Appeal No. UKEAT/0396/08/DM
UKEAT/0076/09/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 May 2009

Before
THE HONOURABLE MRS JUSTICE COX
MS K BILGAN
MR D G SMITH

FAREHAM COLLEGE CORPORATION	APPELLANT

MS S P WALTERS
	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR M SALTER
(of Counsel)
Instructed by: 
Messrs Lyons Davidson Solicitors
Park House
87 Burlington Road
New Malden 
Surrey  KT3 4QP	
For the Respondent	MR D DYAL
(of Counsel)
Instructed by: 
University and College Union
Legal Services
Carlow Street
London  NW1 7LH	

SUMMARY
DISABILITY DISCRIMINATION
Reasonable adjustments 
Disability related discrimination
Compensation
PRACTICE AND PROCEDURE
Case management

1.	Appeal against Employment Tribunal’s finding of disability discrimination (reasonable adjustments) and disability related discrimination (dismissal).  In circumstances where the two findings were inextricably linked the Employment Tribunal’s failure to construct the Malcolm comparator in relation to the latter claim made no difference to their determination on the facts.  Judgment upheld.  Related appeals against findings of unfair dismissal and breach of contract also dismissed.

2.	Appeal against the Employment Tribunal’s remedies judgment relating to the Employment Tribunal’s failure to grant the Respondent’s application for an adjournment; their consideration of the Claimant’s injuries to feelings claim; and points relating to set-off of pilon sum and Polkey deduction.  Employment Tribunal found not to have erred in law in any respect and appeal dismissed.

THE HONOURABLE MRS JUSTICE COX

1.	The Respondent below, Fareham College Corporation, is appealing against two judgments of the Southampton Employment Tribunal.  

2.	In the first judgment, promulgated with reasons on 23 April 2008, the Tribunal upheld the Claimant’s claims of disability discrimination, unfair dismissal (section 98), and breach of contract.  Subsequently, following a hearing in November 2008 to determine remedy, the Tribunal, in their second judgment promulgated with reasons on 15 December 2008, made a declaration as to disability discrimination and awarded compensation as follows: £16,731.97 for disability discrimination; £1,120.00 for unfair dismissal; and £2,884.96 for breach of contract (holiday pay).

Summary of Liability Issues

3.	Essentially, the Respondent contends in relation to the liability judgment, that the Tribunal erred, (a) in relation to the finding of failure to make reasonable adjustments, because they failed properly to consider the comparative exercise required, or alternatively the finding was perverse; (b) in relation to their finding on disability‑related discrimination and their approach to less favourable treatment and the comparator (London Borough of Lewisham v Malcolm [2008] IRLR 700), or alternatively the finding was perverse; (c) given the factual findings, in failing adequately to explain their conclusions as to the Respondent’s failures which led to the finding of unfair dismissal and the rejection of the section 98(A)(2) defence; alternatively in arriving at a perverse conclusion as to their finding that the conduct was outside the range of reasonable responses; and (d) in relation to the breach of contract claim, in effectively reversing the burden of proof so that the Respondent was required to prove that an implied term as to holiday entitlement was not in fact implied into the Claimant’s contract.

4.	In response, the Claimant contends that the Tribunal directed themselves correctly as to the law and correctly applied that law relating to reasonable adjustments, and that the perversity argument is without merit.

5.	In relation to disability‑related discrimination, notwithstanding the fact that the Tribunal may not have had in mind the comparator required by Malcolm, on its facts the claim adds nothing of substance to the reasonable adjustments claims, because instead of making reasonable adjustments, the Respondent dismissed the Claimant.  There is, it is said, no merit in the alternative perversity point.

6.	In respect of unfair dismissal, the ground of appeal relating to section 98(A)(2) is said to be misconceived, and the perversity argument is said to be without merit.  Further, the Tribunal’s approach to the breach of contract claim has been mischaracterised; properly understood, it discloses no error of law.

Summary of the Remedy Issues

7.	The Respondent submits that the Tribunal erred, (a) in refusing an application to adjourn the Remedies Hearing pending the appeal on liability, and due to the unavailability of the Respondent’s only witness due to ill health; (b) in their approach to the award for injury to feelings; (c) in their interpretation of the Disability Discrimination Act 1995 (DDA), and their finding that the payment made to the Claimant by way of payment in lieu of notice should not be offset from the award of financial compensation, on the grounds that it was not just and equitable to offset it; and (d) in failing to explain why a Polkey deduction was not appropriate in this case.

8.	The Claimant contends that the Tribunal paid careful attention to all the relevant factors and were entitled, in the exercise of their broad discretion, to refuse the request for an adjournment in all the circumstances.  The ground of appeal relating to the injury to feelings award is said to disclose no error of law on the part of the Tribunal.  Thirdly, it is submitted that the Tribunal did apply correctly the tortious measure of loss; in this case it was essential not to offset her pay in lieu of notice against her loss of earnings.  Finally, the Polkey point, it is said, discloses no error of law and is misconceived, given that no compensatory award was made.  In any event, a Polkey type of approach had no application to the facts of this case.

9.	We note that the Claimant represented herself at both hearings below, although she is represented by counsel, Mr Dyal, before us today.  The Respondent is represented by Mr Salter of Counsel who also appeared for it below.  We are grateful to both counsel for their succinct and helpful oral submissions.  

10.	Mr Salter concentrated on the main points in his oral submissions, relying otherwise on his skeleton argument, and not pursuing any grounds, of which there were a few, which had not been dealt with specifically in the skeleton argument.

The Liability Appeal
The Facts

11.	The Claimant was employed by the Respondent as a lecturer in specialist computing, commencing her employment on 3 June 2004.  Fareham College is a further education college which provides a variety of courses to both sixth form level and older students.  There are both full‑time and part‑time students and full‑time and part‑time staff.

12.	The Claimant was initially employed on a temporary contract but she subsequently obtained permanent employment, working on a full‑time contract of 37 hours per week, although she could be required to work for up to 40 hours per week with time off in lieu.

13.	She was required to undertake 23 “contact hours” work per week and up to 26 hours on a temporary basis.  The contract was annualised on the basis of 840 contact hours per week, 12 of which were allocated to professional development.  Within the overall teaching hours, which were 8.45am to 9pm, lecturers would be scheduled teaching periods.  The full‑time staff would not normally be expected to teach regularly for more than two evenings per week, and the evening teaching load was often less.  The Claimant would not necessarily be required to carry out evening teaching every week.  Her own lecturing hours varied.  In the autumn term of 2005 her first teaching period started at 8.45am, two days a week, and on the other three days at 9.45am, 11.00am, and 12pm respectively.

14.	The Claimant’s contractual leave entitlement was 50 days plus 8 bank holidays per year.  The timing of leave was subject to agreement with the line manager, but with a minimum of three weeks guaranteed during the summer vacation.  The leave year ran from 1 September to 31 August.  The contract specified that leave entitlement for one year could not be taken in subsequent leave years unless otherwise agreed by the college; and untaken leave would be forfeited.  There were no written provisions preventing employees on sick leave from taking annual leave.  The only provision which referred at all to the relationship between sick leave and annual leave was at paragraph 8.9 of the collective agreement, which allowed staff who fell ill during annual leave to reclaim a maximum of five days’ annual leave.

15.	The college had a “managing absence policy” which referred only briefly to the DDA.  At section 7 the policy set out the commitment to supporting employees back to work, including providing for the possibility of a phased return.  The policy also provided for the college principal to consider dismissal in a case where sickness absence was envisaged to extend beyond nine calendar months.  The matter could be referred to the principal earlier on in appropriate cases, taking into account the operational needs of the college.  

16.	The policy provided for four potential outcomes: (1) fit to return to current post; (2) unfit for current post but fit for alternative employment; (3) currently unfit for present post, further period for review/referral; (4) unfit for current post, cessation of employment.

17.	Reference was made under the first of those categories to the possibility of a phased return to work and to the need under the DDA to make reasonable adjustments.  A phased return to work might involve part‑time working and may be for a period of up to four weeks.

18.	In relation to sick pay, a lecturer in her second year of service was found to be entitled to two months’ full pay and two months’ half pay.

19.	At some point during 2004 the Claimant developed the condition known as “plantar fasciitis”, which caused pain in her feet and restricted her mobility.  She was on sick leave for 28 days from 11 January 2005 due to this.  This was found to have no relevance to the Respondent’s treatment of the Claimant in 2006, which formed the subject of her claim, and the Tribunal, in any event, rejected the Claimant’s criticisms of the Respondent’s handling of this earlier matter.

20.	There were then short periods of sickness absence in November and December 2005 and correspondence ensued between the college and the Claimant’s GP about various health issues. 

21.	Concerns as to her performance as a lecturer, which had arisen at about the same time, led to a meeting on 31 January 2006 to investigate her performance, which the Tribunal regarded as a reasonable step for the Respondent to take in the circumstances.

22.	The Claimant raised a number of health issues at this meeting and although the college had planned to continue capability procedures these were terminated in view of her subsequent sickness absence.

23.	The Claimant commenced further sickness absence on 1 February 2006.  After a period of five days’ annual leave her sick leave then recommenced on 20 February 2006 and continued until her dismissal.  Medical certificates initially gave a number of reasons for her absence, including stress‑related illness, sinusitis, investigation for liver masses, HT and “gynae problems”.

24.	During the leave year 1 September 2005 to 31 August 2006 the Claimant took 14 days paid annual leave.  She also took a number of paid bank holidays during this leave year, although the precise number and the dates were found to be unclear.

25.	During February and March 2006 the Claimant and the college were communicating via correspondence and email.  The college wrote on 24 April enquiring about her possible return to work and asking her to authorise the release of her medical records.  The college then wrote to her GP on 16 May 2006 as to her condition and possible return to work.  By now the Claimant’s sick pay had ceased and she emailed a query about her outstanding leave entitlement, due to concerns about taking her paid holiday entitlement during the current leave year.  At paragraph 22.13, the Tribunal found the following facts: 

“22.13	Meanwhile, the Claimant’s pay having ceased, she was concerned about taking her paid holiday entitlement during the current leave year, and emailed queries about her outstanding leave.  On 8 June 2006 Ms Hinton (HR Manager) emailed her, telling her that whilst she accrued leave whilst on sickness absence, ‘annual leave cannot be paid in lieu’ and that she would need to return to work before leave could be arranged.  The same day, Ms Hinton wrote to the Claimant suspending (without her agreement) her previously approved summer leave of 25 working days booked for 24 July to 25 August.  The [letter] also specified that the taking of leave would be discussed with her when she was fit enough to return to work.  The Claimant responded by email the following day, expressing her concern over the cancellation of holiday and the refusal to let her take paid holiday.  She continued to express her concerns, and on 26 June 2006 Ms Hinton wrote again, stating (without referring to the authority for this assertion) that if the appellant was absent because she was ill, ‘then this cannot also be counted as holiday’.” 

26.	The Claimant’s GP wrote to the college on 9 June and stated that she would not be fit to return to work within the next four weeks.  He listed the Claimant’s various medical conditions.  A number of them, itemised separately at paragraph 22.14 of the Reasons, included pain, fatigue, poor sleep patterns, urinary frequency, headaches, abdominal symptoms, and anxiety.  All of these are symptoms associated with fibromyalgia or fibromyalgia syndrome, which this Claimant was ultimately diagnosed as suffering from, as the Tribunal observe at paragraph 22.20.

27.	The college next referred the matter to the occupational health services.  The Claimant was seen by a Dr Weddell on 16 June 2006, who wrote to the college expressing his opinion that the Claimant was not yet fit to return to work, and recommending a further OH appointment in about six weeks.

28.	On 23 June 2006 the Claimant was invited to attend a meeting to discuss her continuing absence under the managing absence policy, a copy of which had been sent to her.  This meeting took place on 13 July 2006.  It was conducted by Mr Dingsdale, the director of the Faculty of Applied Studies, with assistance from Ms Dufour from HR.  The Claimant attended with her union representative, Ms Ailes.  During the meeting the Claimant explained that she was awaiting a prognosis which might involve surgery.  She was asked whether her current job was the career she wanted to continue with and whether she wanted advice on other options that were available.  She answered that her current position was the one she wanted to continue with.  She expressed a preference to teach adults, but Mr Dingsdale said that this would not be feasible due to the growth in the 16‑18 age group.  The Claimant then expressed a wish to have a phased return to work.  A 0.5 contract was mentioned but Mr Dingsdale stated that this was not sustainable in the medium to long term.  It was suggested that the case should be referred to the Principal for a decision, but Ms Ailes questioned this.  It was therefore agreed to arrange a further GP and OH appointment and to reconvene on 17 August.

29.	The Tribunal found that there were in fact other IT roles within the college for which the Claimant might have had suitable experience, in administration or supporting roles, but that these roles were not canvassed with her.

30.	On 18 July 2006 Dr Weddell produced a second OH report, which referred to ongoing medical problems and forthcoming specialist, surgical investigation and surgical treatment.  He suggested that the Claimant might be able to consider a phased return to work early next term, that is, September 2006, but said that it was unlikely that she would be fit to return to her full work role/work hours before the beginning of 2007.  It ended as follows:

“I would recommend that you make an appointment for Susan to see me again for further assessment in early September if the option of a phased return to work is to be considered.”

31.	On 14 August 2006 the Claimant’s GP signed a further sick note covering her absence for a further six weeks, referring on this occasion to “acute stress and possible fibromyalgia”.

32.	On 17 August 2006 the second absence review meeting took place with the same attendees as at the first.  The latest OH report was considered, although nothing had been received from the GP other than the latest sick note dated 14 August, which the Claimant handed in.  Ms Ailes asked that in light of the OH report, a decision on return to work be delayed until January 2007.  This however was refused by Mr Dingsdale on the basis of the impact on learners and the difficulty in recruiting specialist computing staff.

33.	The Claimant was advised that the case would be referred to the Principal, Carl Groves, for a decision.  Mr Dingsdale asked the Principal to convene a meeting and recommended that the Claimant be dismissed.

34.	The Tribunal rejected the Claimant’s suggestion that the college had in some way deliberately delayed proceedings to disadvantage her, by not holding the meeting before the end of the leave year, and they were satisfied that there was here no unreasonable delay.  Further, since the available medical reports could legitimately be read as indicating that her absence was likely to exceed nine months, the Tribunal were satisfied that her dismissal on 7 September 2006, some eight months after her sick leave commenced, was not in breach of the college’s managing absence policy.

35.	On 29 August 2006 the Claimant was sent a formal letter inviting her to a meeting with the Principal, at which she was informed he would consider her possible dismissal.  It set out three possible alternatives to dismissal: an extension to the review period, possible redeployment, and ill health retirement.

36.	Meanwhile, while proceedings had been continuing against the Claimant, steps had been taken to recruit new staff.  A temporary full‑time lecturer in computing and ICT was recruited during the summer, nominally to cover an expected increase in student numbers, but teaching some of the subjects which the Claimant had taught, and using as part of the written justification, the possible need for continued sick cover for Sue Walters.  The authorisation for this was signed by Mr Dingsdale as early as 15 June 2006 and budgetary authorisation given on 5 July 2006, explaining that whilst this was not in the budget the Claimant’s hours were, and that this post would provide the necessary cover.

37.	Mr Groves signed the final authorisation on 7 July 2006 and a Mr Bailey was employed from about the beginning of September 2006.  The Tribunal found that the offer of employment would have been made by August 2006.  Mr Dingsdale told the Tribunal that it was necessary to recruit a new staff member because of the Claimant’s continuing absence.  Other staff had covered up until the end of the summer term in July 2006, but this, he said, was not sustainable.

38.	At the time that the Claimant was dismissed on 7 September 2006, term had already started and the new staff member had started, albeit that the timetables could not be finalised until after all the students had joined.

39.	Mr Dingsdale informed the Tribunal that he had offered the new lecturer a full year’s contract before the Claimant was dismissed, because people would not normally accept a short contract and it was not clear when the Claimant would be ready to return to work.

40.	If the Claimant had been at work Mr Dingsdale was not sure whether he would have employed the new staff member.  Ms Hinton confirmed that she had also arranged casual cover for the Claimant during her absence, either directly or to backfill, so that other staff could take over some of her duties.  In addition it seems that a member of staff who had been recruited to teach at HMS Nelson, on contract to the Navy, had been moved back to the college and had taken on some of the Claimant’s teaching load.

41.	At paragraphs 22.25 to 22.27 the Tribunal set out their findings of fact as to the crucial events that happened at the meeting on 7 September.  They are as follows:

“22.25	The formal meeting with the Principal, Mr Groves, took place on 7 September 2006.  Mr Dingsdale also attended, as did an HR Manager and a Personal Officer.  The Claimant attended with Ms Ailes.  Early on during the meeting, Ms Ailes announced that there was further news regarding the Claimant’s health:  Firstly, she had been diagnosed with having fibromyalgia, and secondly she had a date for surgery (on another matter) at the end of October.  Mr Groves did not know what fibromyalgia was and took no steps to find out.  At the time of the hearing he was still unaware as to what it was.  Mr Groves did not ascertain the nature of the surgery which the Claimant was due to undergo.  Ms Ailes requested that the case be reviewed again in December with a view to the Claimant returning to work in January on a 0.5 basis, working daytime only.  The Claimant would be teaching IT: Ms Ailes confirmed that the Claimant had considered alternative roles, albeit not in detail, and wanted to remain in teaching.  Mr Dingsdale advised Mr Groves that it would be difficult to find temporary cover for a few months, although the department was currently looking at that, and advised that it caused problems for students; it would cause friction if other staff had to cover the Claimant for evening teaching; it would be difficult to manage more part-time staff.  The Claimant explained that she felt unwell early in the morning and in the evenings, and better in the middle of the day.  Mr Dingsdale offered the opinion that this would be difficult to timetable.  The Claimant stated that she hoped to be able to return to work 0.5 in January, but could not confirm.  Mr Groves also told the Tribunal that he had understood Ms Ailes to have said that the Claimant would be able to provide a sick note until the end of March 2007, although the Tribunal considers that it should have been clear from the context that when a reference was made to the ‘end of next term’, December 2006 was plainly being referred to, as clear references were made to the Claimant hoping to start work in January. 
22.26 After a half-hour recess, Mr Groves announced that the Claimant would be dismissed with immediate effect, with two months’ pay in lieu of notice and accrued holiday entitlement (by which he clearly meant holiday accrued since 1 September).  He explained his reasoning, stating that redeployment had been rejected because the Claimant would only consider a teaching position in a fractional post.  The Claimant was not eligible for ill-health retirement.  A possible extension to the review period was rejected for four reasons: (1) It would be difficult to get someone to cover on a temporary basis, (2) it would impact negatively on learners to have a series of teachers, (3) the Claimant would not take a share of the evening work, and (4) management of multiple fractions is difficult.  Mr Groves concluded that there was a less than even chance of the Claimant returning to work in January (although he did not explain the basis for this conclusion) and holding the post open was likely to further inconvenience the students.
22.27 The dismissal was confirmed by letter dated 11 September 2006, which also reminded the Claimant of her right to appeal.  The Claimant did appeal, complaining about her dismissal.  Grounds included not giving weight to the OH report, not awaiting a further medical appointment, not being allowed a phased return to work and giving insufficient consideration to alternative positions.  She was invited to an appeal hearing, which she attended (with Ms Ailes) on 5 October 2006.  Mr Groves presented the case for the College, and Ms Ailes the case for the Claimant.  The appeal panel’s decision was set out in a letter dated 16 October 2006: the panel had considered the arguments, and concluded that the College had properly considered the OH medical evidence, and that a further appointment in September 2006 had not been required.  The panel considered that the Claimant’s wish to remain in teaching, with her continuing sickness absence and the effects of her (unspecified) condition, placed restrictions on the College’s ability to find her alternative employment.  The appeal was not upheld.”

42.	For convenience, we shall deal with the Tribunal’s findings and the grounds of appeal in relation to each area discretely, because they were raised as separate issues.

The Tribunal’s Decision on Disability Discrimination

43.	After directing themselves as to the relevant provisions of the Disability Discrimination Act 1995 (as amended), the Employment Tribunal approached their task by reference to the agreed issues they had earlier identified.  By the time of the hearing the Respondent had conceded that, on the basis of her conditions of plantar fasciitis and fibromyalgia, the Claimant was at all material times a disabled person, as defined in section 1 and schedule 1 to the Act.  She relied only on these conditions in respect of her claims of unlawful discrimination.

44.	Her claims were identified at paragraph 13 as follows: 
“13.1	Unlawful disability discrimination prior to dismissal by the Respondent, refusing a phased return to work (failure to make reasonable adjustments).
  2.	Disability‑related discrimination pursuant to section 3(A)(1) Disability Act 1995 by the dismissal of the Claimant by the Respondent.”

45.	At paragraph 14 the Tribunal listed the issues which fell to be determined in relation to the first of these claims.  They were as follows:
 “14.1	Did the Respondent refuse a phased return to work for the Claimant?
14.2	If so, did that refusal amount to a provision criterion or practice?
14.3	If so, did it place the Claimant at a substantial disadvantage in comparison with non‑disabled persons?
14.4	If so, did the Respondent have the required knowledge about the Claimant as a disabled person?
14.5	If so, did the Respondent take such steps as it was reasonable to take in all the circumstances in order to prevent the provision criterion or practice having that disadvantageous effect? (Section 18B of the 1995 Act)”

46.	These issues accorded with the guidance given by the Employment Appeal Tribunal in the case of Environment Agency v Rowan [2008] IRLR 20.

47.	In relation to the second claim, the issues to be determined were listed at paragraph 15 as follows:
“15.1	For a reason which related to the Claimant’s disability, has the Respondent treated the Claimant less favourably than the Respondent treats (or would treat) others to whom that reason does not (or would not) apply?
15.2	If so, has the Respondent shown that the reason for the treatment is both material to the circumstances of the case and substantial?
15.3	 If so, does the treatment amount to direct discrimination?
15.4	If so, is the Respondent under a duty to make reasonable adjustments?
15.5	If so, has the Respondent failed to comply with that duty?”

48.	 There is no dispute as to the issues that were identified in relation to either DDA claim.

49.	The Tribunal’s conclusions, carefully crafted in relation to both claims, appear at paragraphs 29 to 48, and we consider it is important to set them out in full at this point, rather than to attempt to summarise them:

“29. 	Paragraph 14.1 is, on the face of it, specific in referring to a refusal of a phased return to work, which the Respondent suggests is very limited in scope.  The Tribunal considers that the Claimant has not articulated her claim as clearly as might have been helpful, but takes a less restrictive view of what this issue should be taken to cover.  In reality, the Tribunal considers that the Claimant, if she had returned to work after such an extended absence, probably whilst still not fully fit, would almost inevitably have needed to have ‘phased’ return to work, with accommodation of her difficulties, rather than expecting her to resume all her old duties with no changes at all.  Thus, this label must be taken, in effect, to be a reference to a refusal to find a suitable way of bringing the Claimant back into the workplace at all, such that her disability would not prevent her from being able to work.  Indeed, this is really the heart of the Claim.  The Tribunal considers that there was a refusal of a phased return to work.  
30. 	The Tribunal is satisfied that, logically, the refusal must have amounted to a "provision, criterion or practice", and that it placed her at a substantial disadvantage in comparison with non-disabled persons.  As a result of her disability, she was in a position where her return to work was seen by the Respondent as unusually problematic, such that the College was not prepared to countenance what were assessed by Mr Groves to be unacceptable adjustments  
31. 	The Tribunal considers that the Respondent did have the required knowledge of the disability, and fairly recent information as to the range of symptoms which were, or had been, suffered by the Claimant. There was long-standing knowledge as to plantar fasciitis, which had first contributed to extended sickness absence as early as the beginning of 2005. The diagnosis of fibromyalgia was first brought to the Respondent's attention (by handing in a sick-note) at the meeting on 17 August 2006. It was then explicitly brought to Mr. Groves' attention at the meeting on 7 September 2006, after which he decided to dismiss her. As for the latter, the Tribunal was surprised not to have been provided with recent medical evidence, but notes that the Respondent has agreed that she had this disability at the relevant time. The Tribunal draws the inference from evidence it has received that this diagnosis would have covered a number of the symptoms which she had been suffering for some time, and was therefore significant. The Respondent did have some medical evidence, albeit at the time of dismissal no proper enquiries had been made of the significance of the new diagnosis (and the relevance of the forthcoming surgery) and how this might affect the prognosis, the treatment and how suitable adjustments might be made taking it into account.
32. 	The key issue is the remaining one: whether the Respondent made reasonable adjustments.
33. 	Notwithstanding the background of the initiation (and then the termination) of capability or conduct proceedings against the Claimant, the Tribunal is satisfied that Mr Groves was not part of an insidious move to dispense with the Claimant’s services, come what may. No doubt Mr Groves believed that he was acting even-handedly.  However, the Tribunal considers that the reasoning regarding why adjustments should not be made was significantly flawed.
34. 	The Tribunal is concerned that by the time of the meeting on 7 September 2006, management had already recruited a new lecturer, whose role would, at least in part, be to replace the Claimant (even if not directly).  This would in all likelihood have had some impact, even if inadvertently, in discouraging the Respondent from trying so diligently to find ways to get the Claimant back to work, if her work could more easily be covered in her absence. It would doubtless have had some impact on the advice which Mr Dingsdale gave to Mr Groves; and also goes to undermine the argument, accepted by Mr Groves, that ‘it would be difficult to get someone to cover on a temporary basis until [the Claimant's] possible return in January’. The reality was that adequate cover had already been arranged, and there was no evidence before the Tribunal indicating that after the Claimant was dismissed the College then needed to recruit a new full-time or part-time employee to cover the Claimant's task.
35. 	An obvious adjustment was to accede to the Claimant’s request to delay a decision until the end of term, after a further medical examination, in the hope that she would be fit to return in January 2007, especially if the arguments regarding temporary staff cover were less persuasive than they may at first have appeared. However Dr Weddell's (OH) letter of 18 July 2006 is precisely construed, he was clearly indicating that there were a number of ongoing medical issues and that he should provide a further medical report before the Claimant returned to work. The fact that there was new information about a diagnosis of fibromyalgia and surgery should have made it even clearer that up-to-date medical information was required. The onus is on the employer, not the employee, to consider what adjustments could be made. Mr Groves attached weight to the lack of a clear medical prognosis as to return date, but did not request such a medical report, and refused to countenance an extension to the review period, when the Tribunal considers that such an extension would have been both sensible and easy to accommodate. 
36. 	Although the Respondent's Managing Absence Policy made passing reference to the DDA, it did not spell out how procedures should be modified accordingly. Mr Groves told the Tribunal that he treated the Claimant as a person to whom the DDA applied, but the reality was that he followed the procedure specified for all those returning from sick leave, when the DDA places a rather greater statutory burden on the employer.
37. 	Mr Groves proceeded on the basis that the Claimant would not consider redeployment to another role, whilst acknowledging (rightly) that redeployment was a possible reasonable adjustment. However, in rejecting this, the Tribunal considers that he misunderstood the situation and therefore ruled out an adjustment which might have been easy to make. In fact, no concrete proposals had been put to the Claimant: she had been asked by Mr Dingsdale in the meeting of 13 July what career she wanted to continue with - not unnaturally she stated that she wanted to remain as a lecturer. This is quite different from a temporary change in roles whilst recovering from a chronic illness. Similarly, when subsequently asked about alternative roles, the Claimant did little more than expressing a preference ‑ redeployment was never formally ruled out, and no attempt was made to locate or create a possible role which might suit the Claimant on a short or longer term basis. The Respondent failed to give adequate consideration to assigning the Claimant to other work. Even though, on appeal, the Claimant raised this as an issue, no further consideration was given to what work might be made available.
38. 	Although no medical evidence was sought by the Respondent as to working hours, great weight was attached to some rather general comments by the Claimant as to feeling better in the middle of the day than the early morning and evening.  It was considered by Mr Groves that the Claimant ‘would not take a share of the evening work’ and ‘there could be difficulty with mornings’.  However, the Respondent did not provide any credible evidence that the Claimant would actually need to carry out evening teaching for the courses to which she would likely be assigned, and her previous timetable demonstrates a very variable morning teaching workload. Furthermore, the Claimant never stated that she could not work at certain times, and no attempt was made to discuss how the hours might be adjusted. Similarly, no enquiry was made into the likelihood of such adjustments being anything other than short-term. This is just the sort of adjustment which an employer should be able to accommodate. Notwithstanding time-tabling complications, the Tribunal considers that the Respondent did not go far enough to consider how this adjustment might be accommodated.
39. 	The Respondent's case was that management' of part-time staff was difficult, and they should not have too many such staff. However, there ware already part-time staff working at the College and no objective evidence was provided as to why the Claimant could not work part-time, why this would be problematic, and why the number of part-time staff in her department could not be increased (indeed, no statistics at all were provided). Similarly, if the Respondent was concerned that other staff would be dissatisfied because they had perception that they were having to change their own working arrangements to accommodate a disabled colleague, then this does not amount to a very compelling argument under the DDA. Again, there was no enquiry as to the likely period of such an adjustment. Mr Dingsdale had earlier explained that this was ‘not sustainable in the medium to long term’, but no attempt was made to find out if this was likely to be the necessary time-scale.
40. 	The Tribunal has sympathy for the College's need to provide a suitable learning experience to students, and to avoid disrupting their teaching as far as practicable. However, this does not amount to sufficient reason, either alone or in combination with other factors, not to attempt to make the necessary time-tabling changes, or to seek alterative work for the Claimant with which she would better be able to cope. Indeed, the Claimant had been covered by others throughout her absence during the previous academic year, even if such cover might not have been ideal. Mr Groves should have challenged the advice he had received, and have placed greater emphasis on considering how the College could best discharge is duties under the DDA with respect to the Claimant, when considering the balance of administrative inconvenience.
41. 	There is, perhaps, a rather legalistic point (which was not taken by Mr Salter) that most of the potentially reasonable adjustments had not yet arisen as issues because the Claimant was still on sick leave at the time of dismissal. However, the Tribunal considers that an alternative way of looking at the issue would be to conclude that the failure was in the nature of failing properly to plan what adjustment could be made in the near future, including (and in particular) extending the review period, during the process of deciding whether or not the Claimant should be dismissed.
42. 	Overall, the procedures followed did not take sufficient account of the DDA, and all the necessary steps to consider reasonable adjustments were not made. The Tribunal concludes that the Respondent, in June to September 2006, discriminated against the Claimant by failing to make reasonable adjustments. It was therefore in breach of its duties under Section 4A of the DDA. 
Less Favourable treatment
43. 	The less favourable treatment complained of is the Claimant's dismissal.  This is, however, a case where it is difficult to disentangle the failure to make reasonable adjustments from the decision to dismiss. In short, the Claimant was dismissed because Mr Groves considered that the alternatives to dismissal involved making unacceptable adjustments, and the only third way was ill-health retirement, for which she did not meet the stringent criteria.
44. 	Considering the issues set out at Paragraph 15, above, the Tribunal considers that it is self-evident that the Claimant was treated less favourably than others would be.  Mr Salter submitted (correctly) that she was dismissed because of long-term sickness. However, this is an incomplete explanation. He also suggested that there was no direct evidence that the sickness was related to the Claimant's admitted disabilities, and that the Claimant had failed to discharge the burden of proof. Whilst the tribunal understands this argument, it notes that the Claimant has been unrepresented in presenting her case, and notes that the Respondent has admitted that the Claimant was a disabled person at the material time. The Tribunal considers that the evidence as a whole, including what limited medical evidence is available, is sufficient that the strong inference should be drawn that plantar fasciitis and fibromyalgia contributed to the sickness absence at the time of dismissal. The Tribunal concludes that the Claimant was treated less favourably for a reason which related to her disability.
45. 	The main issue is whether the Respondent's treatment of the Claimant is justified. The Tribunal considers that this is similar to the reasonable adjustments issue.  The dismissal was material in the sense that it occurred because the Respondent was concerned by the long period of sickness absence and the apparent difficulties of managing the Claimant's return to work and its impact on the teaching of students.  However, the Tribunal that the materiality was significantly limited by the failure to obtain proper up-to-date medical information before the decision to dismiss was taken, or to give proper consideration to how dismissal might be avoided.  The Tribunal also considers that the Respondent's reasons were not substantial: in all the circumstances the Respondent placed too much weight on factors which could have been managed better or which were incompletely analysed.
46. 	The Tribunal considers that there is no basis for arguing that the treatment was direct discrimination (which has not been argued, in any event), and agrees with the Respondent that it was not.
47. 	As for reasonable adjustment, it is axiomatic that the Respondent was under a duty: the question is whether there was a failure to comply with that duty. That question has already been answered in the affirmative. The Tribunal would also observe that even if it had accepted the Respondent's restrictive interpretation of the ‘reasonable adjustment issue’ set out at paragraph 14.1 above (with respect to Section 4A DDA), when considering reasonable adjustments again generally in assessing whether there was discrimination under Section 3A., it does not consider that such a restrictive interpretation could be given at this stage.
48. 	The Tribunal concludes that the Respondent, on 7 September 2006, discriminated against the Claimant by dismissing her in breach of its duties under Section 3A of the DDA.”

The Appeal
Reasonable Adjustments
50.	This ground, Mr Salter submitted, was really the key point in this appeal.

51.	Mr Salter accepts the Tribunal’s findings that the refusal of a phased return to work, which was conceded, amounted to a provision, criterion or practice, and that the Respondent had knowledge of the Claimant’s disability.  

52.	In his oral submissions he sought at the outset to suggest that the Tribunal might have confused the Respondent’s refusal to permit a phased return with the failure to consider postponing the matter before deciding whether or not to refuse.  This, he suggested, would affect the nature of the comparative exercise to be undertaken.  He fairly accepted however that the issues had been agreed and identified at paragraph 14 and that the provision, criterion or practice identified, and which the Tribunal were here addressing, was the refusal itself.  He therefore pursued this matter no further.  Mr Salter is really taking issue with the points at 14.3 and 14.5 in this case.

53.	He submits, firstly, that there was no consideration given by this Tribunal to the comparative exercise required by issue 14.3, as the EAT had explained in Environment Agency v Rowan.  The duty to make reasonable adjustments, he contends, is not a general duty to make such adjustments as are reasonable in all the circumstances.  It is, rather, a more limited duty, namely a duty to take such steps as are reasonable in these particular circumstances, namely, steps required in order to prevent the provision, criterion or practice from having a discriminatory effect, that is, placing the disabled person at a substantial disadvantage by comparison with persons who are not disabled.

54.	In this case Mr Salter submits that the Tribunal simply did not engage with the necessary comparison with a non‑disabled comparator, notwithstanding the fact that Mr Groves had given evidence that another or maybe other employees had previously been dismissed after a nine‑month period of absence.  Instead, he submits, the Tribunal moved straight from knowledge at paragraph 31 of the Reasons to what they describe as the key issue, that is, the remaining issue of whether or not the Respondent made reasonable adjustments.

55.	In Environment Agency v Rowan the Employment Appeal Tribunal set out at paragraph 27 the basic elements of a reasonable adjustments claim as follows:

“In our opinion an Employment Tribunal considering a claim that an employer has discriminated against an employee pursuant to Section 3A(2) of the Act by failing to comply with the Section 4A duty must identify:
(a) the provision, criterion or practice applied by or on behalf of an employer, or 
(b) the physical feature of premises occupied by the employer, 
(c) the identity of non-disabled comparators (where appropriate) and
(d) the nature and extent of the substantial disadvantage suffered by the Claimant. It should be borne in mind that identification of the substantial disadvantage suffered by the Claimant may involve a consideration of the cumulative effect of both the 'provision, criterion or practice applied by or on behalf of an employer' and the, 'physical feature of premises' so it would be necessary to look at the overall picture.
In our opinion an Employment Tribunal cannot properly make findings of a failure to make reasonable adjustments under Sections 3A(2) and 4A(1) without going through that process. Unless the Employment Tribunal has identified the four matters we have set out above it cannot go on to judge if any proposed adjustment is reasonable. It is simply unable to say what adjustments were reasonable to prevent the provision, criterion or practice, or feature, placing the disabled person concerned at a substantial disadvantage.”

56.	We agree with Mr Dyal that the key words at paragraph (c) in this context are those which appear in brackets, whereby an Employment Tribunal is enjoined to specify the identity of non‑disabled comparators where it is appropriate to do so.  The addition of these words gives a clear indication of the Employment Appeal Tribunal’s recognition that it may not always be necessary to identify the non‑disabled comparators.  In our judgment they were right so to recognise.  In many cases the facts will speak for themselves and the identity of the non‑disabled comparators will be clearly discernible from the provision, criterion or practice found to be in play.

57.	Mr Dyal drew attention to the observation of the Court of Appeal in Smith v Churchill Stairlifts Plc [2006] 1 ICR 524 at 538, where Maurice Kay LJ said as follows at paragraph 40:
“Mr Lissack is right to submit that it is apparent from each of the speeches in Archibald that the proper comparator is readily identified by reference to the disadvantage caused by the relevant arrangements.”

That of course is a reference to the case of Archibald v Fife [2004] ICR 954.  In this way, the more general comparative exercise required in a reasonable adjustments claim, involving a class or group of non‑disabled comparators, differs from that which is understood and applied in the individual, like‑for‑like comparison required in cases of direct sex or race discrimination or in disability‑related discrimination claims.  

58.	We agree with Mr Dyal that, for this reason, Mr Salter’s reference to evidence as to another employee dismissed after a nine‑month absence is misplaced.  Such a like‑for‑like comparison has no place in a disability discrimination reasonable adjustments complaint, as is clear from the case of Archibald v Fife.  It was not therefore necessary for this Claimant to satisfy the Tribunal that someone who did not have a disability but whose circumstances were otherwise the same as hers would have been treated differently.  To hold otherwise, in our judgment, would defeat the purpose of the Disability Discrimination legislation.

59.	In the present case the provision, criterion or practice identified by the Tribunal was the Respondent’s refusal to permit this Claimant to have a phased return to work.  That meant, in this case, that it required her to return and to resume her work without a phased return.  It is entirely clear from this that the comparator group is other employees of the Respondent who are not disabled and who are able forthwith to attend work and to carry out the essential tasks required of them in their post.  Members of that group are not liable to be dismissed on grounds of disability, whereas because of her disability the Claimant could not do her job, could not comply with that criterion and was liable to dismissal.  This, in our view, was effectively what the Tribunal was saying at paragraph 30 when they found that this Claimant was, as a result of her disability:

“in a position where her return to work was seen by the respondent as unusually problematic, such that the College was not prepared to countenance what were assessed by Mr Groves to be unacceptable adjustments.”

She was thereby placed at a substantial disadvantage in comparison with other, non‑disabled employees.  We consider therefore that there is no error of law in the Tribunal’s reasoning in relation to the reasonable adjustments claim, and the necessary comparative exercise.

60.	Mr Salter’s submission, in the alternative, is that the Tribunal’s finding that the Respondent failed to make reasonable adjustments prior to the Claimant’s dismissal, that is issue 14.5, was perverse in light of the Tribunal’s findings of fact.  He refers, for this submission, to the fact that the Claimant was unfit to attend work from the start of February 2006 and was signed off by her GP for four weeks on 9 June 2006; that the OH report obtained on 16 June 2006 confirmed the Claimant was not fit to return to work for six weeks; that on 18 July 2006 the second OH report suggested the Respondent might be able to consider a phased return to work in September 2006; that on 14 August 2006 the Claimant’s GP signed her off work for a further six weeks, referring to possible fibromyalgia; that at the meeting on 17 August 2006 the Claimant requested that the decision about a phased return to work be delayed until January 2007; and it was later suggested that the issue of a phased return to work should be considered in late 2006 or early 2007.

61.	Mr Salter submits that the Tribunal seem to have found that the Respondent failed to adapt its absence policy and that this would have been a reasonable adjustment, yet this was not the Claimant’s case.

62.	This recitation of events, in our view, does not begin to undermine the Employment Tribunal’s conclusions as to reasonable adjustments.  They amount, effectively, to no more than a chronology of the Claimant’s absences from work, and of the medical opinions being proffered as to diagnosis and her fitness to return to work.  Mr Salter comes nowhere near the threshold that he must cross under this head of challenge.  A ground of appeal based on perversity ought only to succeed where an overwhelming case is made out that the Tribunal reached a decision which no reasonable Tribunal, on a proper appreciation of the evidence and the law would have reached; see Yeboah v Crofton [2002] IRLR 634.  We note that Mr Salter did not pursue the perversity argument orally, preferring to leave the matter to be dealt with as set out in the skeleton argument.

63.	In our view, given the factual findings which we have already set out extensively, the Tribunal’s conclusions as to reasonable adjustments were clearly conclusions that they were entitled to come to, for the reasons that they carefully explained at paragraphs 32 to 42.  There is no express finding as to the necessity for the Respondent to adapt its absence policy, and in our view no finding which could reasonably be interpreted as implying such a finding.  No notes of evidence have been sought or obtained by the Respondent in order for this ground to be developed.

64.	We reject without hesitation the suggestion that the Tribunal’s decision on the reasonable adjustments claim could be said to be perverse.

Disability-Related Discrimination
65.	Mr Salter accepts that the Tribunal clearly had in mind the issues identified at paragraph 15 when considering their decision.  His submission, however, is that there is no consideration by them of the treatment of a person who is not disabled, whether that be a named or a hypothetical comparator.  The Tribunal states simply that it is “self evident that the claimant was treated less favourably than others would be” without then explaining how they arrived at this finding.  The non‑disabled comparator should have been constructed and explained in accordance with the clarification of the law provided recently by the House of Lords in London Borough of Lewisham v Malcolm [2008] IRLR 700, which applies equally to claims brought before employment tribunals; see the Employment Appeal Tribunal decisions in Child Support Agency v Truman UKEAT/0293/08 and Stockton on Tees Borough Council v Aylott UKEAT/0401/08.  In failing to carry out this exercise, Mr Salter submits that the Tribunal erred in law.

66.	This is not a straightforward issue.  Mr Dyal rightly accepts that the Tribunal did not consider a non‑disabled comparator in accordance with the clarification given in The London Borough of Lewisham v Malcolm.  This is not surprising since they decided this case before the House of Lords decided the Malcolm case.  Mr Dyal reserves his position in that regard in relation to any further appeal, where he would wish to argue that the proper comparator in a claim of disability‑related discrimination is that identified by the Court of Appeal in Clark v Novocold Ltd [1999] ICR 951.

67.	For the present, however, this appeal Tribunal is obliged to apply the law as it is declared to be in Malcolm.  In the normal course of events, the Tribunal not having directed themselves correctly, the appeal would be allowed and the case would have to be remitted to be determined in accordance with the correct direction. 

68.	The question that arises however is whether it is necessary for the matter to be remitted in this case.  The answer to that point in the present appeal lies, in our view, in the Tribunal’s observation at paragraph 43 that: “This is a case where it is difficult to disentangle the failure to make reasonable adjustments from the decision to dismiss”.  Indeed, we would say that it is impossible to disentangle them.  This Claimant was dismissed, as the Tribunal point out, because Mr Groves considered that the alternatives to dismissal involved making adjustments which he considered were unacceptable.

69.	We accept Mr Dyal’s submission that the Tribunal’s finding on this issue therefore adds nothing in this case.  The dismissal was itself an unlawful act of disability discrimination by reason of the failure to make reasonable adjustments.

70.	Under the previous legislation section 6 was couched in far more restrictive terms, as the Court of Appeal recognised in Clark v Novocold Ltd, see paragraphs 960 and 965, and it did not extend to dismissal.  That changed in 2004 with the arrival of the new section 4A where the duty to make reasonable adjustments is now unqualified.  This is also reflected in paragraph 5.5 of the DRC Code of Practice.  A dismissal can therefore itself be an unlawful act of discrimination by reason of a failure to make reasonable adjustments.

71.	In this case therefore we accept Mr Dyal’s submission that this Claimant’s dismissal was tainted by the failure to make reasonable adjustments, and was itself an unlawful act.  Instead of making those adjustments the Respondent chose to dismiss her.  It is the recognition of this, inevitable state of affairs on the facts of this case that led the Tribunal to regard it as self‑evident that the Claimant was treated less favourably than others.  

72.	We note also paragraphs 30 and 40 of the Remedies Judgment, where the Tribunal refer again to the fact that the failure to make reasonable adjustments and dismissal are, in this case, inextricably linked.

73.	Given the failure to make reasonable adjustments, the dismissal was therefore an unlawful act of disability discrimination, and the losses incurred by the Claimant all flow from the failure to make reasonable adjustments.  The Tribunal recognised this expressly at paragraph 43, and in this sense too, the disability‑related discrimination claim added nothing of substance to the case.

74.	For these reasons, the failure to carry out the comparator exercise identified in London Borough of Lewisham v Malcolm has no impact in the particular circumstances identified by the Tribunal.

75.	For the reasons we have given, even if we were wrong that the dismissal itself amounts to an unlawful act of disability discrimination, it was clearly a different type of detriment, as Mr Dyal pointed out, and the losses that flow from that are identical, see Clark v Novocold Ltd at paragraph 966.

76.	Mr Salter’s alternative submission in relation to disability‑related discrimination is that the Tribunal’s decision to reject the Respondent’s claim that the Claimant’s dismissal was justified was a perverse decision.  Even in his skeleton argument, however, he does not advance this submission with any enthusiasm, and it is dealt with in just one short paragraph, where the chronology of absences from work for the Claimant is once again referred to.

77.	Once again, we reject this submission without hesitation.  The Tribunal’s decision and reasoning in relation to justification is, in our view, unimpeachable.  They were entitled to conclude, as they clearly did, that the Respondent’s failure to make reasonable adjustments here really put an end to any prospect of justifying their treatment of the Claimant.

78.	For all these reasons, therefore, we find in favour of the Claimant in relation to both the issues raised in these claims on appeal.

The Tribunal’s Decision on Unfair Dismissal

79.	The Respondent conceded that the Claimant was dismissed.  The issues to be determined were therefore those set out at paragraph 16 of the decision:

 “16.1	Has the Respondent proved that the reason for the Claimant’s dismissal was capability pursuant to Section 98(1) and (2)(a) Employment Rights Act 1996?
16.2 	If so, was the decision to dismiss fair within the meaning of Section 98(4) of the 1996 Act? 
16.3 	Was the dismissal automatically unfair pursuant to Section 98A of the 1996 Act on the ground that there was a failure by the Respondent to comply with one or more requirements of the statutory dismissal and disciplinary procedures (as alleged by the Claimant on page 12 of her claim form)?”

80.	It is not in dispute that the Tribunal directed themselves correctly at paragraphs 49 to 51 as to the relevant legal principles which apply to both traditional unfair dismissal, as the Tribunal described it, including the defence afforded to the Respondent under section 98A(2); and to automatically unfair dismissal (breach of the statutory procedures).

81.	In relation to automatically unfair dismissal, the Claimant asserted in her ET1 that the respondent was in breach of the Dismissal and Disciplinary Procedures, although she also referred to the meeting held on 31 January 2006.  The Respondent submitted that the procedures were fully complied with.

82.	At paragraph 53 the Tribunal held as follows in relation to those procedures:

“53. 	The Tribunal has no hesitation in concluding that the only relevant procedures were those in the run-up to dismissal (although the aborted investigation commenced in January 2006 had in fact been correctly started).  The Tribunal is satisfied that after legitimate investigatory meetings in July and August 2006, the Respondent complied with the requirements of Step 1 of the DDP set out in Schedule 2 to the Employment Act 2002 by sending the Claimant a letter on 29 August 2006.  This letter (following detailed earlier discussions and giving the Claimant other relevant documents) ensured that the Claimant had sufficient information before the Step 2 meeting.  The Tribunal is satisfied that the meeting of 7 September 2006 complied with the statutory requirements as to Step 2.  The Step 3 appeal also complied with the statutory requirements.”

They therefore had no hesitation in dismissing the unfair dismissal claim under section 98A(1).  They also considered that there was no evidential basis for concluding that there was any breach of the statutory grievance procedures.  Thus no awards found to be payable fell to be adjusted under section 31 of the Employment Act 2002.

83.	In relation to the claim for traditional unfair dismissal, the Tribunal held as follows at paragraphs 56 to 60:

“Unfair Dismissal (Section 98 Employment Rights Act 1996)
56. 	The Tribunal is satisfied that the effective date of termination was 7 September 2006, the date that the dismissal (which was to take immediate effect) was communicated to the Claimant.
57.	The Claimant wondered if perhaps the reason for dismissal was redundancy, but the Tribunal considers that the evidence does not support such a conclusion. The burden of proof is on the Respondent, which argues that the reason was clearly capability, in the sense that the Claimant was on long-term sick leave and unable at the time of dismissal to carry out the job she was employed to perform. The Tribunal agrees, noting that although this is a potentially fair reason it is not inconsistent with the Tribunal's findings as to disability discrimination.
58. The Tribunal considers that It is not impossible for a discriminatory dismissal to nevertheless be fair for the purposes of the Employment Rights Act, which employs a. different test, However, on the facts of the case, and in the light of the Respondent's failure to consider the factual issues and the reasonable adjustments in any adequate way, the Tribunal considers that the dismissal undoubtedly fell outside the band of reasonable responses. The Respondent was of a size, with the administrative resources at its disposal, whereby it should have been able to conduct a proper investigation into all the issues and better considered what adjustments would enable the College to avoid a dismissal. The failure to conduct a proper investigation into factors which Mr Groves knew might militate against a dismissal, and to provide a properly logical approach to the decision-making process, rendered the dismissal procedurally and substantively unfair. This is not really a BHS v Burchell case, but the approach is similar: there was a need to conduct an investigation into the facts, both regarding the precise nature and prognosis of the medical conditions, and of what measures might avoid the need to dismiss. In both respects, there had not been as much investigation into the matter as was reasonable in the circumstances. A reasonable employer would not have dismissed.  Dismissal was not within the band of reasonable responses. 
59.	The appeal may have been procedurally fair, but failed to engage with the issues adequately and merely perpetuated the flawed decision-making of the original decision to dismiss.
60.	The Tribunal has considered Section 98A(2), but considers that the flaws went beyond a failure to follow a procedure, and that the Respondent cannot avail itself of this defence.”

The Appeal

84.	Mr Salter submits first that, given the Tribunal’s clear finding “without hesitation” as they expressed it, “that the statutory procedures had been complied with in this case”, the Tribunal then fail adequately to explain the finding at paragraph 60 that the flaws they identified “went beyond a failure to follow a procedure” and therefore to reject section 98A(2) defence.  The flaws identified, namely a failure adequately to consider the factual issues and the reasonable adjustments; a failure to conduct a proper investigation; and a failure to provide a properly logical approach to the decision‑making process, do not themselves indicate that they went beyond a failure to follow a procedure.  The Respondent did not specifically address this in their submissions.

85.	His second submission, although it was not clearly expressed as such in the skeleton argument, is that the decision that dismissal was outside the band of reasonable responses was perverse, given the findings of fact as to the Claimant’s length of absence from work and her inability to confirm even that she could return in January 2007.  Mr Salter refers once again to the chronology of events relied on in relation to the earlier perversity challenges.  

86.	This second ground of challenge we can deal with very shortly.  For the same reasons we have given previously, the criticisms made come nowhere near to establishing legal perversity.  This seems to us to be an attempt to reargue the facts and we reject it.  The Tribunal were clearly entitled to conclude as they did on the evidence they heard.

87.	In relation to the section 98A(2) submission, it is clear from paragraph 58 that the Tribunal considered the Claimant’s dismissal to be both procedurally and substantively unfair, because the whole approach of the Respondent to the process was fundamentally flawed.  These flaws were essentially the refusal to make what the Tribunal found to be reasonable adjustments and the failure to enquire further into the nature of and prognosis for the Claimant’s medical condition.

88.	We accept that the criticisms in paragraph 58 are expressed succinctly, but the essential findings which underpin their decision on unfair dismissal had already been dealt with in detail earlier on in the judgment.  These flaws, as the Tribunal explained, went far beyond a failure by the Respondent merely to follow a procedure, going right to the heart of the decision‑making process.  They were therefore entitled to conclude that the Respondent could not avail themselves of the statutory defence.

89.	In relation to the suggestion that no submissions were sought from the Respondent on this point, the answer is that section 98A(2) was clearly in play, and it was of course open to the Respondent to call such evidence and make whatever submissions they wished in relation to it.

90.	In our view, therefore, no error of law has been demonstrated in the Tribunal’s decision on unfair dismissal.

The Tribunal’s Decision on Breach of Contract

91.	The issues for determination were set out at paragraph 17 of the Reasons as follows:
 “17.1	Was the Claimant contractually entitled to 50 days holiday per year? 
17.2 	If so, was the Respondent in breach of contract in preventing the Claimant from taking more than fourteen days holiday in the holiday year 1st September 2005 to 31st August 2006?
17.3	If so, what amount of damages is the Claimant entitled to in respect of 36 days untaken holiday entitlement for that holiday year?”

Their decision on the submissions advanced on these matters appears at paragraphs 61 to 64 of the decision, which are as follows:

“Breach of Contract – Holiday Pay
61. 	The Claimant submitted that she was prevented from taking her full holiday entitlement, and that in so doing the Respondent was in breach of contract. The Respondent agreed that there was a contractual entitlement to 50 days paid holiday per year (plus 8 bank holidays), but denies the breach of contract. It was submitted by Mr Salter at the end of the hearing (or at least that is the Tribunal's understanding of the main thrust of his submissions) that the claim could only be brought under the Working Time Regulations (WTRs), but that in any event there was no breach of contract - if the contract was silent, the principles underlying the WTRs should be applied. The Tribunal was referred to Commissioners of Inland Revenue v Ainsworth [2005] EWCA Civ 441 and the Opinion of the Advocate General in C Stringer (and others) v Her Majesty's Revenue and Customs C-520/06 delivered 24 January 2008.
62.	 In the first place, the Tribunal considers that there are no express terms of the contract (as set out in the contract of employment itself, and in the Collective Agreement) capable of being interpreted as indicating that an employee on sick leave is not permitted to take paid annual leave until after returning from sick leave. The Tribunal does not consider that this is implicit, that there is evidence of custom and practice modifying the contract, or any oral variation of the contract. The fact that Ms Hinton did not consider that this was permitted is not indicative of anything other than her belief - the Tribunal was provided with no rational basis for this belief. The Tribunal considers that the contract can, logically and sensibly, only be interpreted as indicating that there is an entitlement for all employees to have the amount of paid leave referred to above.  Paragraph 5.5 of the contract does, however, provide that leave will be forfeited when there is ‘failure to take leave entitlement in the appropriate leave year’.
63. 	The Tribunal has no hesitation including that there was no ‘failure’ by the Claimant to take outstanding leave before 31August 2006. That she was off sick was not a ‘failure’ by her, and within the terms of the contract this should not have affected her leave.  She had 25 days booked already for the summer vacation period, but the Respondent unilaterally, and against her express wishes, cancelled that leave, and prevented her from taking any further leave, despite her wish to do so.  Although the timing of leave is subject to the agreement of the line-manager (contract, paragraph 5.2), it is implicit that the line-manager had already agreed to the dates, which were cancelled by Ms Hinton, with no evidence as to the line-manager's involvement. In any event, the Tribunal cannot see how any line-manager could conceivably not consent to leave being taken at a time when an employee was not available for carrying out her duties as an employee.
64. 	The Tribunal is satisfied that the Respondent was in breach of contract in preventing the Claimant from taking more than fourteen days’ holiday (plus any paid bank holidays which had been taken) in the leave year 1 September 2005 to 31 August 2006.  It therefore follows that the balance of outstanding holiday (and hence holiday pay) remained outstanding under the contract of employment at termination.”

92.	The Tribunal rejected the Working Time Regulations point in paragraphs 65 to 67, and it is not resurrected, in our view wisely, before us.  There is therefore no need for us to refer to this aspect of the decision.

The Appeal

93.	Mr Salter’s submission relates to the finding that the Respondent was in breach of contract by preventing the Claimant from taking paid annual leave whilst away from work unwell and on sick pay.  It is a short point.

94.	Given that the Tribunal found that there was no express term in the contract permitting her to take such holiday, he submits that the Tribunal effectively and erroneously reversed the burden of proof in requiring the Respondent to prove that such a term was not implied into the contract.  They did so despite finding as a fact that this term was not expressly incorporated into the contract and when there was no evidential basis for such a finding.  The only evidence they heard on this point was from Ms Hinton, which they clearly disregarded.

95.	This analysis, however, in our judgment amounts to a misreading of the Tribunal’s reasoning.  We prefer to adopt Mr Dyal’s analysis.  There was, firstly, a finding that it was an express term of the contract that the Claimant was entitled to 50 days of paid leave per year together with 8 bank holidays.  The Respondent agreed that this was the case, as is clear from paragraph 61 of the Reasons.

96.	The Tribunal then looked to see if there was any reason why those paid leave days could not be claimed by an employee who was on sickness absence, pursuant to that express term.  They found as a fact that there was no express or implied term of the contract to that effect.  That, in our view, was a conclusion which they were entitled to reach, and they did not place a burden on the Respondent to show that no such term existed.  The reference to Ms Hinton’s evidence should be considered in the context of the Tribunal referring to it only as an expression of her belief as to the position, and they were clearly entitled to have regard to that factor in analysing the matter.  They clearly did have regard to what she had said and did not find it helpful, and they rejected it for the reasons that they gave at paragraph 62.

97.	This is exactly the sort of exercise that employment tribunals are required to carry out and, in our judgment, the Respondent’s criticisms are misplaced.  

98.	For the reasons that we have given, therefore, this ground of appeal fails.  That concludes the appeal relating to the liability judgment.

The Remedies Appeal

99.	The Remedies Hearing was eventually held on 13 November 2008 after some delays, which are explained in the judgment promulgated on 15 December 2008.  One of the original Tribunal members had been taken ill and was replaced by another lay member, but no issue arises as to that.

100.	The Claimant was still in person and Mr Salter was representing the Respondent.

101.	Mr Salter fairly concedes that he had a somewhat unhappy time before the Tribunal on this occasion, and there were clearly a number of disagreements which are referred to in the Reasons.  

102.	In view of the limited range of the grounds of appeal, however, it is unnecessary for us to refer to those issues, and we will therefore concentrate on these matters to which the grounds of appeal relate.

103.	The first point to note is that the Respondent’s witness, Ms Hinton, the HR manager, had become unwell and was unable to attend the hearing.  A witness statement from her, although unsigned, was however before the Tribunal.

104.	The Claimant had produced an updated schedule of loss and medical report, and the Respondent had produced a bundle of relevant documents.  No counter‑schedule had been provided, and no skeleton argument, despite these documents having been ordered previously, a fact which the Tribunal refer to in observing that the Respondent had not offered the assistance which the Tribunal considered appropriate in relation to assessing compensation for this Claimant.

105.	At the outset, Mr Salter applied for an adjournment.  He did so on two grounds, namely, the fact that a preliminary hearing in respect of the liability appeal had been set by the Employment Appeal Tribunal for 12 December; and the absence of the witness, Ms Hinton.

106.	The Tribunal set out in full at paragraphs 8-14 of their judgment their reasons for refusing the adjournment as follows:

“Respondent’s adjournment application:
8. 	Mr Salter applied for an adjournment, on the basis, firstly, of Ms Hinton's illness, and secondly that an EAT preliminary hearing had been set for 12 December. He referred to the case of City & County of Swansea v Mr R M Honey [2008] UKEAT/0030/08/RN, UKEAT/0549/07/RN & UKEAT/0029/08/RN and handed up copies of the judgment; he relied on paragraph 36 to support his arguments. He suggested that the adjournment would cause no unfairness to the claimant. He submitted that it was highly likely that the appeal (probably to be heard in March or April'2009) would be successful and that the respondent would be prejudiced by Ms Hinton's absence. On the latter point, the tribunal investigated which parts of Ms Hinton's evidence was in dispute, and discovered that there was very little, if any, relevant to remedy that the appellant wished to challenge. Mr Salter then suggested that as the statement had not been signed, it might not be a witness statement at all. He suggested that the remedy could only be challenged by way of further appeal unless the tribunal would allow an out-of-time review, adding to the respondent's costs. The application was resisted by the claimant, who stated that she was ready to proceed and did not want to delay further.
9. 	The tribunal adjourned to consider its decision on the application. When the hearing resumed, the Employment Judge announced that the application had been refused. The reasons, which were explained at the hearing, were as follows: The tribunal had considered its discretion within the terms of, the overriding 'objective to deal with the case justly, but had decided that it was in the interests of justice to proceed with the case expeditiously, as previously ordered. This was already an old case when liability was decided in the Claimant's favour in March 2008, and the remedy hearing had already been adjourned once due to the respondent's failure to comply with the initial order. In the further order of 25 June 2008, the parties had been warned that no, 'further postponement would be, granted unless there were exceptional unforeseen circumstances (paragraph A5) and at paragraph B5 reference had been made to the tribunal's letter of 9 June 2008, which had reminded the parties that the Tribunal expected full compliance with its order.
10. 	The Tribunal had considered Ms Hinton's sickness, but considered that in reality her evidence could take matters very little further, and that little of any significance in her statement appeared to be in dispute. Ms Hinton, an HR professional, had given sworn evidence at the liability hearing and in the circumstances the tribunal was happy to receive an unsigned witness statement which had clearly been prepared by the respondent's solicitors on the basis of taking a proof of evidence from her: there was no suggestion that the statement was in draft. The Tribunal was well able to decide what weight to give this evidence. 
11. 	The Tribunal had considered Swansea v Honey, but did not find that it assisted Mr Salter's submissions. Paragraph 36 (which is in any event obiter) refers to facts of that particular case, where a tribunal was criticised for not adjourning a remedy hearing when there had been a review application based on “a clear case of apparent bias”. It is not considered that this point is of more general application to postponing remedy hearings when there has been an application to the EAT on a point of law unrelated to bias.
12. 	As for adjournment or postponement not causing unfairness to the claimant, the tribunal disagreed. The claimant had resisted the application, was ready to proceed, and had a legitimate expectation of the hearing going ahead, rather than the tribunal’s judgment on remedy being delayed yet further and having to return for a further remedy hearing.
13. 	As for the application to the EAT, this was not sufficient reason to adjourn, in the face of the strong reasons to proceed. , There were various possible outcomes arising from the preliminary hearing at the EAT. If the matter proceeded to a full hearing in 2009, this was not likely to be before March or April, and might be later. It would be open to the respondent to apply to join any appeal against remedy. .
14. 	As for cost to the respondent, the Tribunal noted that one possibility arising from the EAT application could be that the respondent would face extra costs in the future in challenging any remedy finding, but that did not necessarily follow, and did, not justify an adjournment which might be well into 2009. It could be presumed that the tribunal would be able to deal appropriately with any developments which might occur, consequent upon the EAT hearing.  As far as the costs of today were concerned, the parties were in any event present for the remedy hearing and ready to proceed.” 

107.	The first ground of appeal is that the Tribunal erred in refusing the application to adjourn, and we shall return to that in due course.  

108.	The second point of note relates to the award for injury to feelings.  The Claimant’s witness statement did not deal with the matter of injury to feelings.  When she began to address this issue in her oral evidence, she had with her some handwritten notes.  Mr Salter objected both to her use of notes that he had not seen and indeed to any evidence being called in respect of injury to feelings, since the Claimant had not dealt with it in her witness statement as previously ordered to do so by the Tribunal.

109.	After considering the matter, the Tribunal decided on the following course of action set out at paragraph 20:

“When the parties were called back in, the Employment Judge announced that the tribunal had decided that it was prepared for the claimant to give oral evidence regarding any injury to feelings, but that it would not permit her to read out her notes whilst giving evidence.  It was not in the interests of justice to allow a witness to give sworn evidence by reading out notes relating to a matter which should be within her knowledge, and she had previously been able to give oral evidence without demonstrating any significant memory problems.  The matter of injury to feelings had been identified as early as 29 February 2008 and reflected in the tribunal’s orders of 20 March 2008 and 25June 2008, and reference to injury to feelings had been made in the claimant’s schedule of loss.  The respondent would have been expecting evidence to be called regarding injury to feelings.  The claimant was unrepresented, and under the overriding objective it was in the interests of justice to allow her to call evidence on what both parties had agreed was an issue in the case.  Although this should have been contained within her witness statement, this was a comparatively minor breach of the tribunal’s order.  The Employment Judge pointed out that it would [be] open to Mr Salter to make submissions, in due course, as to the weight to be attached to this evidence.”

110.	After hearing the evidence, the Tribunal found as a fact (see paragraph 27.3) that the Claimant’s feelings were injured by the respondent’s discrimination.  Their findings as to the award of injury to feelings appear at paragraphs 30 to 35:

“Injury to feelings:

30. 	The discriminatory acts, started at the meeting of 13 July 2006, when Mr Dingsdale indicated an unwillingness to accommodate the claimant's suggested amendments, and continued at the further meeting on 17 August 2006, when Mr Dingsdale decided to reject arranging for adjustments himself, and referred the appellant's case to the Principal, with a recommendation for dismissal (see the reasons for the liability judgment). The main discriminatory act was the decision to dismiss on 7 September 2006, which also involved a decision not to make adjustments. Thus the discrimination was spread over a period of several weeks, albeit the earlier meetings were comparatively minor, more in the way of background to the main act, However, the earlier acts were not without some significance, as the Principal’s decision clearly gave considerable weight to the recommendations and reasoning provided' by Mr Dingsdale, as the relevant Director.
31. The tribunal does not consider that the claimant's evidence of injury to feelings is particularly strong, and has carefully considered Mr Salter's submissions on the point. The claimant was given the opportunity to provide clear evidence, and what was provided remained a little opaque. The tribunal has also noted that the claimant has repeatedly referred to earlier incidents, pre-dating by many months the events which the tribunal has ruled are relevant to, her successful DDA claim. The tribunal has ignored all such irrelevant evidence and submissions by the claimant, which are not capable of amounting to injury to feelings for the purposes of this claim.  
32.	However, the claimant stated in oral evidence, “My confidence has been completely shattered by their actions”.  When the Employment Judge asked her to clarify which actions she was referring to, she replied, “Making it impossible to continue and then dismissing me”. The tribunal is satisfied that this was a reference to the discriminatory acts. The tribunal also sees this in the context of her existing fragile mental and physical condition, and the evidence given throughout both liability and remedy hearing which made it clear that she was, and remains, upset by the way she has been treated.  Although the tribunal has not taken the medical report of 19 September 2008 to comprise direct evidence of injury to feelings, it is certainly consistent with a conclusion that feelings were injured. Although Mr Salter suggested that the medical evidence was not relevant, because it was clear that the claimant was already suffering from pre-existing conditions, rather than these being triggered by the respondent's acts, the Tribunal considers that this is putting it too strongly. The Tribunal notes that in its penultimate paragraph, the medical report states that, 
‘Mrs Walters became very stressed with the situation at work which affected her both mentally, worsening her anxiety and depression, and physically, causing difficulty to control her blood pressure. The work cloud also significantly increased the pain of her fibromyalgia.*"
(*It should be noted that fibromyalgia was not diagnosed until 14 August 2006.)
33.	The Tribunal considers that, as a starting point, it would have been likely that the discrimination suffered would have injured the claimant's feelings. In all the circumstances, it is satisfied that when she referred to the acts completely shattering her confidence, this is sufficient to establish that her feelings were injured.
34.	The Tribunal has considered the case of Vento v Chief Constable of West Yorkshire Police (No:2) [2003] IRLR 102, although it considers that some adjustment should be made to the suggested bands to allow for the effects of inflation.  In assessing the level of compensation for injury to feelings, the tribunal has focussed on the discriminatory acts. This is clearly not a top band case. Mr Slater suggests that if feelings were injured (which he disputes), the right level would be at the lower end of the lower bracket. The claimant's schedule of loss suggested £7,500. The Tribunal considers that while the discrimination was towards the less serious rather than the more serious end of the spectrum, it was more than just an isolated or one off occurrence. It would be wrong to label it as ‘serious’, albeit the consequence was dismissal and this should not be trivialised. In all the circumstances, the Tribunal considers that the right level is on the boundary between the lower and middle bands of Vento.
35. The Tribunal has determined that an award of £5,500 for injury to feelings properly reflects the degree of seriousness.”

111.	Interest was also awarded and there is no dispute as to that.

112.	The second ground of appeal relates to the award for injury to feelings.  The Respondent contend that the Tribunal were effectively encouraging this Claimant to produce some evidence as to her injury to feelings in circumstances where they were wholly unable to gainsay such evidence.  Further, the Tribunal does not explain how the conclusion that the Claimant was still suffering an “existing fragile mental and physical state” was arrived at.

113.	The live issues in relation to compensation were those set out at paragraphs 23 to 26:

“23. 	With respect to Holiday Pay, the amount of any sums owed (including what sums may be payable regarding bank holidays).
  24. 	With respect to Disability Discrimination:
24.1. 	Whether feelings were injured and if so what sums may be due in compensation;
24.2. 	Financial losses flowing from the discrimination;
24.3. 	The extent to which the Claimant mitigated her loss and can be expected to mitigate any ongoing loss.

  25. 	With respect to unfair dismissal:
25.1. 	The amount of the basic award;
25.2.	 If compensation is payable at all in view of the finding as to disability, the same issues referred to above at 8.2 and 8.3, and any, Polkey reduction. 
25.3.	 Issues arise concerning the, interpretation of Section 123 of the Employment Rights Act 1996 in the light of the chronology events in 2006·and the fact that the claimant was no longer in receipt of salary before the date of dismissal. Similar issues may arise in respect of compensation for discrimination. 
  26.	Mr Slater also confirmed that he did not wish to go behind the method of calculating loss of pension which had been set out in the claimant's schedule of loss, and agreed with her that this should be the method adopted by the tribunal. He also announced that he would be arguing that no compensation for loss of earnings would be payable under unfair dismissal and the disability discrimination claim.”

114.	No issue is raised in respect of the Tribunal’s findings of fact set out at paragraph 27, and no issue arises as to calculation of the various heads of loss.

115.	The third ground of appeal relates to the Tribunal’s finding that the payment in lieu of notice should not be offset from the award for loss of earnings.  

116.	The fourth and final ground is that the Tribunal failed to consider a Polkey type deduction in circumstances where the Respondent were unable to call Ms Hinton to deal with the matter, and the Claimant produced evidence herself as to the likelihood of her being dismissed in future, which the Respondent were unable to gainsay.

117.	At paragraphs 27.4 to 27.7, the Tribunal found the relevant facts as follows:

“27.4. 	At the time of dismissal, the claimant was awaiting a gynaecological operation. She underwent this in November 2007. She had a hospital appointment 6 weeks after the operation in order to investigate whether it had been successful. It had not been, and she was told that she would be booked in for a further appointment. The second operation took place on 8 May 2007. She was told 6 weeks later that it had been successful.
27.5. 	The claimant was fit to return to work on Monday 9 July 2007, two months after her operation. She had not been fit to return to work from before her dismissal until this date. The tribunal draws the inference from the evidence before that the claimant would have been sufficiently fit to work 50% of a full-time working week. This situation, has not changed between 9 July 2007 and the date of the remedy hearing on 13 November 2008.
27.6.	The claimant made some efforts to find alternative work (this is considered below, in the tribunal's conclusions). She did not ask the respondent for a reference.  She looked for local jobs similar to her previous one.  She looked for jobs on-line.  She did not read the Times Educational Supplement. She did not register with an agency. She had not applied for jobs save for two (see below). She had contacted potential employers in response to advertisements, but was told that there was no possibility of part-time work. She has not done any freelance or self-employed work. She had not looked at jobs outside education. She believes that ‘any job is not necessarily better than no job’.  She did apply for a school learning assistant job, but was told that she was overqualified.
27.7. 	The claimant was not successful in finding a job commencing before the date of the remedy hearing, but has received a recent job offer, which she has accepted. She will commence a new job as a Research Fellow at Southampton University on a computing project. This involves a 16-hour week for three months.”

118.	The Tribunal’s findings in relation to financial loss are set out at paragraphs 37 to 49:

“Financial Loss:

37.	As for loss of earnings, the claimant provided, a calculation in her schedule of loss based on loss of a full-time salary from before the date of dismissal, and suggested that the tribunal should award compensation for future losses amounting to a further six months' wages. The respondent had failed to comply with the order to produce a counter-schedule. In oral submissions, Mr Salter argued that as the claimant's income had ceased at the time of dismissal, no compensation was payable. He correctly pointed out that compensation was calculated on tortious principles (Section 17A(3) of the Disability Discrimination Act 1995). He referred to GAB Robins (UK) Ltd v Triggs [2007] UKEAT/0111, and argued that the claimant could not claim on the basis of pre-existing illness. He also submitted that the claimant was not fit to work until July 2007, that it had never been part of her case that any adjustments should have been made then (rather than in January 2007) and therefore no compensation was payable at all.  In the alternative, he submitted that the claimant had failed adequately to mitigate her loss after she was fit to work. The claimant asserted that she had managed to arrange a part-time job starting shortly, and had done her best to mitigate her loss. 
38. 	The tribunal has accepted the medical evidence submitted by the claimant's GP. The tribunal accepts that as at the date of dismissal, there would have been a reasonable prospect of the claimant being fit to return in January 2007, as she had hoped. However, as her gynaecological operation of November 2006 was unsuccessful and had to be performed again May 2007, she was in fact not fit to return to work until July 2007.  Although the medical evidence does not provide a date, the GP suggests that the claimant would have been fit two months after her successful operation.  As the operation took place on 8 May 2007, the tribunal has taken the date of being fit to start work as being Monday 9 July 2007. 
39.	The tribunal has accepted the medical evidence that the claimant would have been fit to return to work part-time and that this situation has not changed since July 2007. There is no direct evidence as to what proportion of full-time hours the claimant would have been fit to work. Although her new job is only 16 hours per week, it was clear that this was a requirement of the job rather than the claimant's preference. However, during the meetings between the claimant and the respondent's management up to the date of dismissal, the discussion was based on coming back to work on half-time working hours. In the absence of any evidence suggesting other bases for working hours, the tribunal has drawn the inference that the claimant would have been fit to work for half a full working week from 9 July 2007 onwards, and that this situation had not changed as at the date of the remedy hearing.
40. 	The tribunal rejects the respondent's argument that no compensation for loss of earnings can be recoverable. Although the claimant's wages and sick pay had ceased by the date of her dismissal, had she returned to work she would have received the salary to which she was contractually entitled. Having concluded that the claimant would have returned to work on 50% of her previous full-time hours, the tribunal accepts that any loss of wages should be calculated on that basis.  But for the respondent's decision to dismiss the claimant (which was for a reason which related to her disability), then she would still have been an employee on the date upon which she was fit to return to work, and therefore would have received wages from that date. The tribunal considers that the same approach should be taken with respect to the failure to make reasonable adjustments. Although, at the date of dismissal, January 2007 was the date suggested for a return to work, it could not have been known that, the autumn operation (which was known about) would be unsuccessful and that this would have had the effect of delaying the claimant's return to work for a further period. ·The tribunal's judgment as to liability should not be-read as meaning that the respondent's refusal to make reasonable adjustments can only have been applicable to a return to work in January 2007.  The proper approach is to consider what adjustments would have been required at the time that the claimant would have been fit to return to work, and that date (as it turned out) was 9 July 2007. Although Mr Salter referred in passing to Polkey and King v Eaton (2), he did not seek to argue that there was a % chance of the claimant being fairly dismissed (or similar arguments under the DDA) at a later stage.  The tribunal does not consider that these two cases are relevant to the analysis of the facts of this case on the argument that compensation should be recoverable for the period after January 2007.
41. The tribunal accepts that as the claimant was not fit to work and therefore unable to earn a salary between 7 September 2006 and 9 July 2007, there can be no evidential or legal basis to order that the respondent compensate her for loss of earnings during that period.  Although there is some evidence that some symptoms of the claimant's existing medical conditions were exacerbated by the respondent's actions, there is no adequate evidence suggesting a causal link between the claimant's discriminatory acts and her being unable to work, Indeed, the only clear evidence was that the claimant could be expected to be fit two months after her gynaecological operation, a matter upon which the respondent's actions cannot reasonably be expected to have had any influence. 
42. Mr Salter did not expressly address the tribunal on what credit, if any, should be given for the two months' pay in lieu of notice given to the claimant, if the tribunal awarded compensation for loss of earnings starting from a date after the two months would have expired. Ms Hinton's evidence confirmed the amounts paid on dismissal. The claimant did not mention this notice pay at all. 
43. The tribunal has, however, considered the matter of how the pay in lieu of notice was treated, and has concluded that it would not be just and equitable to offset the sum against compensation for financial losses arising from loss of wages. Being pay in lieu of notice, it related expressly to the two months following the date of dismissal, a time when the claimant did not earn any wages, and a period for which the tribunal has not ordered that she be compensated. The tribunal considers that it is inappropriate to offset this sum against compensation for loss of wages from the period from 9 July 2007 onwards, and declines to do so. 
44. 	The tribunal's general approach to financial losses is as follows. The claimant is entitled to compensation for ongoing financial losses from 9 July 2007 onwards, on the basis of earning 50% of the full-time wages she would have received had she still been employed by the respondent, subject to accounting for any income received, and subject to mitigating her loss.
45. 	The claimant received no income from 9 July 2007 until the date of the remedy hearing on 13 November 2008 save for certain state benefit. 
46. 	The tribunal was not addressed as to what eligibility to annual leave the appellant would have had on return to work, but notes that had she returned to work on 9.July 2007, she would in any event have had long enough to take the majority of any leave owed before the end of the leave year, The tribunal considers that there is no basis for this to affect the approach taken to compensation. 
47. 	As for mitigation of loss, the tribunal considers that the claimant should have started to look for employment, or at least have initiated the preparatory work, from the second half of June 2007, when she knew that her operation had been successful, and by 9 July should have been sufficiently fit to research possible jobs, make applications and attend interviews. The tribunal accepts that the claimant's task would have been made considerably more difficult as a result of being only able to work part‑ time, from potential employers knowing (or finding out during the selection process) that she was disabled, and from her previous record of being off work on long-term sick leave.  The tribunal rejects the suggestion made by the claimant that she could not ask the respondent for a reference, and that this consequently inhibited her search for work. She never asked for a reference, and had no reasonable basis for concluding that the respondent would have refused to issue a factual reference setting out her experience. It might have referred to her being dismissed for long-term sickness, but the tribunal considers that this was information which the claimant could reasonably be expected to have supplied to future employers herself.
48. Notwithstanding the undoubted difficulties faced by the claimant in seeking work, the tribunal concludes that she did not try as hard as was reasonable to find paid part-time work. She did carry out research, and did contact potential employers, but was only successful in finding a computing-related job starting after the remedy hearing. The tribunal accepts from the evidence called by the respondent that during the relevant period there were advertisements for part-time jobs within commuting distance of the claimant's home in Fareham, which she would have been qualified to do. She was not aware of all these jobs, even though they were advertised in the Times Educational Supplement, a publication which she can reasonably be expected to have consulted. She did not register with an agency. She did not consider carrying out other jobs not requiring computing expertise, jobs requiring computing expertise but outside post-16 teaching, or until lately, jobs which were on a lower salary than she would received had she still been employed by the respondent college. 
49. In all the circumstances, the tribunal considers that the claimant could reasonably have mitigated her loss by finding paid work in less than a year albeit it is quite likely that this might have initially been on a lower wage. The tribunal has concluded that the appropriate measure is compensation for financial losses based on lost of earnings of 50% of the full-time wage from the respondent, for one year from 9 July 2007. It follows that the period ended before the remedy hearing and that the respondent is not required to pay compensation for future losses.”

119.	We repeat that no issue is taken as to calculation of the various sums awarded.

The Appeal
1 – The Adjournment

120.	Mr Salter relied on the submissions in his skeleton argument in support of this ground, namely the Tribunal refused the application to adjourn despite the fact that the appeal on liability was pending, and the fact that the respondent’s only witness was unavailable due to ill health.  He submits that the Tribunal were wrong to limit the words of the EAT in the case of City & County of Swansea v Honey [2008] UKEAT/0030/08 in the way that they did.

121.	We disagree.  The discretion afforded to an employment tribunal, in the exercise of their case management powers, as to whether or not to adjourn cases before them is a broad one, and it is conferred expressly by rule 10(2)(m) of schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.  This appeal Tribunal should therefore only interfere with a discretionary decision where it can be shown that the Tribunal have erred in law in some way, by failing to take into account relevant factors or having regard to irrelevant factors, or by arriving at a decision which was perverse in the sense that no reasonable Tribunal could have exercised their discretion in that way.

122.	In our judgment this decision is plainly not one where appellate interference is appropriate or justified.  The tribunal considered carefully all the relevant factors, carried out the necessary balancing exercise, and for the reasons given, arrived at a decision to refuse the application, which, in our view, was well within the range of permitted discretionary decision making, on the evidence before them.

123.	We agree with Mr Dyal that the City & County of Swansea v Honey case gives no assistance in determining this point.  It involved very different and very specific facts, including, in particular, the fact that allegations of bias had been made against the tribunal.  The dicta upon which Mr Salter relies, particularly those at paragraph 36 were, in any event, obiter, as he concedes.

124.	There is, as Mr Dyal points out, no general principle that remedies hearings should always be adjourned pending determination of any appeal from the judgment on liability.  These matters always fall to be considered on the basis of their own specific facts.

125.	In relation to Ms Hinton, the Tribunal found that most of her evidence was not in dispute.  In relation to the particular matters about which Mr Salter expressed concern, her statement apparently did not deal in any event with the question of injury to feelings.  In the main it dealt, as we understand it, with the issue of mitigation, in relation to which the Respondent had considerable success (see paragraph 48 of the Reasons).  

126.	This ground of appeal is therefore dismissed.

2 - Injury to Feelings

127.	Essentially, Mr Salter submits that the Tribunal were wrong to allow the Claimant to give evidence in relation to injury to feelings, when they were not in a position to gainsay it, and to conclude without evidence that the Claimant was still suffering an existing fragile mental and physical state.

128.	In relation to the Tribunal’s reference to the Claimant’s condition, this seems to us to be no more than the Tribunal themselves remarking on their own observation of this Claimant, having had the opportunity to observe her give evidence on two occasions and represent herself throughout the entire proceedings.  We note that they had made a similar observation in the liability judgment, when the Claimant appeared to them to be rather unwell, but wished nevertheless to continue with the case.  We see no basis for criticising the Tribunal for expressing such an observation.

129.	In the event, their assessment as to injury to feelings was both carefully reasoned and measured, and the Tribunal were careful to exclude from consideration those matters upon which they thought this Claimant was not entitled to rely.

130.	Nor can we accept the submission that the Tribunal erred in allowing the Claimant, a litigant in person, to give evidence as to the injury to her feelings.

131.	The question of injury to feelings was clearly one of the issues that fell to be determined.  It is difficult to see what Ms Hinton could have said about this, in any event.  This, in our view, was a course which was clearly open to the Tribunal in managing the case in accordance with the overriding objective.  We therefore dismiss this ground of appeal.

3 - Payment in Lieu of Notice

132.	Mr Salter submits that the Tribunal erred in finding that the payment made by the Respondent by way of payment in lieu of notice should not be offset on the grounds that it was not just and equitable.  The 1995 Act requires the Claimant to show that it is just and equitable for her to receive a declaration and/or compensation.  However, once this is done, the Tribunal has to ensure that she is compensated in accordance with normal tortious principles, and should not apply a just and equitable test to each element of her claim, and then allow or disallow that element accordingly.

133.	We agree that at paragraph 43 the Tribunal expressed the test incorrectly by referring to it not being just and equitable to offset the sum against compensation for financial losses arising from loss of wages.  The correct test is indeed the tortious test, as Mr Dyal accepts, and the fundamental question is therefore whether that is, in fact, the test that was applied in this case, notwithstanding the phrase used in paragraph 43.

134.	On our analysis of the judgment, we consider that the Tribunal did correctly apply the right test.  Firstly, the Claimant did not receive any compensation for loss of earnings during the two‑month notice period, so there is no question of double recovery.  Secondly, if the Tribunal had offset it, this Claimant, for the reasons advanced by Mr Dyal, would in fact have been under‑compensated.  If the Claimant had not been dismissed she would have continued to be entitled to the benefit of her contractual notice period.  Thus, if the Respondent had sought to dismiss her at any time in the future, they would have had to pay her contractual notice or payment in lieu.  If this sum had been offset, she would therefore have been in a worse position.

135.	To the extent that Mr Salter now raises criticisms in his skeleton argument as to the lack of an opportunity to address this point, which he did not pursue orally, the failure of the Respondent to provide a counter‑schedule or skeleton argument, where such points could have been made, rather reduces the force of this objection.  We reject it and for the reasons given, this ground of appeal must be dismissed.

4 - The Polkey Point

136.	Mr Salter contends that the Tribunal, having been referred to the Polkey case, did not explain why they did not consider a reduction in this case was appropriate.  He complains that the Respondent was unable to present any evidence on the likelihood of the Claimant being dismissed if she was off work for a further ten‑month period, since the adjournment application was refused, and the Respondent was therefore unable to gainsay the Claimant’s evidence on the day.

137.	We note, however, that it is not suggested that there was any evidence relating to this point contained in Ms Hinton’s statement, which was before the Tribunal.

138.	The point relates to the compensation for disability discrimination and not to unfair dismissal, since there was no compensatory award, so the point that is being made is that a reduction analogous to a Polkey reduction ought to have been considered, or certainly reasons for not awarding it ought to have been clearly explained.

139.	However, the Tribunal do state expressly:
“Although Mr Salter referred in passing to Polkey, he did not seek to argue that there was a percentage chance of the Claimant being fairly dismissed (or similar arguments under the DDA) at a later stage.”

140.	This, in our view, really disposes of the point.  In these circumstances, it is not surprising that the Tribunal considered it unnecessary to give detailed reasons for rejecting a Polkey approach.

141.	However, in this case the Tribunal found that the Respondent should have made reasonable adjustments to allow this Claimant to return to work, and that she was in fact fit to return and would have returned to work by 9 July 2007.  But for the discrimination, therefore, she would not have been dismissed.

142.	We take the view that the Tribunal were entitled to conclude, given those clear findings, that a Polkey reduction was simply inappropriate in the circumstances of this case.

143.	This ground of appeal also fails, which concludes the issues arising on this second appeal.