Appeal No. UKEAT/0401/08/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 November 2008
	Judgment handed down on 11 March 2009

Before
THE HONOURABLE MRS JUSTICE SLADE
MR D J JENKINS OBE
MR J R RIVERS CBE

STOCKTON ON TEES BOROUGH COUNCIL	APPELLANT

MR R AYLOTT	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR H MENON 
(of Counsel)
Instructed by: 
Stockton on Tees Borough Council
Legal Services
Municipal Buildings
PO Box 11 Church Road
Stockton on Tees TS18 1LD
	
For the Respondent	MR S GOLDBERG
(of Counsel)
Instructed by:
Messrs Merritt & Company Solicitors
The Manor House 
83 High Street
Stockton on Tees TS15 9BG
TS15 9BG	

SUMMARY
JURISDICTIONAL POINTS
Extension of time: just and equitable
2002 Act and pre-action requirements

DISABILITY DISCRIMINATION
Disability related discrimination
Direct disability discrimination
Reasonable adjustments
Exclusions/jurisdictions

VICTIMISATION DISCRIMINATION:  Detriment

HARASSMENT:  Conduct

This case raises issues of legal and practical importance for discrimination cases. It is one of a number of cases in which the Employment Appeal Tribunal is considering whether the judgment in Malcolm v Lewisham Borough Council [2008] IRLR 700 on the correct comparator in disability related discrimination cases applies to employment cases and in effect overrules Clark v Novacold Ltd [1999] IRLR 318. In this case the Employment Appeal Tribunal holds that the Employment Tribunal erred in failing to apply Malcolm. 

The Employment Tribunal erred in finding direct discrimination by simply finding that the employers had a ‘stereotypical’ view of disabled persons.

Comments on the need for Tribunals to identify in discrimination cases the complaints which are justiciable and are subject to the statutory conditions relating to limitation periods and statutory grievances, and those which are relied on as evidence of such complaints.

The complaints under the Disability Discrimination Act 1995 are remitted to an Employment Tribunal.

THE HONOURABLE MRS JUSTICE SLADE
1.	Stockton on Tees Borough Council (‘the Council’) appeals from the judgment of an Employment Tribunal sitting at Thornaby on Tees entered in the register on 26 June 2008. After a hearing lasting ten days and one day of deliberations the Tribunal held that:
(1)	the Claimant, Mr Aylott, was unfairly dismissed. The Council was ordered to pay him the sum of £1,670 in respect of unfair dismissal;
(2)	the Council discriminated against Mr Aylott on grounds of his disability and was ordered to pay him the sum of £30,686.54;
(3)	the total payment to be made by the Council to Mr Aylott was £32,356.54.

2.	In this Judgment references to paragraphs are to paragraphs of the Judgment of the Employment Tribunal (‘the Tribunal’) unless otherwise indicated.

3.	Mr Aylott is a disabled person with bipolar affective disorder. He was employed by the Council from 3 June 2003 initially in a non-managerial role. From 4 May 2004 Mr Aylott worked as a Business Support Manager. After difficulties with colleagues, he moved to a different department so that from 9 January 2006 Mr Aylott was seconded to the team of Sue Daniels, the Head of Performance and Business Services. His last day at work was 13 April 2006. Mr Aylott was dismissed by letter of 6 September 2006 and his employment terminated on 8 November 2006. Mr Aylott presented an ET1 to the Employment Tribunal on 6 February 2007.

4.	In the ET1 settled by his solicitors, Mr Aylott alleged that the Council had been in breach of the Disability Discrimination Act 1995 (‘DDA’). The acts complained of were variously described as discrimination on grounds of disability, disability related discrimination, failure to make reasonable adjustments and harassment. The ET1 also contained complaints of ‘ordinary’ and ‘automatic’ unfair dismissal. 

5.	The Tribunal made findings that contrary to the DDA the Council had discriminated against Mr Aylott on grounds of and for a reason related to his disability, had failed to fulfil a duty to make reasonable adjustments and had harassed and unfairly dismissed him. 

6.	The Council’s Grounds of Appeal raise issues of whether the Tribunal:
(1)	had jurisdiction to consider certain complaints made by Mr Aylott;
(2)	erred in law in finding that the Council had discriminated against Mr Aylott on grounds of disability and/or whether their findings in this regard were perverse;
(3)	erred in law in finding that the Council had discriminated against Mr Aylott for a reason related to his disability;
(4)	erred in law in finding that the Council had failed to make reasonable adjustments and/or whether their findings in this regard were perverse;
(5)	erred in law in finding that the Council had harassed Mr Aylott and/or whether its findings in this regard were perverse;
(6)	made a perverse finding of fact as to the meaning of an email sent by Sue Daniels on 13 April 2006;
(7)	erred in law and/or came to a perverse conclusion in finding that Mr Aylott’s dismissal was unfair and/or that the Council was responsible for the failure to complete the applicable statutory procedure;
(8)	made a perverse assessment of compensation.

Relevant findings of fact

7.	The Tribunal based their findings of breaches of the DDA on events from February 2006. We deal briefly with relevant events before that month.

8.	Following difficulties with colleagues in the Business Support Team, on 2 January 2005 Mr Aylott sent a list of seventeen complaints or grievances to the Head of Technical Services. These included complaints against colleagues in the team of assault, harassment, bullying and a failure to have regard to his state of health. Until January 2005 none of the managers dealing with Mr Aylott was aware of his bipolar affective disorder. From January 2005 Mr Aylott went on paid leave of absence. 

9.	In February 2005 Mr Aylott made a request that reasonable adjustments be made and that ‘his colleagues behave in a Christian and professional manner.’

10.	The Council decided to deal with Mr Aylott’s complaints under its Dignity at Work Procedure. On the advice of the Occupational Health physician, Dr Slade, the investigation was not pursued. However after his return to work on 31 May 2005, at a meeting on 3 June, Mr Aylott stated that he stood by the allegations made in his grievances. 

11.	A Dignity at Work report was completed on 13 October 2005 but not sent to Mr Aylott until 28 November 2005. The complaints against named individuals were not upheld.  The final paragraph of the report recommended:
“Mr Aylott does not return to employment until such time as his bipolar condition is demonstrably stabilised over a period of time. If this can be achieved, opportunities for Mr Aylott to undertake a post which plays to his knowledge and expertise should be sought within the Council. Ideally this should be one without line management responsibility for staff and should not be in the section where he was previously employed and the difficulties arose. If such a post cannot be identified or Mr Aylott’s bipolar condition cannot be sufficiently stabilised, both the Council and Mr Aylott will need to consider whether his employment can realistically continue.”

12.	Meetings were held with and concerning Mr Aylott and a risk assessment was prepared and sent to him on 20 December 2005. Although the assessment referred to Mr Aylott’s medical condition being under good control with medication, it went on to say that there was still a risk that problems might arise in the work place due to his personality and his interaction with others. A meeting was held on 22 December 2005 which Mr Aylott attended with his solicitor. It was agreed that Mr Aylott would return to work on 9 January 2006 in a different team headed by Sue Daniels. His line manager was to be Paul Diggins.

13.	The Tribunal noted:
“5.17	To minimise this risk and enable the claimant to return to work within the Performance and Business Services unit certain measures would be put in place. It was provided that there would be weekly one to one meetings with Sue Daniels and the claimant would have no line responsibility for staff. These were adjustments that provided some support for the claimant and less responsibility. 
 5.18	... Mr Aylott] returned to work on 8th February 2006. The minutes of the meetings with Sue Daniels and Paul Diggins following the claimant’s return to work show a total change. At the meeting on 10th February 2006 there was reference to a delay in deadlines and judgement to be made on importance and priority. A deadline of 17th February was set to finish a piece of work. At the meeting of 17th February 2006 a further deadline was set and there was reference to strict deadlines and the claimant’s performance being closely monitored. On 21st February Paul Diggins spoke with the claimant and set another deadline of 23rd February 2006. The claimant went off work sick on 22nd February 2006 with stress induced chest pain. 
 5.19	The claimant remained on sick leave from 22nd February 2006 to 12th April 2006. 
 5.20	The claimant returned to work at around 3pm on 13th April 2006. Paul Diggins telephoned Sue Daniels to inform her that the claimant had returned to work and Sue Daniels advised Paul Diggins that he should undertake a welfare/return to work meeting with the claimant and, given the lateness in the day, send him home. At this meeting Paul Diggins said that the claimant referred to his forthcoming appeal hearing in respect of the Dignity at Work report and referred to [Paul] Neil Schneider, the Chief Executive and the leader of the Council and their downfall. He referred to a DVD film entitled “Downfall” about the last days of the German Third Reich. Mike Hodges said that could hear voices coming from Paul Diggins’ office and that the tone of the interview was oddly loud and he could hear shouting and ranting from the claimant.
 …
 5.23	On 13th April 2006 Sue Daniels sent an email to Lynn Donald and a copy to Julie Grant stating “for information – Russell arrived at the office at 2.55pm to report for work! I asked Paul Diggins to have a brief welfare chat with him and send him home. Can we get together early next week please to discuss how we manage Russell out of work”.

5.24	Sue Daniels told the Tribunal that she was concerned about Paul Diggins and other staff who had witnessed the claimant’s behaviour, but she was equally concerned about the claimant. She said it was clear he was not well enough to return to work. However, she also went on to say that, in the light of advice from Dr Slade and, as the claimant’s GP had certified him fit for work, she felt that the claimant’s behaviour was now a disciplinary matter. She felt his comments to Paul Diggins were unprofessional and his intimidating manner/behaviour towards staff was wholly inappropriate.

5.25	On her arrival at work from the Easter break on Tuesday 18th April 2006 Sue Daniels reported the events on 13th April to Neil Schneider and he agreed that the claimant’s conduct was a disciplinary matter and an investigation needed to take place. A letter was prepared and hand-delivered to the claimant’s home suspending him on full pay with effect from 18th April 2006 pending the outcome of the investigation. The claimant’s wife telephoned Paul Diggins to inform him that the claimant had been admitted to hospital. Sue Daniels emailed Lynn Donald [Human Resources Manager] providing copies of the notes of the review meetings that had taken place following the claimant’s return to work and the events of 13 April. The claimant’s solicitor wrote to the respondent on 19 April 2006 informing them that the claimant’s health had deteriorated and that on Easter Monday 17 April 2006 he had been readmitted to hospital. Sue Daniels and Neil Schneider decided it was not appropriate for any management investigation to take place while the claimant was in hospital, and Neil Schneider wrote to the claimant indicating that the suspension from work had been withdrawn. The claimant remained off sick.
…
5.27	The claimant was reviewed by Dr Slade and on 7 July 2006 Dr Slade wrote to Lynn Donald. He stated that “we have come to the conclusion that as he is currently certified sick by virtue of his mental illness that there should be no dealings with the Council until such time as he is regarded fit to return to work, which I am sure will happen in the not too distant future.”

5.28	The Tribunal had sight of a hand written note dated 21st August 2006. This was headed ‘Russell Aylott Review’ and stated as follows:

‘Sick pay expires 15th September.
Dismiss on grounds of sickness, disorder and findings of previous investigation’. 
Sue Daniels confirmed that this was a brief note of a meeting. There had been a lengthy discussion and that a conclusion had been reached and it was subject to a disciplinary meeting being convened. She confirmed that the conclusion to dismiss the claimant was probably made on that day and that the claimant’s condition was not stable enough. When giving evidence she initially said that she was not sure that the expiry of the claimant’s sick pay was relevant but when pressed she admitted that it was a possibility that they were afraid that the claimant might come back as his sick pay was coming to an end as he had already come back on 13th April when his sick pay was reduced.”

14.	In a letter dated 23 August 2006 Lyn Donald invited Mr Aylott to attend a meeting on 1 September 2006, accompanied if he wished by his solicitor and a friend, colleague or trade union official, to
“…discuss whether your employment can realistically continue as a result of your performance and behaviour whilst you have been seconded to Sue Daniels’ team and your continuing bipolar disorder.”

15.	Soon after this letter, the Human Resources Manager, Lyn Donald learned that Mr Aylott was again in hospital and had been there for most of August. The meeting planned for 1 September 2006 took place in the absence of Mr Aylott.  The meeting was to discuss:
“5.31	(1) 	The temporary secondment to Sue Daniels’ team.
	(2)	The implementation of the recommendation of Alison Stephenson’s report.
	(3)	The situation with regard to the stabilisation of Russell’s Bipolar disorder.”

16.	The Tribunal recorded:
“5.32 The notes of the meeting state that a lengthy discussion took place regarding the three points above and that it was with reluctance that decision was made to terminate the claimant’s employment on the grounds of capability (health).”

17.	By letter dated 6 September 2006 Sue Daniels gave Mr Aylott notice terminating his employment on 8 November 2006. On 26th September 2006 Mr Aylott’s solicitor wrote to the Council enclosing an appeal against his dismissal.

18.	On 6 February 2007 Mr Aylott presented his claim to the Employment Tribunal.

19.	A schedule showed that during his employment Mr Aylott was absent from work for substantial periods of time including 147 working days off sick from 18 April  to 8 November 2006 and 115 days paid leave of absence during the Dignity at Work investigation. 

20.	The Tribunal recorded that on 1 March 2006 Michelle Stowe of the Council’s legal department wrote to Mr Aylott’s solicitor: 
“5.35 …that it had been brought to her attention that the claimants appeal to the employee appeal panel following the outcome of the Dignity at Work investigation and his appeal against dismissal remained outstanding. She stated that she understood that these were adjourned because the claimant was unable to attend the hearing as a result of his ill-health and that the Council had never been notified that the claimant had left hospital and was in a position for the hearing to be reconvened. … Michelle Stowe asked for confirmation that it was impracticable to complete the appeal process in both cases and the hearing should be abandoned … .”

Michelle Stowe sent a reminder to Mr Aylott’s solicitors on 28 March 2007. They replied saying that they had not received the first letter and stated that they were trying to take their client’s instructions.

The Findings of the Tribunal 

21.	The Tribunal held in paragraph 15 that the Dignity at Work report:
“ … its conclusions did not amount to direct discrimination. The dismissal of the claimant’s complaints or grievances did not amount to a detriment but the use of the conclusions in the report in respect of the dismissal and the events leading up to it did amount to a detriment.”

22.	In paragraph 17 the Tribunal held that it was:
“ … not satisfied that the claimant has established a prima facie case of discrimination in relation to his treatment following the Dignity at Work report, and the transfer of duties and paid leave prior to events in February 2006.”

23.	In paragraph 18 the Tribunal held that after his return to work in February 2006 the Council’s treatment of Mr Aylott:
“ … by imposing deadlines and referring to his performance, and strict monitoring followed by the response to his return to work in April 2006 and his dismissal were sufficient to shift the burden of proof. A comparator who had a similar sickness record in respect of, for example, a complicated broken bone or other surgical problem, would not have been subjected to the same treatment.

The sudden change of tone in the meetings with Sue Daniels and Paul Diggins as shown in the notes of 10 February and 17 February 2006, and the claimant’s evidence that they were giving him conflicting advice and subjecting him to deadlines and stress represented direct discrimination on the grounds of the claimant’s disability.”

24.	The Tribunal found that the treatment referred to in paragraph 18 as constituting direct discrimination was also disability related discrimination since the Council’s treatment also related to the amount of sickness time the Claimant had taken. It observed:
“A person who had not had the claimant’s sickness record would not have been treated this way.”

It found that Mr Aylott should have had one to one meetings with Sue Daniels rather than what turned out to be confrontational meetings with Paul Diggins.  The Tribunal found that ‘there was no justification for the measures taken against the Claimant’.

25.	In paragraph 21 the Tribunal found that the dismissal of Mr Aylott on 6 September 2006 was on the grounds of his disability. It also found in paragraph 22 that ‘the dismissal was disability related’. It observed:
“There was no actual comparator but the hypothetical comparator would be somebody who did not have the effects of bipolar affective disorder and the Tribunal finds that such a comparator would not have been dismissed by the respondent.”

26.	As for the failure to make reasonable adjustments, the Tribunal held at paragraph 23:
“…the respondent’s confrontational pressure, deadlines and the insistence on formal investigation of incidents that could have been dealt with on an informal basis. Also the dismissal and assumptions made with regard to the claimant’s condition without the benefit of medical advice represented provisions criteria or practice that placed the claimant at a substantial disadvantage in comparison with non-disabled persons.”

27.	In paragraph 24 the Tribunal found that the Council harassed Mr Aylott by putting pressure on him by imposing deadlines and giving conflicting instructions to him. The Tribunal was satisfied that:
“ … the claimant has shown facts from which the Tribunal could conclude that the conduct had the purpose of violating his dignity or of creating an intimidating, hostile, degrading humiliating or offensive environment for the claimant and the respondent has not proved that the conduct did not have that purpose.”

28.	At paragraph 25 of its Judgment the Tribunal held:
“In summary, the Tribunal finds that the respondent’s treatment of the claimant changed from February 2006, and the dismissal, and the events leading up to it were discrimination on the grounds of the claimant’s disability. They are also disability related. There was a failure to make reasonable adjustments. Tribunal (sic) also finds that the treatment of the claimant during that time to be harassment within the meaning of section 3b of the Disability Discrimination Act 1995.”

29.	At paragraph 26 the Tribunal held that the dismissal of Mr Aylott was substantially and procedurally unfair.

30.	At paragraph 5.36 the Tribunal held that the failure to complete the statutory dismissal procedure “was, on balance, mainly attributable to the respondent”.

31.	The Tribunal made an award of compensation for disability discrimination for one year’s loss of earnings plus 10 per cent uplift under Section 31 of the Employment Act 2002 (‘EA’) with interest, together with sums in respect of hurt feelings and psychiatric damage which were also subject to a 10 per cent uplift.  No compensation for loss of earnings was awarded for unfair dismissal as the Tribunal held ‘this figure is within the discrimination award and is not awarded twice’.  A basic award was made together with a compensatory award for loss of statutory protection with a 10 per cent uplift. 

Relevant Statutory provisions

Disability Discrimination Act 1995 (‘DDA’)
Direct and Disability Related Discrimination:
32.	“3A Meaning of “discrimination”
 “(1)	For the purposes of this Part, an employer discriminates against a disabled person if— 
(a)	for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and
(b)	he cannot show that the treatment in question is justified.

(2)	For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.
(3)	Treatment is justified for the purposes of section (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial. 
(4)	But treatment of a disabled person cannot be justified under subsection (3) if it amounts to direct discrimination falling within subsection (5).
(5)	A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.
(6)	If, in a case falling within subsection (1), a person is under a duty to make reasonable adjustments in relation to a disabled person but fails to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with that duty.”

33.	Section 4(2) provides:
“4(2)	It is unlawful for an employer to discriminate against a disabled person whom he employs - 
	(d) 	by dismissing him, or subjecting him to any other detriment.”

Harassment

34.	Section 3B provides:
“(1)	For the purposes of this Part, a person subjects a disabled person to harassment where, for a reason which relates to a disabled person’s disability, he engages in unwanted conduct which has the purpose or effect of-
(a)	violating the disabled person’s dignity,
(b)	creating an intimidating, hostile, degrading, humiliating or … offensive environment for him,
(2)	Conduct should be regarded as having the effect referred to in paragraph (a) or (b) of subsection (1) only if, having regard to all of the circumstances, including in particular the perception of the disabled person, it should be reasonably considered as having that effect.”

Reasonable adjustments

35.	Section 4A provides:
“(1)	Where ‑
	(a)	a provision, criterion or practice applied by or on behalf of an employer, or
	(b) 	any physical feature of premises occupied by the employer,
	places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.”

The jurisdiction of Employment Tribunals

36.	Section 17A provides that:
“(1) 	A complaint by any person that another person-
(a)	has discriminated against him[, or subjected him to harassment,] in a way which is unlawful under this Part, or
(b)	…
	may be presented to an [employment tribunal].

(1C)	Where, on the hearing of a complaint under subsection (1), the complainant proves facts from which the tribunal could, apart from this subsection, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act.
(1)	Where an [employment tribunal] finds that a complaint presented to it under this section is well-founded, it shall take such of the following steps as it considers just and 
(a)	making a declaration as to the rights of the complainant and the respondent in relation to the matters to which the complaint relates;
(b)	ordering the respondent to pay compensation to the complainant;
(c)	recommending that the respondent take, within a specified period, action appearing to the tribunal to be reasonable, in all circumstances of the case, for the purpose of obviating or reducing the adverse effect on the complainant of any matter to which the complaint relates. 

(2)	Where a tribunal orders compensation under subsection (2)(b), the amount of the compensation shall be calculated by applying the principles applicable to the calculation of damages in claims in tort or (in Scotland) in reparation for breach of statutory duty. 

(3)	For the avoidance of doubt it is hereby declared that compensation in respect of discrimination in a way which is unlawful under this Part may include compensation for injury to feelings whether or not it includes compensation under any other head.

(9)	Part 1 of Schedule 3 makes further provision about the enforcement of this Part and about procedure.”

37.	Schedule 3 Part I paragraphs 3(1)(2) and (3)(b) specify the relevant time limit for bringing such claims:
“3(1)	An employment tribunal shall not consider a complaint under section 17A … unless it is presented before the end of the period of three months beginning when the act complained of was done.
   (2)	A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.
   (3)	For the purpose of sub-paragraph (1)-
   (b) 	any act extending over a period shall be treated as done at the end of that period.”

38.	EA Section 32 (2) and Schedule 2 paragraphs 3(2) and 6 require an employee to comply with the statutory grievance procedure before a complaint may be made to a Tribunal under various statutes including the DDA:
“32  Complaints about grievances
(2) 	An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if— 
(a) 	it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies, and 
(b) 	the requirement has not been complied with.’
(6)	An employment tribunal shall be prevented from considering a complaint presented in breach of subsections (2) to (4), but only if-
(a)	the breach is apparent to the tribunal from information supplied to it by the employee in connection with the bringing of the proceedings,
 …”

Schedule 2 Statutory Dispute Resolution Procedures
“6 	The employee must set out the grievance in writing and send the statement or a copy of it to the employer.”

The Code of Practice

39.	The Disability Rights Commission has issued a Code of Practice on Employment and Occupation. This includes the following relevant paragraphs:
	“… if the less favourable treatment occurs because of the employer’s generalised, or stereotypical, assumptions about the disability or its effects, it is likely to be discrimination. This is because an employer would not normally make such assumptions about a non-disabled person, but would instead consider his individual abilities. 

4.17	The comparator used in relation to direct discrimination under the Act is the same as it is for other types of direct discrimination – such as direct sex discrimination. It is, however, made explicit in the Act that the comparator must have the same relevant abilities as the disabled person. 

4.19	It should be noted that the type of comparator described in the preceding paragraphs is only relevant to disability discrimination when assessing whether there has been direct discrimination. A different comparison falls to be made when assessing whether there has been a failure to comply with a duty to make reasonable adjustments … or when considering disability-related discrimination.”

Unfair Dismissal

40.	The Employment Rights Act 1996 (‘ERA’) provides:
“98 General
(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 (or, if more than one, the principal reason) for the dismissal, and 
(b)	that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. 

(2) 	A reason falls within this subsection if it— 
(a)	relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(3) 	In subsection (2)(a)— 
(a) 	“capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, 

(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.”

41.	Section 98A provides:
“(1)	An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if-
(a) 	one of the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal,
(b)	the procedure has not been completed, and
(c) 	the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.”

Compensation

42.	Section 123(1) provides:
“ … the amount of the compensatory award shall be such amount as the tribunal 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.”

Statutory grievance and dismissal procedure

43.	EA Section 31(1) and (3) and Schedule 2 paragraphs 8(1) and (2) provide: 
“31 Non-completion of statutory procedure: adjustment of awards 
(1)	This section applies to proceedings before an employment tribunal relating to a claim under any of the jurisdictions listed in Schedule 3 by an employee.

(3) 	If, in the case of proceedings to which this section applies, it appears to the employment tribunal that— 
(a) 	the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies, 
(b) the statutory procedure was not completed before the proceedings were begun, and 
(c) 	the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure, it must, subject to subsection (4), increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50 per cent.”

“Schedule 2 Statutory Dispute Resolution Procedures
8(1)	If the employee does wish to appeal, he must inform the employer. 
  (2) 	If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.’

44.	Employment Act 2002 (Dispute Resolution) Regulations 2004 (‘the Dispute Resolution Regulations’) Regulations 3(1) and 15 provide:

“3.   Application of dismissal and disciplinary procedures
(1) 	Subject to paragraph (2) and regulation 4, the standard dismissal and disciplinary procedure applies when an employer contemplates dismissing or taking relevant disciplinary action against an employee.

“15.    Extension of time limits
(1) 	Where a complaint is presented to an employment tribunal under a jurisdiction listed in Schedule 3 or 4 and - 
(a) 	either of the dismissal and disciplinary procedures is the applicable statutory procedure and the circumstances specified in paragraph (2) apply; or
(b) 	either of the grievance procedures is the applicable statutory procedure and the circumstances specified in paragraph (3) apply;
	the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired.”

The Grounds of Appeal
No jurisdiction

45.	Mr Menon, for the Council, contended that the Tribunal had no jurisdiction to consider or make findings of breaches of the DDA in respect of matters which had not been pleaded. He contended that for this reason the Tribunal had no jurisdiction to find in paragraph 18 that the imposition of deadlines, monitoring of Mr Aylott’s performance and the response to his return to work in April 2006 constituted discrimination on grounds of his disability or disability related discrimination as it did in paragraph 19 of the Judgment. Further he contended that the Tribunal had no jurisdiction to determine, as it did in paragraph 20, that the Council’s decision to suspend Mr Aylott was an act of discrimination on grounds of his disability.

46.	For Mr Aylott, Mr Goldberg pointed out that no application was made for further particulars of the direct discrimination claim, despite such an application being made in respect of other matters. He contended that the finding of discrimination in suspending Mr Aylott related to an allegation made in paragraph 5.16 of the ET1.

Discussion

47.	In our judgment the word ‘complaint’ is used by the Tribunal both in the sense of a justiciable complaint of breaches of the provisions of the DDA under Section 17A and as any matter of which Mr Aylott complained. It is important to distinguish between the two. A complaint which is justiciable as a cause of action under Section 17A of the DDA is subject to certain statutory requirements. We refer to these as Section 17A complaints.

48.	The Tribunal stated that it had considered Mr Aylott’s complaints on an ‘overall’ basis. At paragraph 17 the Tribunal observed:
“Many of the incidents in question and allegations put forward on behalf of the claimant represent allegations of direct discrimination, disability related discrimination, failing to make reasonable adjustments and harassment and there was a great deal of overlap in this regard and the Tribunal has considered the matters on an overall basis ……”

It is likely, in our respectful opinion, that the Tribunal may not have distinguished between those complaints which were to be treated as a cause of action under Section 17A and those which were not.

49.	A number of features of the Judgment lead us to the conclusion that findings relating to events before Mr Aylott’s dismissal were treated by the Tribunal as evidence supporting their findings on the Section 17A complaints that the Council dismissed Mr Aylott on grounds of his disability and for a reason related to his disability rather than themselves constituting Section 17A complaints. 

50.	The Tribunal did not consider, as it would have been obliged to do by Section 17A(2) if they were raised as Section 17A complaints, whether to and if so what compensation to award in respect of other disability related allegations. In Chapman v Simon [1994] IRLR 124 Peter Gibson LJ held at paragraph 42 that:
“If [the Tribunal] finds that the complaint is well founded, the remedies which it can give the complainant under s.56(1) of the 1976 Act are specifically directed to the act to which the complaint relates.”

Chapman v Simon was a race discrimination case but the dicta in that case apply equally to discrimination cases in other areas including those under the DDA. 

51.	The only award made by the Tribunal for claims under the DDA appears to have been based on loss of earnings consequent on Mr Aylott’s dismissal.  Compensation for psychiatric injury was also based on that caused by his dismissal.  Further, the amount awarded for injury to feelings is likely to have been solely or mainly in respect of Mr Aylott’s dismissal. All these amounts were increased by 10 per cent pursuant to EA Section 31.  This Section applies to dismissals where employer has not complied with the statutory dismissal procedure. Application of Section 31 also shows that the only matter on which the Tribunal based an award under DDA was Mr Aylott’s dismissal.  

52.	The last day Mr Aylott was at work was 13 April 2006.  His employment terminated on 8 November 2006 and he presented his ET1 on 6 February 2007.  The only written grievances referred to in the ET1 were those notified to the Head of Technical services on 2 January 2005.  Thus it appears that complaints about events between February and April 2006 would have been outside the primary limitation period and had not been raised by Mr Aylott in written grievances. 

53.	If matters other than those relating to Mr Aylott’s dismissal were treated by the Tribunal as distinct causes of action, no consideration appears to have given to whether such complaints were presented in time or whether time limits should be extended on a just and equitable basis.  In addition, the Tribunal appears not to have considered whether grievances had been raised in writing of matters other than those which were the subject of the Dignity at Work investigation. As it did not appear from the ET1 that such other grievances had been raised, if it was to treat those as Section 17A complaints the Tribunal should and no doubt would have considered whether by reason of EA Section 32(6)(a) it was prevented from hearing complaints of matters other than dismissal. 

54.	A Tribunal has no jurisdiction to conduct a substantive hearing of complaints which it is precluded from determining because they have not been presented in time and the Tribunal has not extended time, or because of non-compliance with a statutorily required procedure.  In Carter and others v Ahsan [2005] ICR 1817 the Court of Appeal considered the question whether a Tribunal had jurisdiction to hear a case against the Labour Party under the Race Relations Act 1976 Section 12 when the court in another case had determined that the Labour Party was not acting as a ‘qualifying body’ within scope of that Section when it was carrying out certain functions.

55.	All members of the Court of Appeal in Carter held that a court or Tribunal has no jurisdiction to determine a case of action which is outside its statutory remit. If a Tribunal has no jurisdiction to hear a complaint Buxton LJ observed at paragraph 82:
“ … .it is trite law that an objection as to jurisdiction [in the constitutive sense] can be taken at any stage of the proceedings, and not only can but should be taken by the court of its own motion … .”

56.	A Tribunal has power to determine whether a case within its remit satisfies the statutory requirements for the bringing of a claim.  If it makes an error of law in adjudicating an issue properly before it the Tribunal does not act without jurisdiction (per Buxton LJ para 81). Rimer LJ considered the example of an unfair dismissal claim which was brought out of time. At Paragraph 70 he held:
“But even if a tribunal is presented with a claim for relief ostensibly within its jurisdiction, it can still be faced with questions as to whether it has a jurisdiction to proceed to hear the claim on its merits.”

Rimer LJ then referred to Section 111(2) of the Employment Rights Act 1996 and the mandatory time limit for presenting a claim. He observed:
“That goes to the tribunal’s jurisdiction, so that if the application is presented late the tribunal has no jurisdiction to hear the claim further and must dismiss it.”

Naturally a Tribunal has jurisdiction to determine the preliminary issue of whether the claim was presented in time or if not whether time should be extended. Rimer LJ went on to observe:
“How it decides it will depend on whether it can continue to hear the claim on its merits.”

57.	Sedley LJ dissented from the majority who held that in the circumstances the question of whether the Labour Party was a body within scope of Section 12 of the Race Relations Act 1976 went to the jurisdiction of the Tribunal. However all members of the court were in agreement on the jurisprudence on jurisdiction of which he gave a detailed analysis. Sedley LJ held at paragraph 20:
“Where the power of a tribunal to embark upon an enquiry and reach a determination is dependent upon extrinsic facts-for example, where it is said to be just and equitable to let an application which is out of time proceed, pursuant to section 111(2) of the Employment Rights Act 1996-the first stage of establishing the tribunal’s constitutive jurisdiction involves a factual enquiry and (contingently) a value-judgment: is the application out of time? If so, is it just and equitable that it should proceed? The tribunal is given an adjudicative jurisdiction limited to trying these questions. If in answering them it miscalculates the time limit, it has made a mistake of law: it has not in any relevant sense exceeded its jurisdiction. But unless one of the two questions is answered in the claimant’s favour, the tribunal’s constitutive jurisdiction is spent.”

58.	Although the judgment of the Court of Appeal was overturned by the House of Lords [2008] ICR 82 it did so on the question of 
“whether an actual decision by a tribunal that it has jurisdiction can estop the parties per rem judicatam from asserting that it cannot.” (Lord Hoffman para 30)

It did not dissent from the principles set out above.

59.	Thus, if contrary to our primary view, the Tribunal treated as Section 17A complaints other complaints than those relating to Mr Aylott’s dismissal, in our judgment it had no jurisdiction to do so without first deciding that apparently out of time claims were in time or that time should be extended on a just and equitable basis. Further, it would have to be satisfied that grievances relating to matters other than dismissal had been presented to the Council. Although those jurisdictional points were not taken by the parties, as explained by Buxton LJ, we consider that the Tribunal was obliged to do so.

60.	If we are wrong in our construction of the Judgment of the Tribunal or in our view of the jurisdiction of the Tribunal to treat as Section 17A complaints matters other than those relating to dismissal, we consider whether the Tribunal was otherwise entitled to adjudicate upon certain complaints other than those relating to dismissal. 

61.	In Chapman v Simon Peter Gibson LJ held in relation to complaints under the Race Relations Act 1976:
“Under section 54 of the 1976 Act, the complainant is entitled to complain to the Tribunal that a person has committed an unlawful act of discrimination, but it is the act of which complaint is made and no other that the Tribunal must consider and rule upon. If it finds that the complaint is well founded, the remedies which it can give the complainant under section 56(1) of the 1976 Act are specifically directed to the act to which the complaint relates. If the act of which complaint is made is not found to be not proven, it is not for the Tribunal to find another act of racial discrimination of which complaint has not been made to give a remedy in respect of that other act.”

62.	An ET1 was settled by solicitors on behalf of Mr Aylott. The imposition of deadlines, monitoring of performance and the response to return to work had not been pleaded as acts of discrimination on grounds of or related to disability. At most there was a reference in particulars of harassment to Paul Diggins imposing a deadline of 19 April 2006 for work given to Mr Aylott on Good Friday 13 April 2006 on his return from sickness absence. 

63.	The fact of Mr Aylott’s suspension on full pay is referred to in paragraph 5.16 of the ET1 albeit in the section of the pleading headed ‘Factual basis of the Claims’.  Although that paragraph does not contain an allegation that the suspension was an act of discrimination on grounds of disability, the record of a telephone case management conference on 12 April 2007 could be said to indicate that it should be treated as such. If we were wrong in holding that the Tribunal did not treat matters other than the dismissal of Mr Aylott as Section 17A complaints or in holding that if they and the Tribunal should have first considered whether such complaints were presented in time and after raising a grievance before adjudicating on them, the Tribunal did not err in ruling on the allegation that the Council discriminated against Mr Aylott by suspending him. 

Direct discrimination
The findings of the Tribunal

64.	At paragraph 18 the Tribunal held:
“The Tribunal is satisfied that the claimant has established facts from which a Tribunal could conclude, in the absence of an adequate explanation, amounted to direct discrimination on grounds of the claimant’s disability. The appropriate comparator is someone who has been off for a similar number of days but did not have the claimant’s particular disability. The Tribunal is satisfied that the claimant has shown that the respondents (sic) treatment of him upon his return from sickness, by imposing deadlines and referring to his performance, and strict monitoring followed by the response to his return to work in April 2006 and his dismissal were sufficient to shift the burden of proof. A comparator who had a similar sickness record in respect of, for example, a complicated broken bone or other surgical problem, would not have been subjected to the same treatment.”

65.	In respect of the decision to suspend Mr Aylott and to conduct a disciplinary investigation after he failed to return to work after 13 April 2006, the Tribunal held at paragraph 20:
“Paul Diggins ignored Sue Daniels’ instructions to have a welfare/return to work meeting with the claimant and send him home. Instead he gave the Claimant tasks and deadlines which provoked the heated meeting. The subsequent decision to carry out a disciplinary investigation and to suspend the Claimant was extremely harsh when an informal approach would have been appropriate. Once again, the Tribunal finds that this was direct discrimination based on the stereotypical view of mental illness.”

66.	At paragraph 21 the Tribunal held:
“The Tribunal finds that the dismissal was discriminatory. It was on grounds of the claimant’s disability. There was a fear of the claimant’s return based on a stereotypical view of mental illness.”

Contentions of the Parties

Wrong Comparator?

67.	Mr Menon contended on behalf of the Council that the Tribunal erred in its selection of the characteristics of an appropriate hypothetical comparator for the purpose of considering whether the treatment of Mr Aylott before his dismissal and his dismissal were discrimination on grounds of his disability. In this regard Mr Menon relied upon the judgment of the Employment Appeal Tribunal (‘EAT’) in High Quality Lifestyles v Watts [2006] IRLR 850 especially at paragraphs 45-49. He contended that a proper comparator is not only someone with the same pattern of absences as Mr Aylott but also with the same behavioural attributes and incapability in performing his duties. In addition when it came to the decision to dismiss, an appropriate comparator would have no certain date for return to work. 

68.	Mr Goldberg submitted that the basis of the Tribunal’s conclusion that the Council had discriminated against Mr Aylott on grounds of his disability before his dismissal and in dismissing him was its stereotypical views of mental illness. Thus he contended that even if the Tribunal identified the wrong comparator, in the light of their finding as to the reason for Mr Aylott’s treatment, they did not err in finding that he had been discriminated against on grounds of his disability.

69.	In this regard Mr Goldberg relied on Shamoon v Chief Constable of the RUC [2003] IRLR 285 and Brown v London Borough of Croydon [2007] IRLR 259 to the effect that there will be cases where the question of whether there was less favourable treatment and the reason for the treatment were intertwined and that it was permissible for the Tribunal to concentrate on the reason for the treatment. Accordingly Mr Goldberg contended that the Tribunal did not err in determining whether the Council has treated Mr Aylott less favourably on grounds of his disability by reference to the reason why he received the treatment complained of and was dismissed. 

70.	If the Tribunal had been obliged to consider a hypothetical comparator in considering whether the Council discriminated against Mr Aylott on grounds of his disability by dismissing him, Mr Goldberg relied upon Madden v Preferred Technical Group CHA Ltd [2004] IRLR 46 in which Wall LJ observed at paragraph 87:
“I do not accept the argument that the hypothetical comparator in a case under RRA 1976 must be, in effect, a clone of the applicant in every respect (including personality and personal characteristics) except that he or she is a different race. Nothing that I read in the speeches in Shamoon leads me to that conclusion, nor does the statute.”

Burden of Proof

71.	Mr Menon contended that the Tribunal failed to apply Madarassy v Nomura International [2007] IRLR 246 in considering whether the burden of disproving disability discrimination had shifted to the Council. 

72.	Mr Goldberg supported the approach of the Tribunal on the basis that they went straight to the ‘reason why’ issue and found in paragraph 20 that the reason for Mr Aylott’s treatment was his disability. He contended that by resolving the ‘reason why’ issue in Mr Aylott’s favour, the tribunal were answering both of the limbs of the test in Madarassy. 

Failure to give adequate reasons

73.	Mr Menon contended that the finding of the Tribunal in paragraph 21 that the Company dismissed Mr Aylott on grounds of his disability because of a fear that he would return to work ‘based on a stereotypical view of mental illness’ is vague, unsupported by the facts and inconsistent with other findings.

Perversity

74.	In all the circumstances Mr Menon contended that the conclusions of the Tribunal that the Council had discriminated against Mr Aylott before and by dismissing him were perverse. 

75.	Mr Goldberg contended that the Council is unable to satisfy the high hurdle articulated by Mummery LJ in Yeboah v Crofton [2002] IRLR 634 at paragraph 93 of making out:
“ …an overwhelming case that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law would have reached.”

Discussion
Wrong comparator?

76.	In deciding upon the characteristics of an actual or hypothetical comparator it is necessary to determine the reason why the complainant received the treatment of which complaint is made. The relevant circumstances and attributes of an appropriate comparator should reflect the circumstances and attributes relevant to the reason for the decision or action of which complaint is made. If a disabled complainant is dismissed for poor performance, comparison with the treatment of a person in similar circumstances but with a good performance record would not assist in determining whether the complainant was discriminated against because of his disability. If the reason for the dismissal of a disabled complainant is his absence record and his poor performance at work, an employee who has a similar absence record but not a history of poor performance would not be an appropriate comparator.

77.	For the purposes of ascertaining whether there has been discrimination on grounds of disability, a hypothetical comparator does not have to be a clone of the complainant. However Section 3A(5) requires the comparison to be with a non disabled person 
“ … whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.”

In our judgment, for a meaningful comparison to be made, the hypothetical comparator should have all the attributes or features which materially affected the employer’s decision to carry out the act which is said to be discriminatory.

78.	Even if, contrary to our findings above, the Tribunal had been entitled to consider claims that the Council had discriminated against Mr Aylott by monitoring his performance and setting deadlines after his return to work in February 2006, in our judgment the Tribunal erred in law in failing to select a hypothetical comparator who, in addition a similar sickness absence record to that of the complainant, had the other characteristics relevant to the acts of which complaint was made. An appropriate hypothetical comparator for the purpose of considering whether Mr Aylott had been discriminated against in monitoring his performance and setting deadlines, in addition to having a similar sickness absence record, would have been a person who had recently been moved to a different post and whose past behaviour and performance had caused concern. 

79.	Accordingly, in our judgment, the Tribunal erred in Paragraph 18 in its selection of a hypothetical comparator as someone with a similar sickness record returning to work after ‘a complicated broken bone or other surgical problem’ when considering whether the Council had discriminated against Mr Aylott on grounds of his disability in monitoring his performance and subjecting him to deadlines.

80.	The Tribunal did not refer to a comparator in considering whether the Council had discriminated against Mr Aylott on the grounds of his disability in suspending and in dismissing him. In paragraph 20 the Tribunal found that deciding to suspend Mr Aylott and to carry out a disciplinary investigation following his failure to come to work after 13 April was:
“…direct discrimination based on the stereotypical view of mental illness.”

Further, the Tribunal based their finding in paragraph 21 that 
“ …the dismissal was discriminatory. It was on grounds of the claimant’s disability”
on a similar observation that
“There was a fear of the claimant’s return based on a stereotypical view of mental illness.” 

81.	In Shamoon v Chief Constable of the RUC [2003] ICR 337 Lord Nicholls held at paragraph 7:
“When the claim is based on direct discrimination or victimisation, in practice tribunals in their decisions normally consider, first, whether the claimant received less favourable treatment than the appropriate comparator (the ‘less favourable treatment’ issue) and then, secondly, whether the less favourable treatment was on the relevant proscribed ground ( the ‘reason why’ issue). Tribunals proceed to consider the reason why issue only if the less favourable treatment issue is resolved in favour of the claimant. Thus the less favourable treatment issue is treated as a threshold the claimant must cross before the tribunal is called upon to decide why the claimant was afforded the treatment of which she is complaining.’ that in the normal case Tribunals will first consider whether the claimant received less favourable treatment than the appropriate comparator and then go on to consider whether the less favourable treatment was on the relevant proscribed ground.”

However at paragraph 8 he stated:

“Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue.”

82.	In our judgment it is not apparent in this case that Mr Aylott received less favourable treatment than hypothetical comparators. It is the normal case contemplated by Lord Nicholls in which Tribunals will first consider whether the Claimant received less favourable treatment than the appropriate comparator and then go on to consider whether the less favourable treatment was on the relevant proscribed ground. 

83.	The Code of Practice issued by the Disability Rights Commission which came into effect on 1 October 2004 provided in paragraph 4.8:
“ …If the less favourable treatment occurs because of the employer’s generalised, or stereotypical, assumptions about the disability or its effects, it is likely to be direct discrimination. This is because an employer would not normally make such assumptions about a non-disabled person, but would instead consider his individual circumstances.”

The reference to less favourable treatment illustrates the requirement to establish a difference of treatment from that which would be given to a comparator before the significance of ‘stereotypical views’ may be taken into account in determining the grounds for that difference in treatment.

84.	The Tribunal’s decision that the Council had acted because of a ‘stereotypical view of mental illness’ does not in our judgment relieve the Tribunal of its obligation to identify an appropriate comparator to ascertain whether Mr Aylott had received less favourable treatment. 

85.	The Tribunal erred in failing to identify any comparator in deciding whether the Council had discriminated against Mr Aylott in suspending him, in deciding to carry out a disciplinary investigation and in dismissing him. They also erred in failing to identify an appropriate comparator in deciding whether the Council had discriminated against him on grounds of his disability in other respects. 

Burden of proof

86.	The Tribunal concluded in paragraph 18 that Mr Aylott “… had established facts from which a Tribunal could conclude, in the absence of an adequate explanation, amounted to direct discrimination on grounds of [his] disability”.

87.	In Madarassy Mummery LJ giving the judgment of the Court of Appeal held at paragraph 56:
“The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on a balance of probabilities, the respondent had committed an unlawful act of discrimination.”

At paragraph 71 the Court held:
“Section 63A(2) does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant’s evidence of discrimination.”

88.	The Tribunal held that the burden of proof had shifted to the Council on the basis of Mr Aylott’s disability and treatment of which he complained without his raising a prima facie case that he had been less favourably treated than an appropriate comparator, let alone that such treatment was on grounds of his disability. In our judgment the Tribunal held that the burden of disproving discrimination passed to the Council on the basis disapproved in Madarassy.

Failure to give adequate reasons

89.	In our judgment the findings of ‘ ….direct discrimination based on the stereotypical view of mental illness’ are too vague to support a conclusion that disability discrimination is made out. What does ‘a stereotypical view of mental illness’ mean? Did the Tribunal consider that Mr Aylott would be violent, be offensive, fail to perform his duties have further long periods of absence? In our judgment this phrase falls far short of a finding as to the reason for conduct of the Council of which complaint is made and which is necessary for the identification of the characteristics of an appropriate comparator. 

90.	In deciding the unfair dismissal claim, the Tribunal held in paragraph 26 that:
“ …. The reason for the claimant’s dismissal was that he suffered from bipolar affective disorder and the reason set out of capability (health) was the reason for dismissal.”

It further held that ‘the dismissal was procedurally and substantively unfair.’

If the Tribunal had held that the Council had dismissed Mr Aylott on grounds of his disability, it would have found the dismissal to be unfair for failure to establish an acceptable reason for the dismissal. The Tribunal would not have considered its procedural fairness. However, the Tribunal found that the Council had an admissible reason for Mr Aylott’s dismissal, capability, and considered its fairness in the circumstances. Such an approach would be consistent with a finding that the reason for the dismissal was related to disability and was justified but would be inconsistent with a finding that the dismissal was on grounds of disability. 

91.	For this and the other reasons set out above, in our judgment the Tribunal erred in finding that the Council had discriminated against Mr Aylott on grounds of his disability by dismissing him and in its conduct towards him from February 2006. The Judgment on direct discrimination is insufficiently clear to enable us to conclude that it is perverse.

Disability related discrimination
Wrong comparator?

92.	Mr Menon contended that, following the judgment of the House of Lords in Lewisham London Borough Council v Malcolm [2008] IRLR 700, the correct comparator for considering disability related discrimination in the employment context is the same as for direct discrimination and that Clark v Novacold [1999] ICR 951 has been overruled.

93.	Mr Menon contended that the correct comparator for the purposes of ascertaining disability related discrimination is a non-disabled person with, in this case, the same sickness record and behavioural characteristics as Mr Aylott.  Mr Menon said that the Tribunal erred in finding at paragraph 19 that the tone of meetings in February 2006 and ‘subjecting’ Mr Aylott to deadlines, in addition to discrimination on grounds of Mr Aylott’s disability:
“ … was also disability related discrimination as it was also for a reason related to his disability … as the respondent’s treatment also related to the amount of sickness time the claimant had taken. A person who had not had the claimant’s sickness record would not have been treated in this way.” 

94.	Also Mr Menon contended that the Tribunal erred in regarding as:
“…… the hypothetical comparator ….. someone who did not have the effects of bipolar affective disorder”

for the purpose of considering whether the Council discriminated against Mr Aylott for a reason related to his disability.

95.	Mr Goldberg stated that it is common ground that the Tribunal, when considering the hypothetical comparator for the purposes of the disability related discrimination claim followed the approach of the Court of Appeal in Novacold.  No criticism is made of their identification of the comparator if that approach is the correct one.

Incorrect application of the burden of proof

96.	The Tribunal considered that the burden of proof had shifted to the Council to disprove disability related discrimination for the same reasons that it found that the burden was on the Council to disprove direct discrimination. The parties repeat the arguments in respect of the burden of proof as applied to the findings of discrimination on grounds of disability. 

Justification

97.	It was contended on behalf of the Council that the finding of the Tribunal in paragraph 19 that the setting of deadlines and monitoring was not justified was perverse in light of the findings in paragraphs 5.20.to 5.21 of its Judgment.

98.	Mr Menon submitted that the Tribunal further erred in law in failing to consider whether the dismissal of Mr Aylott was justified.

99.	On behalf of Mr Aylott it as said that it is plain from paragraph 19 that the Tribunal considered that the behaviour complained of was not justified because it held that the Council had failed to comply with a duty to make a reasonable adjustment by holding one to one meetings between Mr Aylott and Sue Daniels rather than have Paul Diggins participate in such meetings.

Discussion
Wrong comparator?

100.	The question of whether the judgment of the majority of the House of Lords in Malcolm as to the correct comparator for disability related discrimination cases also applies in the employment field is the subject of at least one other judgment in the Employment Appeal Tribunal. Did the House of Lords in Malcolm overrule Novacold or should it not now be followed? The Court of Appeal in N (R on the application of) v London Borough of Barking and Dagenham Independent Appeal Panel [2009] EWCA Civ 108 (24.2.09) has held that Malcolm overruled Novacold (see para 44).

101.	In Novacold the Court of Appeal considered the case of a disabled person who was dismissed because he was unable to do his job. The reason for that inability was his disability. The Court of Appeal considered the characteristics of the comparator for the purpose of determining whether there has been discrimination for a reason related to disability within the meaning of what is now Section 3A(1). Mr Clark was dismissed for inability to do his job. His disability caused that inability. The Court of Appeal held that the comparison to be made in deciding whether a disabled person has been discriminated against for a reason relating to his disability was with ‘others’ to whom the reason for the treatment complained of (ie inability to perform the functions of the job) did not apply. Mummery LJ, with whose judgment the other two members of the court agreed, summarised his conclusion on the correct comparator for the purpose of disability related discrimination at page 968C-D as follows:

“(2) treatment is less favourable if the reason for it does not or would not apply to others.

  (3) In deciding whether that reason does not or would not apply to others, it is not appropriate to make a comparison of the cases in the same way as in the 1975 and the 1976 Acts [sex and race discrimination]. It is simply a case of identifying others to whom the reason for the treatment does not or would not apply. The test of less favourable treatment is based on the reason for the treatment of the disabled person and not on the fact of his disability. It does not turn on a like-for like comparison of the treatment of the disabled person and of others in similar circumstances.”

102.	Other Parts of the DDA contain provisions in the same terms as those considered in Novacold. In Malcolm, the House of Lords considered the correct approach to deciding whether the Council had discriminated against Mr Malcolm within the meaning of Section 24(1)(a). This provision is drafted in the same terms as what is now Section 3A(1)(a) which was considered in Novacold. The House of Lords considered whether the treatment of Mr Malcolm, a schizophrenic who had sub-let his flat contrary to the terms of his lease, should be compared with that of a non-disabled person who had also sub-let his flat or with that of a person who had not sub-let his flat. The majority of the House of Lords, Baroness Hale dissenting, held that the correct comparator for the purposes of the relevant provision of the DDA, Section 24(1)(a), is a secure tenant of the council without a mental disability who had sublet his property, and not a secure tenant who had not sublet his property. The Novacold approach to the correct comparator would not be applied. 

103.	In Malcolm the majority of their Lordships did not accept that the comparison in Novacold was correct. They founded their scepticism or disagreement with Novacold on the reason expressed by Toulson LJ in the Court of Appeal. Lord Bingham observed at paragraph 14:
“As I understand the judgment in Clark v Novacold, the correct comparison is said to be with group (b) [tenants of Lewisham flats who have not sublet or gone to live elsewhere]. But that, I think, is difficult to accept for the reason succinctly given by Toulson LJ (paragraph 155):
the complainant is logically bound to be able to satisfy the requirement of showing ‘that his treatment is less favourable than would be accorded to others to whom the reason for his treatment did not apply. For without the reason there would not be the treatment.’ ”

At paragraph 15 Lord Bingham held:

“I find it hard to accept that Novacold was rightly decided. I am in any event satisfied that a different principle must be applied in the present context.”

104.	Similarly, Lord Scott considered that Mummery LJ’s conclusion in Novacold emasculates the statutory comparison. He asked at paragraph 32:
“What is the point of asking whether a person has been treated ‘less favourably than others’ if the ‘others’ are those to whom the reason why the disabled person was subjected to the complained of treatment cannot apply?”

At paragraph 34 Lord Scott observed of Novacold
“The case was, in my view, wrongly decided.”

105.	At paragraph 112 Lord Brown agreed with Toulson LJ that, as Baroness Hale recognised in paragraph 71 of her opinion:
“ .. the construction adopted in Clark v Novacold ‘reduces the comparison test to one which will always be met.”

Lord Brown observed that:
“ ..Parliament must rather have intended ‘a meaningful comparison in order to distinguish between treatment that was discriminatory and treatment that was not.”

106.	At paragraph 140 Lord Neuberger also referred to Toulson LJ’s scepticism of the logic of the Novacold approach having held at paragraph 139:
“Not without considerable misgivings, I have come to the conclusion that Lewisham’s argument, in favour of what I shall call the narrower construction, is to be preferred, at least in relation to s.24(1)(a).”

107.	As for the effect of their Lordship’s conclusions on the construction of the same wording in what is now Section 3A(1), Lord Neuberger commented in paragraph 158:
“It would, on the face of it at least, be very surprising if s.24(1)(a) had a different meaning from the effectively identically worded s.5(1)(a), but it would not be an impossible conclusion.”

He commented on the apparent pointlessness of the comparison exercise if the wider (Novacold) construction of Section 24(1)(a) were adopted 
“ ….and the same arguments apply to the wider construction of s.5(1)(a) in relation to employers.”

108.	Baroness Hale, too, in her speech at paragraph 80 did not think it was possible:
“either to hold that Clark v Novacold Ltd was wrongly decided or to distinguish it on the ground that the same words mean something different in the context of employment. They must mean the same throughout, however inconvenient the result may now appear to be.”
	
Baroness Hale reached her dissenting conclusions on considering the legislative history of the DDA provisions on discrimination, their purpose and the language used. She referred to direct discrimination in Section 3A(5) introduced by the Regulations and commented in paragraph 81:
“Direct discrimination of this sort cannot be justified. If the old s.5(1) (now s.3A(1)) had had the narrow scope which your Lordship’s interpretation would give it, it is difficult to see why Parliament needed to introduce s. 3A(5). It could simply have repealed the justification provision in s.5(1)(b).”

109.	In our respectful judgment the different language in the two subsections does not, as Baroness Hale held, require a different comparative exercise to be carried out for each. Section 3A(5) was introduced by amendment of the DDA by the Disability Discrimination Act 1995 (Amendment) Regulations 2003, SI 2003/1673 (the ‘Regulations’) with effect from 1 October 2004. The Note to the Regulations explains that they implement in Great Britain the provisions of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (the ‘Directive’), so far as it relates to disability discrimination. The Directive by Articles 1 and 2 requires member states to introduce or maintain provisions which amongst others prohibit direct discrimination on grounds of disability. The Directive does not allow for justification of direct disability discrimination. 

110.	The Regulations were laid before Parliament using powers under the European Communities Act 1972 to implement the requirements of the Directive. 

111.	Domestic legislation gives greater protection to disabled persons than is required by the Directive in that discrimination for a reason related to disability covers a wider variety of situations than does discrimination on grounds of disability. Discrimination on grounds of disability is included within disability related discrimination but the Directive does not allow for justification for this more egregious form of discrimination. Hence the need to introduce of Section 3A(5) to implement the Directive. In our view the amendment does no more than provide that the direct discrimination subset of disability related discrimination cannot be justified. This does not require a different comparative exercise to be carried out to ascertain whether there has been less favourable treatment of a disabled person. In any event we consider that the reasoning of the majority of their Lordships in Malcolm compels us to hold that the same language in Section 3A(1) as is used in Section 24(1)(a) is to be interpreted in the same way even if the majority did not expressly overrule Novacold.

112. 	Putting the matter beyond doubt, Toulson LJ in N v London Borough of Barking and Dagenham Independent Appeal Panel held at paragraph 44:
‘In Malcolm the House of Lords was concerned with the construction of the same phrase in Part III of the Act.  It overruled the decision in Clark v Novacold and held that the proper comparator was someone who had behaved in the same way as the person concerned, but did not suffer from that person’s disability.’
He observed that the words:
‘ … for a reason which relates to the disabled person’s disability he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply’
in DDA Section 28B(1) are to be given the same meaning as similar words considered in Malcolm. Toulson LJ reasoned at paragraphs 46 and 47:
‘First, there is a strong presumption that where the same formula is used in different parts of the same Act it is intended to bear the same meaning.
Secondly, the fundamental reason which caused the House of Lords to overrule the construction adopted by the Court of Appeal in Clark v  Novacold applies equally to s28B(1).  This was that on the Clark v Novacold construction, whenever the reason for a person’s treatment related to his disability he would be logically bound to be able to satisfy the requirement that his treatment was less favourable than would be accorded to others to whom the reason did not apply.  The comparative test would not be a test at all: see Lord Bingham at 13-16, Lord Scott at 32-34, Lord Browne at 112-113 and Lord Neuberger at 137-142.’

113.	In our judgment this conclusion need not leave disabled people who are disadvantaged for a reason relating to their disability but treated in the same way as non disabled people without the possibility of redress. Although they may not now be able to establish that they have been discriminated against for a reason related to their disability within the meaning of Section 3A(1), they may be able to establish discrimination by the employer’s failure to make reasonable adjustments under Section 3A(2) and 4A. An employee who is not able to drive because of his disability who is disciplined for frequently arriving late for the night shift would not be able to establish discrimination for a reason related to his disability if a non disabled person with a similar record of bad time keeping would also be disciplined. However, depending on the circumstances, he could claim that his employer had discriminated against him by failing to make a reasonable adjustment by not providing him with transport. 

114.	As Mr Goldberg recognises, the Tribunal applied the approach of the Court of Appeal in Novacold in identifying the hypothetical comparator when considering Mr Aylott’s claims of disability related discrimination. We have held that in doing so they erred in law. Accordingly the appeal against the Tribunal’s findings of disability related discrimination succeeds.

115.	The Tribunal concluded that certain acts of the Council including the dismissal of Mr Aylott, were both on grounds of his disability within the meaning of DDA Section 3A(5) and for a reason related to his disability within the meaning of Section 3A(1). 

116.	A Tribunal should decide upon the reason for the act complained of and whether it is direct or disability related discrimination. The categorisation is material since disability related discrimination can be justified whereas discrimination on grounds of disability cannot.

Burden of Proof

117.	For the reasons set out above, we have concluded that the Tribunal erred in its application of the burden of proof in paragraph 18 to the complaint of direct discrimination. This erroneous approach was also the foundation for its finding of disability related discrimination in paragraph 19.

Justification

118.	We have already held that the Tribunal erred in adjudicating on complaints about monitoring and deadline setting between February and April 2006 as no such complaints had been pleaded. The appeal against the findings of both direct and disability related discrimination based on these complaints succeeds.

119.	Mr Goldberg did not answer Mr Menon’s contention that the Tribunal failed to consider the justification defence raised by the Council in response to the alleged disability related discrimination in dismissing Mr Aylott. 

120.	No consideration by the Tribunal of the justification defence raised by the Council in relation to the dismissal of Mr Aylott is apparent from the Judgment notwithstanding that justification for the dismissal was an issue identified in the Case Management Discussion on 12th April 2007. 

121.	In our judgment the Tribunal erred in law in failing to decide whether the dismissal of Mr Aylott for a reason connected with his disability was justified. 

122.	Accordingly the appeal against the findings of unlawful disability related discrimination by the Council succeeds and they are set aside. 

Failure to make reasonable adjustments
Contentions of the Parties

123.	Mr Menon contended that the Tribunal had no jurisdiction to find in paragraph 23 that the Council had failed to make reasonable adjustments by applying confrontational pressure and the imposition of deadlines. Further it is said that the Tribunal’s findings in this regard were perverse. 

124.	Mr Menon contended that the finding of the Tribunal that the Council was in breach of its obligation to make reasonable adjustments by failing to provide a phased return to work and by dismissing him without the benefit of medical advice was made in error of law and was perverse.

125.	On the basis that the finding of failure to provide a phased return to work was in relation to the period after 18 April 2006 when Mr Aylott was away sick and for some time in hospital, Mr Menon relied on the judgment of the Court of Appeal in Home Office v Collins [2005] EWCA Civ 598 at paragraphs 31-34 to contend that since Mr Aylott could not return to work at all, considerations of a phased return to work did not arise. 

126.	Mr Goldberg contended that that the particulars of reasonable adjustments given by letter dated 26 February 2008 including:
“(c)	The failure to provide or arrange training and mentoring for the Claimant upon his return to work
…
 (e)	The failure to provide Mr Aylott with either adequate or proper support.’

were apt to raise the adjustments which the Tribunal found should have been made. 

Discussion

127.	Neither the ET1 nor the letter of 26 February 2008 raised complaints about a failure to make reasonable adjustments in regard to ‘deadlines and the insistence on formal investigation of incidents’. The Tribunal had no jurisdiction to make findings of failure to make reasonable adjustments in relation to these matters. Our observations in relation to the jurisdiction of the Tribunal to hear complaints about matters other than relating to Mr Aylott’s dismissal apply to Mr Menon’s challenge to its jurisdiction to hear complaints of failure to make reasonable adjustments.

128.	It is not clear to us when the Tribunal considered that the Council should have provided a phased return to work or what the features of such a ‘phased return’ should have been. The Tribunal recorded that Dr Vincentti the consultant psychiatrist instructed by the Council felt that a phased return could well have been unsuccessful. Mr Aylott’s consultant psychiatrist, Dr Reilly, considered that it might have been successful and that there were further adjustments that could have been made. The Tribunal did not state what adjustments should have been made. The question of a phased return to work could only arise if Mr Aylott was fit to return to work. It was not in dispute but Mr Aylott was not fit for work after 18 April 2006.

129.	If and insofar as it did so, in our judgment the Tribunal erred in holding that the Council failed to make a reasonable adjustment by dismissing Mr Aylott rather than retaining him. Mummery LJ in Novacold at page 966E agreed with the Employment Tribunal that the act of dismissing Mr Clark was not itself a breach of the duty to make adjustments. Further, in dismissing Mr Aylott in our judgment the Council was not applying a provision criterion or practice within the meaning of Section 4A. 

130.	It is not clear to us what reasonable adjustments the Tribunal considered should have been made regarding ‘assumptions made with regard to the Claimant’s condition without the benefit of medical advice’ referred to in paragraph 23. 

131.	Accordingly the appeal from the findings of the Tribunal of failure to make reasonable adjustments succeeds and they are to be set aside.

Finding of fact

132.	The Council appeals against the finding of fact in paragraph 20 that an email dated 13 April 2006 from Sue Daniels to Lynn Donald in Human Resources in which she stated that she wanted to discuss how the Council was ‘to manage [Mr Aylott] out of work’ was an indication that she was seeking to engineer the termination of his employment. It is said that such a finding is perverse. 

133.	Mr Goldberg stated that the email is capable of being interpreted in more than one way and that the interpretation put on the letter by the Tribunal was a permissible one.

134.	In our judgment it cannot be said that no reasonable Tribunal could have decided upon the interpretation reached. The challenge to the interpretation by the Tribunal of the email fails. 

Harassment
Contentions of the Parties

135.	It was contended on behalf of the Council that the Tribunal failed to give adequate reasons for its finding in paragraph 24 of the Judgment that Mr Aylott had been subject to harassment within the meaning of the DDA. In particular it is said that the reference in that paragraph to hostility and confrontation directed at the Claimant and the Claimant receiving conflicting instructions is perverse and inadequate. Further it is said that the characterisation of the deadlines and supervision imposed upon Mr Aylott as harassment is misconceived and perverse.

136.	Mr Goldberg stated that the Tribunal’s conclusion was properly based on its previous recitation of the facts and Mr Aylott’s perception of his treatment by the Council.

Discussion

137.	In our judgment the decision of the Tribunal in relation to harassment is neither perverse nor inadequately reasoned. The Tribunal found that Mr Aylott was placed under deadlines. On any view of the evidence, meetings between Mr Aylott and Paul Diggins in February 2006 and on 13 April 2006 were fraught whoever was responsible for that state of affairs. Mr Goldberg rightly comments that the Tribunal’s reference to conflicting instructions is to the perception of Mr Aylott. His perception of events is relevant to a finding of harassment. 

138.	However, for the reasons set out at the beginning of this judgment we do not consider that the findings of harassment were treated by the Tribunal as a separate cause of action giving 
rise to consideration of a remedy. In paragraph 29 it stated:

“Having found that the respondent subjected the claimant to disability discrimination the Tribunal finds it appropriate to make an award of compensation.”

The Tribunal makes no reference to harassment in that paragraph. Nor does it refer to harassment in its computation of compensation. Accordingly, in our view, the finding of harassment was only treated as of evidential significance for the purpose of determining whether the dismissal of Mr Aylott was on grounds of or for a reason related to his disability. If the Tribunal had intended otherwise it failed to make that intention clear. Further, the Tribunal did not consider whether Mr Aylott raised a grievance in writing regarding the harassment on whether a Section 17A complaint about it was presented to the Tribunal within the time limited for doing so. 

Unfair Dismissal
Error in rejecting contention that Mr Aylott would have been dismissed had a fair procedure been followed

Contentions of the Parties

139.	Mr Menon contended on behalf of the Council that the Tribunal erred in failing to hold that Mr Aylott would have been dismissed in any event had a fair procedure been followed. He asserted error of law, perversity and inadequacy of reasons in this regard. Mr Menon relied on McAdie v Royal Bank of Scotland [2007] IRLR 895 in support of the contention that even if Mr Aylott’s incapacity had been prolonged or exacerbated by any act, omission or default on the part of the Council, that would not and could not in the circumstances of his case, make his dismissal unfair.

140.	Mr Goldberg pointed out that the Tribunal could not or did not want to speculate as to whether Mr Aylott would have been fit to return to work had a fair procedure been followed. He contended that the Tribunal did not base its rejection of the Council’s contention that had a fair procedure been followed Mr Aylott would have been dismissed on the possibility that his mental condition may have been exacerbated by the Council dismissing him.

Discussion

141.	The Tribunal made the following relevant findings: 
“27. It was submitted on behalf of the respondent that in all the circumstances the claimant would have been dismissed had a fair procedure have (sic) been followed. …… The tribunal does not accept that submission. It is not known whether the claimant would have been fit for work if he had not been dismissed. Both medical consultants agreed that his medical condition had been exacerbated. If the claimant had not been dismissed and medical advice been sought, the Tribunal is not satisfied that the claimant would have been dismissed had a fair procedure of (sic) been followed, he may well have been able to return to work.”

142.	In our judgment, the Tribunal erred in determining the Council’s submission under ERA Section 98A(2) by considering whether Mr Aylott would have been fit to return to work if he had not been dismissed rather than by considering the Council’s contention that on a balance of probabilities he would have been dismissed had a fair procedure been followed. 

143.	However, even if the Tribunal had adopted the correct approach, unless it erred in finding that the Council had not completed the statutory dismissal procedure, it would have found the dismissal to be unfair. ERA Section 98A(2) relied upon by the Council is expressly subject to Section 98A(1) which renders dismissals unfair for failure to comply with an applicable statutory procedure. 

Failure to complete Statutory Dismissal Procedure

144.	Mr Aylott appealed against his dismissal. The Council contended that the finding of the Tribunal that it was satisfied that the non-completion of the statutory dismissal procedure was mainly attributable to the Council’s failure to invite Mr Aylott to attend a meeting was perverse. It is submitted that Mr Aylott’s mental state at least until June 2007 would have precluded him from any meaningful involvement in any appeal process. Further, the Council wrote to Mr Aylott’s solicitors seeking confirmation that it was not practicable to complete the appeal process. There was no substantive response to this request. It is said that this situation fell within Regulation 11(1) and (3)(c) of the Dispute Resolution Regulations in that compliance with the subsequent requirements of the procedure was not practicable and the Council should be treated as having complied with them. 

145.	It is further said that the Tribunal erroneously categorised any breach by the Council as non completion rather than non compliance with the statutory dismissal procedure. Mr Menon referred to the judgment of the Court of Appeal in Wilmot v Selvarajan [2008] IRLR 824.

146.	Mr Goldberg relied upon EA Schedule 2 Part 1 Chapter 1 paragraph 3(2) which provides:
“If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.”

Mr Aylott having initiated the appeal process, on 1st March 2006 the Council sought confirmation from his solicitors that:
“….it is impracticable to complete the appeal processes in both cases the hearing should be abandoned and the appeal withdrawn.”

Mr Goldberg stated that all the Council was required to do to comply with paragraph 3(2) was to offer an invitation to the Claimant to attend a meeting.

Discussion

147.	In paragraph 28, the Tribunal set out its findings of fact relating to completion of the statutory dismissal and disciplinary procedure. We have also considered the relevant provisions of the statutory procedure and the case of Selvarajan. In our judgment Selvarajan supports the conclusion of the Tribunal. Mummery LJ held at paragraph 27:
“ … non-compliance with the stipulated requirements is relevant to deciding, in a case where there has not been completion, who is responsible for the non-completion.”

148.	In our judgment the Tribunal did not err in law or come to a perverse conclusion in holding at paragraph 5.36:
“ ….. the statutory procedure was not completed and the Tribunal is satisfied that it was mainly attributable to a failure by the respondent to comply with the obligation to invite the claimant to attend a meeting in this regard.”

149.	Accordingly the appeal against the finding that the Council failed to complete the statutory dismissal procedure fails and is dismissed. A consequence of this conclusion is that the appeal against the finding of automatic unfair dismissal also fails and is dismissed.

Cause of exacerbation of Mr Aylott’s condition

150.	This ground of appeal relates to the decision in paragraph 30 that 50 per cent of the worsening of Mr Aylott’s condition was attributable to his ‘employment problems’. The Tribunal not only used this percentage to calculate the sum of £2,500 awarded for psychiatric damage but also to decide upon the period of loss of earnings for which the Council was to be held responsible. Since we have allowed the appeals in respect of findings of disability discrimination, all awards of compensation consequent on those findings are also set aside. However the Tribunal adopted the same basis for computing the period for which there should be an award for loss of earnings as compensation for unfair dismissal. Accordingly the Council’s appeal against the 50% attribution of exacerbation in Mr Aylott’s condition is not academic. 

151.	Mr Menon contended that the Tribunal erred in failing to identify the cause of the exacerbation in Mr Aylott’s condition referred to by the medical experts. Further it is said that the findings of the Tribunal did not justify a conclusion that, on the balance of probabilities, any one or more of the Council’s breaches of the DDA caused or materially contributed to any aggravation or exacerbation of Mr Aylott’s condition. 

152.	Mr Goldberg submitted that the Council has not identified any employment problems which were not found to be breaches of the DDA and which the Tribunal relied upon in awarding compensation. He contended that the Tribunal is entitled to take a ‘broad brush’ approach to the assessment of ‘general damages’ and that the harassment and direct discrimination found by the Tribunal would have constituted a substantial part of any ‘work related problems’ identified by the experts. 

Discussion

153.	The findings of unlawful disability discrimination upon which the Tribunal based its award of compensation under the DDA have been set aside. The Tribunal gave no separate consideration to the award of compensation for unfair dismissal for prospective loss of earnings. It based its award in this regard on the same period, one year, as in respect of disability discrimination. The Tribunal arrived at this period by reducing by 50 per cent the period in respect of which it otherwise would have made an award for loss of earnings because of its decision that ‘employment problems’ were responsible for half of the exacerbation in Mr Aylott’s condition. 

154.	Pursuant to ERA Section 123, compensation for unfair dismissal is of such amount:
“ ….as the tribunal 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.”

155.	It is likely, as Mr Goldberg contended, that the harassment and disability discrimination found by the Tribunal constituted a substantial part of any ‘work related problems’ identified by the experts and formed the basis for its award of compensation. Since we have set aside the findings of harassment, failure to make reasonable adjustments and disability discrimination, the award of compensation for unfair dismissal must also be set aside. 

Conclusion

156.	The appeal against the findings of discrimination on grounds of disability succeeds.

157.	The appeal against the finding of discrimination for a reason related to disability succeeds.

158.	The appeal against the finding of ‘ordinary’ unfair dismissal is dismissed.

159.	The appeal against the finding of ‘automatic’ unfair dismissal is dismissed.

160.	Since there was no consideration of compensation for unfair dismissal for loss of earnings independently of the award in respect disability discrimination, the unfair dismissal claim is remitted to an Employment Tribunal for decision on compensation.

161.	The complaints presented by Mr Aylott of discrimination on grounds of disability and of discrimination for a reason related to disability under Section 17A of the Disability Discrimination Act 1995 are remitted to an Employment Tribunal for consideration in the light of this judgment. 

162. 	On a remitted hearing the Tribunal will determine:
(1)	 all jurisdictional issues identified in this judgment that is to say:
(i)	whether the complaints under Section 17A DDA of discrimination on grounds of disability and discrimination for a reason related to disability have been properly pleaded in the claim to the Employment Tribunal;
(ii)	whether a grievance has been presented in accordance with Section 32 of the Employment Act 2002 in relation to each such complaint under Section 17A DDA;
(iii)	whether each such complaint which the complainant seeks to pursue under Section 17A DDA has been presented within the 3 months time limit in Schedule 3 paragraph 3 DDA and if not, whether it is just and equitable to consider the out of time complaint.
(2)	in accordance with the guidance on the law in this judgment, the complaints of discrimination on grounds of disability and discrimination for a reason related to disability which it has jurisdiction to determine. 
(3)	The assessment of compensation, if any, for unfair dismissal.

163.	A decision on whether this case will be remitted to the same or a different Employment Tribunal will follow.