Flattley v Cleveland Police Authority (Practice and Procedure : Case Management) [2013] UKEAT 0986_12_2409

EAT
Flattley v Cleveland Police Authority (Practice and Procedure : Case Management)
[2013] UKEAT 0986_12_2409 · 2013-09-24
[1]In this case the parties are Miss Rachel Flattley (the Claimant) and the Cleveland Police Authority (the Respondent). This Judgment is written partly in the first person singular and partly in the first person plural because, of the four cases, two are applications under rule 3(10), ordered to be heard by a Judge alone, and two are appeals to a three-person Tribunal. Introduction[2]The substance of the case is an appeal by the Claimant against the dismissal of most of her claims relating to disability discrimination, but she was successful in her claim of unfair dismissal, not the subject of any challenge by the Respondent. Associated with this is an appeal by the Respondent against one aspect in which the Claimant succeeded in her claim of victimisation.[3]The short description of the case is that the Claimant was a civilian employed by the Respondent who developed over time a mild anxiety disorder and on the basis of that contended that she was disabled under the Disability Discrimination Act 1995 (DDA) and, as a consequence of that, she was discriminated against in various ways by the Respondent.[4]That short description belies the massive case management that has gone into the Judgments before us. About a dozen case management hearings were conducted in order to get this case on the road. The product is a sequence of Judgments made by the Employment Tribunal under the chairmanship of Employment Judge Forrest sitting in the north‑east. The first, which is not appealed, is an application to adjourn, where certain issues were raised by the Claimant at the outset of her hearing, but the Tribunal decided to press on without an adjournment.[5]The second, being the first the subject of an appeal, relates to a further application made by the Claimant. She has for almost all of the proceedings that we are aware of been represented by Ms Jane Callan of counsel, and the Respondent by Mr Colin Bourne. The application was made on day three of the hearing, when it was sought to introduce new medical evidence from Dr Mumford, who had not at that stage produced any report; that application was refused and is the subject of the first appeal.[6]Thereafter the Employment Tribunal decided on the question of disability. It had been earmarked as a discrete issue to be tried as a preliminary point originally; that decision was the subject of a ground of appeal, but that has fallen away, and so what remains is a Judgment on disability sent to the parties on 11 May 2012. This is a decision made on remittal by the Tribunal following the successful appeal to the Employment Appeal Tribunal presided over by HHJ Peter Clark. The substance of the appeal before that division of the EAT was said to be a misdirection on disability, and that aspect of the appeal succeeded so that the case was remitted to the same Employment Tribunal for a rehearing. It was left to the Employment Tribunal to decide precisely how to go about this. The appeal itself had been allowed because the EAT, unusually, applied the principles of Ladd v Marshall [1954] 1 WLR 1489 and admitted fresh medical evidence, and with this fresh medical evidence the case was remitted for the Tribunal to consider whether the Claimant was disabled within the statute. It decided not.[7]The third Judgment – and this is before the three of us now – is the outcome of the substantive hearing on the Claimant’s claims, which was conducted over 15 days during 2012 and resulted in a Judgment sent to the parties on 16 October 2012 running to 53 pages. That is the subject of a bipartisan attack, the Claimant contending that the three acts of victimisation that she alleged should have resulted in the same conclusion in her favour whereas only one was; as to that, the attack is made by the Respondent that the Tribunal applied the law incorrectly.[8]In case management of these four matters, I suggested to counsel that the preliminary hearings that had been ordered by Judge Peter Clark might usefully be converted into full hearings, since both parties were to be heard at the hearing and this very old case required urgent consideration, and very helpfully both counsel agreed. Ms Callan also agreed that at the 3(10) hearings into the first two Judgments Mr Bourne might, if necessary to help me, be able to make a contribution, and he has done, sparingly. Reporting[9]The final matter that has to be dealt with today is an application by Ms Callan for a restricted reporting order, to which I shall now turn. The power to make such an order is contained in section 32 of the Employment Tribunals Act 1996 , but, as she accepts, this is not available today, because on an appeal against an interlocutory decision of an Employment Tribunal that has made an order and that has not been revoked, the EAT may make an order. In this case, there was at some stages in the proceedings a restricted reporting order, since this case relates to disability, but that has lapsed and not been renewed, so the statutory basis for making the application has fallen away.[10]Instead, Ms Callan relies upon the provisions of Articles 6 and 8 of the European Convention on Human Rights , the Claimant’s right to privacy. The application was limited to the proceedings today, and in the course of the hearing I ruled that the order should not be made. Mr Bourne contended there was no basis for the making of the order. I have not heard from the press about whether or not such an order might be made, which is a relevant consideration under Article 6, since legal proceedings should be pronounced in public unless there are reasons.[11]The Claimant has advanced a broad proposition that her right to privacy ought to give her the protection of anonymity in these proceedings. I note she is a seasoned campaigner in the Employment Tribunal, and her name appears on all of the documents apart from the Judgment of Judge Peter Clark in the EAT. No strong case was made to us about the reason why the Claimant’s privacy precluded her being named in these legal proceedings. They are very old, they have gone on for a long time, there are many Judgments of the Employment Tribunal, it has occupied the ET for I dare say about 30 or 40 days over the years, and no compelling case was made to me necessary for the protection of the Claimant’s privacy in keeping her name undisclosed until the end of the proceedings. And so, balancing the interests of public justice and the narrow issue in this case, it seemed to us that the order should be refused. Rule 3(10)[12]My approach to applications under rule 3 is found in Cheema v Kumar UKEATPA/0250/12, and that approach has been approved, for example, in Evans v University of Oxford [2010] EWCA Civ 1240 by the Court of Appeal. The two rule 3 cases follow opinions by HHJ Peter Clark on the sift that they had no reasonable prospect of success, and so the Claimant exercised her right to have a reconsideration at an oral hearing, which has been conducted before the three of us but upon which the only decision is mine. The legislation[13]The legislation in this case Disability Discrimination Act 1995 pre‑dates the Equality Act and provides as follows:
“55 Victimisation (1) For the purposes of Part 2 […] a person (‘A’) discriminates against another person (‘B’) if— (a) he treats B less favourably than he treats or would treat other persons whose circumstances are the same as B’s, and (b) he does so for a reason mentioned in subsection (2). (2) The reasons are that— (a) B has— (i) brought proceedings against A or any other person under this Act; or […] (iv) alleged that A or any other person has (whether or not the allegation so states) contravened this Act; or (b) A believes or suspects that B has done or intends to do any of those things. (3) Where B is a disabled person, or a person who has had a disability, the disability in question shall be disregarded in comparing his circumstances with those of any other person for the purposes of subsection (1)(a). (4) Subsection (1) does not apply to treatment of a person because of an allegation made by him if the allegation was false and not made in good faith.”
[14]The provision is supplemented with a requirement that the relevant circumstances of a comparator who was in that legislation necessary actually or hypothetically to be invoked are the same or not materially different. The burden of proof applies so that the burden would shift from stage one to stage two, calling for an explanation from the Respondent if the Claimant has made a case that could lead to a finding of less favourable treatment on the grounds of having done a protected act. The facts[15]The Claimant began to work in 2004 as liaison and staff officer assistant. On 2 January 2007 she transferred to the post of alarms administrator, which was confirmed after a trial period. The Claimant had hitherto raised a grievance in 2006, and in 2008 the matter was still ongoing. The Claimant continued to pursue her grievance. There were a number of hearings about the matter. There were disputes involving the Claimant about handover arrangements for cover and about the Claimant’s refusal to attend. On 7 November 2008 the Claimant submitted her first claim. She sought to add further grievances and amendments, and on 15 February 2009 the Claimant was absent on account of her injury.[16]The Claimant was due to return to work on 26 March 2009, but three days earlier, on 23 March 2009, five line managers of her in the central business unit (CBU) submitted a devastating memo complaining about her. It was issued, the Tribunal found, because of the Claimant’s imminent return to work. It is a shocking account of life within that team and the Claimant’s wholly unreasonable conduct within it. The findings by the Tribunal about the Claimant’s conduct are extensive and condign. She certainly was a very difficult person to work with and to manage, particularly in an employment situation which is hierarchical and depends on a command structure. In this memo there is a direct reference to the Claimant having issued Tribunal proceedings and the amount of time that was being taken up managing her and her concerns. On 26 March 2009 the Claimant was suspended by her civilian manager Anne Hall.[17]The memo itself is the substance of the first complaint of less favourable treatment, and the suspension the second. The Claimant made a further claim on 5 May 2009, and on 1 February 2010 a disciplinary hearing ended and the Claimant was notified that her grievances were dismissed and the Claimant was to be dismissed. She appealed and her appeals were rejected on 26 March 2010, and a further claim was submitted to the Employment Tribunal.[18]Meanwhile, the Claimant was complaining of a mental impairment, which is the subject of her disability claim. In due course the full records of the Claimant’s medical history going back to when she was seven months old were examined by the doctor jointly appointed by the parties on the Tribunal’s direction, Dr Bradbury, who is a clinical psychiatrist. The gist of the Claimant’s complaint is that she had MADD by reason of which she was disabled within the meaning of the statute and that the Respondent had acted unlawfully.[19]The Tribunal found that the Claimant had done protected acts; there were nine of them. As Mr Bourne succinctly puts it, one is enough. Everybody knew that the Claimant was contending she was disabled and that the Respondent was denying it and that she had made a number of Tribunal claims and raised issues within the grievance machinery, and this extended over a period of time. Notably, the Tribunal found that the first serious one of these was the submission of the claim form in November 2008, and, as we point out, no unfavourable treatment is alleged by the Claimant for five months thereafter. Indeed, the contentions the Claimant makes about protected acts go back to the early part of 2008.[20]The Tribunal wrung out of the Claimant the three contentions upon which she relied for her complaints of victimisation – they were the memo, the suspension and ultimately the dismissal – and the overall contention that she was unfairly dismissed contrary to section 98 of the Employment Rights Act 1996 . The result was mixed. The Tribunal first addressed itself to the sequence of questions raised in the Judgment of HHJ Peter Clark and members in HM Prison Service v Ibimidun [2008] IRLR 940 , and they are as follow:
“(1) Did the Claimant do a protected act(s)? (2) Was he treated less favourably than others who did not do the protected act(s)? (3) Was he less favourably treated by reason that he had done the protected act(s)? (4) If so, is he nevertheless disqualified for relying on the victimisation provisions … because the allegations were false and not made in good faith?”
[21]As the Tribunal pointed out, the Respondent did not rely on the fourth. The first question the Tribunal asked was whether or not there were protected acts, and the Tribunal found that there were. It may be noted that immediately before the first of the two detriments, the memo and the suspension, were the submission of further particulars, which was the answer to a request relating to the Claimant’s application to the Tribunal on 19 March 2009.[22]The Tribunal listed all of the allegations that had been set out in writing exhaustively, and then there is this:
“111. There was one other potentially significant, operative protected act, not set out in Mrs Callan’s list in her Skeleton Argument, but referred to orally in submission, which we accepted. We made a finding above, in paragraph 59, that ‘at some stage following the CMD (on 22 nd January 2009) Mrs Llewellyn, who was the Force Solicitor representing the Authority, informed Mrs Borsumato and Mrs Tranter that it appeared likely that Miss Flattley would be submitting a further Tribunal application’. That intention of Miss Flattley’s, to make an allegation that the Force had contravened the DDA, was also a protected act.”
[23]As it happens, this point did occupy quite a large position in the account, even though it looks like esprit d’escalier . The finding by the Tribunal was that the three acts relied on as victimisation followed the submission of the first Tribunal claim in November 2008 and all the managers were well aware of it. The second question, therefore, was: was the Claimant treated less favourably than others who did not do the protected act? Ms Callan accepts that the following direction is correct (paragraph 114):
“The question is: was Miss Flattley treated less favourably than a colleague who had behaved in a similar fashion, but had never referred to health or disability?”
[24]That means that the Tribunal had to ask what the circumstances were of another colleague, and the Tribunal firmly came to the view that the same treatment would have been afforded to a person who had not done the protected act. The Tribunal said this:
“113. We discussed with the Representatives how we should construct the appropriate, hypothetical comparator. It was agreed that we should take an employee in the same circumstances as Miss Flattley: an employee who had commenced employment at the same time, had gone through the same events in 2005 and 2006, including the same absence from work, and submitting a grievance about the way she had been treated. The comparator would have the same anxious personality. The comparator should have behaved in the same way towards her management and received the identical treatment from them, including the identical exchanges of e‑mails and so on. The one key difference is that the comparator would not have complained of her health in such a way as to indicate that her medical condition might amount to such a disability, nor would she have ever complained that any treatment she received could have amounted to a breach of the DDA, in any way, nor of course, would the comparator have ever submitted complaints to the Employment Tribunal under the DDA. 114. The question is: was Miss Flattley treated less favourably than a colleague who had behaved in a similar fashion, but had never referred to health or disability? If management were faced with the same situation, an intransigent employee who they were finding it impossible to manage, it seems to us that management would have composed and submitted the same memo. They were evidently failing to manage the employee, who was taking up significant amounts of management time, and causing distress and disruption; they did not know what to do, and so sought help. The Tribunal claims, the allegations of discrimination, contributed to the disruption and distress, but even without them, the memo would still have been sent. On that basis, we will find that this part of Miss Flattley’s claim for victimisation fails, in relation to the management memo, since a comparator would have been subjected to the same unfavourable treatment.”
[25]It did the same in relation to the dismissal. Ms Callan accepts that the approach of the Tribunal is the same, in that it found that a person would have been treated no differently from the Claimant who had done the protected act. The Tribunal said this:
“121. Dismissal is clearly capable of amounting to less favourable treatment, but we are not persuaded that an employee who had behaved in a similar fashion to Miss Flattley, but who had never complained of disability or discrimination, would have been treated any differently. Following Mr Jackson’s report, and the voluminous evidence available at the disciplinary hearing, there was strong evidence from which management could conclude that dismissal was the appropriate sanction. We find that an employee facing the same allegation, but who had never complained of disability, would also have been dismissed. 122. Moreover, by that stage, although the disability discrimination claims were being vigorously litigated, they had little significance in the disciplinary proceedings. Mr Jackson had expressly declined to investigate the issues of disability and, although health issues and the proceedings are referred to at the disciplinary hearing, we find that Miss Flattley’s protected acts were not a significant factor, to any degree, for DCC Bonnard when reaching his decision to dismiss. They were simply crowded out by the positive evidence of misconduct. Miss Flattley was not dismissed by reason that she had complained of disability discrimination.”
[26]In a slightly out‑of‑order passage the Tribunal then looked at the reason why; that is, the third question in Ibimidun . But it is common ground, as the Tribunal says, that this is not necessary for its decision. The Tribunal went on to deal with the involvement of the Claimant’s claims and protected acts as a factor in the decisions. In our judgment, the proper place for this is as auxiliary reasoning not necessary for its Judgment. It is fair to say that the Tribunal does here arguably make errors in looking for the principal reason and looking at whether there were significant contributions by way of protected act to the thinking. But all of that is irrelevant, because the decision had been made prior to this excursion into the law. The finding by the Tribunal, for what it is worth, is that the memo was written by the managers because the managers needed guidance and not by reason that she brought a Tribunal claim or had done any protected act. So, that is a firm finding that the reason for the writing of the memo was not the protected act, and if it were necessary for the decision to have gone to the third stage of Ibimidun , then that would be sufficient.[27]As to the second act, suspension, the Tribunal found in favour of the Claimant, and the firm finding is that the Claimant was making a complaint in which the disability discrimination was highly significant. The real finding here is difficult to grasp: it is that the Claimant was treated less favourably than a person who had not done a protected act, in that she was victimised, because she was allowed to so misconduct herself as to be on the threshold of gross misconduct when, had she not raised the disability issue, management would have acted firmly and robustly to put her in her place at an earlier stage before risking gross misconduct dismissal and suspension. As we say, that is a difficult concept, but that is what the Tribunal found; that was the less favourable treatment.[28]The Tribunal then considered unfair dismissal and found that the Respondent had unfairly dismissed the Claimant because of the breakdown and her misbehaviour. The clear findings are that however many warnings she be given she was unlikely to improve. The failure to give her a prior warning of what was coming was unfair, and this rendered the dismissal itself unfair.[29]The Tribunal then went on to consider whether the Claimant was responsible for her own dismissal because she was blameworthy, and said this:
“162. In our view, Miss Flattley’s conduct was culpable and blameworthy to a considerable degree. She seems to have had no conception that her obligation under the contract of service is to serve: to obey instructions; that, in exchange for accepting employment and her employer’s salary, she cedes to her employer the right of control, still a fundamental features of the employment relationship, even in the 21 st century. Of course, that control, that right to instruct, must be exercised reasonably within the confines of the contract and the job description, and appropriately, for the office environment in which Miss Flattley worked. However, the Police Force is necessarily a disciplined and structured environment. Miss Flattley, despite advice from Miss McKay and others, never accepted the discipline. She repeatedly, as we have seen, challenged her Managers and would not accept their rulings. 163. In our view, she was treated with consideration and respect; she was shown a degree of tolerance and forbearance far beyond what many managements could be expected reasonably to show. Indeed, it is precisely that forbearance that has led us to find her dismissal unfair. Mrs Borsumato apologised in her evidence for one occasion (see paragraph 46) when her patience snapped, and she slapped the desk; and Miss Flattley made her pay for that, citing it repeatedly as an instance of the bullying she says she was subjected to. It was nothing of the sort; in the circumstances, Mrs Borsumato’s gesture was moderate, proportionate and appropriate. 164. We regard Miss Flattley’s behaviour as culpable and blameworthy […].”
[30]It reduced her compensation by two‑thirds. Prior to that, it considered whether she would have survived in the environment given her background and decided that there was only a 20 per cent chance of her doing it if the employer had gone about things more quickly and in a proper way; she would not have easily altered her conduct in the course of any number of disciplinary warnings, and so, as the Tribunal put it, arithmetically for every £100 lost she would be awarded only £6.66. The Tribunal went on to award compensation at a remedy hearing in Reasons sent to the parties on 11 January 2013. The order was in respect of victimisation in the single act of suspending the Claimant; it was for £10,183, and there was a basic award £633 and a compensatory award after deductions of £4,240.[31]Thereafter the Tribunal went on to make an award of costs, again sent to the parties on 11 January 2013. Neither this nor the remedy Judgment is the subject of a direct appeal. In the costs Judgment the Claimant was ordered to pay, after review, the sum of £10,000 in connection with the adjourned PHR and £5,662 in respect of the proceedings issued against the solicitor to the police force. So, it is common ground that were the appeal to succeed, the Judgment on remedy would be affected. Mr Bourne submits the Judgment on costs is regardless of the outcome of these three appeals. Discussion and conclusions[32]We turn first to the decision on adjournment. The Tribunal decided that it would not adjourn the proceedings so that evidence could be called from Dr Mumford. By this stage of the remitted hearing Dr Bradbury, the joint expert, had given evidence. The Tribunal declined to allow a further adjournment. The Tribunal noted that no specific ground was put forward as to why fresh medical evidence was now required. My attention in the rule 3 hearings was drawn to the indication that the Tribunal might want to reconsider this matter in the light of an appeal, but the Tribunal considered all of the medical evidence, gave an account of the long history where the Claimant had not been forthcoming and co‑operative, and there was no basis for adjourning. The Tribunal did not know what if any challenge might be involved to Dr Bradbury’s report; it is fair to say that her report second time around arrived only days before. But nevertheless the emergency CMD held in the wake of the EAT Judgment remitting the case indicated that the evidence was ready to be tried without further medical evidence coming from Dr Mumford.[33]It is notable that in the second part of this order the Tribunal sets out to deal with disability as a discrete issue and, although that was a ground of appeal, it no longer survives. What is noteworthy is that in the second part there is a classic balancing of all of the factors relating to case management. A Tribunal will not lightly be overturned by the EAT or the Court of Appeal in its exercise of case management powers; see the Judgment of Longmore LJ in Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 . It is the duty of Tribunals to case‑manage. It decided – unimpeachably, it appears now – to balance all the factors and to go ahead with the discrete disability point, and both this and the decision on adjournment are classic exercises in case management; there is no error of law.[34]The second issue, which arose for me under the rule 3 hearing, was the Judgment in relation to disability. The principal argument addressed by Ms Callan was that the Tribunal had made a finding in the Claimant’s favour in its first decision, the one overturned by the EAT, and had made a different decision on remission. I regard this argument as hopeless. The Tribunal was clearly correct to follow the EAT’s direction and to decide itself how to handle the matter. It decided as follows:
“8. On the morning of 15 March, we heard submissions from the parties; neither side wished to adduce further evidence. We outlined to the parties the approach we proposed to take in consideration of this issue. We should avoid the approach of consideration the fresh evidence with a view to seeing whether it caused us to alter any of our previous findings on the question of disability. Rather, we should revisit the evidence previously given on the question of disability, by Miss Flattley, Miss Harding, Mrs Borsumato and Mrs Tranter, and all the medical evidence previously before us and freshly admitted; and, to the extent that it related to disability, the more recent evidence from Mrs Borsumato, Ms Davies, Ms Tranter; and having done that, consider afresh the various questions raised in consideration of the issue of disability. Both representatives agreed that that was the appropriate approach; and in preparation for that reconsideration, we read our notes from the previous hearing, and the witness evidence.”
[35]The Tribunal looked at all of the material going back to the Claimant’s infancy. There is no challenge to the legal approach it adopted. The evidence that it had from Dr Bradbury was that there was a mental impairment but at none of the times which were considered analytically was there a condition meeting the standards in Schedule 1 to the Act, which is that there was a substantial effect on the Claimant’s day‑to‑day activities. That finding is one of measurement, assessment and fact and does not produce any question of law. In my judgment, the finding is unimpeachable. The sole dispute relates to paragraph 40, where the Tribunal says this:
“40. More generally, considering the fresh medical evidence, we share the views of Dr Bradley, recorded in Paragraph 16 above. It is all of a piece within the medical records we considered previously. There are no striking acute episodes; no dramatic reports; there is a continuing pattern of low level concerns and prescriptions. Looking at this overall period, and considering the fresh medical evidence as part of the total picture, alongside the previous evidence, we reach the same conclusion as before. Miss Flattley was not a person with a disability, and her claim for disability discrimination (save for victimisation) must be dismissed.”
[36]Ms Callan submits that this is a perversity challenge, because there was in one report in 1999 the word “acute” and so the Tribunal is wrong to say that. In my judgment, this has to be looked at in context. This is a report of Dr Bradbury considering all of the medical records. Dr Bradbury’s account shows a mental impairment but of not sufficient substance, and a continuing pattern of low‑level concerns and prescriptions. The fact that the Tribunal records no striking acute episodes indicates that it has seen the report of Dr Durkan, which does indicate passages from his report, but the Tribunal was entitled to take as a whole Dr Bradbury’s opinion; no error of law occurred.[37]Also in this passage is the basis for the criticism of the Tribunal that it did not look at whether the condition was likely to recur. In my judgment, the finding is that the low level of concern is still insubstantial for the purposes of the statute and that if it were to recur, it would recur at that level. That is obviously the lesson Dr Bradbury teaches having looked at the Claimant’s complete record. So I dismiss the application under rule 3(10) in respect of the adjournment and the disability Judgments, and those matters will be taken no further. Had the adjournment issue or the disability issue succeeded, they would have caused the two appeals that I now turn to to be stayed.[38]The argument of Ms Callan in respect of the two findings against her rests on the proposition that the Tribunal did not examine correctly the reason why. In our judgment, Mr Bourne is correct when he points out that the finding by the Tribunal as to the comparator is fatal. You do not get past stage two in the Ibimidun test if you do not show relevant circumstances. The Tribunal faithfully followed the sequence of decision‑making set out by the one authority relied upon by Ms Callan for this proposition, Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 , where the first question is to look at all the relevant circumstances for the purposes of the Act.[39]The second question is whether there is less favourable treatment in those circumstances, and Lord Nicholls said the following: “24. The second ingredient in the statutory definition calls for a comparison between the treatment afforded to the complainant in the relevant respect with the treatment he affords, or would afford, to other persons 'in those circumstances'.[25]As appears from my summary of the authorities, different views have emerged on the correct way to identify the ‘others’, or the comparators or control group, as they are usually known. One approach is that, to continue with my example, if an employee is dismissed the control group comprises the other employees. The complainant was less favourably treated because he was dismissed and they were not. There may be good reasons for this difference in treatment but, on this approach, that is a matter to be taken into account at the third stage when considering why the employer afforded the employee less favourable treatment. This was the approach adopted in Aziz v Trinity Street Taxis Ltd [1989] QB 463 . It was the approach adopted at all levels in the present case. Sergeant Khan was treated less favourably than other employees, because references are normally provided on request and Sergeant Khan was refused a reference. It was also the approach adopted in Brown v TNT Express Worldwide (UK) Ltd [2001] ICR 182. […] 27. There are arguments in favour of both approaches. On the whole I see no sufficient reason for departing from the former approach, adopted by Slade LJ in the Aziz case: [1989] QB 463 , p 483. The statute is to be regarded as calling for a simple comparison between the treatment afforded to the complainant who has done a protected act and the treatment which was or would be afforded to other employees who have not done the protected act.”[40]It will be noted that Lord Nicholls then goes on to deal with the third “by reason that”, and he sets out what is required of a Tribunal to get into the mind of an alleged discriminator, for he says this:
“ 29. Contrary to views sometimes stated, the third ingredient (‘by reason that’) does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the ‘operative’ cause, or the 'effective' cause. Sometimes it may apply a 'but for' approach. For the reasons I sought to explain in Nagarajan v London Regional Transport [2001] 1 AC 502, 510-512, a causation exercise of this type is not required either by section 1(1)(a) or section 2. The phrases ‘on racial grounds’ and ‘by reason that’ denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact. ”
[41]It follows that the Tribunal was literally following the sequence in Khan upon which it had been addressed in that passage that we have cited under the heading “The reason why”. It also follows that this was unnecessary for its decision‑making because the Claimant had failed to show that she was treated differently from a person who had not done the protected act. That is expressly in respect of the memo written by the managers. We note that the same approach we have cited is applied to the dismissal, and so both of these claims failed by reason of the fact that someone who had behaved as outrageously as the Claimant would have been the subject of the memo and would have been dismissed even if she had not done a protected act. This ground of appeal is dismissed.[42]We then turn to the appeal by the Respondent in respect of the suspension. In our judgment, the Tribunal erred in its approach to this. What it did was to involve itself with the criticism of the failure of management to deal with the Claimant earlier. This is the reason why the dismissal in its simple sense was unfair. Management should have acted more quickly to deal with the Claimant in a firm manner. But, with respect to the Tribunal, it is not faithful to the way in which the case was put before it.[43]The primary criticism Mr Bourne makes is that the Tribunal went outside the directions it had given itself and breached the rule in Chapman v Simon [1993] EWCA Civ 37 by deciding a matter which was not before it. The principal claim of the Claimant was that the decision to suspend her, which is the second act of victimisation relied on, was taken by Anne Hall because of a grievance she had made in 2006. That was rejected comprehensively by the Employment Tribunal. What the Tribunal did was to go on to look at a different case that had not been put to it as to the suspension being on account of the protected act. That would be sufficient to allow this appeal.[44]If we are wrong about that, there is force in Mr Bourne’s second point, which is that the timing of the events is critical. The Claimant was due to come back to work; on the day she returned, she was suspended. Three days earlier, the five managers wrote the letter. It is the writing of the letter at that time that the Tribunal at one stage in its Judgment identifies correctly as the critical period. Mr Bourne asks rhetorically: what more was Anne Hall to do faced with this? The connection to the Claimant’s disability is plain; there is the background, set out in the memo, of the Claimant’s claims and her reference to her health and, as she put it, her disability. But the real question is: was the suspension an act of victimisation for having made that claim? In our judgment, the Tribunal erred in not identifying clearly the time issue, which was that the Claimant was due to return to work, and it was that that caused the suspension and not the fact of her having made the claim. The earlier history as to the giving of warnings is neither here nor there. It is a good point to make, and the Tribunal makes it in respect of unfair dismissal, but what is at issue here is the reason for the suspension and, again, the comparator is a person who had returned to work following the making of the managers’ comments. In our judgment, this betrays an error in the approach of the Employment Tribunal.[45]Given that that is our finding, we canvassed with counsel the likely outcome. Mr Bourne contends that all the material is here for us to decide; Ms Callan contends the matter should go back to a, or the, Employment Tribunal. In our view, it is not necessary to engage in the ping‑pong between this court and an Employment Tribunal graphically described in Buckland v Bournemouth University [2010] EWCA Civ 121 . The application of the correct test leads to only one answer, and it is of the same character as the other two findings. To be consistent, all three go together. The Tribunal correctly dealt with the first and third allegations, and this one should have been dealt with in the same way.[46]So, for those reasons, the appeal of the Claimant is dismissed, the appeal of the Respondent is allowed, and the Judgment on remedy is set aside to the extent that the awards in paragraphs 1 and 2 are set aside. The Claimant may have at least some security in knowing that there was no challenge to the finding of unfair dismissal. We do not know whether that is any consolation to her; she has been fighting this campaign for a very long time in a condition that is exacerbated by stress, and we hope that our co‑operative measures today with counsel have enabled this matter to come to a conclusion much earlier than it might have done. We would like to thank both counsel very much for their help today.