BRITISH GAS SERVICES LTD v MR B J MCCAULL [2000] UKEAT 379_99_2809

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 379_99_2809Case No Appeal No. EAT/379/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
BRITISH GAS SERVICES LTDAPPELLANTMR B J MCCAULLRESPONDENT
Before
Mr Justice Keene Mr B R Gibbs Professor P D WickensDate 28 September 2000
[1]APPEARANCES For the Appellants MISS J POLLARD (of Counsel) Instructed by: Ms C Adams (Solicitor) British Gas Services Ltd Legal & Insurance Services Department 30 The Causeway Staines Middlesex TW18 3BY For the Respondent MR A FREER (Solicitor) GMB National Legal Department 22-24 Worple Road London SW19 4DD MR JUSTICE KEENE : This is an appeal from a decision of an Employment Tribunal sitting at London (South), the decision being entered in the Register on 18th January 1999. The tribunal decided that Mr McCaull, the present respondent, had been unfairly dismissed by the appellant and that the appellant had discriminated against the respondent, a disabled person, contrary to section 4 of the Disability Discrimination Act 1995 ('the Act') both under sections 5(1) and 5(2) of the Act. The respondent was at the relevant time employed by the appellant as a service engineer servicing and repairing central heating systems at customers' homes. The method of operation used by the appellant company was that service engineers were supplied with a van and a laptop computer and would in effect work from home. The engineer would drive from one customer's premises to the next carrying out the required work at site. When parts were required he would drive to a collection point to pick them up.[2]The respondent had suffered from epilepsy since 1991. His managers within the appellant company were unaware of this until he had an accident while driving his van on 4th November 1996. He blacked out as a result of an epileptic fit and collided with a post leaving the van a write-off. Fortunately, he himself suffered only minor injuries. His manager, Mr Lipop, was told a few days later about the epilepsy by the respondent's father and brother who were concerned about his welfare.[3]The respondent remained off work for some time. In March 1997 he informed the DVLA of the incident and was aware that the DVLA would, as the tribunal found, almost certainly withdraw his driving licence for at least a year. In fact it was withdrawn in September 1997 and had not been restored by the date of the tribunal hearing in November 1998.[4]Also in March 1997 Mr Lipop referred the matter to the appellant's Human Resources Manager, Mrs Spalding, under the company's procedure known as "management of absence attributable to sickness" abbreviated to MAAS. The tribunal found that although the Act had come into force on 2nd December 1996 and although the respondent was a "disabled person" within the meaning of the Act the appellant company was unaware of the Act until it received the originating application from the respondent. The application alleging discrimination against a disabled person was dated 24th November 1997.[5]However, reverting to the events of early 1997, the respondent was referred to a hospital consultant and in April 1997 the appellant's occupational health service informed Mr Lipop that the respondent should only work subject to certain restrictions. Those were as follows: 1. No driving 2. No soldering work 3. No working with heights and ladders 4. No working in lofts 5. Must work with a colleague under supervision 6. No work with electrical equipment[6]At the hearing it was agreed by Mr McCaull that this a correct assessment of the activities of a service engineer that he could not undertake because of his disability. There was no dispute that this was a correct analysis by the company of the medical situation and that it was based on proper medical investigation.[7]Meetings then took place on 9th May 1997 and 2nd and 5th June 1997 between the respondent, his trade union representative, Mr Lipop and Mrs Spalding to discuss the implications of that medical assessment. The respondent was told that he would not be allowed to continue as a service engineer but that alternative clerical work as a Customer Service Adviser at the Staines Area Service Centre was available. In a letter dated 9th June 1997 Mr Lipop referred to the meeting on 5th June saying that the medical advice indicated that Mr McCaull's condition was such that ill health retirement would not be appropriate. The letter continued:
"… We explained that this being the case there were two options, redeployment or termination of employment on the grounds of capability. You indicated that you were not interested in seeking alternative employment. We did however suggest you reconsider your position and stated that we would give you until Friday 13 June 1997 to make a final decision. In the event that I do not hear from you by Friday, my understanding will be that you do not wish to consider alternative employment. We explained that should you change your mind and seeking redeployment with the Company any appointment would be dependent on you being suitable for such a position and at the salary for the post. Currently, the top of the salary band for a Customer Service Advisor is £13986 plus metropolitan weighting of £1802."
[8]The tribunal in its extended reasons pointed out that the alternative job offered would have meant at best a reduction in salary of over £4,800 per annum, a 23% reduction on his salary as a service engineer. It found that at the meetings of 2nd and 5th June and in the letter of 9th June the respondent, unlike other employees subject to the MAAS policy, was not told certain things. These were what his actual salary would be as a Customer Services Advisor, whether there would be overtime, that the alternative job would initially be on a trial basis, that his additional travelling costs from home would be met for two years by the appellant and that he could take certain steps to protect his pension. The tribunal also found as a fact that the appellant had no other alternative employment available which would have been suitable for the respondent.[9]The letter of 9th June 1997 had also recorded that as the respondent had indicated that he did not wish to take up the job as a Customer Service Advisor his employment would be terminated on the ground of capability. His employment would then cease on 7th September 1997. The respondent used the company's internal procedures to appeal against his dismissal but was unsuccessful. He was told this by a letter dated 10th July 1997. His employment did indeed cease on 7th September 1997. He lodged an application on 24th October 1997 claiming unfair dismissal and on or about 24th November 1997 he lodged a complaint of discrimination against a disabled person.[10]Section 4 of the Act makes it unlawful for an employer to discriminate against a disabled person in a number of ways including discrimination in the terms of employment which the employer affords him and discrimination by dismissing him or subjecting him to any other detriment. Two forms of discrimination are then identified by section 5. Section 5(1) provides:
"For the purposes of this Part, an employer discriminates against a disabled person if- (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and (b) he cannot show that the treatment in question is justified."
Section 5(2) states:
"For the purposes of this Part, 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."
The first of those may be described as "less favourable treatment without justification" while the second is a failure to company with the duty under section 6, again without justification. Section 6(1) provides:
"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."
[11]Section 6(3) then gives a number of examples of steps which an employer may have to take in relation to a disabled person in order to comply with the duty in section 6(1). Section 6(4) sets out a number of matters to which regard is to be had in particular when determining whether it is reasonable for an employer to have to take a particular step in order to comply with its duty, including financial and other costs which the employer would incur.[12]The Employment Tribunal at the outset of the hearing established that there were claims by the respondent both under section 5(1) of the Act, "less favourable treatment", and under section 5(2), breach of the duty under section 6. In respect of the first of those two claims the discrimination was described as consisting in "dismissing him for a reason which related to his disability". As already indicated the tribunal in due course found both claims to have been made out, as well as finding that the respondent had been unfairly dismissed. The section 5(1) claim[13]In its decision on the claim under section 5(1) the tribunal considered itself bound by the decision of the EAT in Clark v Novacold Ltd [1998] IRLR 420 , so that it approached this issue by using a comparator of a person who was off work for the same amount of time but for a reason other than disability. It found that the appellant company treated the respondent under the MAAS procedure as it would have treated any other employee who was off ill for the same amount of time but for a reason other than disability – save only in respect of the items of information not supplied to the respondent about the alternative job at the meetings of 2nd and 5th June and in the letter of 9th June. We have summarised those items earlier in this judgment. In those respects, the tribunal found that the appellant had treated the respondent less favourably than someone who was off ill for the same amount of time but for a reason other than disability. It then went on to consider whether the appellant could show that the treatment in question was justified. It held that the reasons for that treatment, namely that the respondent was not willing to discuss the alternative job and that he should have raised these matters himself were not material to the circumstances of the case nor substantial so as to justify the treatment of Mr McCaull. Thus it concluded that the claim of discrimination under section 5(1) had been established.[14]The tribunal's approach to this form of discrimination is entirely understandable, given the EAT's decision in Clark v Novacold . That decision was however reversed by the Court of Appeal in a judgment delivered some two months after the Employment Tribunal's decision in the present case. In Clark v Novacold [1999] IRLR 318 the Court of Appeal rejected the concept of a "like for like" comparison in determining whether there has been discrimination under section 5(1). It made it clear that it is not necessary to make a comparison with someone not disabled but otherwise with the relevant circumstances all being assumed to be the same. Consequently, a tribunal need not and should not ask what was or would have been the treatment meted out to a non-disabled person who had been absent from work for the same period as the complainant. Mummery LJ stated at paragraph 60:
"… The 'others' with whom comparison is to be made are not specifically required to be in the same, or not materially different, circumstances: they only have to be persons 'to whom that reason does not or would not apply'."
[15]The comparison, therefore, is simply to be with others, in the present case, employees, who are not disabled. The learned judge gave an illuminating example concerned with the treatment of a blind person with a guide dog being refused admission to a café because of the presence of his dog.[16]We are bound by the Court of Appeal decision and indeed we regard it as clearly right. Since a disability will often manifest itself in such ways as absences from work, an approach embodying a "like for like" comparison would deprive the Act of much of its force.[17]In the present case the Employment Tribunal did not have the benefit of that Court of Appeal decision and, as a result, it found itself carrying out the wrong exercise, namely comparing the treatment of the respondent with that given to someone off ill for the same amount of time but for a reason other than disability. That is bound to have affected the tribunal's decision because the justification advanced by the employer must relate to the particular acts of less favourable treatment: that follows from the wording of section 5(1)(b) "he cannot show that the treatment in question is justified". (Emphasis added.) The justification advanced for an otherwise discriminatory dismissal is likely to be different from the justification for a failure to pass on certain items of information.[18]However, Mr Freer on behalf of the respondent submits that the appellant is estopped from arguing that the tribunal applied the wrong legal test. He relies on the Court of Appeal decision in Jones v Burdett Coutts School [1998] IRLR 521 , where it was reiterated that this Appeal Tribunal should only allow a new point of law to be raised or a conceded point to be re-opened in exceptional circumstances and for compelling reasons, especially if the result would be to open up fresh issues of fact not sufficiently investigated below. This may sometimes mean that a case is decided on a demonstrably wrong basis of law. It is argued on behalf of the respondent that those principles apply here, because before the Employment Tribunal the appellant had actually argued that Clark v Novacold , as decided by the EAT, was to be preferred to other authority. Miss Pollard on behalf of the appellant accepts that she asked the tribunal to follow the EAT decision in Clark v Novacold but she points out that she drew the tribunal's attention to the conflict in authority between that case and British Sugar plc v Kirker [1998] IRLR 624 , another EAT decision. So it was the tribunal which decided what its legal approach should be and it can now be seen that the tribunal got its approach wrong. It was not the case that both sides approached that issue on the same basis.[19]This Appeal Tribunal has a discretion as to whether it will allow a new point of law to be taken by a party which did not take that point below. If both parties approached the matter on the same legal basis so that there was no issue for the Employment Tribunal to determine then normally the EAT will not allow that agreed legal basis to be challenged on appeal. That is, as the Court of Appeal pointed out in Jones v Burdett Coutts School , simply an application of the normal principles applicable on appeals to a court or tribunal on a point of law. This may mean that a decision will be upheld, even though subsequent judicial decisions in other cases make it clear that the agreed basis was wrong. A striking example of that is to be found in Wilson v Liverpool Corporation [1971] 1WLR 302 .[20]The present case is not so clear cut. There was an issue as to the proper legal approach to be adopted, an issue which the tribunal determined. On the other hand, it was the present appellant which was advocating the legal approach which the tribunal ultimately adopted. In other words, the appellant won on this point. If this was the only ground on which the tribunal's decision could now be criticised we would be disinclined to allow the appeal and to send the matter back. That is particularly so since the test actually applied by the tribunal here represents a more stringent test when seen from the point of view of the disabled person, and it might therefore be the case that, if even on that approach the claim under section 5(1) could be made out, then it would follow that the claim would be made out when the proper legal test was applied. There would of course be a need for considerable caution for making such an assumption, since the justification put forward by the employer will, as we have emphasised, relate to the particular treatment identified as being less favourable.[21]In any event, Miss Pollard submits that it was not open to the tribunal to find discrimination in respect of the failure of the appellant to supply the items of information about the proposed alternative job. She raises essentially four points. First, it is argued that the application to the tribunal complaining of discrimination was not made within three months of that failure and so the tribunal had no jurisdiction to find discrimination on that basis. The failure occurred at the beginning of June 1997 and yet the application alleging discrimination was only made on 24th November 1997. At the latest the failure to supply those items of information took place on 9th June 1997 when the letter was written telling the respondent that he was dismissed if he did not take the alternative job. Consequently, any complaint about that failure was out of time.[22]The relevant provisions of the Act dealing the period within which a complaint must be presented are to be found in Schedule 3, paragraph 3. That paragraph reads as follows:
"3.-(1) An employment tribunal shall not consider a complaint under section 8 unless it is presented before the end of the period of three months beginning when the act complained of was done. (2) A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so. (3) For the purposes of sub-paragraph (1)- (a) where an unlawful act of discrimination is attributable to a term in a contract, that act is to be treated as extending throughout the duration of the contract; (b) any act extending over a period shall be treated as done at the end of that period; and (c) a deliberate omission shall be treated as done when the person in question decided upon it. (4) In the absence of evidence establishing the contrary, a person shall be taken for the purposes of this paragraph to decide upon an omission- (a) when he does an act inconsistent with doing the omitted act; or (b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done."
[23]The chronology here was that the crucial meeting between the respondent and the representatives of the appellant took place on 5th June 1997, and it was followed by the letter dated 9th June 1997 terminating the employment of the respondent. The internal appeal was dismissed by letter dated 11th July 1997. The respondent's employment ceased on 7th September 1997, and his originating application alleging discrimination was presented on 24th November 1997.[24]It needs to be borne in mind that these provisions of Schedule3, paragraph 3 follow closely the wording of the similar provisions dealing with time limits in the Sex Discrimination Act 1975 , section 76 and Race Relations Act 1976 , section 68. In our judgment the principles developed under those two Acts are relevant and applicable to the approach to be adopted to the interpretation of Schedule 3, paragraph 3 of the present Act. Thus there could in appropriate circumstances be a finding of a continuing act of discrimination, which would prevent the three month period from running while that act continued. However, in the present case there was no evidence of any enduring policy of the employer to refuse to provide the information in question to the respondent or other employees, and by the time of his appeal hearing in early July, the respondent had been given much of the information in question about the alternative job offer. This could not have been seen as a case of a continuing act of discrimination and it would fall outside the principles established by the Court of Appeal in Cast v Croydon College [1998] IRLR 318 .[25]However, these failures by the appellant employer were all matters which had some relationship to his dismissal, in that on the findings of the tribunal these failures related to the alternative possible employment, his refusal of which entailed his dismissal. Where one is concerned with a discriminatory dismissal there is clear authority that time does not run until the notice of dismissal has expired and the employment ceased: Lupetti v Wrens Old House Ltd [1984] ICR 348 ; Gloucester Working Men's Club v James [1986] ICR 603 . Those were decisions under the race and sex discrimination legislation, but they are relevant for present purposes for the reason already indicated. In dismissal cases, it is when the individual finds himself out of a job that he suffers the detriment as a result of the discrimination.[26]For that reason we conclude that the tribunal here did have jurisdiction to consider any complaint about discrimination by way of the appellant's failure to supply this information about the alternative job.[27]The second matter raised by the appellant company is that this was never in fact the subject of a complaint by the respondent. Miss Pollard points out that the respondent in his application to the Employment Tribunal made no mention of such failures to supply these items of information. His case was advanced simply on the footing that the section 5(1) discrimination consisted of his dismissal. It had also been contended on his behalf that the alternative job offered was unsuitable, but that was because the level of pay was lower, not because he did not have enough information about the job. The tribunal did have some evidence before it about the failure to supply such information, but that failure was never put forward by the respondent as amounting to discrimination. Consequently, the appellant never had the opportunity to deal with this in the course of submissions.[28]Mr Freer contends that the respondent's application had referred to the appellant's failure to offer him suitable alternative employment and these matters were part of that. There was evidence before the tribunal about them and the appellant could have dealt with them in submission if it had wished to.[29]The originating application presenting the complaint of discrimination gives under the heading of "details of your complaint" the following:
"My employer dismissed me due to my medical condition, epilepsy. They failed to offer suitable alternative employment or to take reasonable steps to re-arrange or alter my working conditions."
[30]While the reference to the failure to offer suitable alternative employment could be seen as embracing a failure to provide enough information about that alternative job, the application form certainly did not make that clear. We have looked at the Notes of Evidence and of submissions. There was some evidence about the information supplied and not supplied to the respondent, but it is right that in his own evidence the respondent made no mention of any complaint about not having received enough information about the proposed alternative. Nor did the submissions made on his behalf raise this point, but merely confined themselves to referring to his dismissal and to the failure to offer suitable alternative employment. Perhaps not surprisingly in the circumstances the submissions on behalf of the appellant also did not relate to such a complaint.[31]It is important that tribunals in such cases should deal with the complaints of "less favourable treatment" as they are defined by the applicant and not as the tribunal subsequently chooses to define them. If a tribunal finds less favourable treatment in some act or omission of which the applicant has not complained there is a grave danger that there will have been a breach of the rules of natural justice because the other party will not have been put on notice that this might be held against it. That seems to us to have happened here, possibly because the tribunal was focussing on whether there were any differences between the treatment of the respondent and that received by others absent from work for a long time for reasons not related to disability. But however it happened, the end result was that the appellant was deprived of the opportunity to deal in its submissions with this potential category of less favourable treatment. It did not receive a fair hearing and the decision in consequence cannot stand.[32]We have also concluded that the next point raised by Miss Pollard in respect of the section 5(1) issues is soundly based. It is submitted that the tribunal, when finding that there was less favourable treatment in the shape of the failure to supply the items of information, failed to ask itself whether that failure was for a reason relating to the respondent's disability. All that the tribunal considered was whether he was less favourably treated than others who were off work for a reason other than disability. That, is it said, does not properly cover the tests required by the Act.[33]Section 5(1) of the Act states that 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 …" and he cannot show that his treatment in question is justified.[34]It is quite clear that the less favourable treatment must be for a reason which relates to the disability. Normally in dismissal cases that would not give rise to difficult problems. The difficulties in the present case arose because of the tribunal's identification of the less favourable treatment as being, not the dismissal but the failure to supply certain information. There seems to have been no evidence on the reason for that, which could have been the result of managerial oversight or incompetence or some other reason which had nothing to do with the respondent's disability. What the tribunal here did was simply to identify the items of information which the employer failed to provide and then say:
"We find that in respect of the matters described in paragraph 4.16 the [ appellant ] did treat the [ respondent ] less favourably than someone who was off ill for the same amount of time but for a reason other than disability. Having made that finding we then had to consider whether the [ appellant ] could show the treatment in question was justified."
That omits this vital part of the statutory test, as did its ultimate finding that there was section 5(1) discrimination because the company treated Mr McCaull:
"less favourably than someone who was off ill for the same amount of time but for a reason other than disability in relation to the matters set out in paragraph 4.16 and that the [ appellant ] has not shown that the treatment in question was justified."
Consequently, the tribunal failed to apply one of the parts of the statutory test as laid down by section 5(1).[35]There was a further submission by the appellant that there was no evidence for the tribunal's finding that other employees would have been provided with the items of information in question. We regard this as a less good point. It may have some force in relation to certain items of information but in respect of others there certainly was evidence on that aspect. Given the conclusions which we have already reached we do not propose to take more time on this argument.[36]For the reasons which we have indicated the appeal in respect of the finding of section 5(1) discrimination must succeed. When it is dealt with afresh this aspect of the case can then be approached on the correct legal basis as spelt out by the Court of Appeal in Clark v Novacold . The section 5(2) discrimination claim[37]On this part of the case, the tribunal said this:
"S.6(1) DDA places a duty on the employer to take such steps as are reasonable, in all the circumstances of the case. It is implicit in this duty that the employer must positively consider, with the employee (para 3.2 of the Code) the steps which might reasonably be taken. In this case the [ appellant ] never considered the [ respondent ] to be a disabled person, never considered the DDA, never considered whether it was under a S6 duty to the [ respondent ] and never considered any of the steps referred to in S.6(3) DDA except (in another context) the step referred to in S6(3)(c) DDA. We therefore find that, apart from considering the step referred to in S.6(3)(c) DDA the [ appellant ] took no action whatever to comply with its duty under S.6 DDA. We did not therefore think it to be the proper application of the Employment Appeal Tribunal's guidance in Morse v Wiltshire CC to proceed to consider whether the [ appellant ] could reasonably have taken any of the steps set out in s.6(3) (other than S.6(3)(c)) or the factors set out in S.6(4). As the [ appellant ] had never considered any such steps we had heard no evidence of the [ appellant's ] consideration of the steps in s.6(3) or the factors in S.6(4) and we were therefore unable to make any findings of fact upon which to base an objective consideration of them. That Miss Pollard made submissions in regard to these issues (though ably made) we find to be irrelevant. The Tribunal must make its judgment on the steps and factors actually considered by the employer. Submissions are neither evidence nor can it be right for an employer wholly to disregard its duty under S.6 DDA and then to seek to justify that disregard by way of submissions made ex post facto at the hearing and which cannot be tested in cross-examination."
[38]It then went on to consider the step which the appellant had taken, namely offering transfer to an existing vacancy. It commented that the appellant had had no regard to the fact that Mr McCaull was a disabled person, to the DDA or to section 6 thereof or to the Code. It noted that the company had sought to justify its action by reference to the fifth example in paragraph 6.20 of the Code which it quoted as follows:
"In many cases where no reasonable adjustment would overcome a particular disability so as to enable the disabled person to continue with similar terms or conditions, it might be reasonable for the employer to have to offer a disabled employee a lower-paying job, applying the rate that would apply to such a position under his usual practices."
[39]The tribunal commented that at no time before his dismissal did the company consider this or discuss it with Mr McCaull. It then found that "it was not reasonable" for the company to offer him a job paying between 23% and 30% less than his existing job. It concluded as follows on this:
"We find that the [ appellant ] failed to comply with its S.6 duty to discuss with the [ respondent ] what steps might reasonably be taken and that the offer of the CSA job with the alternative of dismissal if it was refused was not a step which complied with S.6(3) and was never considered by the [ appellant ] in the context of the DDA or its duty under S.6 until the hearing."
It then found no justification for the company's failure and therefore held that the claim under s.5(2) had been made out.[40]The appellant submits that the tribunal went wrong in law in adopting this approach. Miss Pollard contends that the test to be applied is an objective one, namely what steps it is reasonable in all the circumstances for the employer to have to take in order to prevent the arrangements or physical feature from placing the disabled person at a substantial disadvantage. The Act enables an employer to contend before a tribunal that a particular step would not have been reasonable for him to have to have taken, even if he did not think of it at the time. So a failure to consider a particular step or action is not automatically a breach of the duty under section 6. Section 6 does not itself impose a duty on an employer to discuss with an employee what steps might reasonably be taken.[41]Mr Freer argues that there is a duty on the employer to consider what steps should be taken and even if there are no steps which could reasonably be taken to prevent the disadvantage, there would still be a breach of statutory duty. He relies upon the Code of Practice on Disability Discrimination, especially paragraph 6.20 which states that where there is a substantial disadvantage for the disabled employee "the employer must first consider any reasonable adjustment which would resolve the difficulty". A duty to give such consideration to the steps which might reasonably be taken is implicit in the provisions of section 6.[42]We have set out earlier the crucial parts of the tribunal's reasoning on this topic. Upon analysis the tribunal seems to be running together a number of separate points. First, it seems to be saying that an employer must consciously consider what steps it should take in the context of its section 6 duty; in other words, it will be in breach of that statutory duty if it is unaware of the existence of that duty. In so far as the tribunal was saying that, it was wrong in law. There is no automatic breach of the section 6 duty because an employer is unaware of that duty: the question is not one of such awareness but of what steps the employer took and did not take. A benevolent and conscientious employer with a disabled employee might well take all reasonable steps as contemplated by section 6 while remaining entirely ignorant of that statutory provision itself.[43]The tribunal also seems to be making an associated but separate point, to the effect that an employer cannot argue posthoc that a section 6(3) steps was not a reasonable one which he should have taken, if he did not consider taking it at the time. We can see no basis for such an interpretation of the statute. Nothing in the Act prevents an employer so contending. The examples in section 6(3) are precisely that, namely examples. The test of reasonableness as set out in section 6(4) does not relate to what the employer considered but to what he did and did not do. Whether an employer considered any or all of the steps set out as examples (and no more than that) in section 6(3), the test remains an objective one under section 6: did he 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 made by the employer from placing the disabled person at a substantial disadvantage in comparison with those who are not disabled? It is for the tribunal to consider what steps the employer took and what steps he did not take and then to apply the statutory test. The approach was in our judgment correctly spelt out by this Appeal Tribunal in Morse v Wiltshire County Council at paragraphs 46 and 47:
"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 s.6(3) were reasonably available in the light of the actual situation so far as the factors in s.6(4) were concerned; and asking whether the employer's failure to comply with its s.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."
[44]Any other approach would deprive the employer of his entitlement to rely on section 6(4) of the Act, under which he can seek to show that, for example, there were no particular steps which it was reasonable for him to have to take in all the circumstances. If Parliament had intended an employer to be in breach of statutory duty because he failed to consider what steps he might reasonably take, it would have so provided in the Act, and it has not done so.[45]Of course, the reason for the employer's failure to comply with his section 6 duty may come into play under section 5(4) and it will no doubt be very difficult for an employer to justify the failure to take reasonable steps if he has not considered what steps should be taken. But that provision only comes into play once a breach of duty has been established, and that requires it to be shown that the employer has failed to take such steps as is reasonable in all the circumstances for him to have to take to prevent the arrangement or feature having the substantially disadvantageous effect on the disabled person.[46]The tribunal also seemed to be making the point in this part of its extended reasons that submissions by counsel or other representative are no substitute for evidence. That of course is entirely true, but in the present case there was evidence about the difficulties which the appellant would have faced in trying to alter its arrangements so that the respondent could continue as a service engineer. For example, there was evidence about the way in which service engineers worked single-handedly, and the absence of "two person" jobs. There was also evidence about other possible changes to the working arrangements for the appellant. In both cases this evidence was given by Mrs Spalding. Whether the evidence made the other suggested steps unreasonable was a matter for the tribunal, but the point which we emphasise is that the tribunal should have considered the reasonableness or otherwise of the various steps which were being suggested. It failed to do so. It should not have found that it was unnecessary for it to consider whether the appellant could reasonably have taken any of the steps set out in section 6(3) or 6(4). In short, an employer may have taken no steps, but if it could not reasonably have taken any, it then has a defence to the claim of discrimination being brought against it.[47]We conclude therefore that the tribunal did go wrong in law when dealing with the claim of discrimination under section 5(2) of the Act. Unfair dismissal[48]In this part of its extended reasons the tribunal found that the principal reason for the respondent's dismissal was his refusal of alternative employment deemed suitable by the appellant and that this was the appellant's intention. It found that to be a "substantial reason" potentially within the meaning of section 98(1)(b) of the Employment Rights Act 1996 . It then turned to consider whether the appellant acted reasonably in treating that as a sufficient reason for dismissing the respondent. It acknowledged the principles spelt out in Merseyside and North Wales Electricity Board v Taylor [1975] IRLR 60 including the proposition that where an employer is not able through illness to do the job he was doing the employer cannot be called upon to create a special job for the employee. But it noted that in that case it had been said that each case must depend upon its own facts and it referred to the passage from the judgment in that case which stated, at paragraph 25:
"… The circumstances may well be such that the employer may have available light work of the kind which it is within the capacity of the employee to do, and the circumstances may make it fair to at least encourage him or to offer him the chance of doing that work, even if it be at a reduced rate of pay. …"
[49]The tribunal in the present case then went on to say this:
"The rationale of this principle is that there is a duty on an employer to see if there is some other employment available for the employee before dismissing him on grounds of disability. If the employer has offered him that chance, and the employee refuses, then that would be a factor for a Tribunal to consider in considering the reasonableness of the employer's decision to dismiss on grounds of capability. It appears to the Tribunal to be turning this principle on its head for the [ appellant ] to argue, as it did, that it was acting reasonably in effectively compelling an employee to accept a job at substantially lower pay or be dismissed – particularly where the reduction in pay was as extreme as it was in this case and where the purpose of the manoeuvre was to prevent the [ respondent ] from qualifying for an ill-health pension. Mindful of its role as an industrial jury the Tribunal was quite unable to accept that an offer of alternative employment involving a reduction in pay of between 23% and 30% was suitable or reasonable."
It consequently decided that the appellant had acted unreasonably in treating the respondent's refusal to accept the CSA job as a sufficient reason for dismissing him and that the dismissal was unfair.[50]We have to say that we find the reasoning of the tribunal on this aspect of the case difficult to follow. The appellant had offered the respondent other work of a kind which it was within the capacity of the respondent to do and it done so at the prevailing rate of pay for such work. It has to be borne in mind that the tribunal had already found that the appellant had no other alternative employment available which would have been suitable to the respondent. It would seem that the implication of the tribunal's decision is that the appellant should have "red circled" the respondent's salary, so that he would have been employed as a CSA but at the service engineer salary, substantially above the going rate for the CSA job. It then had to ask itself whether the dismissal of the respondent, when he refused to accept the CSA job at the going rate, was outside the range of responses of a reasonable employer. It is not clear to us that it ever applied its mind to that question, or if it did, its seems to us that its conclusion was a perverse one. The appellant had offered the respondent the only suitable alternative employment which it had available for him, given the restrictions on his capabilities, and it made that offer at the going rate for that alternative job. It cannot be right to see that course of action as outside the range of responses of a reasonable employer. Conclusion[51]It follows that this appeal will be allowed on all three aspects of the case. The matter will be remitted to be heard by a differently constituted Employment Tribunal.