The Secretary of State for Justice v Baverstock (Unfair Dismissal) [2015] UKEAT 0363_14_1006
[37]“ Likewise, a tribunal requires to guard against being carried along by sympathy for a long standing employee whose employers have concluded that he is not fit to return to his job in circumstances where he was keen to try to return to work and, in all cases, to resist the temptation to test matters according to what they would have concluded and decided if they had been in the employer’s shoes. ” 34. Mr Mitchell submits that this is a plain case of substitution where, by reason of being carried along with sympathy for Miss Baverstock, the Tribunal have ended up substituting their view of what they would have done - and why they would have done it - for that of the employer. 35. As attractively as that argument was advanced, I am afraid I cannot accept it. In my judgment, this Employment Tribunal was doing exactly what was required of it. It found all the relevant facts. It set out the relevant issues and it considered all the relevant evidence. 36. The first question for it in its application of section 98 of the Employment Rights Act 1996 was to determine whether the employer had established a potentially fair reason for dismissal. The Tribunal found that it had not. Moreover the Tribunal found, on the findings of fact it made, that an impermissible reason for dismissal had been the true reason: i.e. the disability of the employee. In those circumstances, absent an arguable contention of perversity (and none is made), I cannot see any ground on which this Tribunal’s decision-making can be faulted. It may or may not have been the conclusion that I or a differently constituted Tribunal would have reached. But that is not to the point. The Tribunal, in my judgment, permissibly reached the conclusion that it did as to the real reason for dismissal. 37. Mr Mitchell contended that the Tribunal had failed to engage with the case advanced by the employer - namely, that the dismissal had been by reason of capability. But that submission cannot stand with the Tribunal’s express statement at paragraph 62 of its Reserved Judgment that it “did not consider that the Respondent had given a convincing explanation that the Claimant was dismissed on the ground of capability, for the reasons set out above”. 38. Sensibly, however, the Tribunal went on to consider what finding it would have made had it been satisfied that the employer had indeed dismissed for a permissible reason: that is to say, capability. 39. At paragraphs 56 to 57 of its Judgment, the Tribunal spelled out why it believed that any decision to dismiss on grounds of capability could not have been fair - essentially because it had not been made after following a fair process (which would have involved considering, inter alia , up to date medical reports). It would therefore have found a capability dismissal to have been unfair because it had not been based “on reasonable grounds”. That was an application of the correct legal test 40. But again, Mr Mitchell contends that the Tribunal here fell into error. He submitted that the Tribunal had considered what it could or would have done had it been the employer, how it would have applied the Attendance Policy, and what steps it would have taken to secure appropriate medical evidence about Miss Baverstock’s capabilities. Mr Mitchell relied on the decision of this Employment Appeal Tribunal in Spence v Intype Libra Ltd UKEAT/0617/06 as authority for the proposition that a Tribunal was not entitled to find that the employer ought to have obtained up-to-date medical evidence before dismissing for capability. 41. In my judgment, Mr Mitchell’s contention is not well founded in this case. I am quite satisfied that the Tribunal properly directed itself to the question of fairness and reasonableness required in the particular circumstances. That was what the statute required it to do. Mr Mitchell wrongly sought to elevate the impact of passages in the Judgments of the Employment Appeal Tribunal into a freestanding set of statutory requirements. 42. The weakness of his propositions in support of the challenge to the finding of unfair dismissal could not be better highlighted than by his criticism at paragraph 3(h) of his skeleton argument. There he contends that the Tribunal erred in treating the Atos report of 22 March 2013 as containing a recommendation for a further reconsideration after a period of six weeks and that any such reading of the report was perverse. I have already extracted the relevant text of the Atos report earlier in this Judgment (see paragraph 11 above). For Mr Mitchell to contend that the Employment Tribunal’s finding was erroneous in this respect does no credit to the quality of his other submissions or to the case of the Secretary of State on this appeal. To my mind it is - quite plainly - a fair reading of the Atos report to take it as suggesting further review after another six week period. 43. Likewise, I must reject the contention in paragraph 3(i) of the skeleton argument that the Tribunal failed to address the employer’s case that it had properly and reasonably sought to avoid dismissal by offering Miss Baverstock an alternative position. In my judgment, again, it is plain that the Tribunal rejected the contention that this was a reasonable alternative position given that it was offered at different hours and at a different (lower) pay grading to the post that Miss Baverstock held. 44. In sum, I do not consider that any of the criticisms of the Tribunal’s findings on the unfair dismissal claim are made out. Direct Discrimination 45. The Tribunal correctly set out in its Reserved Judgment the statutory definition of direct discrimination by reason of a protected characteristic (in this case, “disability”): section 13 Equality Act 2010 . The Tribunal had already found that Miss Baverstock has been dismissed by reason of her disability. The question for them in those circumstances was whether she had thereby been treated less favourably, because of her disability, than the employer would have treated others. To answer the question, the Tribunal had the guidance offered by section 23 of the 2010 Act which provides: “(1) On a comparison of cases for the purposes of section 13 … there must be no material difference between the circumstances relating to each case. (2) The circumstances relating to a case include a person’s abilities if -(a) on a comparison for the purposes of section 13, the protected characteristic is disability; …” 46. The Tribunal’s reasons for upholding the direct discrimination claim are set out in paragraphs 60 to 62 of their Reserved Judgment. In short, they found that a non-disabled employee would not have been dismissed if they had been temporarily inhibited in their capacity to undertake their full range of duties for the full required hours without (a) up to date medical evidence of the likelihood of restoration of their full abilities or(b) being given the benefit of the doubt that their abilities would be restored. They alighted upon an example of such a case raised in evidence (a person who had broken their leg). They found that Miss Baverstock had been dismissed without up to date medical evidence of the likelihood of restoration of her abilities and without being given the benefit of the doubt that her abilities would be restored. That, in their judgment, evidenced the fact that her dismissal had been by reason of disability, i.e. because a non-disabled comparator would not have been dismissed. 47. The grounds of appeal contend that by its deployment of the particular example, and in its application of the statutory test, the Tribunal erred. I intend no disrespect to Mr Mitchell’s submissions in shortly stating that I am quite unable to discern any error by the Tribunal in either respect. Discrimination arising from Disability (section 15 Equality Act 2010) and Indirect Discrimination (section 19(2)(d) Equality Act 2010) 48. The Tribunal allowed these claims for the reasons given at paragraphs 63 to 65 of the Reserved Judgment. The challenge to them relies (as with the challenge to the finding of unfair dismissal) on an alleged failure to grapple with the issue of what was the full extent of the duties required of Miss Baverstock. 49. For the reasons given above, I am unable to accept that the Tribunal erred in this respect in relation to its treatment of unfair dismissal. I can identify no basis for taking any different course in the assessment of its handling of these two further claims. Reasonable Adjustments 50. The Tribunal allowed a claim that the employer had, in light of Miss Baverstock’s disabilities, failed to make reasonable adjustments. There is no doubt that it had understood the employer’s case on the point. That is accurately summarised at paragraph 48 of the Judgment. 51. Its reasons for nevertheless upholding the claim are given at paragraphs 66 to 68. It found that there were three specific and reasonable adjustments the employer could have made: (1) reducing the hours of work temporarily for a longer period, or (2) allowing Miss Baverstock to work part-time in the role permanently, or (3) not requiring her to immediately be available for all six aspects of her job role. 52. Mr Mitchell submitted that the Tribunal had failed to explain how these adjustments might have eliminated disadvantage for Miss Baverstock. In my judgment, no such explanation was required. The position was obvious. The same response must be given to his criticism that the Tribunal failed to take account of the fact that Miss Baverstock was being paid a full salary while working reduced hours and performing reduced duties. The position was not only obvious but had been set out by the Tribunal earlier in its Judgment in terms at paragraph 65. 53. Mr Mitchell further submitted that the Tribunal was identifying adjustments required on an open-ended basis. That criticism cannot stand with the Tribunal’s express references to “a longer period” and “meanwhile” (in paragraph 67) in a context in which it considered that the reasonable course would have been to obtain up to date medical evidence as to what Miss Baverstock could or could not do. His additional submission that the Tribunal ought to have found the employer’s suggestion of a lower grade post on lower pay with a reduced role a “reasonable adjustment” because it carried two year’s pay protection cannot survive the Tribunal’s express holding that there were three other reasonable adjustments the employer could and should have made which would not have involved Miss Baverstock needing to take up “a reduced role” (Reserved Judgment paragraph 67.2). 54. For all these reasons, I find that the Tribunal’s Judgment on liability cannot be impugned and the appeal against it is dismissed. The Judgment on Remedy 55. The Tribunal came to consider the question of remedy at a hearing on 9 July 2014. It will be recalled that Miss Baverstock had been dismissed on 2 August 2013. The first aspect that the Tribunal therefore considered was what loss she had suffered by reason of her dismissal down to the date of the hearing, described by the parties as her “past losses”. 56. The Tribunal found that she had been incapable of work for the entire period for reasons entirely unrelated to her dismissal. Indeed, Miss Baverstock had not contended that her incapacity had been caused by her employer or by her dismissal. 57. Yet the Tribunal found that she would have - had she not been dismissed - been entitled to sick pay under the employer’s policy and then been retained in her employment unpaid and although unable to work, by reference to the same policy. 58. Mr Mitchell’s succinctly expressed submission was that the Tribunal had not been free to take that course without first at least giving the employer an opportunity to deal with the sick pay policy point and the question of whether Miss Baverstock would have been retained or dismissed in circumstances of complete incapacity to work over such a period. He asserted that there had been no evidence or submissions on the point at all. 59. For his part, Mr Horan could not meet the case that the employer had not had an opportunity to address the course the Tribunal had taken. Rather he contended (in summary), that it had been open to the Tribunal to essentially speculate as to what might have happened, in the way it had done. I regret that I cannot accept that submission. 60. Perhaps appreciating its weakness, Mr Horan took a further point that the “sick pay policy” question had not been raised in the Notice of Appeal on remedy or in the skeleton argument for the appeal. Neither proposition is sustainable. The matter is raised in terms at the end of paragraph 7 of the Notice of Appeal and dealt with amply in the skeleton argument. 61. In those circumstances, the Tribunal’s findings in relation to “past losses” cannot stand. They were impermissibly based on speculation in circumstances where none was required. The parties could and should have been invited to make submissions on the matters and, in particular, with reference to the sick pay policy. Moreover, the employer should have had a fair opportunity to deal with whether the employment would have been terminated by reason of incapacity prior to the date of the remedies hearing. 62. I regret that this is not the only ground upon which Mr Mitchell has satisfied me that the Tribunal erred in relation to remedy. I am persuaded that the Tribunal further erred in its approach to “future loss”. 63. It concluded, in terms, that it was reasonable to expect that Miss Baverstock would be fit for work again in six months, hence on 1 January 2015 (Remedies Judgment paragraph 12). That assessment was made in the absence of any up-to-date medical evidence (a procedural failing that the Liability Judgment had found sustained against the employer) and in a context in which the expectations of Miss Baverstock as to when her capacity to work might be re-gained - on which the Tribunal had based its finding - had in the past proved significantly over-optimistic. 64. The further finding that she would have continued in full employment for an additional four years thereafter (Remedies Judgment paragraph 13) likewise cannot be sustained without at least some cogent explanation of how that finding is consistent with a lengthy period of incapacity for any employment (August 2013 to January 2015) and prior to that an equivalent or even lengthier period of incapacity to engage in full duties for full hours. 65. For those reasons, the award as to future loss cannot stand and in those circumstances I need not address Mr Mitchell’s additional criticism that the Tribunal failed to give credit for accelerated receipt. 66. Mr Mitchell submitted that the errors that the Tribunal had made in relation to past and future loss must also have infected their handling of the claim for pension loss. In particular, in relation to causation of that loss. He relied on the Court of Appeal’s decision in Aegon UK v Roberts [2009] IRLR 2042 to that effect. 67. Although he strove valiantly to uphold the Tribunal’s award for pension loss, as he had in respect of future loss, I regret that I could identify no substantive answer in Mr Horan’s response to Mr Mitchell’s submissions on these points. Had the sole criticism of the Tribunal’s award in respect of pension loss turned on its choice of the “substantial” loss approach over the “significant” loss approach, I would not have been prepared to interfere. But as the whole question of pension loss must be reconsidered, I adjudge that that aspect will also be open for reconsideration. 68. For his part, Mr Horan submitted that if I were to be satisfied (as I am) that the Tribunal erred in relation to remedy, I should substitute my own decisions. Mr Mitchell contended that the proper course would be to remit to a differently constituted Tribunal. 69. In my judgment, neither course is the proper one. These are factual matters for a Tribunal of first instance properly directing itself. There is no good reason to suppose that in its reconsideration of the matter - more than a year on - a Tribunal of the same constitution would be unable to reach a fair and impartial decision on remedy issues. Disposal 70. For all these reasons, the appeal on liability (Appeal No 0363/14) is dismissed. The appeal on remedy (0420/14) is allowed. The question of remedy shall be remitted to the Employment Tribunal and, if the parties are unable to agree on the remedy, shall be determined by a Tribunal of the same constitution (if it is reasonably practicable for the same constitution to be assembled).