West v The Royal Bank of Scotland Plc (Disability Discrimination) [2017] UKEAT 0296_16_2604

EAT
West v The Royal Bank of Scotland Plc (Disability Discrimination)
[2017] UKEAT 0296_16_2604 · 2017-04-26
[18](d) The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is ‘something arising in consequence of B’s disability’. That expression ‘arising in consequence of’ could describe a range of causal links. Having regard to the legislative history of s.15 of the Act (described comprehensively by Elisabeth Laing J in Hall [ v Chief Constable of West Yorkshire Police [2015] IRLR 893 ]), the statutory purpose which appears from the wording of s.15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability. (e) For example, in Land Registry v Houghton UKEAT/0149/14, [2015] All ER (D) 284 (Feb) a bonus payment was refused by A because B had a warning. The warning was given for absence by a different manager. The absence arose from disability. The tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact. (f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. (g) Miss Jeram argued that ‘a subjective approach infects the whole of section 15’ by virtue of the requirement of knowledge in s.15(2) so that there must be, as she put it, ‘discriminatory motivation’ and the alleged discriminator must know that the ‘something’ that causes the treatment arises in consequence of disability. She relied on paragraphs 26-34 of Weerasinghe as supporting this approach, but in my judgment those paragraphs read properly do not support her submission, and indeed paragraph 34 highlights the difference between the two stages - the ‘because of’ stage involving A’s explanation for the treatment (and conscious or unconscious reasons for it) and the ‘something arising in consequence’ stage involving consideration of whether (as a matter of fact rather than belief) the ‘something’ was a consequence of the disability. (h) Moreover, the statutory language of s.15(2) makes clear (as Miss Jeram accepts) that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the ‘something’ leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so. Moreover, the effect of s.15 would be substantially restricted on Miss Jeram’s construction, and there would be little or no difference between a direct disability discrimination claim under s.13 and a discrimination arising from disability claim under s.15. (i) As Langstaff P held in Weerasinghe , it does not matter precisely in which order these questions are addressed. Depending on the facts, a tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of ‘something arising in consequence of the claimant’s disability’. Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to ‘something’ that caused the unfavourable treatment.” 26. As we have seen, the unfavourable treatment was failing to pay her. The next question the Employment Tribunal answered was: what was the reason why the Respondent did not pay her? The Employment Tribunal dealt with this in paragraphs 89 to 90. She was removed from the LTD Scheme because the Occupational Health advice was that she no longer qualified for it. The “something” which the Employment Tribunal found was, therefore, that the Occupational Health advice was that she no longer qualified for the benefit.27. The next question for the Employment Tribunal was, therefore, whether this “something” arose from the Respondent’s disability. The Employment Tribunal stated a conclusion on this question. In its reasons, it found that the “change”, which I think must mean the new Occupational Health advice given in 2012, “does not arise from the claimant’s disability which continued but from the occupational advice which altered”. In my judgment, this very short conclusion is insufficiently reasoned to stand and may well rest on an error of law. On the face of it, the Occupational Health advice received both in 2011 and 2012 was something arising from the Claimant’s disability. It was, after all, commissioned to establish the extent and consequences for work of that disability. The Employment Tribunal did not explain why it reasoned to the contrary and there was a real risk that it may have fallen into the error of construing the words “something arising from B’s disability” too narrowly.28. The guidance in Pnaiser at paragraph 31(d), building upon all against Hall v Chief Constable of West Yorkshire Police [2015] IRLR 893 is apposite at this point. The causal link between the something and the disability may have more than one element. No doubt the first element here was the Occupational Health advice, but this was obtained precisely in order to access the Claimant’s disability and, if so, if the overall picture is kept in mind, the Occupational Health advice would indeed appear to be something arising from the Claimant’s disability. At all events, the Employment Tribunal has not explained its conclusion so the appeal on this point must be allowed.29. On well-established principles, the EAT may substitute its own conclusion on such a question only if the error of law could not have affected the result or the EAT can say what the correct conclusion must be without any factual assessment of its own (see Jafri v Lincoln College [2014] ICR 920 ). On the limited papers I have, I do not think I can go so far as to say that the ET was bound to find that the “something” arose from the Claimant’s disability, although the case appears to me to be strong.30. In any event, the ET will have to address section 15(1)(b) and I am certainly in no position to reach a conclusion on section 15(1)(b) on the papers which I have. The aim of adhering to the LTD Scheme limits would no doubt be legitimate, but whether the treatment of the Claimant was disproportionate may depend on the terms of the Scheme, the findings of the medical reports, whether there was a conflict between them and what steps the Respondent took to resolve it, and other points which the Claimant made. So, the matter must be remitted for rehearing and, on rehearing, the Employment Tribunal will, to my mind, be wise to make findings both on section 15(1)(a) and 15(1)(b). Ground 2: Assistance During Redeployment Period and Reasonable Adjustment The Employment Tribunal’s Reasons31. The second heading in the Claimant’s schedule concerned the alleged failure of the Respondent to conduct a full ergonomic workplace assessment. She said she could not apply for any roles if she did not know how voice recognition software would interact with the Respondent’s software or how productive or effective modified equipment would be. Therefore, she said, she had no employment and no prospect of obtaining employment until a workstation assessment was undertaken. The type of discrimination was said to be failure to make reasonable adjustments.32. The Employment Tribunal’s reasoning on this issue is set out in paragraph 91 of its Reasons:
“91. Turning to the second allegation relating to failure to make reasonable adjustments, we considered with the claimant what the provision, criterion or practice might be, particularly as the claimant had relinquished her former role, making her an employee without a role. Having discussed matters with the claimant and the respondent we are not able to conclude that there was any PCP in place that would require a full ergonomic workstation assessment to be carried out. We are aware of the claimant’s desire to have a workstation assessment carried out, and the respondent’s view that they would carry out such an assessment once the claimant found a role so that they could tailor the assessment to the role she found. In the absence of a role being found, and therefore the absence of a PCP, this allegation of failure to make reasonable adjustments does not have a foundation upon which it can be based so it fails.”
Statutory Provisions 33. An employer owes to his employee a duty to make reasonable adjustments (section 39(5) of the Equality Act 2010 ); failure to comply is a form of discrimination (see section 21(2)). Section 20 sets out the content of the duty:
“(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for these purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid. (6) Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format. (7) A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A’s costs of complying with the duty.”
Submissions 34. On the Claimant’s behalf, Mr Alford criticises the failure of the Employment Tribunal to identify a PCP. The concept of a PCP should be interpreted widely so as to give effect to the legislation and it was often possible to work backwards from the disadvantage to establish the PCP (see Nottingham City Transport Ltd v Harvey UKEAT/0032/12 at paragraphs 17 and 18). The Employment Tribunal had a role to play in defining the PCP (see Secretary of State for Work and Pensions v Higgins [2014] ICR 341 at paragraphs 29 to 40 and Griffiths v Secretary of State for Work and Pensions [2017] ICR 160 at paragraphs 46 to 47). 35. Mr Alford accepts that the Claimant did not expressly define the PCP in her pleadings or schedule of allegations - I will return to this in a moment - but he says that her complaint of disadvantage was clearly discernible from the schedule. He sought to define it in the course of his submissions and, again, I will return to that in a moment. He says that the ET should have been able to define the PCP and it would then have been necessary for the ET to consider the remaining elements of the duty. 36. Mr Gorasia replies that it was for the Claimant to prove the PCP alleged to have caused her disadvantage. He took me to leading cases on this question, in particular, Project Management Institute v Latif [2007] IRLR 579 at paragraphs 44 to 45. The Claimant was given every opportunity by the Employment Tribunal to assist it on this question. She had been unable to do so. It was not for the Employment Tribunal to step in and find a PCP of its own. In attempting to do so at all, it had been doing its best to assist the Claimant. Discussion and Conclusions 37. The concept of a PCP is unlikely to be familiar to a layman, but it serves an important purpose in equality law, especially the law concerned with reasonable adjustments. Its purpose is to isolate and establish that feature which the Claimant says causes the disadvantage which requires a reasonable adjustment. Thus, in Higgins at paragraphs 34 to 35 the EAT said:
“34. In our experience the phrase still sometimes causes problems, as to some extent it appears to have done in this case. It is, we think, important to keep in mind the whole of section 20(3). The elements within it are designed to link together. The purpose of identifying a PCP is to see if there is something about the employer’s operation which causes substantial disadvantage to a disabled person in comparison to persons who are not disabled. 35. The PCP must therefore be the cause of the substantial disadvantage. Wide though the concept is, there is no pint in identifying a PCP which does not cause substantial disadvantage.” 38. It is for a Claimant to identify and prove the PCP. It is sufficient on this question to cite Latif at paragraphs 44 to 45: “ Burden of Proof 44. We turn to the final ground. Ms Clement [for the Appellant] submits that the tribunal erred in its approach to the burden of proof. This was specifically considered by the tribunal who were persuaded by Mr Epstein [for the Respondent] that the proper approach was as follows (para 4.11): ‘(a) Has the claimant proved facts from which it could be inferred that any provision, criterion or practice has placed her at a substantial disadvantage? If so, (b) Has the respondent on cogent evidence proved that (i) there was no such provision, criterion or practice, or (ii) the claimant was not at a substantial disadvantage; and (iii) that there were no further or other steps that it could reasonably have taken in order to reduce or eliminate any such disadvantage?’ (Mr Epstein accepts that the word ‘and’ emphasised in that paragraph must be an error: even on his approach, it ought to be an ‘or’. This is because the duty to make an adjustment does not arise if the other two conditions are not satisfied.) 45. We observe in passing that we very much doubt whether the burden shifts at all in respect of establishing the provision, criterion or practice, or demonstrating the substantial disadvantage. These are simply questions of fact for the tribunal to decide after hearing all the evidence, with the onus of proof resting throughout on the claimant. These are not issues where the employer has information or beliefs within his own knowledge which the claimant cannot be expected to prove. To talk of the burden shifting in such cases is in our view confusing and inaccurate.” 39. There will, of course, be times when a claimant, who is a litigant in person, can and does establish a PCP without appreciating that such a concept even exists. The PCP may be obvious from the disadvantage described (see Harvey at paragraphs 17 and 18). It may be, and often is, a quite basic feature of the employment (see, for example, Griffiths at paragraph 47, where the PCP was the requirement of maintaining “a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions”). It may be a written rule of some kind, obvious on the papers. It is good practice for an Employment Tribunal to consider with a claimant, particularly a litigant in person, what the PCP is, when at a Preliminary Hearing or the start of a final hearing, it is confirming the issues to be determined. If this has not happened it may not be too late for it to be identified during final submissions, though at this stage the Employment Tribunal must be alert to ensure the process is fair to both sides. There are times when the PCP is obvious to both claimant and respondent and set out in the papers even if it is not labelled as such. 40. There will, however, be cases where the claimant does not successfully identify or establish a PCP. I have reached the conclusion in respect of this ground that the Claimant did not establish a PCP and that the Employment Tribunal made no error of law. My reasons are as follows. 41. It is, I think, clear that the Claimant was seeking to put forward the case that a “full ergonomic workplace assessment” should have been carried out before she could consider redeployment. This was the Employment Tribunal’s understanding and it is consistent with the schedule where she describes her claims. 42. In my judgment, there was a fundamental internal inconsistency in the way in which the Claimant was seeking to put her case. She had latched on to the Occupational Health advice that there should be a “full ergonomic workplace assessment” in the broad sense in which that was described in the report, which I have already quoted. However, such an assessment can only be carried out if there was a potential workplace to assess. If one posits as the PCP that when an employee is on redeployment a full ergonomic workplace assessment will only be undertaken when the employee has obtained a role, that PCP could not possibly place the Claimant at a disadvantage, for such an assessment can only be carried out in respect of an actual workplace, whereas the Claimant did not respond to any of the jobs suggested during redeployment or suggest any of her own. It would not assist the Claimant to formulate a PCP which involves a failure to do that which is impossible. 43. Recognising this difficulty, Mr Alford took instructions and put his case in the following way. What the Claimant required prior to considering alternative jobs, was that there should be a preliminary assessment to check, in particular, whether voice recognition software would function with the Respondent’s systems. Only this would give her the confidence to engage in a redeployment process and seek specific jobs. The PCP applied by the Respondent was that it would only undertake this limited assessment when she had obtained a role. 44. This alternative formulation will not suffice for two reasons. Firstly, it was not the way the case was put below. The Claimant was given every opportunity to define the PCP relied on and she did not do so; the Employment Tribunal did its best to assess her case by reference to the schedule which she had provided, which had referred to a full ergonomic workplace assessment, and it cannot be criticised as making an error of law because it did not formulate her case in this alternative way. Secondly, the Employment Tribunal’s Reasons show that the Respondent was prepared to engage in assessment as far as possible before a workplace was established - by undertaking an assessment at home or a nearby office of the Respondent where she might use a desk (see paragraphs 45 to 48 of the Employment Tribunal’s Reasons). The factual basis for the PCP was not established. 45. I, therefore, reject ground 2. I would add for the sake of completeness that there is a line of authorities, of which the best known is Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664 , holding that failure to carry out an assessment does not, in itself, constitute a failure to make a reasonable adjustment. This is a further problem with which the Employment Tribunal would have had to grapple if it found a PCP to exist. Mr Alford suggests that Tarbuck might be distinguishable on the basis that in this case the assessment was required to enable the Claimant to have the confidence to apply for a job on redeployment. That faces both factual and legal difficulties, not least factual difficulties given findings of the Employment Tribunal to which I have already referred about the Claimant’s reason for not cooperating with redeployment, but while noting this difficulty I need express no further view about it. Ground 3: Pensionable Salary, Reasonable Adjustment and Indirect Discrimination The Employment Tribunal’s Reasons 46. The sixth heading in the Claimant’s schedule complained that if she found a role through redeployment paying less than her previous role, her pension would accrue at a lower rate. She wished to retain the rate of accrual appropriate to her previous salary. She said that a role with a lower salary would have a huge impact on her final salary at retirement. This type of discrimination was said to be indirect discrimination and failure to make a reasonable adjustment. The Employment Tribunal dealt with this complaint in paragraphs 99 to 100. It said: “99. With regard to the sixth allegation, this alleges indirect discrimination and failure to make reasonable adjustments in terms of pensionable salary. The claimant accepted that the final salary for the purposes of pension would be the best earned in the last ten years of employment, but she pointed out that that salary would of itself have [increased] by whatever percentage general salaries within the Bank increased over that ten year period, thus giving her a higher final salary. If she was in a lower paid job then in all probability she would not ever reach the highest final salary that she was paid in the old role. 100. As regards indirect discrimination and the duty to make adjustments, there are for both requirements for a provision, criterion or practice. With regard to this allegation the claimant is referring to what might have happened had she found an alternative role with a lower salary. Given that she did not then we are unable to support this prospective claim for indirect discrimination and/or failure to make reasonable adjustments.”
Statutory Provisions 47. I have already set out statutory provisions relating to reasonable adjustments. Indirect discrimination is defined by section 19 of the Equality Act 2010 as follows:
“(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if - (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.”
Submissions 48. Mr Alford submits that the Employment Tribunal erred in law by defining the PCP too narrowly. There was no doubt that the Respondent’s rule was that final pension should be based on an employee’s salary, subject only to the ten-year rule. Figures produced by the Claimant demonstrated how this might impact on her if she took a job at a lower rate of pay and stayed on it for ten years. This PCP applied both before and after redeployment. It applied to every employee including the Claimant. Therefore, the Employment Tribunal ought to have found that the PCP was established and should have gone on to consider the remaining elements of section 19 and section 20. 49. Mr Gorasia does not accept that there was any error of law by the Employment Tribunal in the way it considered the PCP, but he also submits that the Claimant did not establish that the PCP in question placed the Claimant or disabled persons at particular disadvantage when compared with persons who are not disabled. Discussion and Conclusions 50. There is no doubt that the Respondent had a rule that pension would be based upon final salary, by reference to the salary in the job an employee was actually doing at the relevant time, although the rule was modified to the extent that the best year of salary in the last ten would be taken. This rule applied to the Claimant as it applied to everyone else and it was not modified if the Claimant or any other employee took a job after redeployment. I have not heard any sustained argument on the meaning of the words “applied to” in section 19, words which are not found in section 20. But, it seems to me, on any possible meaning of those words the rule that pension would be based upon an employee’s salary at the relevant time applied to the Claimant throughout her employment, including during her period of redeployment. Accordingly, I accept the submission of Mr Alford that the Employment Tribunal ought not to have decided the case on the basis that the PCP was not applied to the Claimant until she found an alternative role with a lower salary. It should have continued with its analysis of section 19 and 20. 51. I turn to Mr Gorasia’s alternative submission that the Claimant could not establish the requisite disadvantage. The Employment Tribunal made no findings about this and I do not have details of the Pension Scheme itself before me. The EAT has a limited role in deciding questions of this kind (see Jafri v Lincoln College ). I can see that a scheme which defines pension by final salary might work hardship upon a person who has to take a less remunerative job for a period prior to retirement and that this might be particularly likely to impact on persons with a disability. Whether that is the case here is a matter for findings by the ET. Likewise, it is for the ET to decide whether any PCP was a proportionate means of achieving a legitimate aim or whether there was any step which it was reasonable for the Respondent to have to take to avoid the disadvantage. Ground 4: Share Save Scheme, Reasonable Adjustment and Indirect Discrimination The Employment Tribunal’s Reasons 52. The seventh heading in the Claimant’s schedule relates to the Respondent’s Share Save Scheme. The Employment Tribunal’s findings of fact did not deal specifically with this issue but her claim was put as follows in a passage which the Employment Tribunal quoted at paragraph 86:
“I was a member of my employer’s Share Save Scheme and in March 2009 purchased a five year share option with the ability to purchase shares at a favourable rate at the end of the five year period. Payments were taken directly from salary but as I have been on a zero ill health scheme since August 2012 and have not received a payslip since April 2013, payments have not been deducted from my salary. The scheme allows six missed payments with the ability to make any missed payments within the six month period. Because I have suffered financial hardship by being on the zero ill health scheme I have missed seven payments and have been unable to make up the missing payments so therefore my contract has been cancelled. Because I have no employment or pay I am unable to contribute to the Share Save Scheme. I have received a cheque with a small amount of interest but have lost the ability to purchase shares in March 2014 at a favourable rate which may later increase in value if I had kept them as an investment. My Share Save contract should have been frozen and I could have made up the missing payments when I obtained a role and started receiving a salary. My employer should have asked if I wished them to contribute the amount per month on my behalf to be repaid once I had a role. My contributions would continue and enable me to participate in the Share Save Scheme.” 53. The Claimant also said that she had made 48 out of 60 payments but she had lost the right to acquire shares at a favourable rate because of the payments she had missed, although she had received the return of the payments she had made with some interest. She has, therefore, on her case, lost out on some element of profit. 54. The type of discrimination was said to be indirect discrimination and failure to make a reasonable adjustment. The Employment Tribunal dealt with it in paragraphs 101 to 104 of its Reasons: “101. With regard to the seventh allegation of indirect discrimination and failure to make reasonable adjustments to the Share Save Scheme as regards the indirect discrimination claim, the claimant has not dealt with the question of how “A” might apply the PCP to persons without a monthly salary with whom the claimant does not share the characteristic of disability. In simple terms there is nothing before us to enable us to conclude that there was [an] act of indirect discrimination with regard to this scheme and its application to the claimant. 102. As to a failure to make reasonable adjustments, we ask ourselves what the PCP is and we presume that the PCP is the requirement on behalf of a member of a Share Save Scheme to make monthly payments into the scheme for each month that the scheme endures, in this case a five year scheme. 103. The claimant complains that she suffered financial hardship having come off the LTD scheme, but the lack of an income would not necessarily preclude her from making payments under the Share Save Scheme whilst she remained an employee. We are aware that the claimant was not well placed financially because of the unfortunate circumstances surrounding both her and her husband but we have referred above to a letter dated 15 October 2012 in relation to the Share Save Scheme. There was the possibility to make alternative arrangements as to payment, thus suggesting that any payment does not need to be made out of income. Had the claimant had money available then she could have applied it to the Share Save Scheme had she so chosen. 104. In these circumstances we conclude that those employees of the Bank who were in the situation of the claimant in not being paid, for whatever reason, would not be in a position to make payments into the Share Save Scheme unless they had alternative resources. Comparing the claimant with someone who does not have a disability, we cannot see that the claimant is at any greater or lesser disadvantage than any other employee who is for whatever reason without pay.”
Submissions 55. On the Claimant’s behalf, Mr Alford submits that the Employment Tribunal should have analysed this issue in the structured way required by equality law. The PCP was derived from the rules of the Scheme. These rules generally required payment sourced from a payslip, permitted a short period of six months to make up any shortfall and allowed only six missed payments in total. These rules should have alerted the Employment Tribunal to a potential disparate impact upon disabled persons in general and the Claimant in particular, in that disabled persons are particularly prone to long-term absence and reduced or nil pay. 56. On behalf of the Respondent, Mr Gorasia submits that the Employment Tribunal’s Reasons are clear and it cannot be faulted for seeking to identify a PCP when the Claimant had been unable to do so. Discussion and Conclusions 57. In this case although the Claimant was not conversant with the concept of a PCP, she had plainly stated in her schedule, which the Employment Tribunal quoted, what the features were which caused her disadvantage. She had in the course of the evidence addressed the features which caused her disadvantage and proved them. The Respondent was on notice of them throughout. In my judgment, the Employment Tribunal was wrong to “presume” that the PCP was the requirement to make monthly payments. In this case the Claimant had expressly stated the features which caused her difficulty. These were (1) the short period of six months to make up any shortfall, and (2) the maximum of six missed payments in total. These were the PCPs and the Employment Tribunal had stated them itself in quoting the Claimant’s schedule. I, therefore, consider that the Employment Tribunal started with the wrong PCP. 58. I have some difficulty as well with the Employment Tribunal’s reasoning in paragraphs 103 to 104, which does not appear to grapple at all with the argument that disabled persons are particularly prone to long-term absence and reduced or nil pay. I find it difficult to see what other persons the Employment Tribunal was in practice considering by way of comparison. Very few, apart from disabled persons, would ever be employees with no pay, but the fundamental point is that the Employment Tribunal did not address the correct PCP. Accordingly, on this point also the appeal will be allowed and the matter remitted for reconsideration. Ground 5 59. This ground is linked to ground 2 and must fail also. Remission 60. It follows that what will be remitted to the Employment Tribunal are three quite short discreet issues. One is concerned with the stoppage of the Claimant’s pay from the LTD Scheme or after the LTD Scheme. One is concerned with a pension element. One is concerned with the Share Save Scheme. Compensation for the first of these might be significant. Compensation for the second and third is likely to be very limited. The question arises whether to remit to the same or to a differently constituted Employment Tribunal. Such a decision is taken in accordance with the criteria in Sinclair Roche & Temperley v Heard [2004] IRLR 763 , to which I have had regard. 61. On the whole I think these three discreet issues are best decided afresh by a newly constituted Employment Tribunal. This is not because I doubt the professionalism of the present Employment Tribunal but it, and the parties, would be faced with attempting to extract what was relevant from papers and notes of evidence now nearly two years old and covering a host of issues which would be entirely irrelevant to the limited matters remitted. That would be a difficult task for all concerned and, in particular, for the Claimant. Moreover, the present Employment Tribunal has expressed views on two matters which will be remitted and, on the whole, I think a newly constituted Employment Tribunal is best. 62. It would, I think, help if there is a short Preliminary Hearing, either by telephone or personally. It would help if before this the Respondent prepares a list of issues which spell out the legal questions which the Employment Tribunal will have to determine. It will help if before this the Respondent produces a proposed bundle which I think will be relatively short containing a fraction only of material. It may well be desirable to have short witness statements which are dedicated to the points in issue. I would also say that the sums involved are relatively small, if there is any prospect of mediation or settlement, now would be the time to consider it before further expenditure takes place. 63. In summary, therefore, the appeal is allowed in relation to grounds 1, 3 and 4. Those grounds are remitted to a freshly constituted Employment Tribunal to be considered in accordance with this Judgment. Grounds 2 and 5 are dismissed.