Morse v Wiltshire County Council [1998] UKEAT 1279_97_0105

EAT
Morse v Wiltshire County Council
[1998] UKEAT 1279_97_0105 · 1998-03-17
MR JUSTICE BELL : This is an appeal by Mr Peter Morse against the Decision of the Industrial Tribunal held at Bristol on 4 September 1997 that his application complaining of disability discrimination and unfair dismissal should be dismissed.The essential facts are that Mr Morse was employed by the Wiltshire County Council as a road worker from May, 1963, until he was dismissed by reason of redundancy in March, 1997. Latterly, and a result of local government reorganisation, he was employed by the Civil Engineering Division of Wiltshire Direct Services, a department of the County Council which did work for the County Council in competition with outside agencies, since all the County Council's relevant work was awarded by direct tender.The County Council accepted that Mr Morse was dismissed. It contended that the reason for his dismissal was that he was redundant and that the dismissal was fair. It also admitted that Mr Morse has a disability within the meaning of the Disability Discrimination Act 1995 and that he had been subjected to a detriment, namely selection for dismissal by reason of redundancy, for a reason related to his disability; but it contended that this was not unlawful because its reasons for behaving in this way were material to the circumstances of the case and substantial. No reasonable adjustments would have avoided this state of affairs.The relevant facts found by the Tribunal were as follows.In May 1986 Mr Morse was severely injured in a road accident. He was left with a 20% disability, involving limited movement and grip in his right hand, stiffness in his right leg and a susceptibility to blackouts. The advice from the Occupational Health Physician, when Mr Morse returned to work in July 1987, was that he should not work on heights, or near water if he was alone, or operate power tools. Although he was physically capable of driving a vehicle, he very responsibly refused to do so, because of his tendency to blackouts.After his return to work Mr Morse was employed on cyclic maintenance; mainly grass cutting, clearing pathways and minor maintenance work. Although he did do some bridge work, he was taken off that in 1993 after he had a blackout. It appears that he mainly assisted others or did labouring work if the jobs demanded the use of power tools or the manoeuvring of heavy weights.In late 1996 it became clear to the County Council's Direct Services, the Respondent, that it faced a major financial problem. It had seen a potential drop in income of more than a half from 1995/96 levels. It therefore concluded that it was necessary to reduce the size of the workforce by 35 to bring the level down to about 90 odd. It took the view that it was essential to retain only the most flexible workforce. A major consideration was the requirement under its contract with the County to provide a winter road service. That alone imposed a requirement that 74 of its staff should be fully trained qualified drivers or loader drivers, and 70 or more of those would need to have an HGV licence which Mr Morse did not have and would not be able to get.The respondent therefore conducted a review of its workforce and made a series of selections for redundancy upon the basis of criteria which were commonly used by the organisation over the years. The Tribunal was satisfied that the possession of a driving licence was a key consideration, as henceforth it was anticipated that the work pattern would be of men working in pairs, carrying out a wide variety of maintenance tasks across the region. Individual mobility and versatility were therefore essential. The selection criteria were in place before the Disability Discrimination Act came into force, and they were not modified in the light of that Act.Mr Morse was assessed, with others, by the respondent's Assistant Director. He relied upon information from Mr Morse's manager and supervisors and upon the Occupational Health Physician's comments, but he did not consult Mr Morse direct as to his current state of health. Although Mr Morse scored acceptably on conduct and attendance, his lack of driving ability and limitations on what he could do told against him, and he was selected for dismissal as redundant. Other non-drivers, it appears, suffered a similar fate.Mr Morse appealed initially to the respondent's director. He claimed that his treatment was contrary to the Disability Discrimination Act. The director took advice on the provisions of the Act, from the Personnel Unit. Although no case law was available because the legislation was so new, the Personnel Unit considered the Code of Practice which the Act requires employers to take account of, and advised that in view of the requirements of the business, Mr Morse's lack of flexibility was material to the circumstances of the case and substantial, and therefore dismissal would not be in breach of the Act. The director considered whether adjustments could be made, but there were none that he could see, and the appeal was dismissed. Again Mr Morse was not consulted direct. It was all a paper exercise.Mr Morse appealed again, to a sub-committee of County Councillors. This was a full re-hearing. The respondent called witnesses; Mr Morse attended, represented by his union which was able to ask questions and put forward evidence and argument on his behalf. The Councillors investigated the nature and the extent of the applicant's disability: what he could or could not do, and received a briefing on the law. Their eventual conclusion was that although the applicant had been selected for a reason relating to his disability, the grounds for doing so were both relevant to the circumstances of the case and substantial. They dismissed the appeal. Mr Morse's employment therefore came to an end on 31 March 1997 and he received a redundancy payment.Against that factual background the Tribunal reached its conclusions in the following terms:
"9. There is no dispute in this case about the reason for dismissal. It was redundancy. There is also no dispute on this point: that the applicant's selection was based on his lack of capability and that lack of capability was due to his disability. Thus, he has been less favourably treated for a reason related to his disability, than others who did not have that disability. It therefore falls to the respondent to justify the conduct by showing that no reasonable adjustment to the working conditions or job description would have avoided that state of affairs, and that the reason for treating him in this way was material to the circumstances of the case and substantial.
10. It has been suggested that the selection criteria should have been revised to avoid such discrimination, but it is hard to see how that could be done if the criteria are designed to identify who can best or worst satisfy the essential requirements of the job. If a driving licence is essential, and that discriminates against persons with a disability which makes them unable to hold a licence, then that is unfortunate, but it is hard to see how it can be avoided. If the holding of a driving licence is a criterion, but it is not essential to the job because the job does not involve the likelihood of driving, then that may well be criticised as discriminatory and unlawful, but that is not this case. We are satisfied that the redundancy criteria were designed to identify not an ideal employee, but an employee who either could or could not fulfil the essential requirements: that of being as flexible as possible in a highly competitive environment, where the respondent was under considerable pressure to remain profitable and thus in existence.11. As to adjustments, it is hard to see what they could be. Nothing was suggested on the applicant's behalf, and anything we could speculate upon would inevitably involve the respondent in considerable expense, in having to have a team effectively "carry" the applicant, which was precisely a situation which the respondent could not afford.12. In all the circumstances of the case, we are unanimously satisfied that the respondent's reason for selecting the applicant upon this basis was material to the circumstances of the case and it was substantial. His lack of flexibility, though no fault of his own, was extremely material in deciding whether to retain him in a workforce which had to have such flexibility. It was a matter of substantial importance, not a trivial matter which could easily be accommodated."The Tribunal was therefore unanimously satisfied that there had been no breach of the Disability Discrimination Act.The Tribunal went on to consider Mr Morse's claim of unfair dismissal. It noted the lack of consultation with Mr Morse in the early stages, which it thought to be a significant failing, but it thought that that defect was corrected on appeal. It was not critical of the respondent's efforts to deploy Mr Morse. It concluded that it was reasonable of the respondent to dismiss Mr Morse by reason of redundancy in all the circumstances. The respondent had to decide whether to keep Mr Morse on when he clearly lacked the flexibility it needed, at the expense of some other employee who would have had to be made redundant in his place. It decided that the Councillors reached their decision after correctly applying the law as it related to disability discrimination, and that it could not say that a reasonable employer would not have treated redundancy as grounds for discrimination in Mr Morse's case.This appeal challenges the Tribunal's conclusions. It raises a number of points on the proper construction and application of sections 5 and 6 of the Disability Discrimination Act 1995 , which, we were told, have not yet been considered by the Employment Appeal Tribunal.The relevant statutory provisions for the purposes of this appeal are as follows.Section 4(2) of the Act provides:
"It is unlawful for an employer to discriminate against a disabled person whom he employs - (a) in the terms of employment which he affords him; (b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit; (c) by refusing to afford him, or deliberately not affording him, any such opportunity; or (d) by dismissing him, or subjecting him to any other detriment."
Section 5 of the Act provides:
"(1) ..... an employer discriminates against a disabled person if - (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and (b) he cannot show that the treatment in question is justified.

(2) ..... an employer also discriminates against a disabled person if -

(a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and(b) he cannot show that his failure to comply with that duty is justified.(3) Subject to subsection (5), for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.(4) For the purposes of subsection (2), failure to comply with a section 6 duty is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial.(5) If, in a case falling within subsection (1), the employer is under a section 6 duty in relation to the disabled person but fails without justification to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 6 duty "Section 6 of the Act provides:
"(1) Where - (a) any arrangements made by or on behalf of an employer, or (b) any physical feature of premises occupied by the employer,
place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect.(2) Subsection (1)(a) applies only in relation to -(a) arrangements for determining to whom employment should be offered;(b) any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded.(3) The following are examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1)"A number of steps are then set out. Mr Ciumei, counsel for Mr Morse, referred to the following:
"(e) assigning him to a different place of work; (f) allowing him to be absent during working hours for rehabilitation, assessment or treatment;
. .......(h) acquiring or modifying equipment;. ......(j) modifying procedures for testing or assessment;. .....

(l) providing supervision."

Section 6 continues:
"(4) In determining whether it is reasonable for an employer to have to take a particular step in order to comply with subsection (1), regard shall be had, in particular, to - (a) the extent to which taking the step would prevent the effect in question; (b) the extent to which it is practicable for the employer to take the step; (c) the financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his activities; (d) the extent of the employer's financial and other resources; (e) the availability to the employer of financial or other assistance with respect to taking the step.
. .....(7) Subject to the provisions of this section, nothing in this Part is to be taken to require an employer to treat a disabled person more favourably than he treats or would treat others.. ........(11) This section does not apply in relation to any benefit under an occupational pension scheme or any other benefit payable in money or money's worth under a scheme or arrangement for the benefit of employees in respect of -

(a) termination of service ......"

Section 53 provides:
"(1) The Secretary of State may issue codes of practice containing such practical guidance as he considers appropriate with a view to - (a) eliminating discrimination in the field of employment against disabled persons and persons who have had a disability; or (b) encouraging good practice in relation to the employment of disabled persons and persons who have had a disability.
. .....(3) Without prejudice to subsection (1), a code may include practical guidance as to -(a) the circumstances in which it would be reasonable, having regard in particular to the costs involved, for the person to be expected to make adjustments in favour of a disabled person or a person who has had a disability; or(b) what steps it is reasonably practicable for employers to take for the purpose of preventing their employees from doing, in the course of their employment, anything which is made unlawful by this Act.(4) A failure on the part of any person to observe any provision of a code does not of itself make that person liable to any proceedings.(5) A code is admissible in evidence in any proceedings under this Act before an industrial tribunal .....(6) If any provision of the code appears to a tribunal or court to be relevant to any question arising in any proceedings under this Act, it shall be taken into account in determining that question."Mr Ciumei pointed out that paragraph 3.2 of the Code of Practice: Disability Discrimination (1996) enjoins an employer not to make assumptions, but to talk to the disabled employee about what might help. Paragraph 4 gives advice on "reasonable adjustment" for the purpose of section 6. Subparagraph 4.25 refers to the employee's length of service as an example of a factor which might be considered as relating to the employee and upon which the significance of the cost of a step for the purpose of section 6(4) may depend in part.Paragraphs 6.19 and 6.20 of the Code of Practice give advice on the retention of disabled employees, and paragraph 6.21 relates to termination of employment.It includes the advice:
" An employer who needs to reduce the workforce would have to ensure that any scheme which was introduced for choosing candidates for redundancy did not discriminate against disabled people. Therefore, if a criterion for redundancy would apply to a disabled person for a reason relating to the disability, that criterion would have to be 'material' and 'substantial' and the employer would have to consider whether a reasonable adjustment would prevent the criterion applying to the disabled person after all."
Subsection 56(2) and (3) of the Act provide for forms of questionnaire by which a complainant may question the respondent on its reasons for doing any relevant act, or any other matter which is or may be relevant, and for taking account of the respondent's replies.Mr Ciumei started his submissions by pointing out that the Tribunal's decision and reasons did not refer to any section of the Act, nor to any provision of the Code of Practice nor to the questionnaire put to the respondent on Mr Morse's behalf, nor to the respondent's reply. It may well be wise for an Industrial Tribunal to flag in its decision the appropriate statutory provisions, or provisions of the Code of Practice, or that it has considered a questionnaire and reply (see Morison J. in Sidhar v. Gubb & Hauff Precision Engineering Co. Ltd , unreported Appeal No. EAT/712/95), if only to make it clear that it has had the appropriate provisions, advice and factors in mind, but it is trite to say that a Tribunal may take account of all relevant material and apply the relevant statutory provisions correctly without the need to lengthen its decision by referring to the provisions and material which it has in fact taken into consideration.Of course, if it appears that a Tribunal may have applied a wrong test in law, or left a relevant statutory provision, or provision of the Code of Practice, or material in a questionnaire or reply, out of its consideration, then failure to refer to the statutory provision, Code or questionnaire or reply may confirm the omission, or at least leave the Appeal Tribunal in sufficient doubt to require that the case be remitted to the Industrial Tribunal for further consideration and adjudication; and this is the real thrust of Mr Ciumei's argument in this case.It is clear that the Tribunal treated Mr Morse's complaint of disability discrimination as a complaint of both "less favourable treatment" discrimination under section 5(1) and "failure to comply with a section 6 duty" or "reasonable adjustment" discrimination under section 5(2).In relation to the Tribunal's adjudication on "less favourable treatment" discrimination under section 5(1), Mr Ciumei firstly argued that, taking subsection 5(1) and 5(3) of the Act together, the first task of the Tribunal when dealing with the "less favourable treatment" element of Mr Morse's complaint was to identify the reason or reasons why the respondent selected Mr Morse for redundancy. Where the less favourable treatment consisted of selection for redundancy and there was more than one relevant criterion for selection, each criterion which contributed to the dismissal was a reason for the purposes of subsection 5(1) and 5(3) and therefore must be justified as "both material to the circumstances of the case and substantial". Mr Ciumei contended that the Tribunal failed to direct itself in those terms; it failed to identify clearly or to follow through the respondent's reasons for selecting Mr Morse for redundancy. At different places in its reasons it referred to possession of a driving licence (shorthand for being able to drive on the public road) being a key consideration, "lack of capability" (which was one of a number of headings in the respondent's form of "Selection of Employees for Compulsory Redundancy"), "individual mobility and versatility", and "lack of flexibility".We cannot accept this argument. In our view it confuses the criteria for selection for dismissal by reason of redundancy with the reason for selection for dismissal by reason of redundancy, when they are not necessarily the same thing, or when they may make a varying contribution to the reason for selection for dismissal. Although the tribunal described the reason for the less favourable treatment and dismissal by reason of redundancy in different ways on various occasions in its reasons, the descriptions all amounted to the same thing - lack of flexibility, so far as Mr Morse was concerned, when each member of the retained workforce had to be flexible and capable of doing what was required.Secondly, Mr Ciumei contended that the Tribunal's only direction as to the law appears in paragraph 9 of its extended reasons, that:
"It therefore falls to the respondent to justify that conduct by showing that no reasonable adjustment to the working conditions or job description would have avoided that state of affairs, and that the reason for treating him in this way was material to the circumstances of the case and substantial."
Mr Ciumei argued that this direction was muddled and contained elements of section 5 and section 6 of the Act. We will return to that argument when dealing with the Tribunal's approach to "failure to comply with section 6 duty" or "reasonable adjustment" discrimination under section 5(2), but we can see no error so far as the Tribunal's direction to itself on section 5(1) discrimination is concerned. It posed the correct test of whether the respondent showed that its treatment of Mr Morse was justified in that the reason for it was both material to the circumstances of the case and substantial.Mr Ciumei argued that the Tribunal failed to direct itself correctly as to the provisions of the Act relating to "failure to comply with a section 6 duty" or "reasonable adjustment" discrimination. The Tribunal should have asked itself whether the respondent had taken such steps as were reasonable, in all the circumstances of the case, for it to have to take in order to avoid Mr Morse's dismissal by way of redundancy (see section 6(1)(a)), enquiring into and taking account of any possible steps of adjustment, including any which were suggested by section 6(3), and also enquiring into any of the factors set out in section 6(4), before finding whether there had been a breach of a section 6 duty and, if so, asking if it was justified because the reason for the dismissal was both material in the circumstances of the case and substantial. Instead of doing that the Tribunal simply stated that "as to adjustments, it is hard to see what they could be"; that "nothing was suggested" on Mr Morse's behalf (apart from revision of selection criteria, which it dismissed as inappropriate to an attempt to identify who could best satisfy the requirements of the job); that "anything we could speculate upon would inevitably involve the respondent in considerable expense"; and that Mr Morse's lack of flexibility could not "easily be accommodated".Mr Ciumei suggested, during his argument, that the redundancy selection criteria should have been adjusted to take account of Mr Morse's value as a long serving employee who was of value to the respondent by virtue of that fact which could be related to the factors set out in subsections 6(3)(j) and section 6(4)(c) of the Act, particularly if one had regard to paragraphs 4.25 and 6.21 of the code. The Tribunal took no account of the fact that the respondent had been able to employ Mr Morse usefully, presumably making adjustment for ten years since his accident. In any event, apart from the question of the variation of selection criteria, there was no indication that the Tribunal had observed the duty imposed by section 6(1) of enquiring into whether the respondent had taken such steps as were reasonable for him to have taken in order to prevent the redundancy arrangements placing the disabled person at a substantial disadvantage in comparison with persons who were not disabled. There was no indication that the Tribunal had enquired into whether the respondent could have taken any of the steps set out in section 6(3), or that it had had regard to section 6(4).Mr Wilken contended that the Tribunal had applied itself to the question of what adjustments could be made (section 6(3)), and to the financial ramifications of continuing to employ Mr Morse (section 6(4)). The fact that the respondent had managed to employ Mr Morse usefully for many years after his accident was irrelevant in the respondent's new and difficult financial situation. Other long-serving van drivers were dismissed too, and to treat Mr Morse differently from them would be to treat him more favourably than others, which was forbidden by section 6(7).Early in the hearing of the appeal we queried whether a section 6(1) duty applied in relation to Mr Morse's dismissal by way of redundancy at all. Section 6(1) only applies in the circumstances set out in section 6(2) and there is no express mention of dismissal, termination of service, or redundancy there.The Code of Practice clearly assumes that section 6(1) applies to dismissal, and to dismissal in Mr Morse's circumstances: see paragraph 6.21. But as Mr Wilken pointed out in arguing that section 6(1) did not apply to dismissal, the Act did make express and clear provisions in relation to dismissal (see, for instance, section 4(2)(d)) and in relation to termination of service (see, for instance, section 6(11)(a)), but it did not do so in section 6(1) and (2). Indeed the express provisions of section 6(2)(a) and (b) cover much the same ground with much the same terminology as section 4(2)(a),(b) and (c). Yet they do not use the same terminology as section 4(2)(d), which refers to dismissal. Mr Wilken argued that Parliament must have thought that the provisions of section 5(1) were sufficient protection in the case of a disabled person who had been dismissed. The wording of section 6(2) is deliberately narrow.As matters of neat construction, these are powerful points, but we have decided that a section 6(1) duty does arise where a disabled person is dismissed. The words in section 6(2)(b) "any .... arrangements on which employment .... is .... afforded" are wide enough to cover arrangements in relation to whether employment continues or is terminated in our view, and we are entitled to take a purposive view of section 6 and to bear in mind that the valuable and specific protection which it offers in obliging an employer to see if he can take steps reasonably to avoid dismissing a disabled employee would be lost to many vulnerable employees at their time of greatest need if it did not apply to the question of dismissal and especially, perhaps, to dismissal by reason of redundancy.In our view, section 6(7) does not stand in the way of this construction of section 6(1) and (2). Section 6(7) starts with the words "subject to the provisions of this section", and the provisions of the section clearly may require an employer to treat a disabled person more favourably than he treats or would treat others.In our judgment, sections 5(2) and (4) and 6(1),(2),(3) and (4) of the Act require the Industrial Tribunal to go through a number of sequential steps when dealing with an allegation of section 5(2) discrimination.Firstly, the Tribunal must decide whether the provisions of section 6(1) and section 6(2) impose a section 6(1) duty on the employer in the circumstances of the particular case.If such a duty is imposed, the Tribunal must next decide whether the employer has taken such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the section 6(1)(a) arrangements or section 6(1)(b) feature having the effect of placing the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled.This in turn involves the Tribunal enquiring whether the employer could reasonably have taken any steps including any of the steps set out in paragraphs (a) to (l) of section 6(3). The purpose of section 6(3) is to focus the mind of the employer on possible steps which it might take in compliance with its section 6(1) duty, and to focus the mind of the Tribunal when considering whether an employer has failed to comply with a section 6 duty.At the same time the Tribunal must have regard to the factors set out in section 6(4) paragraphs (a) to (e).If, but only if, the Tribunal (having followed these steps) finds that the employer has failed to comply with a section 6 duty in respect of the disabled applicant, does the Tribunal finally have to decide whether the employer has shown that its failure to comply with its section 6 duty is justified which means deciding whether it has shown that the reason for the failure to comply is both material to the circumstances of the particular case and substantial (see sections 5(2) and (4)).In taking these steps, the Tribunal must, in our view, apply what Mr Ciumei called an objective test, asking for instance whether the employer has taken such steps as were reasonable, whether any of the steps in section 6(3) were reasonably available in the light of the actual situation so far as the factors in section 6(4) were concerned; and asking whether the employer's failure to comply with its section 6 duty was in fact objectively justified and whether the reason for failure to comply was in fact material to the circumstances of the particular case and in fact substantial.No doubt in carrying out these exercises the Tribunal will pay considerable attention to what factors the employer has considered or failed to consider, but it must scrutinise the explanation for selection for redundancy, for instance, put forward by the employer, and it must reach its own decision on what, if any, steps were reasonable and what was objectively justified, and material and substantial.We reject, therefore, Mr Wilken's argument, carefully reasoned though it was, that it is sufficient if the Tribunal judges that a reasonable employer could have acted as the respondent did or, more specifically, that the respondent must advance an explanation for its conduct but that, once it has done so, the Tribunal can only consider whether that explanation is reasonably capable of being material and substantial.We were referred to authorities on the point including, of course, Hampson v Department of Education and Science [1989] I.C.R. 179 as well as Cobb v Secretary of State for Employment [1989] IRLR 464 and Staffordshire County Council v Black [1995] IRLR 234 . The first of those cases might help Mr Ciumei's argument and the last might help Mr Wilken's. But those cases were concerned with different Acts of Parliament and we do not accept Mr Wilken's argument that employment lawyers and employer and employee representatives reading sections 5 and 6 would read them with authorities on other Acts in mind and that the sections must have been drafted with such a readership in mind. Acts of Parliament are supposed to mean what they say to readers outside the initiated and, in any event, this is a new Act breaking new ground. There is nothing in the wording of sections 5 and 6 which indicates that the Industrial Tribunal should not substitute its own judgment for that of the employer. To say, in effect, that it is for the employer and not the Industrial Tribunal to say what it can and cannot afford to do would be greatly to limit the aims of the Act. The employer is given sufficient economic protection by the provisions of section 6(4).Can the Tribunal in this case be seen to have applied the provisions of sections 5 and 6, as we have interpreted them?After some hesitation we have concluded that there are grounds for believing that the Tribunal may well not have followed the correct path through the relevant statutory provisions.The Tribunal's only direction as to the law appears in paragraph 9 of the Extended Reasons, as Mr Ciumei contended. Although, as we have already said, that direction was adequate in relation to the "less favourable treatment" under section 5(1) element of Mr Morse's complaint of disability discrimination, it appears to us to confuse the requirements of the "failure to comply with a section 6 duty" or "reasonable adjustment", under section 5(2), element of the complaint. If the respondent showed that "no reasonable adjustment to the working conditions or job description" would have avoided Mr Morse's dismissal by reason of redundancy, it is arguable, at least, that there was no failure to comply with a section 6 duty and so no need for the respondent to show "that the reason for treating him in this way was material to the circumstances of the case and substantial".This leads us to be concerned whether the Tribunal truly considered the provisions of section 6 before going to the question of justification posed by sections 5(2) and (4). In paragraph 11 of its Extended Reasons the Tribunal said that "as to adjustments, it is hard to see what they could be", which might be a sign that it had considered section 6(3). In the same paragraph the Tribunal appeared to say that any adjustment it could "speculate upon would inevitably involve the respondent in considerable expense" and produce "a situation which the respondent could not afford", which might be a sign that it had considered section 6(4). But there is no indication that the Tribunal made any real enquiry into the steps which the respondent might take, listed in section 6(3) or otherwise, to enable Mr Morse to be kept on, or into the additional expense, if any, which was likely to be caused by any steps to enable him to be kept on, before balancing the effect of any such expense against the effect of dismissal on Mr Morse; and before judging whether the respondent had failed to comply with a section 6(1) duty to take such steps as it was "reasonable, in all the circumstances of the case" for it to have to take; and before finally judging, if a failure to comply with a section 6(1) duty was found, whether that failure was justified, in that the reason for the failure was both material to the circumstances of the particular case and substantial.The only reference to reasonable adjustment in the respondent's response to Mr Morse's questionnaire was in relation to the appeal Panel of Councillors' decision that Mr Morse's selection for redundancy was justified. The reference was in the following terms:
"The panel accepted that consideration had been given to whether a reasonable adjustment could be made to the work and accepted that there were no reasonable arrangements that could be made to enable you to continue working. Your appeal was therefore dismissed."
That gave no particulars of the consideration actually given to adjustments to the work, and there is no indication in its Reasons that the Tribunal enquired into the consideration given.We are also concerned that in holding, in paragraph 12 of its Reasons, that Mr Morse's lack of flexibility was "extremely material in deciding whether to retain him", the Tribunal may simply have asked itself whether Mr Morse's lack of flexibility appeared material to the respondent.These concerns may not do justice to the Tribunal's actual consideration of the true issues before it, but they arise out of the Tribunal's failure clearly to follow the sequential steps which are required by the statutory provisions, and which we have set out earlier in this judgment.We cannot accept Mr Wilken's contention that the extent of Mr Morse's disability and the extent of the respondent's drop in income made this an absolutely clear case.For all these reasons we allow this appeal against the Tribunal's dismissal of Mr Morse's complaint of disability discrimination and direct that it be reheard by a freshly constituted Industrial Tribunal.Mr Ciumei candidly conceded that if the rejection of Mr Morse's complaint of unfair dismissal stood on its own he would have difficulty challenging it, but both he and Mr Wilken agreed that it was difficult to tease strands of unfair dismissal out of the fabric of disability discrimination, and that if the issue of disability discrimination was to be remitted to a fresh Industrial Tribunal, the issue of unfair dismissal should be remitted with it; and we so direct.