MR P LEE v LANCASHIRE COUNTY COUNCIL [2001] UKEAT 703_99_3004

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 703_99_3004Case No Appeal No. EAT/703/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P LEEAPPELLANTLANCASHIRE COUNTY COUNCILRESPONDENT
Before
Mr Justice Hooper Mr D J JenkinsDate 30 April 2001
[1]APPEARANCES For the Appellant MR TOM KIBLING (Of Counsel) Instructed by Messrs Zermansky & Partners Solicitors 10 Butts Court Leeds LS1 5JS For the Respondent MR DAVID FLOOD (Of Counsel) Instructed by Lancashire County Council PO Box 78 County Hall Preston PR1 8XJ MR JUSTICE HOOPER At the conclusion of the hearing we announced that the appeal would be dismissed for reasons which we would give later.[2]This is an appeal against the decision of an Employment Tribunal held at Liverpool on 22 March 1999. The decision was sent to the parties on 20 April 1999. The Tribunal unanimously decided the appellant had not been discriminated against on the grounds of his disability under either section 5(1) or 5(2) of the Disability Discrimination Act 1995 ("the Act"). It was not in issue that he was a disabled person within the Act. He suffers from "severe dyslexia compounded by scotopic (Irlen) sensitivity syndrome" (paragraph 1 of the extended reasons).[3]Because this appeal now only concerns alleged section 5(2) discrimination (reasonable adjustments), we shall set out the relevant provisions relating to this kind of discrimination.[4]It is important to note first that the Act did not come into force until 2 December 1996.[5]Section 5(2) and (4) of the Act state:
"(2) 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. (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."
[6]Section 6 of the Act states:
"(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)…; (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) making adjustments to premises; (b) allocating some of the disabled person's duties to another person; (c) transferring him to fill an existing vacancy; (d) altering his working hours; (e) assigning him to a different place of work; (f) allowing him to be absent during working hours for rehabilitation, assessment or treatment; (g) giving him, or arranging for him to be given, training; (h) acquiring or modifying equipment; (i) modifying instructions or reference manuals; (j) modifying procedures for testing or assessment; (k) providing a reader or interpreter; (l) providing supervision. (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." … (6) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know- (a) …; or (b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1). …"
[7]Sub-section (6) of section 53 of the Act (now repealed and replaced by section 53(A)), provides:
"If any provision of a 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." "
Code" means a code issued by the Secretary of State under this section (section 53(7)).[8]Mr Kibling referred us to Morse v. Wiltshire County Council [1998] ICR 1023 (E.A.T.). Bell J giving the judgment of the Employment Appeal Tribunal set out (at 1033-1034) the sequential steps which an Employment Tribunal was required to go through when considering a section 5(2) case. First, the Tribunal had to decide whether there was a duty on the employer (not an issue in this case). Secondly the Tribunal must 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 "involves the Tribunal enquiring whether the employer could reasonably have taken any steps including any of the steps set out in paragraphs (a) – (l) of section 6(3)", "at the same time the Tribunal must have regard to the fact as set out in section 6(4) paragraphs (a) – (e)". Only if the Tribunal finds that the employer has failed to comply with a section 6 duty, does the Tribunal then finally have to decide whether the employer has shown that its failure to comply is justified. In taking these steps, the Tribunal must apply an objective test. The employer does not succeed by showing that a reasonable employer would have acted as the employer did and nor is it sufficient that an explanation advanced for its conduct is reasonably capable of being material and substantial.[9]In April 1996 the appellant commenced employment as Head of Care at Massey Hall School. There is an issue as to whether or not the respondent was the employer before 1 April 1997. That issue was not resolved by the Employment Tribunal given their findings that the appellant had not been discriminated against on the grounds of his disability. Having announced our decision, we invited Mr Flood, if he wished to do so, to present the argument that in any event the respondent was not the employer. He told us that he was content not to do so.[10]The appellant was on sabbatical leave from 1 January 1997 until coming back to work on Monday 7 April 1997. On 17th December the appellant had written a letter requesting a sabbatical for the spring term so that he could concentrate on his studies at Liverpool University. He indicated that during the period he intended to seek alternative employment (page 30). By letter dated 21 December 1996 the appellant confirmed that, should he be unsuccessful in gaining alternative employment by the end of the spring term, he would tender his resignation. On 27 December 1996 Mr Gleave informed the appellant that he could have a sabbatical for the spring term but that his managerial responsibilities would be taken over by the headteacher or his delegate. In paragraph 79 (page 89) of his statement he said that from 27 December to 7 April he was only permitted to enter the school to use the computer in his office and only at the agreed times. That was one day a week and at weekends.[11]At the conclusion of his sabbatical on 7 April, the appellant, according to the statement (see paragraph 87 at page 91), had a discussion with the headteacher, Mr Gleave, about the terms of a possible resignation. The appellant had earlier outlined terms for his resignation which were thought to be excessive. During this discussion, Mr Gleave said that he was prepared to continue the sabbatical leave until the end of term. It was made clear to the Appellant that if he continued to work it would be in a diminished role without his management responsibilities. It appears that the appellant did not go to work on 8 April (see pages 91 and 92) but did return on Wednesday 9 April. On that day, allegedly under duress, he signed a resignation letter. Thereafter he did not work after giving in his resignation (see paragraph 93 at page 93).[12]On 6 August 1997 the appellant filed an IT1, claiming discrimination under the Act and constructive unfair dismissal. Much of the IT1 referred to the circumstances in which he resigned, to an alleged history of harassment by other employees and an alleged campaign to undermine his competence and to an alleged failure on the part of the headteacher to support him. We shall not consider those matters in any detail because of the later findings by the Employment Tribunal. At a preliminary hearing before another division of this Tribunal, grounds of appeal relating to those findings were held to be without arguable merit.[13]In paragraph V the appellant complained of a failure to make reasonable adjustments, referring to a denial of access to school documents, log books and other management tools. In paragraph VI he claimed:
"no adjustment was made in administration procedures; no adjustment was made regarding the nature of my disability with regard to my responsibility to devise rotas; any request to transfer particularly difficult work was used to question my competence. ... These and other issues received no response from the Headteacher, Board of School Governors or Lancashire County Council."
There was a reference to harassment in paragraph VII and in paragraphs 3 and 7 on a supplementary sheet. In paragraph 3 he complained of experiencing difficulties with administrative procedures as a result of his dyslexia- "resulting from the pressure directed at my competence my employer failed to make reasonable adjustments". In paragraph 7 he complained that the employer had failed to make reasonable adjustments to administrative procedures in accordance with section 6.[14]In its reply, the respondent stated that the appellant did not have the necessary period of continuous employment to claim unfair dismissal. In paragraph 2 the respondent stated that the appellant had worked at the school from the 15th April 1996 to 20th December 1996 and from that time until the date upon which his resignation took effect, he was on leave. The respondent submitted that, the applicant having not worked in the school after 20 December 1996, he could not thereafter have been the subject of discrimination. It was accordingly submitted that the application had not been presented within the required 3 month period. The allegation of discrimination on the grounds of disability was denied and insofar as reasonable adjustments were concerned the respondent wrote (page 52):
"The respondents will seek further and better particulars of the adjustments it is claimed it should have made. The Applicant stated in his application for the post that his disability "had not particularly affected my achievements in working within the Community Management training and development of work in residential care."
Between the 2nd December 1996 when the relevant provisions of the Act came into force and 17th December 1996 when the Applicant ceased to work in the school, no request was made by the Applicant for any adjustment to be made in working practices to accommodate his disability. The only request for adjustments made by the Applicant was in or about April of 1996 when he requested an adjustment to lighting and furniture in his office which was provided."[15]On 29 October 1997 Mr M Homfray-Davies, sitting alone as Chairman, dismissed the claim for unfair dismissal on the grounds of insufficient qualifying service. Mr Homfray-Davies also decided (page 27):
"The applicant's claim that he was discriminated against on account of a disability was not presented within the required time of three months and it is not just and equitable for the Tribunal to entertain the complaint, which is hereby dismissed."
[16]We asked Mr Flood whether the respondent had made the request for further and better particulars referred to in its response to the application. He told us that during this hearing before Mr Homfray-Davies, the appellant orally gave the further and better particulars of those adjustments which the respondent should have made. The respondent did not then seek any further particulars. Unfortunately there is no record of precisely what the appellant was claiming in this respect.[17]Mr Homfray-Davies summarised the appellant's claim on this aspect of the case. The appellant had little difficulty in reading but that he had considerable difficulty in writing. He found composing and reading staff rotas, which is one of the Head of Care's functions, particularly difficult (page 29). In the words of Mr Homfray-Davies "he made no particular complaint about anybody or anything during the spring term".[18]Mr Homfray-Davies summarised the evidence relating to the resignation. He considered the case of Owusu v London Fire and Civil Defence Authority [1995] I.R.L.R. 574 relating to continuing act or acts of discrimination. Insofar as the alleged forced resignation was concerned, he held that the last act of which any complaint could possibly have been made was 9 April 1997.[19]Thereafter Mr Homfray-Davies was asked to conduct a review of this decision. Having had his attention drawn to Lupetti v Wrens Old House Ltd [1984] I.C.R. 348 and following a submission that the dismissal had not occurred until 19 July 1997, he decided that the issue of whether time began to run only from 19 July 1997 would be considered at a review. Insofar as the respondent's failure to make reasonable adjustments was concerned Mr Homfray-Davies ruled (page 36):
"No evidence was led by the applicant to indicate what steps the respondent should have taken in this regard between 9 April 1997 and 19 July 1997, this matter is not therefore fit for review."
There was no appeal from that decision. The Chairman continued:
"The issue of what reasonable adjustments it is alleged the respondent should have made between 2 December 1996 and 9 April 1997 will be considered at the review."
[20]The review was subsequently held on 4th December 1998 by Mr Homfray-Davies sitting with two lay members. The Tribunal decided to grant the review and revoke paragraph 2 of the decision (see page 43A). The Tribunal said that the issue of whether he was dismissed and if so for what reasons would be tried by a full Tribunal. The extended reasons do not deal with the issue of time limits relating to the alleged failure to make reasonable arrangements in the period 2 December 1996 to 9 April 1997. The Tribunal in paragraph 6.2 (page 43D) said that any issues of jurisdiction had to be drawn to the Tribunal's attention before the scheduled pre-hearing discussion in January.[21]The respondent (presumably by mistake) did not take the point that the complaint about failure to make adjustments had not been made within the necessary 3 months. Not having taken that point and the original decision that the claim was barred because of a failure to bring it within the 3 months having been revoked, the respondent could no longer claim that the claims regarding reasonable adjustments were out of time.[22]For the purposes of the full hearing the appellant made a lengthy statement which can be found set out at pages 65-94. It contains 94 paragraphs. Only 3 of the paragraphs relate to the matter of reasonable adjustments. In paragraph 19 (page 69) the appellant wrote:
"Prior to my appointment, I had attempted to explain the nature of my disability. In my letter confirming my attendance at the interview, I had also referred to my disability and the particular difficulty that stressful situations would place me under. At the interview, I had particularly informed the Respondent's of the difficulty that I would have with formulating rotas. I was aware of this as a result of my previous job."
In paragraph 23 (page 70) he wrote:
"At the start of my employment, the school made a number of adjustments at my request to my office in the school. These mainly involved changes to the lighting in the room and were paid for by Lancashire County Council. They were particularly aimed at combating the difficulties that I experienced as a result of the scotopic sensitivity syndrome. At no time, however, did they make any adjustments to combat the effects of dyslexia."
In paragraph 62 (page 82) he wrote:
"With the departure of Mr Boyle [in July 1996], I had been able to assume responsibility for drawing up the staff rotas. Whilst I was pleased to now have this area of responsibility, I was not offered any assistance with the practicalities of doing them despite outlining this difficulty in my interview and informing Mr Gleave of the on-going difficulties during this period. I also requested some administrative assistance in order to try and set these and other similar documents on to my computer. I also encouraged the two Senior Residential Social Workers to undertake some of the other administrative duties that I had difficulty with as a result of my disability. However, all attempts to get these adjustments were prevented by Mr Gleave who suggested that they were all part of my job description and should not be delegated, even in part, to other members of staff. If I was incapable of doing them, I was incapable of doing the post of Head of Care."
[23]Mr Gleave dealt with the issue of reasonable adjustments in paragraphs 2, 3 and 4 of his statement (page 95-96):
"2. After Mr Lee had been invited for interview he wrote to the Chief Education Officer on the 11th February indicating that he had a disability which was exacerbated under "examination" conditions and it might be helpful to have a small amount of extra time available in order to feel less pressure. With this in mind, he was asked at the end of the interview whether his needs had been taken into account by the Panel and he agreed that they had. 3. There was some discussion in the interview about how his disability would affect his ability to do the job. I mentioned that he would be responsible for drawing up care staff rotas and that I had no objection if this took him some extra time. He said that he could undertake every aspect of the job but that he would need more time than average to pick up new procedures and also to prepare anything involving documents, graphs or dates such as work rotas. I also remember that after his interview in response to a query about any adjustments he would need in relation to his disability, he said that because of his eyesight, he would need 'day-light effect' lighting and the siting of sockets for electric plugs would need to be altered to accommodate his computer equipment. 4. Mr Lee began work at the School as Head of Care on 15th April 1996 at the beginning of the Summer Term. I prepared an induction package and agreed with him that he would not be required to take over the full management role initially but that he would shadow me to see what was required. I was prepared to let the whole summer term be regarded as an induction period."
[24]The other members of the staff who made statements said nothing about this matter save perhaps Kathryn Hamblett who wrote in paragraph 9 (page 112):
"While Paul Lee was there, I drew up weekend rotas sometimes but I cannot remember that this was specifically at his request or that I or he was criticised for the fact that I had drawn the rotas up. I am quite happy to draw up rotas."
[25]Before the hearing, the appellant's representative, Miss Fothergill, prepared a statement of issues dated 19 February 1999 (page 4-6). The statement noted that the applicant had difficulty reading and writing and that this also affected his ability to process information. Stress exacerbated the condition. There is then set out the complaints which were subsequently to be dismissed by the Tribunal. There is no mention in the statement of issues of the failure to make reasonable adjustments.[26]Before looking at what happened during the hearing and examining the decision under appeal, we should note briefly what happened thereafter. The appellant made a number of complaints about the manner in which the hearing had been conducted and brought an appeal to the Employment Appeal Tribunal. That appeal was considered by a Tribunal chaired by His Honour Judge Collins CBE with the appellant appearing in person. The grounds of appeal submitted by the appellant did not include any appeal relating to the findings on reasonable adjustments. The Employment Appeal Tribunal was, however, concerned about the manner in which the Tribunal dealt with this matter. Giving judgment His Honour Judge Collins CBE said at paragraphs 11 and 12 (page 26g):
"11. I now turn to consider the other aspect of the case; that the respondents failed to make reasonable [adjustments] under ss5 and 6 of the 1995 Act. The appellant told us and we have no reason to doubt, that he is able to address himself with help and support to the paperwork which must necessarily flow across the desk of somebody, in the position of Head of Care and a member of a senior management team at a residential school. But his case before the tribunal was that arrangements should have been made to give support; some of those identified in paragraph 36 of the tribunal's reasons. In relation to this part of the case, we are concerned that the reasons given by the tribunal do not reveal that they addressed the specific difficulties which the appellant had having regard to his degree of dyslexia, the specific questions of paperwork and support where adjustments might have been of assistance and the specific steps which the employers did take. 12. While it might be said that in paragraph 39 they set out their decisions in a very compressed form we do have a certain unease that paragraphs 36 to 40 compress the evidence and the reasoning to such a degree that it is impossible to have complete confidence that all the issues were correctly addressed. For those reasons we think that the question of whether or not the respondents made reasonable adjustments amounts to a reasonably arguable point of law which justifies the case proceeding to a full hearing on this issue only."
[27]The appellant was given leave to amend his notice of appeal. That now reads: "The Tribunal erred in law in:(i) holding that the Respondent complied with its duty to take such steps as were reasonable in all the circumstances of the case to prevent the fact that the Appellant's job involved dealing with paperwork from placing him at a substantial disadvantage compared with those who were not disabled;(ii) failing to give sufficient reasons for arriving at the above conclusion;(iii) failing to set out in their decision properly, or at all, what, if any, adjustments were made by the Respondent in relation to the requirement of the Appellant to deal with paperwork".[28]Following the preliminary hearing the Chairman produced his notes. Criticism was made by Mr Kibling of them. He pointed out that they were brief. The notes will be found set out at pages 53 - 64. They cover the 3 days of the hearing. Mr Kibling pointed out that the cross-examination of Mr Gleave is recorded as having started at 11.25 a.m. and finished 12.50 p.m. with a 10 minute break. Yet the relevant notes take up less than 1½ pages. He also pointed to the fact that the submissions must have been significantly fuller than as recorded at pages 63-64. We asked whether there were any notes from either the appellant or respondent which could be of assistance. We were told there were no such notes. Even if the notes can properly be described as cursory, there is nothing to suggest that the passages to which we were referred by the parties are inaccurate.[29]We turn to the hearing itself. The appellant was called to give evidence and he confirmed the truth of the statement. We shall only deal with those passages in the evidence which relate to the subject matter of this appeal. According to the notes (page 54-55) he said in cross-examination: "I never convinced the authority or the school that I needed adjustments. … Adjustments - as follows: Assistance with rotas and placing those and other documents on PC. Other admin duties - sharing preparation of notes and letters to go home with pupils. Requirement to read written reports from JT. Given that writing etc related to the disability, the requirement to write so many reports, letters etc - caused me problems. I did ask once for secretarial assistance - other than that, I'd have expected the school to appreciate the problems I had. … Didn't ask CG for adjustments . … 23 - "adjustments" - was comprehensive induction programme - just documents. He didn't say I'd get extra time to get used to routines. Denton and Boyle produced the rotas, finalised by CG. This was custom and practice. I didn't do rotas at the start. Boyle was not in the school from end of July 1996." (Underlining added) We have already mentioned that Mr Boyle left in July 1996. It is not clear whether the member of the staff referred to as Denton (Helen Denton, see pages 126-134) did or did not continue to work in the school after this period. There was a dispute before us about that.[30]Continuing with the record of the appellant's cross-examination, he said (page 56):
"Rotas - I got assistance in the end but it demeaned me. The job was effectively taken back over again by CG. I wanted to be able to complete the tasks using a school compatible programme. I asked for about 20 hours per week assistance, from CG, casually. Not a request. I got the impression there wasn't enough money."
[31]We now turn to the notes of the evidence of Mr Gleave in so far as it relates to the subject matter of this appeal (page 60). Having confirmed the truth of his statement, he said:
"Paragraph 62 - Can't remember L asking for administrative assistance. He got from school secretary etc. Didn't prevent other people from helping him. I knew the RSWs helped him e.g. rotas."
He was questioned about adjustments and the note records (page 61) "he didn't do rotas". The note reads on:
"Paperwork - He told me it was just a matter of having more time to do it. He'd know how much paper work we'd process. Only support he needed was in time."
[32]Miss Fothergill is recorded in her closing submissions as having said: "constantly asked to consider his position, not given full job, no adjustments, complaints ignored …" (page 63).[33]We now turn to the extended reasons given for rejecting the appellant's complaints (page 40):
"3. His complaints fell into two broad areas. 4. Firstly, he complained that there had been a campaign of harassment by other members of staff, brought about as a result, directly or indirectly, of the condition which rendered Mr Lee disabled. The eventual consequence of that campaign was that, on or about 9 April 1997, he had tendered his resignation. 5. Secondly, he claimed that there had been a duty on the Council (or the school itself) to make "reasonable adjustments" in their arrangements such that his disability did not put him at a substantial disadvantage. In broad terms, his complaint was that not enough was done to relieve him of burdens relating to paperwork, with which he had a particular problem. 6. In all respects, the claims were resisted by the Council. 7. We heard from Mr Lee himself and, on behalf of the Council, from Mr Gleave, the Headmaster of the school, Mrs Thompson, acting Head of Care, Mrs Denton, Senior Residential Social Worker, Mrs Hamblett, also Senior Residential Social Worker, and Mr Durham, Personnel Manager. On the basis of their evidence and the documents to which we were referred we reached the following findings of fact. 8. Although the Disability Discrimination Act only came into force on 2 December 1996, it was appropriate for us to look at earlier events in order to assess credibility. We therefore undertake a review of all of the relevant facts. 9. Mr Lee's condition affects him in a number of ways. He has difficulty with reading, which he can find exhausting. His eyes become irritated and tired under stress and he has difficulty with short-term memory. 10. Although he has assistance from modern technology and in particular a lap-top computer, its use is relatively slow and laborious. 11. His condition is exacerbated by stress. 12. In January 1996 Mr Lee applied for the position of Head of Care at Massey Hall School. This is a residential school in the Warrington area for secondary aged children with emotional or behavioural disorders. He was appointed to that position on 15 April 1996. 13. From the instigation of his employment, the school was aware of his condition and indeed several physical adjustments were made on his behalf, relating to lighting and electric sockets. 14. The Headmaster of the school, Mr Gleave, did not require Mr Lee to undertake the full range of his duties immediately."
[34]In dealing with the first of the two complaints, namely that broadly described by the Tribunal as a campaign of harassment against the appellant brought about by the condition which rendered him disabled, the Tribunal made comprehensive findings adverse to Mr Lee. The Tribunal did not accept his evidence that the members of staff were insubordinate and aggressive towards him, or that they attempted to demean him, or that they attempted to have him removed from the school, or that the headteacher had attempted to have him removed or had frequently suggested that he ought to leave either explicitly or implicitly. On the contrary, the Tribunal found that from a very early stage in his employment the appellant had caused considerable difficulties with his staff. "He frequently treated them in a wholly unacceptable and inappropriate way the consequence of which was they reported him to Mr Gleave." (paragraph 19 page 41) The Tribunal found that Mr Gleave had tried to get the appellant to improve his behaviour but with no success. According to the Tribunal (page 41):
"21. These problems culminated in a 'petition' received by Mr Gleave on 8 November 1996, setting out specific and serious allegations of personal and professional misconduct against Mr Lee and signed (or 'p.p.'d) by a number of his colleagues. 22. We believe those allegations were well-founded and cast serious doubts on Mr Lee's ability to carry out his job satisfactorily."
[35]In paragraph 24 the Tribunal dealt with the application for sabbatical leave and concluded that the headteacher had acted perfectly reasonably and sensibly in restricting the appellant's role in the school, given that he would be absent from the school during the relevant period. They also found as a fact that he had said that he would resign at the end of the spring term. The Tribunal found that the respondent had not sought to process the grievances raised by the other members of staff whilst he was on sabbatical. When the appellant was due to return, the staff indicated that they wished their grievances to be investigated.[36]In paragraph 29 the Tribunal said that there was a fundamental dispute between Mr Gleave and the appellant as to what had occurred at the meeting of the 9th April and they were satisfied that the account given by Mr Gleave was accurate. The Tribunal concluded that it was at the request of the appellant and pursuant to the negotiations that had already taken place that Mr Gleave composed a letter of resignation which the appellant took away with him. The following day he brought it back having signed it.[37]In paragraph 33 the Tribunal summarised the appellant's claim that he had been persecuted from both above and below with the intent and result that he would leave the school. It was his case that the persecution had been a consequence of his disability in the sense that his colleagues had taken against him for reasons related to that disability, such as the fact that he was not able to do paperwork as quickly as others and that dyslexic people were seen as "problems". In paragraph 34 the Tribunal said (page 42):
"On the basis of the conclusions we reached, not only do we consider that Mr Lee did not have less favourable treatment, we conclude that the school bent over backwards to accommodate him. The impasse which undoubtedly occurred between Mr Lee and the other members of staff was, in our view, wholly as a consequence of Mr Lee's actions."
[38]The Tribunal therefore concluded (in paragraph 35) that the appellant's claim under this head failed.[39]Mr Kibling rightly accepted, in the light of these findings, that where there were variations in the evidence it was the evidence called by the respondents which was accepted.[40]We now turn to that part of the Tribunal's extended reasons which relate to the matter under appeal. The reasons were brief. As Mr Flood submitted, this may well be due to the fact that the issue of reasonable adjustments had only played a minor role during the 3 day hearing. Nonetheless, as Mr Kibling points out, if there was an issue about reasonable adjustments then the Tribunal should deal with that issue properly. He submits that it did not. The Tribunal stated in paragraphs 36-40 (page 42):
"36. Mr Lee also claimed that (again under section 5 of the Act) there had been discrimination by the failure of the respondents to comply with a duty to make reasonable adjustments under section 6. Specifically, he claimed the school should have given him assistance with rotas, placing those and other documents on his personal computer, and assistance with other administrative duties. 37. It is certainly the case that the arrangements made by the school placed Mr Lee at a substantial disadvantage compared with those who were not disabled. The nature of the post he filled was such that he was obliged to deal with paperwork and, given his condition, that was always likely to be a greater problem for him than for somebody who was not disabled. 38. The duty in such a situation is to take such steps as are reasonable in all the circumstances to prevent the arrangements having that effect. 39. We conclude that the school did take all such steps. Mr Lee was not required to carry out the full range of the duties of his role from the start of his employment. In the light of his dyslexia, he was allowed to "bed himself in" over the course of several months. Thus, for example, responsibility for putting together rotas was devolved elsewhere. 40. Before us, Mr Lee criticised this approach, regarding it as being some sort of derogation from his authority. Given the motives for the school's actions, however, we believe they did fulfil the requirements under section 6."
[41]In paragraph 42 the Tribunal said that it considered that the events between the 2 December 1996 and 18 July 1997 did not satisfy the test set out in the Act. The Tribunal made no reference to the fact that, following the application for a review of the original decision of Mr Homfray-Davies, the only period which was relevant in so far as the reasonable adjustments claim was concerned, were 2nd December to 9th April.[42]The thrust of the complaint made by Mr Kibling is that the Tribunal did not direct its attention to the duty to make reasonable adjustments during the continuance of the employment. He made no complaint about the conclusion in paragraph 39, but complained that the Tribunal had not dealt at all with any subsequent necessary adjustments.[43]Given that the Act had not come into force until 2 December 1996, his submission had to be that the Tribunal should have examined the period after that date to see whether there had been a breach of section 5(2).[44]It seems to us that the only period upon which the Tribunal could properly have directed its attention was from 2 December to the period just before just before Christmas (see paragraph 14 above). Given the finding about the sabbatical leave to which we have already made reference (paragraph 24), given that the appellant does not appear to have worked on the 7 to 9 April but rather to have been in the process of negotiating his resignation, the duty to make reasonable adjustments could realistically only have applied for some 3 weeks in December.[45]It is unfortunate that neither the evidence, nor the submissions, nor the findings concentrate on this short period.[46]Mr Kibling submitted that the reasonable adjustments that ought to have been made were: giving the appellant assistance with the rotas, placing the rota and other documents on his personal computer, sharing the preparation of and getting help with notes, reports and letters to go home with pupils and assistance with reading reports prepared by Jean Thompson.[47]Criticism was made by Mr Kibling of the failure to refer to the Code of Practice. We can see nothing in the Code which would have particularly assisted the Tribunal in this case. We do note however, that the Code in paragraphs 4.32 and 4.34 deal with a situation in which a disabled person is unwilling to co-operate with a particular adjustment. In those circumstances it may either not be reasonable to make the adjustment or a failure to make the adjustment may be justified. We refer to that in the light of the paragraph 40 of the decision in which it is stated that Mr Lee criticised the approach taken by the Headteacher as "some sort of derogation from his authority". This appears to be a reference by the Tribunal to what the appellant had said about rotas (see page 56):
"I got assistance in the end but it demeaned me."
[48]Mr Flood submitted that: 1. the claim for reasonable adjustments at its inception was very limited in its scope; 2. the claim after cross-examination was all but extinguished; 3. this was a case where adjustments had been made which (if the Act had then been in force) would have fallen under section 6(3)(a) and (b); 4. in the circumstances of the case the Tribunal's decision that reasonable adjustments had been made was proper; 5. in reaching their decision the correct approach under the Act was taken;[49]Mr Flood submitted that if one looked at paragraph 62 (page 82) of the appellant's statement, the claim for reasonable adjustments formed a very limited part of the case and, so he submitted, the allegation in the paragraph that the appellant informed Mr Gleave of the on-going difficulties and that, during this period, "all attempts to get these adjustments were prevented by Mr Gleave" was effectively withdrawn in cross-examination when the appellant said that he did not ask Mr Greave for adjustments. That confirmed Mr Greave's evidence that he could not remember the appellant asking for administrative assistance. We agree. That concession also effectively destroyed the assertion that he was never able to convince the authority or the school that he needed adjustments (page 54).[50]The fact that an employee with a disability does not ask for assistance or adjustments is not, of course, decisive. On the other hand it is strongly arguable, on the basis of section 6(6), that if the employer does not know and could not reasonably be expected to know that a disability of which he has knowledge is placing the employee at a substantial disadvantage, then he is not under an obligation to make an adjustment. (See also paragraph 4.57 of the Code) However, we do not need to resolve that issue.[51]We accept Mr Kibling's submission that the Tribunal ought to have addressed its attention to the first three weeks of December, whilst also fully understanding why, in the circumstances of the case, it did not.[52]That does not however resolve the appeal in the appellant's favour. Would the result necessarily have been the same if the Tribunal had applied section 5(2) to those three weeks? We have no doubt that it would have been the same.[53]We bear in mind that the Tribunal resolved the difficult issues of fact which arose on the section 5(1) claim in favour of the respondent. The appellant was comprehensively disbelieved. We bear in mind the finding that the "the school bent over backwards to accommodate him" and the appellant's own retraction of the serious allegation that Mr Greave had ignored his requests for help.[54]In so far as the rotas are concerned the evidence showed that there were three different ways of dealing with the problem. First, and before the Act came into force, the preparation of the rotas was dealt with by the fellow employees Denton and Boyle. Thereafter with the departure of Boyle (and perhaps of Denton), the appellant took over the responsibility of preparing the rotas, but did so with the help of the residential social workers (Gleave, page 60). Finally the preparation of the rotas was taken over by Gleave. As the appellant himself said (page 56), "I got assistance in the end but it demeaned me" and the job of doing the rotas was "effectively taken back over again by CG." Mr Gleave said that the appellant "didn't do rotas" (page 61). When that precisely happened we do not know. There is, in our view, no evidence from which to conclude that the employer should have made other reasonable adjustments in so far as the rotas were concerned in the three week period of December. Furthermore it seems clear that the assertion by the appellant in paragraph 62 of his statement that he was not offered any assistance with the practicalities of doing the rotas was incorrect.[55]Mr Kibling refers to the claim that a computer programme should have been made available to assist the appellant with the preparation of the rotas. Given that the responsibility for doing the rotas was taken off him at some unspecified period, we take the view that no Tribunal would, on the evidence, have found in the appellant's favour on this point.[56]Finally it is submitted by Mr Kibling that the appellant should have been given more help with the paperwork, albeit, as we have found, that he did not ask Mr Gleave for it. What he needed, according to Mr Gleave, was more time and he was given that as well as other assistance (see pages 95 and 31). To the extent there was a conflict in the evidence we have no doubt that it would have been resolved in favour of the respondent and that to use the words of the Tribunal the "school bent over backwards to accommodate him".[57]In those circumstances and for these reasons, this appeal is dismissed.