Aston The Martlet Group Ltd & Anor (t/a i-Ride) (VICTIMISATION DISCRIMINATION : Detriment : Disability : Estoppel or abuse of process ) [2019] UKEAT 0274_18_2105

EAT
Aston The Martlet Group Ltd & Anor (t/a i-Ride) (VICTIMISATION DISCRIMINATION : Detriment : Disability : Estoppel or abuse of process )
[2019] UKEAT 0274_18_2105 · 2019-05-21
[21]“I must confess with great respect to some difficulty with the "plainly and unarguably right" test elaborated in Dobie. It is not the task of the Employment Appeal Tribunal to decide what result is "right" on the merits. That decision is for the employment tribunal, the industrial jury. The appeal tribunal's function is (and is only) to see that the employment tribunal’s decisions are lawfully made. If therefore the appeal tribunal detects a legal error by the employment tribunal’s, it must send the case back unless (a) it concludes that the error cannot have affected the result, for in that case the error will have been immaterial and the result as lawful as if it had not been made; or (b) without the error the result would have been different, but the appeal tribunal is able to conclude what it must have been. In neither case is the appeal tribunal to make any factual assessment for itself, nor make any judgment of its own as to the merits of the case; the result must flow from findings made by the employment tribunal, supplemented (if at all) only by undisputed or indisputable facts. Otherwise, there must be a remittal. ” 67. There is an important proviso, however. That appears from the observations of Underhill LJ (with which Lloyd LJ specifically agreed) at paragraph 47 of the decision:[47]“47. The disadvantages of this ruling can be mitigated to some extent if the Employment Appeal Tribunal always considers carefully whether the case is indeed one where more than one answer is reasonably possible: there are plenty of examples in the authorities of a robust view on that question being taken. Further, even where more than one outcome is indeed possible, there is in my view no reason why the appeal tribunal cannot still decide the issue if the parties agree; and in an appropriate case they should be strongly encouraged to do so. It is important to appreciate that the requirement to remit enunciated by the authorities referred to by Laws LJ is not based on a formal problem about jurisdiction. Section 35(1) of the Employment Tribunals Act 1996 reads:
“For the purpose of disposing of an appeal, the Appeal Tribunal may – (a) exercise any of the powers of the body or officer from whom the appeal was brought, or (b) remit the case to that body or officer.”
A determination by the Employment Appeal Tribunal of an issue in respect of which the employment tribunal had erred in law would plainly be made “for the purpose of disposing of the appeal”. Rather, the issue concerns, as Sedley LJ expressed it in the Bennet (see para. 30, at p. 892E), the correct use of that power. The point made in the authorities is that it is wrong in principle for the appeal tribunal as a reviewing tribunal to make a decision which falls within the scope of the fact-finding (and that includes fact-assessing and discretion-exercising) tribunal. But there can be no such objection where the parties consent.” 68. There was and remains, it must be noted, a dispute if there be jurisdiction to consider the victimisation claim, as to the merits of that claim, including the import of the evidence given at the 11 August 2017 PH and whether the stance taken in the correspondence which followed that hearing was, in the requisite sense, because the Claimant had continued with his claims and/or given evidence at that hearing. However, given the other facts found by the ET, and that I have the agreement of the parties to do so, I am satisfied, applying Jafri , that I can and should determine these three questions as part of my decision on the disposal of ground 1. 69. It is convenient to consider first, the point about whether continuing with proceedings can amount to a protected act. Mr Tatton-Brown did not abandon this argument, but neither did he pursue it with much vigour. I can deal with it fairly shortly. 70. Whilst Lord Hoffman, in Chief Constable of the West Yorkshire Police v Khan [2001] ICR 1065 (drawing on Cornelius v University College of Swansea [1987] IRLR 141 (CA)), highlighted the distinction between the fact that someone has brought proceedings and the fact of the existence of proceedings, the distinction he sought to make there was between a reaction to a decision to bring proceedings, and a reaction to the practical implications of the existence of the proceedings. A reaction to a decision to continue with, rather than abandon or settle, proceedings is, in my judgment, akin to the former, not the latter. Nor did Khan decide that a decision of that sort would not be within scope of a discrimination claim. 71. Secondly, and in any event, our understanding of the correct approach to issues of the sort with which Khan grappled was illuminated by Derbyshire and others v St Helens Metropolitan Borough Council [2007] ICR 841 which invites attention to the question of whether actions having to do with the conduct of litigation can be properly viewed as a detriment. Lord Hope of Craighead (at paragraphs 22 and following) opined that where the employer was not merely acting on a desire not to prejudice itself in litigation, but was seeking to dissuade the employee from pressing a claim to adjudication, the Cornelius and Kahn test was passed. Ultimately, the question was whether the employer’s conduct crossed a line, such that it should be viewed as a detriment. Baroness Hale of Richmond said (at paragraph 41) that the tribunal was “right to point out that the reason for the adverse treatment could be the continuation as well as the commencement of proceedings. It would make no sense to prevent an employer from treating an employee badly because she had brought proceedings but not to prevent him from treating her badly if she continued them.” Lord Neuberger (paragraph 55) opined that the respondents were “reacting, if not to the commencement of proceedings, certainly to their continuance.” 72. Accordingly, I conclude that the concept of bringing proceedings found in section 27(2)(a) should be construed as embracing a decision to continue with proceedings. [4] (I add that I am inclined to think that the wording of section 27(2)(c) would embrace a decision to continue with, or not abandon or settle, proceedings, in any event.) In light of these authorities, where a victimisation claim relates to conduct during the course of litigation, the guidance which they offer on the concept of detriment is likely to come into play; but that is a different point; and, whatever destination a Tribunal may arrive at, it must get there by the right legal route. 73. I turn to the judicial proceedings immunity (JPI) issue. 74. In summary, Mr Tatton-Brown’s argument was this. The premise of this claim is (a) that an unconditional offer to make the Claimant an ex gratia payment of £4000 was made by a witness giving evidence at the hearing on 11 August 2017 [5] ; (b) the Claimant then did the protected acts of continuing to pursue his claim, and giving evidence at that hearing; and (c) because of that, the Respondent then, subsequently, decided not to make the payment unconditionally, but to attach conditions to it, amounting to detrimental treatment. 75. As to (a), whether what occurred was described as the making of a fresh offer or the renewal of the original offer, what was said by the witness under oath was an essential element of this claim, because it was the alleged change of position from what was said by the witness on 11 August 2017, to what was said in the later correspondence, that constituted the alleged detriment. But anything said by a witness in the course of giving evidence was covered by JPI. So (a) could not be relied upon, and without that essential element, the claim was bound to fail. 76. Mr Kirk initially argued that as a matter of law, JPI could only apply to certain limited causes of action, such as defamation, which fasten on the nature of what a witness had actually said; but in the course of argument he accepted that dicta in various authorities suggest that, rather, it can provide a defence potentially to any cause of action or legal process, save for various recognised and established exceptions, such as perjury and malicious prosecution, or a costs award. It is therefore not necessary to lengthen this decision by exploring the various authorities on this point. [6] 77. A second line of argument was that, in any event, the claimed detriment, and hence the cause of action, arose from the content of the correspondence subsequent to the 11 August 2017 hearing, attaching conditions to the offer of the £4000 payment. That , said Mr Kirk, did not occur during the course of giving evidence. 78. However, as to that, in my view being able to rely on what was said in evidence is essential to this claim. Without that, there is no basis for the case that there was an adverse change of position thereafter, amounting to a detriment. I note again here that, as I have described, the original offer had long since been expressly withdrawn, and there was no claim of victimisation at all relating to that. In my judgment, the application of JPI cannot turn on whether what is said to attract it forms the whole, or only an essential part, of the factual matrix of the putative claim. Either JPI applies to it, and it cannot be relied upon, in the service of that putative claim, or it does not, and it can. [7] 79. Ultimately, this point turned on what were or were not the implications of the decision in P v Commissioner of Police of the Metropolis [2005] ICR 329 (SC). Mr Kirk’s position was that the consequence of that decision was that, because the present claim was one of victimisation, which was underpinned by EU Law, JPI could not apply to preclude reliance on the witness-box evidence. Mr Tatton-Brown disagreed. This was the point that, having drawn counsels’ attention to this authority on day one, I heard argued out on the morning of day two. 80. Prior to P in the Supreme Court the authorities were clear: where JPI in principle applies, it applies no less because the claim is one of discrimination, or indeed victimisation. EU law does not trump, or require the disapplication of, the doctrine of JPI. See: Heath v Commissioner of Police of the Metropolis [2005] ICR 329 (CA) and, specifically in relation to victimisation: Parmar v East Leicester Medical Practice [2011] IRLR 641 (EAT) and indeed P in the Court of Appeal: [2016] IRLR 301 . 81. In P a police officer was dismissed by a police misconduct panel which was a creature of statutory instrument. She sought to complain that this amounted to disability discrimination. The Employment Tribunal dismissed her claim on the basis that the proceedings before the panel had the trappings of judicial or quasi-judicial proceedings, such that its decisions attracted JPI. That was upheld by the EAT and the Court of Appeal, which, following Heath , held that the fact that the claim was one of discrimination did not preclude the application of JPI. 82. However, the Supreme Court held that the combined effect of articles 3 and 9 of Council Directive 2000/78 EC (the Equal Treatment Directive) was that all persons in the UK, including police officers, had the right to be treated in accordance with the principle of equal treatment in relation to employment and working conditions; and the principles of equivalence and the right to an effective remedy, meant that police officers must have the right to present claims of infringement of that principle to an ET. The right to appeal the police misconduct panel’s decision to the Police Appeals Tribunal did not suffice. The fact that the panel’s proceedings might arguably attract JPI could not bar a claim alleging treatment by them contrary to the Directive being considered by an ET. Heath was overruled. 83. Mr Kirk argued that the reasoning in P means that JPI must be disapplied wherever it may conflict with the effective enjoyment of EU rights. Heath , and the various generalised statements in it to opposite effect, have been swept away. Parmar can no longer be relied upon either, since it applied, and depended on the correctness of, the approach in Heath . 84. Mr Tatton-Brown argued that P was distinguishable. First, the factual context was starkly different. Ms P wanted to complain to a Tribunal that her dismissal was discriminatory. It was inherently and obviously unsatisfactory if she could not do so. There was nothing unsatisfactory about the present Claimant being unable to bring a claim of victimisation relying on remarks made by a witness in live evidence given during a hearing some fifteen months after his employment had ended. 85. Secondly, Article 3(1)(c) of the Directive was concerned with “employment and working conditions, including dismissal.” The present complaint was not covered by that phrase. Thirdly, Article 9, concerned with the right to an effective remedy, related to the principle of equal treatment. That principle is that there shall be no direct or indirect discrimination: see Articles 1 and 2. Victimisation is different. Similarly, the Charter of Fundamental Rights of the European Union 2012 refers to discrimination, but not victimisation. 86. Mr Tatton-Brown was bound to acknowledge that Article 11 of the Directive, headed “Victimisation”, provides:
“Member States shall introduce into their national legal systems such measures as are necessary to protect employees against dismissal or other adverse treatment by the employer against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment.”
However, he argued, while that no doubt necessitated that domestic law include some provision along the lines of section 27 of the 2010 Act, giving Member States a proper margin of appreciation, it was not necessary for this to extend to the ouster of JPI where the proposed claim is of victimisation based on evidence given in Tribunal proceedings. 87. Finally, said Mr Tatton-Brown, the principles of equivalence and effectiveness do not apply in the same way as they did in P . Police officers were peculiarly disadvantaged by comparison with other dismissed workers. There is no equivalent differential here: JPI applies to evidence given in all judicial proceedings by or against anyone. 88. Mr Kirk, in reply, made the following points. First, the prohibition on victimisation in the Directive should not be treated as materially different from that on discrimination; and Article 11 must apply equally to acts done after, as well as during, the currency of the employment relationship. See Rowstock (above) at paragraphs 8, 23 and 33 (citing Coote v Granada Hospitality Limited [1999] ICR 100 (ECJ)). 89. Secondly, while accepting that Article 9 of the Directive does not apply to claims of victimisation, Article 47 of the Charter provides that everyone must have an effective remedy in respect of rights and freedoms guaranteed by the law of the Union. Thirdly, the wide language of Article 21/1 referring to “[a]ny discrimination based on” any of the proscribed grounds should be treated as embracing victimisation – applying Coote . Finally, the Justices in P did not suggest any restrictions on the application of the principles that they enunciated. 90. My conclusions on this point are as follows. 91. Firstly, I cannot see any sufficient basis for saying that the position should be different in relation to protection against victimisation than it is in relation to, say, direct discrimination. On that point, the constellation of arguments deployed by Mr Kirk is persuasive. 92. Secondly, it is clear from the reasoning in Coote and Rowstock that the protection of, and required by, EU law does not fall away the moment the employment ends, because the employment relationship, or its incidents, may continue. That was indeed the conclusion in Rhys-Harper v Relaxation Group plc [2003] ICR 867 (HL) and such protection is now embodied in section 108 of the 2010 Act. Section 108 must of course itself be interpreted and applied consistently with the dictates of EU law. But this insight does not take us any further on the question of the interplay between JPI and EU law: if section 108 applies, that interplay must be confronted. If section 108 does not, then there is no jurisdiction for that reason in any event. The contention that this complaint is not within the reach of section 108 is, of course, the third of Mr Tatton-Brown’s arguments in this group, to which I will come. 93. Next, there are a number of significant features of the facts, and decision, in P . First, it was, specifically, about whether JPI could bar a police officer from bringing a claim of discriminatory dismissal , underpinned by the 2000 Directive, to an Employment Tribunal . (See Lord Reed, the other Justices concurring, at paragraph 1). It is perhaps not surprising that the conclusion was that it could not. [8] Indeed it was at least arguable, in my view, that the police misconduct panel’s decision should not have been regarded as attracting JPI at all; but given its view that JPI, if it potentially applied, would have to give way to EU law, the Supreme Court indicated that it did not have to (and it did not) decide that question. [9] 94. Secondly, there was – again unsurprisingly – no dispute in P that the claim which Ms P wanted to bring – a claim of discriminatory dismissal – was, as such, plainly within scope of Article 3(1)(c) of the Directive, concerning “employment and working conditions, including dismissals.” Thirdly, a problem peculiar to the relevant tiers of police officers, was that, on a strict construction of the relevant provisions of the 2010 Act , they did not have the right to complain of a decision of this type to an Employment Tribunal at all. The necessary solution, to give effect to EU law, held the Supreme Court, was to interpret the relevant sections as including acts within the scope of the Directive, by persons conducting a misconduct hearing. So interpreted, the Act then overrode any common law JPI that might otherwise apply. [10] 95. In summary, the ratio of P can perhaps be captured in this way. Any person must have the right to present to an Employment Tribunal (as the judicial body that can provide an effective remedy, and is the one to which others have access) a claim of infringement of a right within scope of the Equal Treatment Directive. That plainly applies to the right of a police officer seeking to claim discriminatory dismissal. To the extent that the peculiar nature of a police misconduct panel means that JPI might otherwise be said to apply to such a decision, it cannot preclude the exercise of that right. 96. I do not think that it necessarily follows from this that JPI cannot be relied upon to undermine the ability of this Claimant in this case to pursue his victimisation claim. That depends on whether this particular claim is itself within the scope of the Directive. I have come to the conclusion that it is not, for the following reasons. 97. First, while it is obvious that a discriminatory dismissal is within scope of the Directive, it is not obvious that a claim of the present sort is.

(c) :

“employment and working conditions, including dismissal and pay” (or any other part of Article 3(1)(c)). On balance, I do not think statements made by an employer, through the medium of a witness giving evidence on oath at a hearing of a claim against it, are within scope of that provision. But even if I am wrong in so saying at that level of generalisation, I am reinforced in that conclusion in this case by my consideration of the significance of the post-employment context. That is, there is, I have concluded, an interaction between the JPI point and the section 108 point in this case. 98. I turn, therefore, to the section 108 point, and its relation to the underlying EU law principles. I repeat that there is a dispute about the significance to be attached to what was said in evidence and, in particular, about why the Respondent adopted the stance that it did in the correspondence following the 11 August 2017 PH. But I can, for the purpose of this jurisdictional decision, assume those points in the Claimant’s favour. The parties have, to reiterate, agreed that I should decide the section 108 point rather than remitting it. 99. The existence of section 108 does not, of course, mean that there is jurisdiction to entertain any and every claim of discrimination or victimisation presented by an ex-employee. It must meet the test of section 108(1)(a) that the impugned conduct “arises out of and is closely connected to” the past employment relationship, as well under (b), of being of conduct that would be actionable had it occurred during the relationship. I am persuaded by Mr Tatton-Brown’s submissions that this alleged conduct does not meet the section 108(1)(a) test. 100. In particular, he draws attention to the fact that Parliament has not merely stipulated that the conduct must be something that “arises out of” the past relationship, but also that it must be “closely connected” to it. Both tests must be satisfied, and the second must add something to the first, further narrowing the field. Further, Parliament has deliberately added the word “closely” to the word “connected”
. There must be not merely a connection, but a close one. 101. It is the words of the statute which must always be applied in every case, and my observations should not be treated as substituting for them, or qualifying them in any away. But it is clear that both “arises out of” and “is closely connected with” must be satisfied. It is also, I think, clear, that those tests will not by themselves be satisfied merely by a “but for” test being passed, nor by a finding that the impugned conduct was done, as it were, in the capacity of ex-employer. Those are necessary, but not sufficient findings. In particular, the “closely connected” test requires something more. Mere passage of time is also, plainly, not a determinative consideration (either way), though it may be a relevant one to go into the mix. 102. It was not argued by Mr Kirk that the wording of section 108 is not, as such, sufficient to secure compliance by domestic law with EU law; but I should record that I do not consider it to fall short, having regard, for example, to the discussion in Jessemey , Rhys-Harper , and Coote . His argument was simply that the facts (and/or assumed facts as claimed) point to the conclusion that the words of the section 108(1)(a) test are satisfied in this case. 103. In this case the following particular factual features are in my judgment relevant. Firstly, the original May 2016 offer was not by way of an offer to settle any actual or potential claims arising out of the termination of the employment; it was unconditional and expressed to be a matter of personal goodwill. Secondly, that offer was unequivocally withdrawn in January 2017, many months before the August 2017 hearing, and there was no such offer that was live in the period immediately prior to that hearing. [11] Thirdly, there was no claim of victimisation relating to the original offer. Fourthly, this victimisation claim is predicated, as I have said, as an essential factual element, on something said by a witness in response to cross-examination during the course of giving evidence at an Employment Tribunal hearing. 104. Having regard to all those features, I do not find the section 108(1)(a) test to be met. The offer was made in the capacity of ex-employer. Though there was plainly a personal element, it was not suggested that the payment would have been offered, had the Claimant been a good friend of Messrs Wilson and Butler, with a baby on the way, who had lost his job in similar circumstances, but not with the Respondent, but with some other company. 105. In a but-for sense, and in the sense of the capacity in which it was made, I think it arose from the former employment, and was connected with it; but it was not, in my judgment conduct which arose from and was closely connected with it. Not only are there simply too many links in the chain [12] ; but the clear water between the original, later withdrawn offer, and the fresh and distinct context in which the offer relied upon (whether viewed as new or renewed) was elicited, and specifically, the fact that the context was cross-examination during the course of the giving of live evidence under oath at a Tribunal hearing, mean that the test of close connection is not satisfied. 106. This means that this claim must fail, because it is not within the jurisdiction conferred on the ET by section 108. In light of my overall reasoning, I also conclude that this is not, given its particular (actual or assumed) factual features, including in particular that it hinges on what was said in evidence in this context at an ET hearing, a complaint within scope of the Equal Treatment Directive. Hence the principles emerging from P do not require the application of JPI to be overridden. The giving of evidence by a witness in the course of a judicial hearing is, of course, incontrovertibly, in principle, a context to which JPI applies. 107. I add, though it forms no necessary part of my reasoning, that I consider this conclusion sits comfortably with the particular powerful policy considerations which lie behind the application of JPI to things said in evidence by witnesses in Court, with only specific exceptions, a topic which simply did not arise for consideration in P . [13] While that part of the reasoning in Parmar which drew on Heath has been overtaken by P , the discussion in Parmar of that particular aspect of JPI (at paragraph 14) remains illuminating and invaluable. 108. Accordingly, I conclude that what was said by the witness at the 11 August 2017 hearing could not be taken into account by the ET, when considering this victimisation claim, and, without that, the claim would be bound to fail. 109. For all of those reasons, and notwithstanding that ground 1 is well founded, the victimisation claim does not need to be remitted, but must be dismissed. 110. That means that ground 2 falls away; but I will say something briefly about it. 111. As framed in the Notice of Appeal, this ground contended that the Tribunal ought to have concluded, on the facts found, that the burden shifted to the Respondent to explain why it had withdrawn or attached conditions to the offer made by the witness on 11 August 2017. In submissions, Mr Kirk went further and argued that the Tribunal was bound, given its findings in paragraphs 71 and 72, and observations there about things that troubled it, or that it did not understand, to conclude that the burden had not been discharged. 112. However, had I concluded that the Tribunal had jurisdiction to consider this claim, I would have remitted the matter to it for fresh consideration, without tying its hands in relation to the burden of proof. That is for the following reasons. 113. First this claim, if justiciable, would I think, require particularly careful analysis and care in the approach to taken to evidence relevant to it. There were two Directors of the Respondent who gave evidence for it on 11 August 2017. Mr Wilson, who was called to give evidence after Mr Butler, was asked about this matter, but was stopped in mid-answer because he was straying in to without prejudice territory. Whilst it was, of course, correct as such, that a witness should be stopped from inadvertently waiving privilege, the clear implication is that Mr Wilson had something to say about without prejudice communications, or the possibility of settlement, that he regarded as relevant to his stance on the question of paying £4000. Given that, the Tribunal might have had to grapple with whether the parties were prepared to waive privilege about that, or whether, if not, the claim could be fairly determined. 114. Further, with respect to the Tribunal, paragraphs 71 to 73 are severely muddled. Not only did it apply the wrong test to the victimisation claim in paragraph 73, but it mingled, in paragraphs 71 and 72, discussion of events in the period after May 2016, and events at and after the 11 August 2017 hearing, going from the first to the second, and then back to the first; and indeed, much of the material on which Mr Kirk relied related to the events which followed the May 2016 exchanges, not the 11 August 2017 evidence and its aftermath. 115. Had there been jurisdiction, I would therefore have concluded that nothing in paragraphs 71 to 73 of the original decision could be relied upon to support the necessary fresh consideration of the victimisation claim, in relation to which the Tribunal (whether or not the same panel) would need to make fresh and focussed findings of fact and, as appropriate, give consideration, without prior restraint from me, to how section 136 might assist it to reach its conclusion. Ground 3 – Issue Estoppel 116. Ground 3 concerns the merits Tribunal’s decision that the findings of fact made in paragraph 6 of the PH decision could not be reopened, because the doctrine of issue estoppel applied. That was said to be erroneous, because the findings made in that paragraph were not necessary to the disposal of the substantive time issues which were the subject of the PH.[117]The underlying legal principle was concisely restated by the Court of Appeal in Bon Groundwork Limited v Foster [2012] ICR 1027 . Elias LJ (Arden and Pill LJJ) concurring, put it this way, at paragraph 4:
“… The principle of res judicata can be summarised as follows: where an issue has been litigated before a judicial body and determined as between the parties it cannot be re-opened. It is binding as between them, and the parties are estopped from re-opening it. The issue may be one of fact or of law. However, the parties are only bound by an issue which it was necessary for the court to determine in the earlier claim.” 118. Mr Kirk also asserted and Mr Tatton-Brown did not dispute, as such, that the principle is equally applicable where the previous finding arose from an earlier decision in the course of the same claim: Pugh v RT Electrics Limited , UKEAT/0177/16/DM. 119. The nub of Mr Kirk’s submission was that the only legally correct view was that none of the findings in paragraph 6 of the PH decision [14] was a necessary ingredient of that decision. The determination of the EDT revolved simply around a construction of the May 2016 emails. Nor were any of the paragraph 6 findings necessary to the decision on whether to extend time. The fact that the parties had addressed these background matters in their witness statements, and that their respective witnesses gave evidence at that hearing, did not alter that. The Tribunal’s assertion (paragraph 19) that the findings had been a “necessary ingredient” of the earlier decision was wrong. The factual issue remained live after that PH; and the parties also had a legitimate expectation that these points would be open to argument at the final hearing – see the remarks of EJ Crosfill at the later PH before him (quoted by me above). 120. Mr Tatton-Brown submitted that the Tribunal had been entitled, as the fact-finding body, to find that these matters were a necessary ingredient of the PH decision, and it had specifically identified that evidence had been adduced on the point. In any event this ground was, he said, academic. It had no bearing on the victimisation claim, nor was it material to the remaining grounds of appeal in relation to the section 15 claim. Further, the Tribunal at the merits hearing had, in any event, made its own findings that the Claimant had stated that he did not wish to return to his old Operations Manager role. 121. My conclusions are these: 122. As to the law, it is correct – see Pugh – that the doctrine applies equally in respect of previous findings made in the same litigation, as in respect of findings made in a previous case involving the same parties. In Pugh itself, its application meant that a decision to extend time made at an earlier PH could not be revisited in the decision arising from the final hearing. 123. However, in Pugh the issue was not whether a previous finding of fact had been “necessary” to the previous decision but, more straightforwardly, the core question of whether the previous decision itself could be reopened. Where the issue is, as here, whether a previous finding of fact was necessary to a previous decision made in the course of the life of the same claim, matters may be more complicated. That is for the following reasons. 124. Firstly, at a hearing the purpose of which is to determine a certain issue or issues, it is not uncommon for litigants, or witnesses, to nevertheless stray in their evidence or arguments into matters that feature as factual or legal issues in that same case overall, but which are not relevant to the particular issue to be determined at that particular hearing. It is, in such a case, the task of the Tribunal to properly set the boundaries, and decide what is relevant, both in its management of the hearing, and presentation of evidence and argument and in its decision. 125. Secondly, a Tribunal may itself wish to refer in its decision on a preliminary point, for narrative purposes, to some background facts, to set the scene or give some explanatory context, to the specific matters at issue. That is not problematic where those matters are not factually controversial and/or not material, or potentially material, to any other issues in the case. But if there is a material dispute, it should refrain from making a finding, and/or flag up that there is a dispute about that aspect, which it is not deciding and/or, depending on the nature of the point, consider whether to approach the matter some other way, such as by making an assumption for the purposes of the PH decision, but without determining the issue. 126. Conceivably, the parties might agree that a particular additional issue should be addressed at a PH, because evidence has been prepared, and they are in a position to present arguments, and it can usefully be added, as it were, to the agenda for the PH. But the mere fact that one or more witnesses has referred to the matter in evidence, and/or are asked about it in cross-examination is not, by itself, enough to amount to such an agreement or understanding. 127. I turn, then, to what happened in this case. 128. First, we need to be clear, with a little more precision, what the factual issue was. While Mr Kirk indicated that only the first sentence of paragraph 6 was uncontentious, the chief bone of contention was the second sentence, containing the proposition that the Claimant did not want to return to his old role of Operations Manager. Mr Tatton-Brown submitted that what the Claimant subjectively wanted, or privately thought, did not matter. What mattered was what he had said to Mr Butler and/or Mr Wilson. I agree, but it seems to me that paragraph 6 was making a finding about what he had communicated to them . That the substantive dispute was about that is, I think clear, for example from the amended grounds of claim, and the Claimant’s witness statement for the merits hearing. 129. Further, the substantive dispute was about what the Claimant’s stated position was, not when he had what the Tribunal called his “outburst” and “breakdown” when he first went off sick, in June 2015, but by the time of and/or, at the meeting on 14 April 2016 – the last meeting before he was dismissed. His case was that he had not said at that meeting that he did not want to return to that role, but rather that, despite an OH report indicating that he was (now) fit to do it, Messrs Butler and/or Wilson had ruled it out. The Respondent’s case was the opposite. 130. The paragraph 6 finding, which refers to the position from February 2016 through the 14 April 2016 and prior to the May emails, was to the effect that the Claimant had conveyed in that period that he (still) did not at that point want to return to the Operations Manager role. That was what the merits Tribunal took that paragraph to mean (for example at paragraphs 48 and 65) and it was the finding that, as at 14 April 2016 the Claimant did not want (or still did not want) to return to that role, which it held could not be reopened. 131. Whether that was right depended on whether the paragraph 6 findings were a necessary ingredient of the PH decision. The merits Tribunal asserted (at paragraph 19) that those findings were necessary ingredients of the PH decision, but did not explain why. The observation (at paragraph 16) that “both parties must have thought this was a necessary ingredient for understanding the later emails” does not support the Tribunal’s own conclusion that “consequently … the findings were an integral part of the issue on time limits.” 132. In the PH decision itself (a full copy was in my bundle) the Tribunal did not appear to draw specifically on the paragraph 6 findings in giving its reasons for deciding the time points in the way that it did. Mr Tatton-Brown did not suggest any particular basis for concluding that they plainly were necessary ingredients of the decision on those points, nor can I see any. I am bound to conclude that the merits Tribunal did err in making that finding – it was simply not supported by the PH decision, or the reasoning which it contained. 133. Nor, do I think it sufficient to support the merits Tribunal’s decision on this point that the parties had referred to the background leading up to the May 2016 emails in their witness statements for the PH, nor that there was some cross-examination about it at that hearing. That is not sufficient to amount to an agreement that it was one of the factual matters that would be determined at that PH. (Nor was there any such ruling by the Tribunal.) 134. Nor do I think it relevant that no application for reconsideration had been made following the PH in question, nor that the status of this paragraph had not been raised in terms at the subsequent PHs. Either it was bindingly determined at the time of the PH (because it was necessary to the decision on time points, or agreed, or ruled, that it would be determined as an additional matter in any event) or it was not. The Claimant did not need to rely on the remarks of EJ Crosfill at his PH (cited by me at paragraph 32 above) as creating an expectation that this issue would be considered and decided at the merits hearing; but they do tend to show that it was in fact identified as being an important live issue at that further PH. 135. Nor do I think that the statements, in later parts of the merits decision, to the effect that the Claimant had said he did not want to return to the Operations Manager job, or could not do so, (for example at paragraphs 48, 57 and 63, which I have cited above) support the conclusion that the merits Tribunal in any event made its own independent findings of fact to that effect on the basis of the evidence before it. The merits Tribunal had ruled, in terms, that the point had been decided already and could not be reopened. Consistently with that, paragraph 48 refers back, in terms to the “the Tribunal’s finding from the August preliminary hearing”, and the other passages must be taken to be drawing on that previous finding as a given, as well. 136. Accordingly, ground 3, as such, succeeds. Mr Tatton-Brown, however, submitted that this ground was actually academic, because it had no bearing on the victimisation claim, nor on the remaining live grounds of appeal relating to the section 15 claims. 137. I do not agree. In paragraph 77 of its decision, concerning the section 15 claim relating to the dismissal, the Tribunal refers to the Claimant being “unable to continue in his role as operations manager”
. Even if it meant here to refer to that being the Respondent’s view, one cannot exclude that it considered that they held that view because the Claimant had stated that that was (or was still) his own position. Accordingly, this ground is not in my view, academic. Ground 5 - section 15 complaints (e) and (f) 138. Ground 5 was to the effect that the Tribunal erred in its findings, in paragraphs 69 and 70, that failing to inform the Claimant in the meeting of 14 April 2016 that he could be dismissed if he did not accept a revised role, and not offering him the opportunity to accept that role before concluding that there was none available for him, was not unfavourable treatment for the purposes of the pertinent section 15 claims. 139. Mr Kirk submitted that the starting point – not controversial as such – was that the Claimant did not want his employment to end. Further, the Tribunal accepted that Messrs Butler and Wilson did not “spell out what would happen” if they could not find another role. The Claimant’s evidence was that, had he understood that a point had been reached where the Respondent’s position was that the only role open to him was the revised, lower paid role, and if he did not accept it, he would be dismissed, he would have accepted it. The Tribunal’s finding that it was implicit that if a role could not be found, his employment was at risk, does not assist, because it does not address that concrete scenario. The finding that the 6 May 2016 email represented proposals regarding the termination of his employment, to which he could have responded by indicating that he would accept the revised role, was not sustainable. 140. Mr Tatton-Brown’s position was that what amounts to unfavourable treatment is a question of fact for the Tribunal. It had made findings of fact in these paragraphs with which the EAT should not interfere. In any event, even if the Tribunal was wrong not to find that this conduct amounted to unfavourable treatment, it could not properly have found it to be because of the sickness absence (which was the “something” arising from disability relied upon). 141. Mr Kirk disagreed with that last point. To determine whether the conduct was “because of” the something required the Tribunal to consider, and make findings about, the thought processes of the relevant decision-maker, and the conclusion on that question could not be assumed or pre-empted by the EAT. 142. My conclusions on this ground are as follows: 143. First, in light of its findings of fact about events at the 14 April 2016 meeting (and even if, contrary to my conclusion on ground 3, those include the finding that the Claimant said he did not want to return to the Operations Manager role) and the subsequent email exchanges, I do not think the Tribunal’s conclusion, that the conduct in question was not unfavourable treatment, was legally correct. 144. As to the law, in Williams v The Trustees of Swansea University Pension and Assurance Scheme [2018] UKSC 65 , [2019] IRLR 316 the Supreme Court was referred to passages in the Equality And Human Rights Commission’s Code of Practice on Employment (2011), which suggest that unfavourable treatment involves putting the disabled person at a disadvantage, which would include “denial of an opportunity or choice”. Lord Carnwath (at paragraph 27, the other Justices concurring) agreed with a submission “…that in most cases (including the present) little is likely to be gained by seeking to draw narrow distinctions between the word “unfavourably” in section 15 and analogous concepts such as “disadvantage” or “detriment” found in other provisions, nor between an objective and a “subjective/objective” approach. While the passages in the Code of Practice to which she [counsel] draws attention cannot replace the statutory words, they do in my view provide helpful advice as to the relatively low threshold of disadvantage which is sufficient to trigger the requirement to justify under this section.” 145. Here, the Tribunal found as a fact that the Claimant was not told at the meeting that if they could not find another role for him he would be dismissed. It had found as a fact that, in the May email exchanges he was dismissed. The Tribunal’s finding, that it was implicit that if another role was not found, his employment was “at risk” is not a finding that it was implicit that, in that case, he would be dismissed. 146. Nor do I think the Tribunal’s conclusion that this was not unfavourable treatment can be sustained by its description of the 6 May 2017 email as “proposals” regarding the termination of his employment and its assertion that the Claimant had the opportunity, at that point, to say that he would accept the other role. On the Tribunal’s own findings, the Claimant read the 6 May email as conveying that a decision had been taken to dismiss him, prompting him to ask if that was right. Given the content of the 6 May email, wishing the Claimant well for the future, and in light of the low legal threshold of the concept of unfavourable treatment, I do not think the Tribunal’s finding that there was no unfavourable treatment, as the Claimant could still have responded that he now wished to accept the previously offered role, is sustainable. 147. As to whether this was a treatment “because of” the Claimant’s sickness absence, the law is clear. The concept of “because of” in section 15 is no different from the concept in section 13. To determine this particular question (in a non-obvious case) therefore requires a consideration of the motivation of the decision-maker, and whether the “something” in the particular case materially influenced them. See: City of York Council v Grosset [2018] ICR 1492 (CA) at paragraphs 36 – 37; Dunn v Secretary of State for Justice [2018] EWCA Civ 1998 , at paragraph 18. 148. Here, in paragraphs 70 and 71, the Tribunal did not make any finding about why the Respondent acted as it did, because it considered that its finding that there was no unfavourable treatment disposed of these particular complaints. Given the nature of the “because of” concept, the determination of this question may require a particularly careful and nuanced finding of fact, in order to determine, specifically, whether the lengthy sickness absence influenced this conduct or not. I cannot say that there is only one finding (either way) on that question that it would be open to the Tribunal to make. 149. Nor, for reasons to which I come and although I am inclined to think that, complaints (e), (f) and (k) are closely bound up together, do I think that this question is resolved by the findings that the Tribunal went on to make in paragraph 77 about the dismissal. 150. Ground 5 therefore succeeds and, subject to ground 6, the section 15 complaints to which it relates must be remitted. Ground 6 – section 15 complaint (k)– dismissal – proportionality 151. This ground maintains that the Tribunal erred because, having found in paragraph 77 that the dismissal was because of something arising from the disability, the Tribunal failed to determine whether the proportionality defence succeeded, before simply going on to dismiss this claim along with all the others. 152. That criticism of the Tribunal’s decision is, in my view, plainly well-founded. In paragraph 77 the Tribunal sets out the Respondent’s case as to the legitimate aim and the proportionate means, but says nothing at all about what it made of that case. 153. However, Mr Tatton-Brown submitted that the dismissal of this complaint could and should still be upheld, without remission, for either or both of two reasons. 154. First, the Tribunal found at the start of paragraph 77, that the dismissal “arose as the Claimant was unable to continue his role as operations manager and the Respondent was unable to find [an] alternative role which was suitable for both the Claimant and the Respondent.” It went on to find that that was “something arising from disability” and that was the basis on which this complaint succeeded. However, said Mr Tatton-Brown, that was not how the section 15 complaint relating to the dismissal was pleaded. The “something” that had been pleaded was the sickness absence. But the Tribunal had found that what had influenced the decision to dismiss the Claimant was the fact that there was (or was in the decision-makers’ view) no job that he could do, which was a different thing from the sickness absence, and it had implicitly thereby also concluded that it was not the sickness absence. 155. The Tribunal had, he said, therefore found for the Claimant on the basis of a complaint that was not pleaded, which it should not have done: Chapman v Simon [1994] IRLR 124 ; and in the process it had effectively rejected the basis which was pleaded. Accordingly, regardless of the position in relation to the proportionality defence, this finding in favour of the Claimant could not stand. 156. Alternatively, submitted Mr Tatton-Brown, it was plain and obvious that dismissing the Claimant in circumstances where he had been absent sick for as long as he had, and there was no job available that he was fit to do, was a proportionate means of achieving the Respondent’s legitimate aim. This was the only conclusion that the Tribunal could have properly reached. So, there was no reason to remit this complaint in any event. 157. My conclusions are these: 158. Firstly, I do not agree with Mr Tatton-Brown that the Tribunal’s finding in paragraph 77 about the reason for dismissal carries the implication that it had concluded that his dismissal was not, in the requisite sense, because of his sickness absence. The Tribunal has simply not addressed the question directly, of whether the sickness absence itself influenced the decision. It would be tempting to in fact draw the opposite conclusion, namely that Mr Tatton-Brown was seeking, in his Chapman v Simon argument, to make a distinction without a difference, on the basis that the ill health, incapacity and absences were all bound up together. However, I think that is a matter I must leave to the Tribunal to consider afresh on remission.[159]Turning to the proportionality defence, as the Court of Appeal recently confirmed in Grosset , whether it is made out is an objective question for the Tribunal, and the standard is a higher one than applies when considering whether a dismissal was or was not unfair. It said: “54. In my judgment, the Employment Tribunal and the Employment Appeal Tribunal have made a lawful assessment of the position in relation to this defence and the appeal in respect of this issue should also be dismissed. Contrary to Mr Bowers’ submission, and as the appeal tribunal rightly held, there is no inconsistency between the Employment Tribunal’s rejection of the claimant’s claim of unfair dismissal and its upholding his claim under section 15 EqA in respect of his dismissal. This is because the test in relation to unfair dismissal proceeds by reference to whether dismissal was within the range of reasonable responses available to an employer, thereby allowing a significant latitude of judgment for the employer itself. By contrast, the test under section 15(1)(b) of the EqA is an objective one, according to which the employment tribunal must make its own assessment: see Hardy & Hansons plc v Lax [2005] ICR 1565 , paras 31-32, and Chief Constable of West Yorkshire Police v Homer [2012] ICR 704 , paras 20 and 24-26 per Baroness Hale of Richmond JSC, with whom the other members of the Court agreed.[55]Against this, Mr Bowers pointed to certain dicta by Underhill LJ in O'Brien v Bolton St. Catherine's Academy [2017] EWCA Civ 145 ; [2017] ICR 737 paras 51-55, in which he observed that the tribunal, which had found that the dismissal in question in that case was in breach of section 15 EqA, was also entitled to conclude from this that it had been unfair as well. Mr Bowers’ suggestion was that this meant, in our case, that the employment tribunal should have reasoned in the opposite direction, by saying that by virtue of its ruling in relation to unfair dismissal it should also have concluded that there was no breach of section 15 EqA. However, I think it is clear that Underhill LJ was addressing his remarks to the particular facts of that case, and was not seeking to lay down any general proposition that the test under section 15(1)(b) EqA and the test for unfair dismissal are the same. No doubt in some fact situations they may have similar effect, as Underhill LJ was prepared to accept in the O'Brien case . But generally, the tests are plainly distinct, as emphasised in Chief Constable of West Yorkshire Police v Homer [2012] ICR 704 .”160. The starting point has to be a reasoned and robust finding of fact as to the reason or reasons for this dismissal. Given that the Tribunal has not made a clear finding about whether, in principle, the dismissal was, in the requisite sense, because of the sickness absence, and given the nature of the proportionality test, I am not in a position to say that, if the Tribunal were, on remission, to conclude that the dismissal was, in the requisite sense, because of the sickness absence, it would be bound to find that it was justified.161. This ground therefore also succeeds, and a remission will be necessary. Outcome162. The overall outcome is therefore that the dismissal of the victimisation complaint stands, but the Tribunal’s dismissal of the section 15 complaints identified at (e), (f) and (k) of the amended grounds of complaint must be quashed, and those complaints remitted to the Employment Tribunal for further fresh consideration of the outstanding issues relating to them.163. Having had sight of this decision in draft, counsel have tabled written submissions on whether remission should be to the same Tribunal panel, if possible, or a different one. Mr Tatton-Brown advocated the former course, Mr Kirk, the latter. I have considered those submissions, and have had regard to the guidance in Sinclair, Roche & Temperley v Heard [2004] IRLR 763 (EAT).164. This was not a totally flawed decision, but significant errors were made. I do not doubt that the original Tribunal would professionally seek to bring a fresh eye to the questions which must now be remitted for further consideration; but, given the previous decisions taken at the PH and by the full merits Tribunal including the same Judge, that might, I think, realistically, be difficult for them. Determination of the remitted matters will require further fact-finding. Significant time has passed since the last hearing, so the existing Tribunal will not have the advantage of very recent recollection; and, if the matter is remitted to a different panel, that panel will have the benefit of those background findings which stand, recorded in the previous decisions. If the matter is heard by a fresh panel, that will not prevent appropriate cross-examination of witnesses by reference to the evidence that they gave last time. The remitted matters include a claim related to dismissal, are capable of self-contained determination, and remission to a fresh panel would not be disproportionate, bearing in mind that one claim relates to the dismissal.165. Accordingly, I will direct that the matters that fall to be remitted be heard by a differently constituted Tribunal. [1] The Judge plainly meant “February 2016.” [2] I reproduce the text as typed, omitting paragraph numbers. “GOV” appears to be a typo for “GOC”, the cross-reference here being to the particulars, or grounds, of claim. [3] Clearly this was meant to refer to January to May 2016. [4] Though it was not cited to me, I note that in Pothecary, Witham Weld v Bullimore [2010] ICR 108 the EAT observed (at paragraph 19): “ In the case of an act done by an employer to protect himself in litigation involving a discrimination claim, the act should be treated straightforwardly as done by reason of the protected act, i.e. the bringing/continuance of the claim; and the subtle distinctions advanced in Khan as to the different capacities of employer and party to litigation should be eschewed.” [5] During the course of argument Mr Kirk confirmed that the Claimant did not seek to rely on anything that may have been said by Mr Wilson “ringside” when he was not giving evidence. [6] Nor do I need to explore the topic with which most of the authorities on JPI are in fact concerned, namely the extent to which the immunity may or may not cover various activities more or less closely connected with the conduct of actual or potential litigation, since it is plain that what goes on as part of a trial, and in particular, the giving of evidence by witnesses at a trial, is at the very core of activity that is covered by JPI. [7] It was not argued, and so I do not consider, whether, in any event the subsequent correspondence might itself have been covered by JPI. Nor is whether it might or might not have amounted to a detriment (per Derbyshire ) something that it falls to me to consider for the purposes of this appeal. [8] As Lord Reed noted, at paragraph 4, in Heath , Laws LJ had been troubled that the Court of Appeal’s decision appeared to deprive police officers of a right Parliament appeared to have intended them to have. [9] Paragraph 24. The argument that police misconduct panels do not attract JPI proceeds by parity with the reasoning that found favour with the Court of Appeal in Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2013] ICR 270 and Christou v LB Haringey [2013] ICR 1007 concerning whether the disciplinary processes of the public bodies in those cases were within scope of, respectively, Article 6 and the doctrine of res judicata . The Court of Appeal in P felt neither had any impact on Heath . [10] P at paragraph 33. [11] I am referring, of course, to open offers. Neither the ET, nor I, know anything of the substance of any without prejudice communications. [12] A contrast may be drawn with the “in consequence” test of section 15(1)(a) in respect of which there may be multiple links in the chain, as long as the chain is unbroken. [13] Lord Hughes, at paragraph 38, notes that Ms P had said in terms that she was not complaining about anything said or done at the disciplinary hearing, only about the outcome. [14] As I have noted, the first sentence was not regarded as contentious.