Monmouthshire County Council v Harris (Disability Discrimination: Section 15) [2015] UKEAT 0010_15

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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Monmouthshire County Council v Harris (Disability Discrimination: Section 15) [2015] UKEAT 0010_15_2310 (23 October 2015) URL: http://www.bailii.org/uk/cases/UKEAT/2015/0010_15_2310.html Cite as: [2015] UKEAT 0010_15_2310, [2015] UKEAT 10_15_2310

HER HONOUR JUDGE EADY QC

Introduction

1. I refer to the parties as the Claimant and the Respondent, as below. The appeals herein are those of the Respondent against the Judgments of the Cardiff Employment Tribunal (Employment Judge Davies, sitting with members; “the ET”) on liability and remedy.

2. The Liability Hearing took place on 19-20 May 2014 and the Reserved Judgment was sent to the parties on 10 June 2014; the ET ruling that the Claimant had been unfairly dismissed and her dismissal was an act of discrimination arising from disability contrary to section 15 of the Equality Act 2010 (“the EqA”). The ET also found the Claimant had been the subject of unlawful harassment, but that claim was dismissed as being out of time. Similarly, whilst the Respondent had, in certain respects, failed in its obligation to make reasonable adjustments, that claim was also presented out of time and was dismissed.

3. On 12 September 2014, the Remedy Hearing took place. By its Reserved Judgment, sent out on 8 October 2014, the ET awarded the Claimant the total sum of £238,216.37.

4. The parties were both represented by (differing) counsel at each hearing. Mr Halden appeared for the Claimant at the Remedies Hearing, as he does now. Neither counsel now appearing for the Respondent previously represented at either ET hearing.

5. Having considered the proposed grounds of appeal at an earlier Preliminary Hearing, HHJ Peter Clark directed the appeals could proceed on the following bases:

On liability:

(1) On unfair dismissal: whether the ET erred in regarding procedural defects as sufficient to render the dismissal substantively unfair, failing to consider the Respondent’s substantive grounds for terminating the Claimant’s employment.

(2) On the finding of discrimination arising from disability: whether the ET erred in failing to consider whether dismissal was a proportionate means of achieving a legitimate aim and/or took into account irrelevant considerations.

On remedy:

(3) Whether the ET fell into error by declining to apply Polkey principles to the award of financial compensation; specifically whether it erred in taking into account an out of time failure to make reasonable adjustments when assessing compensation.

6. The Claimant resists the appeals; relying on the ET’s reasoning in each instance.

The Background Facts

7. The Respondent - a local authority employing in excess of 3,000 staff - employed the Claimant as a Senior Education Welfare Officer at all relevant times prior to her dismissal on 31 July 2013. Her continuous service dated back to September 1992. It was common ground that, by reason of suffering four chronic conditions (depression, sinusitis, asthma and underactive thyroid), the Claimant was disabled for the purposes of the EqA and the Respondent had requisite knowledge of this at all relevant times. Prior to autumn 2010, following Occupational Health advice, the Claimant had been allowed to adopt a pattern of working from home during early mornings and late afternoons and to reserve Fridays for administration, again working from home.

8. At the end of August 2010, the Claimant’s line manager changed. The new manager - Mr Austin - was the focus of a number of complaints by the Claimant, although initially she asked that her concerns not be raised with him.

9. Issues came to a head, however, in January 2013. On 7 January 2013 (the Claimant’s first day back after annual leave, when she was due to be working from home), Mr Austin had called a meeting at short notice. On 10 January, the Claimant complained that he was not supporting her home working and she requested a return to her previous arrangements. She then went off work due to ill-health, never to return.

10. An Occupational Health report described the Claimant’s conditions as chronic and likely to meet the definition of disability for the purposes of the EqA. It referred to perceived work related stressors and opined that the Claimant was unfit for work in any role at that time. The Occupational Health advisor was guarded as to whether the Claimant would be able to render regular and efficient service in future and was unable to provide any clear indication as to when she might be able to return to work.

11. During her sick leave, there were two meetings between the Claimant and Ms Thomas (the relevant Human Resources officer), on 14 March 2013 and 16 May 2013. In arranging the second meeting, Ms Thomas referred to the Respondent being unable to support the Claimant’s on-going absence “indefinitely”, but the risk of dismissal was not spelled out.

12. By letter of 14 April 2013 to Ms Thomas, the Claimant repeated her complaints about Mr Austin and their working relationship. On this occasion she did not say her concerns should not be raised with him. Ms Thomas responded on 25 April 2013, referring to the policies and procedures in place to support employees, but did not initiate an investigation of the Claimant’s complaints.

13. On 28 May 2013, a meeting took place involving Mr Austin and Ms Thomas along with a Mr Roy Choudhry, at which the decision was taken that the Claimant’s employment should be terminated. That decision was formally confirmed in a letter from Ms Thomas to the Claimant of 4 June 2013.

14. The dismissal was on notice, to take effect on 31 July 2013. The Claimant appealed. Her appeal was heard on 4 July by a Mr Fowler. She objected to a lack of consultation, raised concerns about her working relationship with Mr Austin (contending the Respondent had failed in its duty of care) and complained the decision to dismiss was made on the basis of an out of date report. By letter of 5 July 2013, Mr Fowler rejected the appeal.

15. During the course of June/July 2013, the Claimant applied for ill health retirement, submitting (in support) a report from her GP of 5 June 2013, advising: “I think that there is a very remote chance of a return to work”. A further, independent Occupational Health report, of 15 July, agreed she was unfit for work in any capacity but did not feel able to declare she was permanently incapacitated (so as to meet the test for ill health retirement) as all treatment options had not been exhausted.

16. Although the ill health retirement application process was underway at the same time as the Claimant’s appeal, Mr Fowler made no reference to either the GP’s report or the later Occupational Health advice.

17. The application for ill health retirement was declined. A further opinion, obtained in October 2013, concluded that, although the Claimant was still unfit for work and was likely to remain so for the immediately foreseeable future, it could not be said that she would be permanently unfit until the normal pension age.

The ET’s Conclusions and Reasoning

18. The Claimant presented her ET claim on 25 October 2013. She complained her dismissal was unfair (section 98 Employment Rights Act 1996 (“ERA”)) and was an act of unlawful discrimination arising from disability (section 15 EqA). She further claimed the Respondent discriminated against her in failing to make reasonable adjustments (section 21) and that she had been subjected to harassment related to her disability (section 26).

19. The ET agreed that the dismissal was unfair. The reason for dismissal was “absence, which arose due to the claimant’s medical condition (a disability)” (Liability Judgment, paragraph 60), but the Respondent failed to give adequate warning of the possibility of dismissal. It had not spelt that out until after the meetings with Ms Thomas (March and May 2013); there was inadequate (informed) consultation.

20. The ET further found there had been a failure to make reasonable adjustments, which also went to the question of fairness: Mr Austin had effectively prevented the Claimant’s home working arrangements from 7 January 2013 and the Respondent (through Human Resources) had failed to respond to her proposed time-table for home-working in the complaint of 10 January. It acted unreasonably by proceeding to dismiss without taking into account the updated reports obtained for the ill heath retirement application. This was not remedied by the appeal process: it failed to engage with the background issues between the Claimant and Mr Austin or to respond to her complaints that the decision was taken on the basis of out-dated medical information and without consultation.

21. The ET also found that Mr Austin had been actively involved in the decision to dismiss and - given their unresolved issues - this meant the fairness of the dismissal was tainted.

22. Acknowledging an employee might be fairly dismissed by reason of capability where (i) disability related absence was taken into account, and (ii) when the symptoms of disability might have been exacerbated by the actions of the employer (McAdie v Royal Bank of Scotland plc [2008] ICR 1087 CA; Royal Liverpool Children’s NHS Trust v Dunsby [2006] IRLR 351 EAT), the dismissal was not a fair sanction in this case.

23. On the harassment claim, the only conduct that the ET found met the statutory definition was that of Mr Austin on 7 January 2013. The claim had, however, been presented outside the three month time limit and it was not just and equitable to extend time.

24. Turning to the complaint of discrimination arising from disability: having found the Claimant was dismissed because of something arising in consequence of her disability (her level of sickness absence), it was for the Respondent to demonstrate that dismissal was a proportionate means of achieving a legitimate aim; here, the achievement of an appropriate use of public funds in discharge of public duties and the need to consider stresses placed on the remaining Education Welfare Officers.

25. The ET considered the Respondent had failed to make reasonable adjustments and, as such, the dismissal was not justified. Specifically, the ET reasoned:

“91. … if the reasonable adjustment of permitting working from home had been implemented properly on 7 January 2013 … the claimant may not have been absent from work due to sickness at all. … Additionally the respondent did not consider the claimant’s request for timetabled working from home set out in her email of 10 January 2013. Instead it appears that the issue of when the claimant would work from home was not tackled. The claimant’s subsequent absence was used as the reason to dismiss …”

26. The claim of discrimination by reason of a failure to make reasonable adjustments was, however, out of time: time started to run from the response to the Claimant on 25 April 2013 (when the Respondent performed an act inconsistent with its obligation to make reasonable adjustments) and it was not just and equitable to extend time.

27. As at the Remedy Hearing, the Claimant remained unwell but the ET found she would be fit to find employment after further two years. It declined to make any Polkey reduction: “it is not possible to confidently assess a chance that the claimant would have been fairly dismissed in any event” (Remedy Judgment, paragraph 37). In drawing this conclusion, the ET referred to its liability findings, specifically: the failure to make reasonable adjustments in respect of home-working; Mr Austin’s actions on 7 January 2013; and the failure to deal with the Claimant’s request of 10 January (paragraphs 37 to 39).

Submissions

The Respondent’s Case

28. Inferring that the ET accepted that the Claimant had been dismissed for reasons relating to her capability (albeit it had not expressly so ruled), the central question was whether, at the time of the dismissal, a reasonable employer would have waited longer before dismissing and, if so, how much longer (BS v Dundee City Council [2014] IRLR 131 CS, approving Spencer v Paragon Wallpapers Ltd [1976] IRLR 373 EAT). Whether a question of substantive or procedural fairness, the ET failed to engage with the guidance laid down in BS. Specifically, it failed to engage with the issue of substantive fairness; wrongly assuming substantive unfairness from its findings as to procedural fairness.

29. The ET further erred in its focus on a perceived failure by the Respondent to make reasonable adjustments to the Claimant’s working arrangements, which was the subject of a separate - out of time - claim under section 20 EqA. A failure to make a reasonable adjustment was not relevant to an unfair dismissal claim; to import obligations arising under the EqA ran counter to the central ratio in McAdie v RBS [2007] IRLR 895 CA.

30. As for the finding on the section 15 EqA claim, having accepted the Respondent had legitimate aims, the ET erred in applying the proportionality limb of the test. Specifically, the ET relied on the failure to make a reasonable adjustment in January 2013, despite that complaint being dismissed as out of time. Section 15 EqA did not make a link (as the Disability Discrimination Act had done) with an obligation to make reasonable adjustments; the sole question was whether it was proportionate for the Respondent to act on its reason for dismissal in the light of any obligation to make reasonable adjustments at that time; it would be unduly onerous to require more. It had been no part of the Claimant’s case that there were reasonable adjustments that might have been made at the effective date of termination. The last such failure was - as the ET found - on 14 April 2013. There was no continuing obligation (hence the finding that the reasonable adjustments claim was out of time)

31. The only other matter the ET had seen as relevant to proportionality was the failure to wait for the further medical reports but neither would have made a difference.

32. On remedy, the ET erred in refusing to make any Polkey reduction. On the discrimination claim, the test to be applied was as set out in Chagger v Abbey National [2010] ICR 397 CA: would the dismissal have occurred had the employer not discriminated? If so, when? The first question must be subject to the further caveat that it must refer to acts of discrimination within the jurisdiction of the ET and subject to findings of unlawfulness. The ET erroneously anchored the award to findings on an out of time reasonable adjustments claim and thereby impermissibly imported that claim into the dismissal analysis.

33. The ET further failed to assess the percentage chance, erroneously seeing this as an all or nothing exercise: whether the dismissal would have been inevitable.

The Claimant’s Case

34. The ET could not be fairly criticised for its approach on the unfair dismissal claim; it expressly considered the BS question (paragraph 78) and referred to McAdie. Whilst there were some cases that fall clearly to be categorised as substantively or procedurally unfair, this was not such a case. Reading the Decision as a whole, the ET made clear decisions on the issues of substantive unfairness. The finding regarding the inadequacy of warning could be seen as a matter of substantive unfairness: there was inadequate informed consultation and it was wrong for the Respondent to have drawn any conclusions from the Claimant’s input as she did not appreciate she faced dismissal. Mr Austin’s involvement was also a matter of substantive unfairness, as was the failure to take into account the further medical reports.

35. The ET was also was entitled to take account of the reasonable adjustments issue. The fact that the stand-alone claim was out of time did not make the issue irrelevant to the unfair dismissal case. Whilst there were cases where a clear line could be drawn in terms of past matters (including a past obligation to make reasonable adjustments), the ET had here found that Mr Austin was involved in the decision-making process and it was thus relevant to take into account his attitude towards the reasonable adjustment of home working

36. As for the discrimination claim, the ET expressly considered the issue of proportionality and took into account both the failure to make reasonable adjustments (paragraphs 90 to 91) and to properly investigate matters (paragraphs 92 to 93). It was not for the EAT to substitute its view on these questions for that of the ET.

37. On the remedy appeal, the ET was again entitled to take account of the reasonable adjustments issue (see, for example, the finding that the issues with Mr Austin impacted upon the Claimant’s ability to return to work, paragraph 28). The employer had to be judged by the reasonableness of the decision it made at the time. It would be wrong for the EAT to interfere with the views reached by the ET on this central issue.

The Relevant Legal Principles

38. The starting point on the unfair dismissal claim is section 98 of the Employment Rights Act 1996, which (relevantly) provides:

“(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

(a) the reason (of, if more than one, the principal reason) for the dismissal, and

(b) that it is … a reason falling within subsection (2) ….

(2) A reason falls within this subsection if it -

(a) relates to the capability … of the employee for performing work of the kind which he was employed by the employer to do.

…

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.”

39. These are matters for the ET; the EAT should be slow to interfere with any legitimate assessment by the ET under section 98, see Hollister v NFU [1979] IRLR 238:

“17. … In these cases Parliament has expressly left the determination of all questions of fact to the Industrial Tribunals themselves. An appeal to the Employment Appeal Tribunal lies only on a point of law: and from that Tribunal to this Court only on a point of law. It is not right that points of fact should be dressed up as points of law so as to encourage appeals. It is not right to go through the reasoning of these Tribunals with a toothcomb to see if some error can be found here or there - to see if one can find some little cryptic sentence. I would only repeat what Lord Russell of Killowen said in Retarded Children’s Aid Society Ltd v Day [1978] IRLR 128, at page 130(19): ‘I think care must be taken to avoid concluding that an experienced Industrial Tribunal by not expressly mentioning some point or breach has overlooked it, and care must also be taken to avoid, in a case where the Employment Appeal Tribunal members would on the basis of the merits and the oral evidence have taken a different view from that of the Industrial Tribunal, searching around with a fine toothcomb for some point of law’.”

40. Where the dismissal is for a reason relating to the Claimant’s capability due to ill-health, in circumstances where the employee has been absent from work for some time, guidance has been laid down in BS v Dundee City Council [2014] IRLR 131 CSIH (approving and drawing upon earlier guidance from the EAT in the cases of Spencer v Paragon Wallpapers Ltd [1976] IRLR 373, and East Lindsey District Council v GE Daubney [1977] IRLR 181), notably as follows (paragraph 27):

“27. … First, … it is essential to consider the question of whether the employer can be expected to wait longer. Secondly, there is a need to consult the employee and take his views into account. … this is a factor that can operate both for and against dismissal. If the employee states that he is anxious to return as soon as he can and hopes that he will be able to do so in the near future, that operates in his favour; if, on the other hand he states that he is no better and does not know when he can return to work, that is a significant factor operating against him. Thirdly, there is a need to take steps to discover the employee’s medical condition and his likely prognosis, but this merely requires the obtaining of proper medical advice; it does not require the employer to pursue detailed medical examination; all that the employer requires to do is to ensure that the correct question is asked and answered.”

41. As for the situation where the incapacity in question was caused or exacerbated by the employer’s conduct, it is common ground that this does not mean that the dismissal of the employee by reason of that incapacity is thereby rendered unfair, see McAdie v Royal Bank of Scotland [2008] ICR 1087 CA (expressly approving the Judgment of Underhill J (as he then was) in the EAT in that case). That is not to say that such background might never be relevant but it is something that has to be seen in the context of the range of reasonable responses open to the employer in the circumstances (including that background) facing it at the time of deciding to dismiss:

“… was it reasonable for the [Respondent] to dismiss [the Claimant] on [the date of the dismissal], in the circumstances as they then were, including the fact that [the Respondent’s] mishandling of the situation had led to her illness?” (Paragraph 5 of the EAT’s Judgment in McAdie, as cited at paragraph 38 in the Judgment of Wall LJ in the Court of Appeal)

42. Similarly, the fact that an employee’s incapacity arises from a disability for the purposes of the EqA does not mean that a dismissal for a reason related to this must be unfair, see Royal Liverpool Children’s NHS Trust v Dunsby [2006] IRLR 351 EAT, where it was allowed that disability-related absences can be taken into account for these purposes provided that any required defence for justification under the EqA is made out.

43. By section 15(1) EqA, it is provided that:

“A person (A) discriminates against a disabled person (B) if -

(a) A treats B unfavourably because of something arising in consequences of B’s disability, and

(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”

44. The role of the ET in assessing the employer’s justification for the purposes of section 15(1)(b) was considered by Singh J in Hensman v MoD UKEAT/0067/14/DM, who observed that:

“43. … the role of the Employment Tribunal in assessing proportionality … is not the same as its role when considering unfair dismissal. In particular, it is not confined to asking whether the decision was within the range of views reasonable in the particular circumstances. The exercise is one to be performed objectively by the Tribunal itself.

44. … the Employment Tribunal must reach its own judgment upon a fair and detailed analysis of the working practices and business considerations involved. In particular, it must have regard to the business needs of the employer. …”

45. Singh J had drawn assistance from the earlier guidance provided by the Court of Appeal in Hardy and Hansons plc v Lax [2005] ICR 1565, where Pill LJ stated:

“31. … It is for the employment tribunal to weigh the real needs of the undertaking, expressed without exaggeration, against the discriminatory effect of the employer’s proposal. The proposal must be objectively justified and proportionate.

…

33. … a critical evaluation is required and is required to be demonstrated in the reasoning of the tribunal. In considering whether the employment tribunal has adequately performed its duty, appellate courts must keep in mind … the respect due to the conclusions of the fact-finding tribunal and the importance of not overturning a sound decision because there are imperfections in presentation. Equally, the statutory task is such that, just as the employment tribunal must conduct a critical evaluation of the scheme in question, so must the appellate court consider critically whether the employment tribunal has understood and applied the evidence and has assessed fairly the employer’s attempts at justification.”

46. On remedy, whether looking at compensating for unfair dismissal or unlawful discrimination, it is relevant to consider whether dismissal would have occurred in any event (had the employer not dismissed unfairly or discriminated unlawfully).

47. In an unfair dismissal case the compensatory award shall be such amount as the ET considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer (section 123(1) ERA). It is in carrying out that exercise that the ET may have regard to the potential Polkey limitation to - or reduction in - the award (see Polkey v AE Dayton Services Ltd [1988] ICR 142 HL). In so doing, it is unhelpful to distinguish between those cases where the unfairness was procedural and those where it was found to be substantive (Lambe v 186K Ltd [2005] ICR 307 CA).

48. In discrimination cases, guidance as to the correct approach was laid down by the Court of Appeal in Chagger v Abbey National [2010] ICR 397: would the dismissal have occurred had the employer not discriminated against the employee? And, if so, when?

Discussion and Conclusions

49. I start with the liability appeal and, for convenience, the ET’s findings relevant to the Claimant’s claims under the EqA 2010.

50. The ET concluded that the actions of Mr Austin on 7 January 2013 amounted to the application of a practice of withdrawing previously agreed home working arrangements. That placed the Claimant at a substantial disadvantage compared to non disabled employees because she required some home working to accommodate her disabilities. By email of 10 January, the Claimant set out reasonable steps that would have avoided the disadvantage but the Respondent failed to take such steps, manifesting that omission by its response of 25 April 2013. Had the Claimant brought her claim under section 21 EqA within time, the ET would have upheld her complaint of disability discrimination by reason of the Respondent’s failure to make reasonable adjustments.

51. Subsequently, on 31 July 2013, the Claimant was dismissed because of something arising in consequence of her disability, namely her level of sickness absence. It was not the Claimant’s case (nor a finding by the ET) that the Respondent then remained under an obligation to make reasonable adjustments; that time had passed. The Respondent’s earlier failure was part of the background but there was no outstanding obligation. Moreover, the Respondent had established a legitimate aim, namely the safeguarding of public funds and the need to consider the stress on the remaining Educational Welfare Officers, given its inability to fund a replacement to provide cover for the Claimant’s continuing absence. The issue for the ET was one of proportionality: was the Claimant’s dismissal a proportionate means of achieving that aim?

52. In answering this question, the ET’s initial focus was on the Respondent’s earlier failures to comply with its obligation to make reasonable adjustments, which might have avoided the Claimant’s absence from work (see paragraphs 91 and 92 of the Liability Judgment). The difficulty with this part of the reasoning is that the ET had not found the Respondent remained under an obligation to make reasonable adjustments at the time it made the decision to dismiss (whether early June 2013 or, at the effective date of termination, on 31 July 2013). I do not say that the earlier failures might not have been relevant in carrying out the balancing exercise required. It was, however, also relevant that (as the Claimant was putting her case) the obligation was not a continuing one: at the time the Respondent was considering its decision to dismiss, it was not being said that there were any reasonable adjustments it might make to avoid the disadvantage.

53. At times, the ET’s reasoning suggests an assumption that the steps it had identified (permitting the Claimant to return to former home working arrangements and resolving the outstanding issues with Mr Austin) would still reasonably have been required of the Respondent at the time the dismissal decision was taken (or confirmed). It was not, however, the Claimant’s case that these steps would have removed the disadvantage at that stage (certainly the medical evidence did not suggest that) and, in any event, that was not how the ET had itself approached the question of reasonable adjustments. Allowing - as I do - that a background failure to make reasonable adjustments might not have been an irrelevant factor, the ET fails to explain its relevance in the context of this case. Putting the point another way, the ET’s reasoning does not demonstrate it had regard to the fact (on its findings) that there were no reasonable adjustments that the Respondent might make when it was considering the decision to dismiss.

54. The ET also identified the failure to await the later medical reports as further meaning that the decision to dismiss was not proportionate in the circumstances of this case. The relevance of the reports and the ET’s reasoning in this regard are, however, unexplained. The later reports did not provide an optimistic view of the Claimant’s likely date of return (the best indication being that she should be regarded as unfit for a period of 3 years). Certainly it is not immediately obvious why the reports obtained for the ill health retirement application would make the decision to dismiss a disproportionate step.

55. Had the ET carried out its task correctly, it would have been bound to ask whether the dismissal was a proportionate means of achieving the Respondent’s aim in the context of (i) a past failure to comply with an obligation to make reasonable adjustments, but (ii) where there was no continuing such obligation, and where (iii) the up-dated medical evidence continued to provide an uncertain and pessimistic prognosis in terms of the Claimant’s ability to return to work. The assessment was for the ET. The difficulty is that its reasoning does not demonstrate engagement with that assessment in this case and I cannot be satisfied that it carried out the proper evaluative exercise. That being so, the conclusion on the section 15 claim (discrimination arising from disability) cannot stand.

56. I turn then to the ET’s conclusion on the unfair dismissal case. It is reasonably clear the ET accepted the Respondent’s reason for the dismissal: capability. The question was whether the decision to dismiss - having regard to that reason - was fair, in all the circumstances of the case.

57. In carrying out its task in this respect, the Respondent contends that the ET was not entitled to take into account its finding that the Claimant’s sick leave might have been avoided altogether if the Respondent had not failed to comply with its obligations to make reasonable adjustments: that claim had been dismissed as out of time and it could not continue to be relevant to the determination of the range of reasonable responses test.

58. It would undoubtedly have amounted to an error of law had the ET approached this as a case where it was simply not open to the Respondent - given its earlier failings to make the requisite reasonable adjustments - to have regard to the Claimant’s ill health absence when deciding whether to dismiss (McAdie). I do not, however, consider that it did so.

59. In my judgment, the ET was entitled to see this as a potentially relevant part of the background and I do not consider that the fact that the stand-alone reasonable adjustments claim was out of time meant that it could not. It was here concerned with the unfair dismissal claim and was bound to apply the range of reasonable responses test to the Respondent’s decision making process up to the effective date of termination. That the Respondent might itself - by its earlier failure to make reasonable adjustments - have caused the Claimant to be on long-term sick leave, was not necessarily irrelevant. Equally, however, it was also relevant that there was no finding of any continuing obligation on the Respondent and that medical advice did not identify reasonable adjustments that could then be made to ensure the Claimant’s return to work. The objection to the ET’s reasoning on the unfair dismissal case seems to me not to arise from the reference to the Respondent’s earlier failings but from the failure to ask the questions identified in BS and thus to see the reasonable adjustments point in proper context.

60. Given that this was an absence-related, capability case, the ET’s reasoning needed to demonstrate that it had considered whether the Respondent could have been expected to wait longer, as well as the question of the adequacy of any consultation with the Claimant and the obtaining of proper medical advice (BS v Dundee). I am, however, unable to see that the ET engaged with the fundamental question whether the Respondent could have been expected to wait longer. In saying that, I allow that the ET was entitled to be critical of the involvement of Mr Austin (although this criticism is not fully explained) and of the failure to engage in informed consultation and to have regard to the up-dated medical advice; these were all potentially relevant matters that the ET was entitled to take into account. But it also needed to ask whether the decision to dismiss was fair or unfair given not just the background failings of the Respondent but also the pressures it faced at that time and going forward: could it have been expected to allow more time? In all those circumstances was dismissal then within the range of reasonable responses?

61. This assessment is one for the ET but I am unable to see that it properly fulfilled that task in this case; matters of (admittedly potentially relevant) background dominate the reasoning, apparently at the expense of the key questions the ET had to address. Here again, I am unable to see that the ET’s decision can safely stand.

62. This brings me to the remedy appeal. Given the conclusions I have reached on the liability grounds, strictly speaking the questions raised by this appeal do not arise. Had it been otherwise, however, I would have allowed this appeal.

63. Whether approached as a question of compensating for an unfair or a discriminatory dismissal, the question was whether the Claimant would have been dismissed absent the unfairness or discrimination found (and, if so, when?)? In declining to limit the award in this respect, the ET adopted the approach urged by the Claimant: it was not possible to ignore the impact of the Respondent’s discriminatory actions on the Claimant’s current medical condition and ability to work (see paragraphs 19 and 37 of the Remedy Judgment). That, however, would not allow any possibility of a fair or non-discriminatory dismissal in circumstances in which the incapacity in question had been caused or exacerbated by the employer’s conduct and that would be contrary to the approach approved in McAdie. Whilst the question of the employer’s own culpability might be relevant to the application of the band of reasonable responses test (although not determinative of it) and/or to the question of possible reasonable adjustments in the future, it could not be the complete answer that the ET’s reasoning assumes.

64. For the reasons I have given, I therefore allow these appeals. The question then arises as to the appropriate order on disposal and on this I direct that the parties should set out their respective positions in writing (if not otherwise agreed), such submissions to be lodged with the Employment Appeal Tribunal within 21 days of the handing down of this Judgment. Upon receipt of those submissions, I will proceed to consider this question on the papers or to give further directions as appropriate.

United Kingdom Employment Appeal Tribunal