Philander v Leonard Cheshire Disability, Court of Appeal - United Kingdom Employment Appeal Tribunal, November 01, 2018, [2018] UKEAT 0275_17_0111

Resolution Date:November 01, 2018
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Philander v Leonard Cheshire Disability

Copyright 2018

Appeal No. UKEAT/0275/17/DA



At the Tribunal

On 23 August 2018

Judgment handed down on 1 November 2018







Transcript of Proceedings





UNFAIR DISMISSAL - Reason for dismissal including substantial other reason

CONTRACT OF EMPLOYMENT - Wrongful dismissal

DISABILITY DISCRIMINATION - Direct disability discrimination

The Employment Tribunal (``ET'') was entitled to conclude that the Respondent had established a conduct reason for dismissal on account of the Claimant before the ET's gross negligence. The reason had not been mislabelled by the Tribunal and its finding of not unfair dismissal stands.

The Tribunal was also entitled to conclude that the Claimant had not been wrongfully dismissed on the evidence before it and on its findings of fact.

There was no error in the Tribunal's approach to the comparator exercise both in considering disparity of treatment for the purposes of the unfair dismissal claim and for the exercise of the statutory comparison under section 23 Equality Act 2010 in considering the Claimant's complaint of direct discrimination.

Employment Tribunal decision upheld.


  1. This is an appeal against the Judgment of the Employment Tribunal (``ET'') sitting at London South before Employment Judge Freer and Members (Ms S Campbell and Mr C Edwards) which took place over six days from 3 to 6 October 2016 and 29 to 30 November 2016 followed by two further days in Chambers on 1 December 2016 and 5 January 2017. Judgment was reserved and Judgment with Reasons were sent to the parties on 11 May 2017.

  2. The Appellant was the Claimant before the Employment Tribunal and the Respondent to the appeal was the Respondent below. I shall continue to refer to the parties as they were before the Employment Tribunal.

  3. The Tribunal unanimously dismissed all the Claimant's claims, which were for unfair dismissal, wrongful dismissal and disability discrimination.

  4. The issues in the three grounds of appeal permitted to be argued before this Tribunal are that the Employment Tribunal failed to consider whether the reason for dismissal put forward by the Respondent in the unfair dismissal complaint properly fell within the capability (as opposed to conduct) category (which would mean that the Respondent had not established a potentially fair reason for dismissal), whether the Tribunal's findings of fact supported its conclusion that the Claimant had not been wrongfully dismissed, and, in relation to the disability discrimination complaint, whether the Tribunal had correctly approached the comparative exercise in considering whether the Claimant had been less favourably treated and subject to unlawful direct disability discrimination contrary to section 13 Equality Act 2010.

  5. The appeal first came before Mr Justice Choudhury on the sift, who allowed the appeal to proceed to a Preliminary Hearing which took place before HHJ Eady QC on 26 February 2018. She permitted the matter to proceed to a Full Hearing on parts of grounds 1 to 3 only of the proposed grounds of appeal, dismissing the remaining grounds. She listed the case to be heard before a full Tribunal with Lay Members for their expertise and assistance in analysing the Employment Tribunal's approach to the category of reason for dismissal - conduct or capability, assessment of what constitutes gross misconduct and the comparative exercise required in the disability discrimination claim.

    The Background Facts

  6. The Claimant commenced employment with the Respondent disability charity and care provider in 1998 as a Support Worker. Over time, he had risen to the position of manager of two residential homes, Maple House and Elmer's End. When the Elmer's End home closed down in 2013, the Claimant agreed to become the Service Manager and Registered Manager of Parkside in Penge in addition to Maple House. Both homes are in the London Borough of Bromley. In the Claimant's ET1, he describes his very great reluctance to take on Parkside, but the ET makes no findings in that regard other than to record that the Respondent agreed to put in place support measures to assist him in the role at Parkside. A Registered Manager is one who has been approved and registered by the CQC and it is a regulatory requirement for institutions such as Parkside to have a CQC Registered Manager.

  7. The Claimant is disabled within the meaning of section 6 Equality Act 2010 with the condition of dyslexia which had been diagnosed in January 2012. A number of adjustments had been put in place in order to support him, recommended in a report prepared by Dyslexia Action and an employer's response provided to Dyslexia Action by the Claimant's then line manager, Claire Waterman in December 2012.

  8. From November 2013 Mr Sam Clubb was his line manager. Considerable criticism is made of Mr Clubb by the Claimant in his claim form, whom he considered to be an unsupportive and difficult manager and who did not provide the supportive measures outlined by the Dyslexia Action Report. The Tribunal found however that the Respondent acted on the recommendations of the Dyslexia Action Report (see paragraph 35) although in one aspect, the aim of Mr Clubb meeting the Claimant every six weeks for supervision, was not achieved. The Tribunal did not find it to be a significant failing.

  9. The Tribunal makes a number of findings about the ongoing supervision sessions between the Claimant and Mr Clubb and records that at the time, the Claimant stated that he appreciated the support provided to him, recording, for example that he was ``very happy in post''. The Tribunal rejected the Claimant's evidence in cross-examination that he did not raise problems with Mr Clubb for fear of reprisal stating the evidence was unconvincing and not credible (see paragraph 170). It is not entirely clear if the conclusion of that finding was that the Claimant's apparent satisfaction at the time was genuine, or if there were other reasons for not raising his concerns earlier, but little turns on it.

  10. CQC inspections at both establishments noted various problems throughout the period under consideration from November 2013 onwards - for example they assessed Maple House (where the Claimant had been in post for some time) as ``Action needed'' with regard to management of medicines where instances of inaccurate recording of medicines was discovered following an unannounced visit in November 2013.

  11. In July 2014 a London Borough of Bromley contract compliance visit to Parkside raised a number of areas for improvement, in particular service users' weights needed to be accurately recorded.

  12. Mr Clubb had also raised a number of concerns in supervision meetings with the Claimant. Initially they were low key and supportive, providing guidance and additional training where Mr Clubb considered it appropriate, for example in relation to the Deprivation of Liberties Safeguards (DoLS) which required application to be made to the Local Authority where residents lacked freedom and for the CQC to be informed (see paragraph 53).

  13. In November 2014 Mr Clubb stressed to the Claimant that it was imperative that staff understood and acknowledged the importance of maintenance of accurate records and a failure may result in disciplinary action. Mr Clubb was evidently concerned about continued problems with record keeping and the problems being identified both by the Local Authority and the CQC. The Tribunal does not record that if there were continuing failures, whether it would be the individual staff members or the Claimant who would be subject to disciplinary action, but either way, the importance of the issue was clearly explained to the Claimant.

  14. In January 2015 there was a misunderstanding between Mr Clubb and the Claimant. Mr Clubb considered that the Claimant had raised a trivial matter with him which did not need to involve him, concerning a member of staff changing her contracted hours, and the Claimant considered Mr Clubb had been sharp with him. The Claimant raised it with Mr Clubb who apologised if he had been insensitive, explaining that the Claimant needed to exercise judgment in deciding what matters to refer to him. The matter was constructively resolved after an open and productive discussion between them.

  15. In supervision on 30 July 2015 Mr Clubb was concerned about two safeguarding/ complaints issues. Mr Clubb was also concerned about the Claimant's failure to keep him informed about the DoLS applications, following earlier supervision instructions to do so and the comprehensive training that had been provided to him. Mr Clubb considered matters to be serious enough to invoke the LCD...

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