if Mr Arnett’s motivation were as we have put it, it would be based not on the fact that the Claimant was black, or Afro-Caribbean, but on the fact of a racial difference between himself and Mr Tighe: there was no reason to suppose, despite the Tribunal’s unsupported finding to the contrary, that Mr Arnett would not have asked precisely the same question if a white employee had been complaining of his treatment by a black manager. We do not accept that submission. It is a matter of common experience that it is members of ethnic minorities who are generally regarded as the principal victims of, and therefore complainants about, racial discrimination. Of course, white employees may sometimes be the victims of racial discrimination by black colleagues, but there is no stereotype to that effect. We think it very unlikely, therefore, that if it had been Mr Tighe complaining about the Claimant’s conduct Mr Arnett would have accused him of playing the race card. To put the same point another way, Mr Arnett asked the question that he did because the Claimant was black and not because he was of a different race from Mr Tighe. We accept that there is no direct evidence to this effect. But it is an inference of a kind which we believe that an employment tribunal could properly draw and which we think it right to draw in this case.[35]We therefore uphold the finding of racial discrimination in relation to issue 3.1. We wish to emphasise, however, that Mr Arnett’s comment was, as acts of discrimination go, by no means grave. It was a single tactless remark, betraying an almost certainly unconscious racial stereotype of a rather subtle kind. Although we can fully understand why the Claimant was upset by it, it was not otherwise offensive. There is no suggestion of any broader discriminatory context in the relationship of the Claimant and Mr Arnett or indeed in his relationship with colleagues and managers more widely. We see a parallel with the case of Richmond Pharmaceuticals Ltd v Dhaliwal [2009] ICR 724 , where the employment tribunal found a similarly stereotypical comment to constitute harassment but made a very modest award of compensation. In the great majority of cases we would hope and expect that a comment of this kind, even if formally falling within the terms of the Act, would never form the subject of a tribunal claim and would be dealt with (assuming the employee wanted it dealt with at all) by an informal apology or through the grievance procedure. It is a matter of great regret that what Mr Arnett said has spawned these enormously lengthy and damaging proceedings. It is not for us to attribute blame for that outcome, but we have to say that our strong impression is that the formalism and process-driven approach shown by those operating RBS’s elaborate grievance procedures may have got in the way of a more humane and straightforward resolution. (2) ISSUE 3.2: THE HANDLING OF THE CLAIMANT’S GRIEVANCE[36]As framed at paragraph 3.2 of the Reasons, the issue in relation to the history of the Claimant’s complaints about Mr Tighe is whether the assessments made by the various decision-takers at successive stages of the process were “perverse”: see paragraph 21 above. We should observe by way of preliminary that that is a dangerous way of formulating the issue. It is trite law that the fact that a person may have acted unreasonably is not, without more, evidence that he or she was acting on a proscribed ground. In the present case the facts that the Claimant’s complaints – even to the extent (which is limited) that they were complaints of racial discrimination – were incompetently investigated and that unreasonable conclusions were reached is irrelevant except to the extent that the managers responsible for those failures were significantly influenced by the fact that he was black. It is easy for tribunals to slip into thinking that the incompetent or inadequate investigation of a claim of discrimination is itself an act of discrimination; but that does not follow ( cf. Prison Service v Johnson [2007] IRLR 951 , at paras. 63-64, 69 and 121 (pp. 962-3, 964-5 and 973) and Wilcox v Birmingham CAB Services Ltd (UKEAT/0182/10), at para. 52).[37]The allegations of “perversity” on the part of each of the five decision-takers are examined in turn at paragraphs 307-308 of the Reasons, although the Tribunal evidently draws on the fuller findings of fact made in the narrative section. (There is indeed, again, in these passages a good deal of straightforward, though unacknowledged, repetition from the earlier part of the Reasons.) (1) Mr Bayliss[38]The findings in relation to Mr Bayliss are at paragraphs 307-309 of the Reasons. The finding of discrimination is made in paragraph 309, which is very long and not very clearly signposted. We need not set it out here. The essentials of the reasoning can be summarised as follows:(1) Paragraph 308 repeats the criticisms made of Mr Bayliss in the narrative section of the Reasons: we have summarised them at paragraph 13 above.(2) Paragraph 309 starts with the important finding that:
“The Tribunal has been shown no evidence Rob Bayliss would have been any more competent in investigating complaints made by a white Caucasian comparator in the same relevant circumstances as the Claimant.” (3) Having made that finding, the Tribunal again summarises its criticisms of Mr Bayliss. (4) There then follows a passage on Mr Bayliss’s motivation, repeating the findings made in the narrative section. As noted at paragraph 13 above, the Tribunal found that Mr Bayliss knew that the Claimant was being investigated separately in relation to allegations of misconduct against him, whether or not he knew specifically that those allegations involved alleged fraud and that that “consciously or subconsciously” affected his attitude. (5) There is then, in the middle of paragraph 309, a change of subject. The Tribunal turns to Mr Bayliss’s failure to investigate the Claimant’s complaint about the Arnett episode. It carries out the same “ Madarassy exercise” that it had performed in relation to issue 3.1 (see paragraph 30 (4) above). It sets out a number of “other facts” which it regards as sufficient to shift the burden of proof. These largely overlap with, though they are not identical to, those relied on in relation to the Arnett episode. None of them has anything to do with Mr Bayliss; and most of them indeed postdate his investigation. (6) Having thus concluded that the burden of proof had shifted, the Tribunal records that RBS was unable to explain Mr Bayliss’s failure to address the Arnett episode. It concludes: “In the absence of an explanation in no sense on grounds of race the Tribunal finds this was consciously or subconsciously less favourable treatment of the Claimant on grounds of race by the Respondent.”
[39]That reasoning is in our view unsustainable. So far as Mr Bayliss’s incompetence in investigating the Claimant’s complaint against Mr Tighe is concerned, the Tribunal’s own finding as recorded at paragraph 38 (2) above is conclusive. If there was no evidence that Mr Bayliss would have been any less incompetent in investigating a complaint by a white comparator, then it is impossible to conclude that his incompetence was on racial grounds. That is not only correct analytically: it accords with the clear picture painted by the Tribunal’s findings of primary fact, as reinforced by its findings as to Mr Bayliss’s motivation, namely of a manager doing his first disciplinary investigation and making a mess of it due partly to muddle-headedness and partly to a subconscious wish to produce the result which he believed his superiors required. There is no reason whatever to suspect a racial element. As for the failure to investigate the Arnett episode, the reasoning is flawed in the same way as the reasoning in relation to that incident itself: see paragraph 32 above. The “other facts” which the Tribunal relied on had almost nothing to do with Mr Bayliss himself and are incapable of shedding any light on why he acted in the way complained of. If the Tribunal had focused on Mr Bayliss’s mental processes there was in truth nothing incapable of grounding an inference of discrimination. It is clear from its findings of primary fact, summarised at paragraphs 11-13 above, that the explanation for Mr Bayliss’s failure to investigate any complaint against Mr Arnett was that no such complaint was made in the formal grievance documents and only emerged as one of many points made in interview and the Claimant’s subsequently submitted documents. It may have been excessively formalistic of Mr Bayliss to require any complaint about the Arnett episode to be raised as a fresh grievance; but there is no reason whatever to suppose that he was motivated by the Claimant’s race. (2) Ms Saunders[40]Ms Saunders, it will be recalled, was the Complaints Manager responsible for making a decision on the Claimant’s grievance following consideration of Mr Bayliss’s investigation report. The allegations of discrimination against her are considered at paragraphs 310-315 of the Reasons. To a considerable extent these repeat the criticisms which it had made in the narrative section and which we have already summarised. They are, again, very long, and we do not believe we need set them out in full. We analyse the reasoning as follows.[41]Paragraph 310-311 and the first part of paragraph 312 repeat the Tribunal’s findings about Ms Saunders, including its criticism of her for failing to take on board the Claimant’s complaints about the inadequacies of Mr Bayliss’s investigation report. A little way into paragraph 312 the Tribunal records the Claimant’s submission that her “assessments and decisions … were perverse”. It then says:
“The Tribunal has been shown no evidence the Respondent would have at the report stage looked any more closely at the quality of the investigation into the complaints made by a White Caucasian employee in the same relevant circumstances as the Claimant than it did into the investigation into the complaints made by the Claimant about his manager Brian Tighe.”
In context the reference to “the Respondent” must be to Ms Saunders (though the depersonalisation may be significant inasmuch as it reflects a failure by the Tribunal to appreciate that what it was concerned with was the mental processes of a particular individual). As in the case of Mr Bayliss, that finding would appear to preclude any finding of direct race discrimination against Ms Saunders. But the Tribunal does not draw that conclusion. It goes on to say that if Ms Saunders had looked more closely at the papers than she did she would have realised how inadequate Mr Bayliss’s investigation had been. In her case too the Tribunal refers to the possibility that she was influenced by knowledge of the ongoing fraud investigation. Those are no doubt serious criticisms, but they do not by themselves suggest any racial motivation.[42]The Tribunal then turns, in the middle of paragraph 312, to consider Ms Saunders’ failure to consider the Arnett episode. It says:
“The Tribunal has already found that this treatment of the Claimant by Simon Arnett was less favourable treatment of the Claimant on racial grounds. It has further found that the Respondent’s failure to investigate that part of the Claimant’s grievance which alleged race discrimination was less favourable treatment of him on racial grounds. The Respondent would not have failed/refused to investigate at all part of a grievance raised by a White Caucasian comparator in the same relevant circumstances.”
That purports to be a recapitulation of the findings against Mr Arnett and Mr Bayliss. The Tribunal then continues:
“Jane Saunders at the report stage has done nothing to remedy the failure or the investigation stage and has indeed compounded it. Jane Saunders did not consider race at all.”
It then proceeds to repeat in detail its findings about how the Claimant had complained about the Arnett incident and that that would have been perfectly apparent to Ms Saunders if she had read the papers thoroughly. It comments:
“It is apparent from the evidence given by the witnesses in the Tribunal that they were not even aware of what eth complaint the Claimant was making.”
Again, though stated generally, that is in this context a criticism specifically of Ms Saunders.[43]Having reached that point, the Tribunal in the final section of paragraph 312 repeats the exercise of identifying “other facts” which were sufficient to shift the burden of proof. These overlap with those relied on in the cases of Mr Arnett and Ms Tighe. None of them have anything to do with Ms Saunders herself: instead, they relate to Ms Peters, Ms Mason, Mr Docketty and other RBS managers.[44]At paragraph 313 the Tribunal says that it has had regard to the requirement in the CRE Code of Practice that allegations of racial discrimination be taken seriously and investigated promptly.[45]Paragraphs 314 and 315 read as follows:
“314 The Tribunal has looked to the Respondent for an explanation. The Respondent has no reasonable explanation in no sense on grounds of race for not considering the allegation at the outcome stage. It took an early decision to park the race complaint and then denied it formed part of the complaint and sought to require the Claimant to raise a further dignity at work complaint. It did this despite the advice given to Rob Bayliss who had told by HRAC that the Claimant’s grievance documents formed the basis of his complaints and that he must investigate every point detailed in those documents and to Jane Saunders who had been told to: “consider whether · the relevant issues raised within the allegations have been addressed · relevant witnesses have been interviewed · there are no material unanswered questions arising from the report” . 315 Jane Saunders accepted that she did not consider race at all and that on reflection it should have been investigated. In her witness statement she said she was unaware the Claimant was black until a late stage in the process. In the absence of a reasonable explanation in no sense on racial grounds the Tribunal finds this was a continuing act of less favourable treatment of the Claimant on racial grounds.”
[46]The Tribunal’s reasoning in those paragraphs is flawed for the same reasons as we have identified in relation to Mr Arnett and Mr Bayliss. The matters on which it relies as shifting the burden of proof are not directed to the essential issue of what motivated Ms Saunders to act as she did. There is in fact no evidence referred to which raises a prima facie case that she was motivated by the fact that the Claimant was black. Indeed the Tribunal appears to accept her evidence that she was unaware of that fact until a late stage: that no doubt does no credit to the care with which she had read the file but it hardly reinforces the case that she was (consciously or unconsciously) influenced by the Claimant’s race. The general thrust of the Tribunal’s reasoning is that an unreasonable failure to investigate a complaint of racial discrimination is itself racial discrimination. That is simply wrong: see paragraph 35 above. (3) Mr Berry[47]The Tribunal’s findings about Mr Berry, who decided the appeal against Ms Saunders’ decision, are dealt with in a single, albeit lengthy, paragraph of the Reasons, as follows:
“316 The Tribunal has then gone on to consider its findings of fact about the same matters in relation to the role played by the Appeal Manager Chris Berry. The Claimant alleges the way in which his complaints about his manager Brian Tighe’s conduct towards him were dealt with by the Respondent between March and 2006 and June 2007 is less favourable treatment on grounds of race and in relation to the appeal conducted by Chris Berry says his assessments and decisions were perverse. The Tribunal has been shown no evidence the Respondent would have at the appeal stage treated a White Caucasian comparator who was in the same relevant circumstances as the Claimant more favourably than it treated the Claimant in the manner it handled his complaints made against his manager Brian Tighe’s treatment of him in December 2005 and February 2006. Chris Berry took some steps to address unanswered points but failed to turnaround what was a wholly inadequate investigation in to the complaints made by the Claimant. Most particularly he failed to conduct any further investigation into the questions unanswered by reading of the documentation in relation to the complaints actually made in his dignity at work grievance. The Tribunal has no doubt that Chris Berry who was in line managing Brian Tighe and Simon Arnett during the investigation into the Claimant’s Dignity at Work Grievance was aware of the fraud allegations made against the Claimant and which were the subject of a separate investigation. The Tribunal does not know to what extent if any he was influenced by this knowledge or by his position as line manager to Brian Tighe and Simon Arnett but finds it extremely likely that consciously or subconsciously these matters did influence his approach. The Tribunal has found the Respondent’s failure to consider the Claimant’s complaint that Simon Arnett, in considering his complaint against Brian Tighe’s conduct in relation to his conduct towards him in February 2010, inexplicably accused him of raising a race concern grievance in the investigation report and at the outcome stage of the Claimant’s dignity at work grievance, was less favourable treatment of him on grounds of race. The Respondent has done nothing at the appeal stage to address this. Indeed Chris Berry has gone one stage further he has decided the complaint about Simon Arnett did not exist in the original grievance and supporting document R1. The Tribunal has set out in detail in relation to its findings about the investigation report and the outcome letter other facts from which it could conclude in the absence of any explanation in no sense on grounds of race this was less favourable treatment of the Claimant on racial grounds. The Tribunal looks to the Respondent for an explanation in no sense on grounds of race. The Respondent has no explanation. Mr Berry denies such an allegation was any part of the grievance. In the absence of any conduct by the Respondent at the appeal stage to address the Claimant’s complaint of race discrimination in relation to the inexplicable allegation made to him by Simon Arnett that he was raising a race concern and in the absence of any explanation in no sense on grounds of race the Tribunal finds this was a continuation of the less favourable treatment of the Claimant on grounds of race. It commenced when the Respondent took a decision to park his race allegation in his grievance and was continued by Rob Bayliss in the investigation, where he, for reasons the Tribunal cannot understand, believed the Claimant did not want to pursue it. It was compounded by Jane Saunders at the outcome stage who told the Tribunal she was unaware the Claimant was Black but in retrospect believed the complaint should have been addressed. Mr Berry was not a compelling witness in the Tribunal. He insisted in the face of overwhelming evidence to the contrary that he was not compounding the two allegations the Claimant made.”
[48]The reasoning in that paragraph broadly follows the pattern adopted in relation to Mr Arnett, Ms Saunders and Mr Bayliss and is flawed for the same reasons. The Tribunal’s findings may establish that Mr Berry did a bad job but they afford no basis for a conclusion that he did so because the Claimant was black. Insofar as there are findings about his motivation, they are to the effect that he was influenced by knowledge of the fraud investigation. (4) Ms Arden[49]We start by observing that, although the Tribunal refers to the relevant “assessments and decisions” as being Ms Arden’s, on its own findings (summarised at para. 17 above) the actual decision-taker was Ms Critchley. This confusion illustrates the Tribunal’s lack of focus on the mental processes of the individual decision-taker. Its reasoning about the stage 3 appeal process appears at paragraph 318 of the Reasons, which reads as follows:
“The Claimant alleges the way in which his complaints about his manager Brian Tighe’s conduct towards him were dealt with by the Respondent between March and 2000 and June 2007 is less favourable treatment on grounds of race and in relation to the appeal conducted by Elaine Arden says her assessments and decisions were perverse. The Tribunal has been shown no evidence the Respondent would have, at this final appeal stage, treated a White Caucasian comparator who was in the same relevant circumstances as the Claimant more favourably than it treated the Claimant in the manner it handled his complaints made in relation to his manager Brian Tighe’s treatment of him in December 2005 and February 2006. No steps were taken at this stage to turnaround what was a wholly inadequate investigation into the complaints made by the Claimant. However the grounds for appeal at this stage were limited. Those terms of appeal would nonetheless have allowed the Respondent to consider the Claimant’s complaint that Simon Arnett, in considering his complaint against Brian Tighe’s conduct in relation to his conduct towards him in February 2010, inexplicably accused him of raising a race concern grievance. The Tribunal has found the Respondent’s failure to consider this part of the Claimant’s dignity at work grievance at the investigation stage and in the investigation report, at the outcome stage of the Claimant’s dignity at work grievance, and indeed at the appeal stage of his dignity at work grievance was less favourable treatment of him on racial grounds than would have been received by a White Caucasian comparator. The Respondent did nothing at this final appeal stage to address this. The Respondent’s failure to address it at this stage is a continuing act of less favourable treatment on racial grounds. The Tribunal looks to the Respondent for an explanation in no sense on grounds of race. There is no explanation. The Respondent has quite simply ignored the complaint. In the absence of an explanation in no sense on racial grounds the Tribunal finds this was a continuation of the less favourable treatment of the Claimant on racial grounds. While the Claimant challenged the conclusions reached he was simply told the decision was final.”
[50]That reasoning is rather different, or at least expressed rather differently, from that adopted in relation to the earlier stages of the grievance process, although it is to be noted that it again acknowledges that there is no evidence that RBS – in truth, Ms Critchley – would have treated a white complainant any differently. But it is flawed for essentially the same reasons. The Tribunal makes no attempt to analyse the motivation of the actual decision-taker. It appears to proceed on the basis that a failure to correct earlier failings in the process which had been held to be discriminatory must, at least if unexplained, itself continue that earlier discrimination. That would be the wrong approach, even if the findings as to the earlier failings were unimpeachable. Conclusion on issue 3.2[51]The findings that the handling of the Claimant’s grievance constituted direct race discrimination at all or at any of its various stages cannot be supported, and the appeal as regards issue 3.2 must be allowed. Further, since there was in fact no basis for any such finding in the facts as found, this part of the claim must be dismissed. CONCLUSION ON RACE DISCRIMINATION APPEAL[52]The finding that Mr Arnett’s comment at the meeting with the Claimant on 3 March 2006 constituted direct discrimination stands. The case will have to be remitted to the Employment Tribunal (if possible, the same Tribunal) for a decision as to remedy – unless, which is much to be hoped, the parties can reach an agreement. However, the remainder of his claim is dismissed. We should make clear that it follows that the finding that the Claimant’s dismissal was itself an act of discrimination must also fail. The Claimant resigned, and – on the Tribunal’s unchallenged findings – was entitled to resign, because of the way in which his proposed return to work was handled, though perhaps also coupled with his dissatisfaction at the handling of his Dignity at Work grievance. Mr Arnett’s comment could not by itself have founded a claim of constructive dismissal. THE DISABILITY DISCRIMINATION APPEAL[53]The Tribunal found in the Claimant’s favour on each of the three issues identified at paragraph 22 above. RBS challenges its conclusions on the first two – namely(1) whether the Claimant was disabled by depression between March 2006 and September 2007 and(2) whether RBS was in breach of its duty to make reasonable adjustments. We take those two issues in turn. (1) WAS THE CLAIMANT DISABLED DURING THE RELEVANT PERIOD?[54]The definition of “disability” for the purpose of the 1995 Act is at section 1 (1), which reads:
“Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-time adverse effect on his ability to carry out normal day-to-day activities.”
Schedule 1 contains a number of glosses or qualifications affecting particular elements in that definition. Those which are relevant for present purposes are paragraphs 2, 4 and 6. Paragraph 2 reads:
“(1) The effect of an impairment is a long-term effect if – (a) it has lasted at least 12 months; (b) the period for which it lasts is likely to be at least 12 months; or (c) it is likely to last for the rest of the life of the person affected. (2) Where an impairment ceases to have an substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if the effect is likely to recur.”
Paragraph 4 reads:
“An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following … .”
There follows a list of "capacities". The capacity generally relied on in cases where the alleged disability takes the form of depression is (g) – "memory or ability to concentrate, learn or understand". Paragraph 6 reads (so far as material):
“(1) An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect. (2) In sub-para. (1) "measures" includes, in particular, medical treatment and the use of a prosthesis or other aid. (3) … .”
An adverse effect found on the basis of paragraph 6 has come to be referred to in the jurisprudence - rather inaptly in our view - as a "deduced effect".[55]The burden of proving disability lies on the claimant. There is no rule of law that that burden can only be discharged by adducing first-hand expert evidence, but difficult questions frequently arise in relation to mental impairment, and in Morgan v Staffordshire University [2002] ICR 475 this Tribunal, Lindsay P presiding, observed that “the existence or not of a mental impairment is very much a matter for qualified and informed medical opinion” (see para. 20 (5), at p. 485 A-B); and it was held in that case that reference to the applicant’s GP notes was insufficient to establish that she was suffering from a disabling depression (see in particular paras. 18-20, at pp. 482-4). (We should acknowledge that at the time that Morgan was decided paragraph 1 of Schedule 1 contained a provision relevant to mental impairment which has since been repealed; but it does not seem to us that Lindsay P’s observations were specifically related to that point.) At case management discussions on 3 October 2008 and again on 10 July 2009 the question of obtaining a report from an independent expert on a joint basis was discussed; but the Claimant made it clear that he wished to rely simply on the contents of the reports to be found in the disclosed documents. He explained his attitude by saying that the claim of disability discrimination was less important to him than the claim of racial discrimination. On the latter occasion Employment Judge Haynes specifically recorded: “A bundle had been prepared for this hearing by the Respondents and the medical evidence contained at tabs 73 through to 84. The Claimant is content that the Tribunal will make its decision on whether or not he satisfied the definition of disability from that medical evidence and his oral evidence.” (That was subject to one irrelevant gloss.)[56]The evidence contained in the documents referred to in the note of the case management discussion can be summarised as follows: (1) On 13 July 2006 the Claimant was seen by an occupational health doctor employed by Capita. The doctor’s note briefly summarises his problems at work and says that “he suffered a typical aggravation of his psychological health through the above-mentioned conflict”. He says that the Claimant “continues to suffer from certain symptoms”, for which the doctor had suggested “further avenues of treatment”. He opines that the outlook for the Claimant’s health is “very good” and that he anticipates a full recovery. Under the heading “procedural issues” he says:
“Mr Morris’s health is likely to be covered by the Disability Discrimination Act 1995”
. That is not the same as a statement that the Claimant was at that time suffering from a disability within the meaning of the Act; and in context it is unlikely that that was what the doctor meant. But if it was, it would be of no real weight, given the Claimant’s history and symptoms at that time. (2) On 1 September 2006 he was seen by another Capita doctor. The report is short and fairly unspecific. The doctor recorded that “his present work-related concerns have led to reduced psychological well-being”. He said that if those could be resolved the Claimant should be able to return to work “quite quickly”. He noted the reference to the 1995 Act in the previous report but said that “at this stage I feel that it is unlikely he would be covered under the terms of the DDA”. (3) On 19 October 2006 he was seen by a Dr O’Donovan, a psychiatric Registrar, at an NHS out-patient clinic. His note reads:
“He is a highly educated young man with severe difficulties at work from 2001 – not working since March. In brief he presented today as very distressed and found it nearly impossible to get off the subject of speaking about his work. Overall Diagnostically he presents today as possibly a severe depressive episode including anhedonia, emw, tearfullness and low mood. However – he also alludes to a large amount of other bizarre psychopathology and talked for some time about MI5 national security agency in the states etc. The sense of this was verging towards first rank symptoms however he had somewhat plausible explanations for his beliefs. Therefore treat as depression in the first instance. Review and further explore the possibility of psychotic symptoms which are high on the differential list. Letter sent to GP.”
He prescribed SSRI, an antidepressant. (4) Dr O’Donovan saw the Claimant again on 16 November 2006. We need not set out the contents of his notes, since on 6 December he wrote to the Claimant’s GP. The letter reads:
“ I saw this gentleman about 4 weeks ago (and again today (16 th November 2006) in my opinion he had a depressive episode of moderate to severe intensity with an associated biological syndrome. At the time I saw him first he had severe anhedonia, early morning wakening futility and occasional suicidal thoughts. He had been off work which appeared to be the main source of his stressors for a period of time. He also started, on my advice, an SSRI after giving it some consideration. Today, thankfully he presents as much brighter in mood, he is no longer adhedonic, his sleeping has improved, he is beginning to describe improvement in his concentration and overall has a feeling of vigour entering back into his life. I think that from the point of view of his depressive symptoms things are improving. There is a plan for the future where he looks at going back to work potentially in the New Year. He should stay on antidepressant medication for a minimum of 6 months from starting and I suppose the other issue then is his underlying personality vulnerability. He struck me as an intelligent, well educated man but with a tendency perhaps towards being a little obsessional and it seems that he has had a degree of conflict in work over the years in his current employment, once in 2001, he told me for a brief period of time and also more recently in his prior employers before that although he did not describe specific incidents of disagreement he said that his boss was difficult. The role of this service here will not be to go into his work place issues and simply to try and treat his mental health problems as effectively as possible and certainly on this occasion, he ahs presented as quite badly depressed, he now appears to be recovering but obviously he is a man who may be vulnerable to similar episodes in the future and this should be borne in mind. A follow-up letter dated 31 January 2007 recorded that he had not seen the Claimant again but recapitulated his history as follows: “I saw Mr Morris on a couple of occasions, he has had a very stressful situation at work and certainly when I saw him initially he was moderately depressed with a biological symptom. He appeared improved and quite well on antidepressant therapy but I have not seen him now in some time.” (5) On 6 March 2007 the Claimant saw another Capita doctor. She recorded that he had been having counselling since January 2007. She did not offer a diagnosis and suggested a further report from Dr O’Donovan. Under the heading “Procedural Issues” she said: “With regard to the Disability Discrimination Act, it is now possible that Mr Morris may be considered under the Act because he has had his symptoms for twelve months and he is now requiring medication and is under the care of a specialist. Please note that this is advice only and not a binding determination of whether the Act applies.” (6) Dr O’Donovan wrote again to Capita on 18 April 2007. He made it clear that he had not seen the Claimant since the two consultations referred to above. As regards the first, he said: “I felt at that stage that he diagnostically presented as someone with a severe depressive episode including core features of anhedonia, early morning wakening, tearfulness and low mood. However there was also a sense talking to him that the psychopathology he related to was in someway vaguely persecutory. I made a diagnosis at this stage of a moderate depressive episode with full biological syndrome and started him on an antidepressant. I remember vividly during the conversation that Mr Morris spoke in an agitated fashion for about 45 minutes. It was very difficult to interrupt him or to get any other information and most of the conversation related to perceived slights and injustices in his workplace. However, he was clearly psychologically very unwell and definitely had quite a bad depressive episode.”
As regards the second consultation he said that the Claimant “appeared to be an awful lot better”: in that context he mentioned that the Claimant had been taking the SSRI for about two weeks. After giving further details he said:
“Therefore the diagnosis became clearly a severe depressive episode in the context of workplace stress. There is a possibility that he had underlying personality vulnerabilities but overall I felt that he was a reasonably well adjusted man premorbidly. His workplace history would probably bear that out.”
His conclusion was:
“In my opinion, he clearly had a bad depressive episode in the context of workplace stress which appears to have resolved with treatment on medication and being out of the workplace for a period of time getting some rest and re-cooperation. Ideally this man needs to go back to work, he has always been gainfully employed either in university or working and it would be terrible if he stayed out of work for a long period of time as I feel this would be injurious to his health. It is difficult for me to comment on what work he should or should not do in the future in his employment as I am not aware of what is involved. Presumably this is something that could be ironed out locally between Michael and his employers and a reasonable compromise could be made. Prognostically I think Michael should do well if he gets back into employment that is suitable for him. He obviously will be at risk in the future of a recurrence of depression and ideally should stay on antidepressants for a period of one year from his very severe episode of depression. I agree with your point made in the second paragraph that it would be reasonable for him to work away from the previous line management team.”
[57]The Tribunal addressed this issue at paragraphs 319-320 of the Reasons. At paragraph 319 it refers to having made “… findings of fact which show that the Claimant was a disabled person by reason of a mental impairment and that the Respondent ought to have from the evidence available to it that the was disabled from December 2006/January 2007. That evidence shows the Claimant had suffered a serious depressive episode in the context of workplace stress, that as at November 2006 and for the long term future he needed to stay on antidepressants and that while he should do well if he got back into employment he was at risk of a recurrence in the future.” (That way of putting it rolls up the separate questions of whether the Claimant was in fact disabled and if so whether RBS should have known of the disability. We are here stage only concerned with the former.)[58]The findings of fact referred to at paragraph 319 appear in the narrative section of the Reasons at paragraphs 159-163 (though, in accordance with its practice, the Tribunal repeats some of them in the later part of paragraph 319). At paragraphs 159-160 it refers to the Claimant’s two consultations with Dr O’Donovan. In the second half of paragraph 160 it says:
“Had these documents from the Claimant’s psychiatrist been sent to the Respondent at this time then the Respondent would have known or should have known from this time the Claimant was a disabled person for the purposes of the Disability Discrimination Act 1995. As previously stated the Tribunal finds the Respondent knew there was a possibility the Claimant who had been off sick since 6 March 2006 was a disabled person from July 2006 and by this time November 2006 must have known that that possibility was increasing as time passed and he remained off sick. The Tribunal further finds that once the Respondent knew the Claimant was seeing a psychiatrist in December 2006 it should have arranged to obtain any report from that treating psychiatrist to the Claimant’s General Practitioner or directly from the Psychiatrist. The Claimant had agreed with his consultant that he wished it to be available to the Respondent if they asked for it when he saw him in November 2006.”
It continues, at paragraph 161:
“The Tribunal finds the Claimant was a disabled person at this time. The Respondent knew or ought to have known this after sufficient time had passed after the Claimant disclosed to it he was seeing a psychiatrist and of the availability to them of a report from the psychiatrist for the Respondent to obtain such a report. In reaching its conclusion the Claimant was a disabled person and that the Respondent knew of ought to have know he was a disabled person the Tribunal has had regard to the evidence available at the relevant time which shows the Claimant has experienced/is experiencing a severe depressive episode and will required medication for the immediate and long term future. Had the Respondent immediately sought a report from Dr Donovan in December the n it would have received the very same report it in fact received in June 2007 in January 2007. The Tribunal has also had regard to the ongoing information available to the Respondent from the Claimant during his absence to this time. This includes the remarks made fairly early on in April 2006 to Carrie Mason “ he jumped every time the phone rang;” “everything is gone up in a (I think) spanner, but will come out in the wash;” “he would recover even if he died next week”
. His apparent ill health during the grievance meetings; comments of others Brian Tighe, Andrew Gill, made at the grievance meetings about the Claimant’s state of health in the period leading up to his absence. Carrie Masons determination over a significant period to play down any possibility of mental impairment and to look for a physical condition.” After referring, at paragraph 162, to the decision of the Court of Appeal in Richmond Adult Community College v McDougall [2008] IRLR 227 , it concludes, at the start of paragraph 163:
“Accordingly from December 2006/Mid January 2007 the Tribunal finds the Respondent, from the evidence that was available to it at time had it chosen to obtain it, ought to have known the Claimant was disabled for the purposes of the Disability Discrimination Act…”
[59]Mr Reade submitted that the Tribunal’s analysis in those paragraphs is defective because at no point does it address the specific issues raised by the definition of disability in section 1 of the 1995 Act as glossed in Schedule 1. It is no doubt clear from Dr O’Donovan’s reports that at some point during the relevant period the Claimant suffered a mental impairment in the form of a depressive episode. But it was necessary for the Tribunal to consider also(a) whether that impairment had a substantial adverse effect on his ability to carry out normal day-to-day activities and(b) whether that effect was long-term in the sense defined in paragraph 2 of Schedule 1: those points are not considered.[60]It is certainly correct that the Tribunal does not address either question explicitly and that that is a breach of good practice: see the well-known guidance of Morison P in Goodwin v Patent Office [1999] ICR 302 , at p. 308 A-D. (The Tribunal in fact refers to Goodwin in the section of the Reasons where it sets out the relevant law; but it does not follow its guidance when reaching its conclusions. Over-rigid adherence to the standard template for judgments in the employment tribunal too often leads to this kind of disconnect.) But that would not be fatal if it were clear that it had in fact considered each question and had reached a conclusion that was open to it on the evidence. We take the two questions in turn.[61]As to (a), in our view the symptoms recorded by Dr O’Donovan following his consultation on 19 October 2006 plainly justified a finding that the Claimant had at that date an impairment which substantially affected his ability to carry out normal day-to-day activities (for short, “a serious impairment”) and the Tribunal plainly had that consultation very much in mind. We do not, however, believe that the evidence justified any finding about how long either before or after that date that was the case. So far as the earlier period is concerned, the only medical evidence consists of the distinctly bland reports of the Capita doctors, which offer no real diagnosis and a fairly optimistic prognosis: see paragraph 56(1) and(2) above. As for the later period, Dr O’Donovan’s second report shows that the Claimant was already much better, and there is no evidence of serious continuing symptoms. We do not believe that it can simply be assumed that the statutory test was satisfied from October 2006 onwards. Of course it could be that any improvement was only as a result of the medication that the Appellant was taking, so that he could rely on a “deduced effect” under paragraph 6 of Schedule 1; but there was no explicit evidence on this point, and we do not think that any safe inferences could be drawn from the fact that the Claimant was told that he should continue with the medication for six months, which might only have been precautionary. This is just the kind of question on which a tribunal is very unlikely to be able to make safe findings without the benefit of medical evidence. The same applies to any potential reliance on paragraph 2 (2) of Schedule 1. Dr O’Donovan did indeed in his letter of 6 December 2006 refer to the risk of recurrence; but it would be difficult for the Tribunal to assess the likelihood of that risk, or the severity of the effect if it eventuated, without expert evidence.[62]As to (b), it follows from our conclusions in the previous paragraph that the evidence before the Tribunal did not establish that the Claimant at any time in the relevant period suffered from a (serious) impairment which had lasted for at least twelve months, so as to fall within head (a) of paragraph 2 (1) of Schedule 1. The Claimant could in principle still argue that the (serious) impairment from which he did unquestionably suffer in October 2006 was – judged at that date (as required by the Richmond Adult College case (above)) – likely to last for at least twelve months, so as to fall under head (b). But again the evidence did not in our view justify such a conclusion. Dr O’Donovan’s contemporary note simply diagnoses a “severe depressive episode”, with no prognosis of any kind: see paragraph 56 (3) above. The Tribunal could not without expert evidence form any view on the likelihood of that impairment (at the necessary level of seriousness) continuing for at least a year.[63]We accordingly hold that it was not open to the Tribunal on the evidence before it to find that the Claimant was disabled during the relevant period. It might well be that the Claimant could have filled the evidential gap by agreeing to the suggestion made during the case management process that expert evidence be sought which directly addressed the questions which the contemporary reports did not cover. But he made a deliberate – and perfectly rational – choice not to do so: see paragraph 55 above. The fact is that while in the case of other kinds of impairment the contemporary medical notes or reports may, even if they are not explicitly addressed to the issues arising under the Act, give a tribunal a sufficient evidential basis to make common-sense findings, in cases where the disability alleged takes the form of depression or a cognate mental impairment, the issues will often be too subtle to allow it to make proper findings without expert assistance. It may be a pity that that is so, but it is inescapable given the real difficulties of assessing in the case of mental impairment issues such as likely duration, deduced effect and risk of recurrence which arise directly from the way the statute is drafted.[64]It follows that the disability discrimination appeal must succeed and the claim must be dismissed. In those circumstances we need not, strictly speaking, consider the Tribunal’s decision on the reasonable adjustment issue; but we will do so briefly. (2) REASONABLE ADJUSTMENT[65]Section 3A (2) of the 1995 Act provides as follows:
“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.”
Section 4A reads (so far as material): “(1) Where - (a) a provision, criterion or practice applied by or on behalf of an employer, or (b) any physical feature of premises occupied by the employer, places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect. (2) ... (3) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know- (a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the employment; or (b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1)." We will use the usual abbreviation “PCP” for the phrase “policy criterion or practice” in section 4A (1).[66]The Tribunal found that RBS should have known from “December 2006/mid-January 2007” that the Claimant was suffering from a disability: see para. 163 of the Reasons, quoted at paragraph 58 above. Mr Reade did not dispute that finding subject to the issue as to whether the Claimant was in fact disabled at all. Accordingly the duty under section 4A applied as from that time.[67]The starting-point must be to identify the PCP. The PCP defined in the issues was “the transfer policy”: see paragraph 22 above. The finding that there was such a policy appears at paragraph 253 of the Reasons, as follows:
“…there was a provision criterion or practice operated by the Respondent which put the Claimant at a disadvantage in relation to able bodied persons namely the provision in the transfer policy whereby in order to be allowed a transfer you had to be at work.”
The “fact the Tribunal has found” are not specified. But the reference appears to be the finding about what Ms Hollyoak told the Claimant summarised at paragraph 18 above: there was no relevant documentary evidence.[68]The next question is whether that PCP placed the Claimant at a substantial disadvantage compared with a person who was not disabled. The Tribunal addresses that question at para. 323 of the Reasons, as follows:
“The Tribunal has then gone on to consider whether in the light of the knowledge the Claimant was a disabled person for the purposes of the Act what was the provision criterion or practice in operation at the Respondent which he says put him at a substantial disadvantage in comparison to persons who are not disabled or who have a different disability. The Claimant says the Respondent’s transfer policy put him at a substantial disadvantage. He says and the Tribunal finds that policy required him to return to work before any transfer could be considered and this put him at a substantial disadvantage in comparison to persons who were not disabled. They were at work. Because of his impairment he could not return to work where he had previously been.”
To spell it out, the requirement that the Claimant return to his old work before he could be transferred prevented him from returning to work at all, because returning to his old work, even temporarily, would be damaging to his mental health.[69]The remaining question is whether there were steps which RBS should have taken, but did not take, which would have prevented the transfer policy having that effect. That question is addressed at paragraph 324 of the Reasons. This is very lengthy and we need not set it out in full. Most of it is concerned with criticising RBS for failing to make it clear to the Claimant during the course of 2006 that it had in fact already decided that he would not return to Group Technology and, in particular, that an offer had been made in May 2006 by a Mr Zimmerman that he could go to work in his department. Those criticisms may be well-founded, but they are not – as indeed the Tribunal acknowledged – relevant to the issue under section 3A (2) because the duty under section 4A did not arise until the beginning of 2007. As to that period, it said:
“The facts found further show had the Respondent done this between December 2006/January 2007 and September 2007 and most particularly if they had found out whether there was still work available for the Claimant to do with Paul Zimmerman and if there was offered it to him then it is more than likely even in June and or July 2007 he would have able to return to work in the knowledge there was work available for him he was able to do. Perhaps what the Tribunal finds is of most concern is that if alternative work had been explored in the early period of the Claimant’s absence then he may have been able to return to work much earlier and to avoid the whole cumbersome process of formally pursuing a grievance through the dignity at work process he was so keen to avoid. The Tribunal finds that from December 2006/January 2007 the Respondent was under a duty to make reasonable adjustments and that there was a reasonable adjustment the Respondent could have made to its transfer policy which would more than likely have been effective and allowed the Claimant to return to work.”
Although even in that (comparatively) short passage there is an element relating to the earlier period, it is nevertheless an explicit finding of a breach in the period from January 2007.[70]Mr Reade’s essential submission was that this reasoning was confused. It was necessary to focus specifically on the PCP which had been found, namely the “transfer policy”, and to ask what could have been done, but was not done, to prevent that policy making it impossible for the Claimant to return to work. That question was not, he submitted, directly addressed and answered. That is correct as far as it goes, but it would not be fatal if the Tribunal’s answer was nevertheless obvious from the Reasons taken as a whole.[71]At first sight, it would seem that the answer was indeed obvious, namely that the reasonable step was to tell the Claimant that he would not have to return to the Employment Tribunal before being considered for transfer – whereas Ms Hollyoak told him the opposite. But Mr Reade pointed out that the Tribunal found at other parts of the Reasons that the Claimant was in fact told at an early stage that when he was fit he would be returned to something called “the central pool” or “the redeployment pool”. He was told this by Ms Mason as early as June 2006 (see paragraph 94 of the Reasons) – though it is fair to add that the Tribunal notes that he was not told in terms that he would not thereafter be returned to Group Technology; and he was told the same thing by Ms Hollyoak in June 2007 (see paragraphs 245 and 248). The effect of those findings is not perhaps wholly clear, but the Claimant confirmed to us in his oral submissions that at the relevant period he understood that there was no prospect of his being returned to Group Technology: his concern was that it was unclear where he would be going to and whether he might still be based in the same building. Those were legitimate concerns (though they might have been resolved had he not resigned); but they do not correspond to the apparent basis on which the Tribunal found RBS to be in breach of its duty under section 4A.[72]That seems to us enough to justify the conclusion that the Tribunal’s reasoning on this point cannot stand. Mr Reade also submitted that, if and to the extent that the Tribunal relied on a failure to pass on Mr Zimmerman’s offer, that had occurred in May 2006 and there was no evidence that that offer remained open in 2007. We need not reach a conclusion on that point. Our initial reaction is that if RBS had indeed insisted on the Claimant returning to Group Technology before transfer could be considered it would be unnecessary for the Claimant to show, at least in the circumstances of this case, that specific alternatives existed.[73]We would accordingly have allowed the appeal on this basis even if we had upheld the Tribunal’s finding that the Claimant was disabled. CONCLUSION ON DISABILITY DISCRIMINATION APPEAL[74]We allow the appeal against the finding of disability discrimination and dismiss the claim.

Cited in 2 later judgments