LONDON BOROUGH OF CAMDEN v MRS V PRICE-JOB [2007] UKEAT 0507_06_1812

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0507_06_1812Case No Appeal No. UKEAT/0507/06/DM UKEAT/0054/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LONDON BOROUGH OF CAMDENAPPELLANTMRS V PRICE-JOBRESPONDENT
Before
His Honour Judge BurkeDate 18 December 2007
[1]APPEARANCES For the Appellant MR ANDREW SHORT (of Counsel) Instructed by: London Borough of Camden Legal Services Town Hall Judd Street London WC1H 9LP For the Respondent MS KAREN MOSS (of Counsel) Instructed by: Messrs Curwens Solicitors Crossfield House Gladbeck Way Enfield Middlesex EN2 7HT SUMMARY Disability discrimination – Reasonable adjustments/Justification 1. The employers appealed against two findings by the Tribunal that they had failed to make reasonable adjustments for her disability and against the finding that their admittedly disability-related dismissal of the employee was not justified. 2. The first adjustment which the Tribunal concluded the employers ought to have made and which was the subject of the appeal was the obtaining of a medical report as to the employees' condition and prognosis. Held(i) that in the light of the EAT's decision in Tarbuck and subsequent cases it was not in law open to the Tribunal to find that such an adjustment should have been made(ii) the Tribunal had, following Mid Staffordshire ( Tarbuck not being yet reported) concluded that the adjournment should be made without carrying out the balancing exercise required by s18B(1) of the DDA. 3. The second adjustment was re-allocation of the employee's-duties while she was unable to work or to work fully. Held that the Tribunal had failed to take all the relevant evidence as to the employees' condition and prognosis into account and had not concluded whether it was reasonable for the employers to have to make the adjustment. 4. As to justification, the Tribunal had failed to conclude whether, had the adjustment by way of provision of equipment to assist the employee (which adjustment was not the subject of appeal) the employee would have been enabled thereby to return to work. 5. The decision as to the first adjustment was reversed. The decisions as to the second adjustment and justification were remitted for reconsideration by the same Tribunal. HIS HONOUR JUDGE BURKE QC The appeal By a judgment sent to the parties on 3 August 2006 the Employment Tribunal at London (Central), chaired by Mr Baron, found that the applicant before them and Respondent before us, Mrs Price-Job, had been subjected to disability discrimination by her employers, the Appellants before us, the London Borough of Camden ("Camden"). By a further judgment dated 27 November 2006 the Tribunal assessed compensation at £35,103.85. Camden now appeals against part of the liability decision and, by a separate Notice of Appeal, against part of the assessment of compensation.[2]We propose to deal first, of course, with the appeal against the liability decision. Counsel for both parties agreed during the course of the argument before us that, if, in the light of the result of the liability appeal, the quantum appeal was still relevant, they would provide us with written submissions to which we would respond with a written judgment on the quantum appeal (unless, of course, we called for further oral argument). The facts[3]We will summarise the facts as found by the Tribunal at paragraphs 4 to 43 of their judgment.[4]Mrs Price-Job was employed by Camden with effect from 24 November 2004 as "liveability fund programme coordinator". She made it clear in her application form that she suffered from the degenerative condition known generally as "lupus" (the formal name of her condition is "Systemic Lupus Erythematosus") and that she suffered from pain in her back, neck and shoulder. She was restricted in carrying out physical work and had been hospitalised in February 2004 by a kidney infection. Camden obtained advice from external occupational health advisers who recommended that Mrs Price-Job was fit for the post but needed a work-station risk assessment.[5]Mrs Price-Job's contract of employment was for a fixed two year term with a six month probationary period.[6]The post was part of a central government initiative to improve the quality of life in urban areas. Mrs Price-Job's primary function was to coordinate and deliver the programme set up in Camden, pursuant to that initiative, with a substantial budget.[7]A work-station assessment was carried out on 30 November 2004 by Camden's occupational health department. It concluded that Mrs Price-Job needed a better chair as a matter of urgency and foot rests and that Access to Work, a body which contributes to the funding of equipment for disabled employees, should be consulted as to software programmes. It referred to Mrs Price-Job's request that she might work at home for part of the week.[8]On 6 December 2004 Access to Work wrote to Camden indicating that a grant might be available but inviting Camden to make a contribution towards the cost of provision for Mrs Price-Job. Camden replied that they would make a contribution towards the cost of any equipment required as part of necessary adjustments under the Disability Discrimination Act 1995 .[9]By that time Mrs Price-Job was on holiday; but on her return, at the beginning of January 2005, she completed and sent off Access to Work's application form.[10]Late in January it was agreed between Mrs Price-Job and Ms Doherty, to whom she reported, that Mrs Price-Job's working week of 35 hours would be spread over 4 rather then 5 days, subject to her coming into work on the fifth day if necessary. A probation report on Mrs Price-Job, completed by Ms Doherty at that time, raised no concerns about her performance.[11]Mrs Price-Job was ill during the second week of February 2005 when Access to Work were due to make their own assessment of her working conditions. We infer that, therefore, that assessment did not take place; and the provision of equipment for Mrs Price-Job did not move forward. Mrs Price-Job was in hospital from 26 April to 9 May. On her return Ms Doherty expressed concern about progress on the programme and the lack of achievement.[12]On 19 May Ms Doherty told Mrs Price-Job that her probationary period was to be extended by three months, to 23 August.[13]On 25 May Access to Work carried out their assessment; and they sent a report which Camden received on 7 June. That report recommended six provisions for Mrs Price-Job, namely ergonomic seating, voice dictation software, enhanced headset microphone, telephone headset switch, ergonomic keyboard and mouse and training in voice input operation. Ms Doherty forwarded the report to personnel, where on 24 June, she received a summary of the equipment which it was proposed to purchase with details of prices and of suppliers; and on 6 July she put that material on Mrs Price-Job's desk with a note asking her to place orders and informing her that Ms Doherty would deal with reimbursement from Access to Work of that organisation's contribution. However, Mrs Price-Job was again admitted to hospital on 3 July and, but for one day, remained there until 20 July when she was signed off work by her GP for a further 3 weeks. Ms Doherty did not receive the necessary medical certificates – although she knew of Mrs Price-Job's hospitalisation. On 20 July she wrote to Mrs Price-Job inviting her to attend a meeting on 28 July when a decision would be made as to whether she should be confirmed in her post or to send a written submission and/or a representative if she was not well enough to attend. Mrs Price-Job received this letter but did not respond; and Ms Doherty postponed the meeting till 3 August.[14]In a conversation on 2 August, Mrs Price-Job told Ms Doherty that she was unwell and unable to attend any interviews or to make any submissions. She said that the recurrence of her illness was entirely unexpected and beyond her control and that she was waiting to be referred to another hospital and was unable to given any indication as to when or if she would be able to return to work. In her evidence to the Tribunal Mrs Price-Job said that, at that stage, she had been referred to further tests and, as a result, there would be a delay of some months (see paragraph 38).[15]A decision was then taken by Ms Doherty, after advice from personnel, that Mrs Price-Job could not be confirmed in her post or have her probationary period further extended; and she was dismissed with effect from 22 August 2005. The reason for that decision, the Tribunal found, was set out, in Ms Doherty's letter to Mrs Price-Job informing her of that decision, in these terms:- "Your continued sickness absence has had the effect of limiting my options, and underlined the need for urgent action. I would normally hope to be able to cover the work of any employee who was suffering ill-health for an extended period, but this is not possible here. I have take into account all the factors and circumstances you were able to put to me on 2 nd August. But the time-limited nature of this programme, the high risks associated with its delivery and the limited resources available to the support the programme mean that continuing uncertainty about the fulfilment of this key role cannot be sustained. The role must be filled on a consistent and reliable basis and it is not a situation where temporary cover can be arranged or work evolved or rearranged, or other measures taken to allow another extended period of probation." The Tribunal found, at paragraph 71, that it was perfectly proper for Camden to wish to come to a conclusion on the matter of Mrs Price-Job's job one way or the other within a short time scale and that delay of indeterminate length would have been going beyond what was reasonable.[16]Mrs Price-Job was replaced by Camden's engagement as a consultant of a Mrs Watson who had just finished a different role within Camden and had previous experience in the programme which Mrs Price-Job had been intended to coordinate.[17]The Tribunal rejected Ms Doherty's evidence that there was no money available to pay for Mrs Watson and Mrs Price-Job at the same time.[18]The Tribunal had before them written evidence from Dr White, a consultant rheumatologist, to which we will refer later. It was not disputed that Mrs Price-Job was a disabled person within s.1 of the Disability Discrimination Act 1995 as amended. The Tribunal's conclusions[19]The Tribunal, at paragraphs 52 to 55, rejected Mrs Price-Job's first claim that she had been the victim of direct disability discrimination contrary to s.3A(5) of the 1995 Act. There has been no cross-appeal by Mrs Price-Job against that conclusion, it is unnecessary for us to refer to it further.[20]The Tribunal next recorded, at paragraphs 55 and 56, Camden's concession that Mrs Price-Job's dismissal was disability-related within s.3A(1) of the 1995 Act i.e. by dismissing her Camden had, for a reason which related to her disability, treated her less favourably then it would treat others to whom that reason did not apply. The issue which arose for decision on this aspect of Mrs Price-Job's claim was that of justification, pursuant to s.3A(1)(b). However, Mrs Price-Job's claim was also put on a third basis, that Camden had failed to comply with the obligation under 4A of the 1995 Act, familiarly described in shorthand as the duty to make reasonable adjustments. The Tribunal, therefore, were bound to and did turn their attention to any such failures not only for the purpose of deciding whether there had been such failures but also in considering justification, because of the terms of s.3A(6), namely:
"3A (6) If, in a case falling within subsection (1), a person is under a duty to make reasonable adjustments in relation to a disabled person but fails to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even it he had complied with a that duty."
The effect of that subsection was that, if the Tribunal found that there had been any failure to comply with Camden's duty to make reasonable adjustments, the issue of justification for the disability–related dismissal would have to be considered on the hypothesis that that failure had not occurred.[21]At paragraph 59 and 60 of their judgment the Tribunal set out seven adjustments which, it was contended on behalf of Mrs Price-Job, should have been but had not been made. For the sake of clarity we will set them out again here: 1) The provision of a chair, footrest and computer software 2) Arranging for the Claimant to be visited at home rather than having telephone conversations 3) The meeting proposed to have been held on 28 July 205 should have been rescheduled until the Claimant was able to participate in person 4) The allocation of some or all of the Claimant's duties to another person on a temporary or permanent basis 5) Changing the Claimant's hours and allowing her to work from home where possible 6) Alternative positions should have been considered for the Claimant The seventh proposed adjustment was the obtaining of a medical assessment: see paragraph 60.[22]In considering these adjustments the Tribunal correctly directed themselves to apply the principles set out by the EAT in Smiths Detection - Watford Ltd v Berriman (EAT/0712/07); see paragraph 57 of their judgment. It is not necessary to set out those principles for present purposes.[23]The Tribunal found, at paragraph 68, for reasons set out at paragraph 62 to 67, that Camden were in breach of their duty to provide a suitable chair, footrest, voice dictation software and ancillary equipment within a reasonable time after 30 November 2004 (when their occupational health department first assessed Mrs Price-Job's work-station – see paragraph 7 above).[24]The Tribunal found, at paragraph 72, that Camden had failed to make a reasonable adjustment by failing to visit Mrs Price-Job at home to discuss her employment future; although the Tribunal did not expressly say so, it is clear that this failure occurred in July and August 2005.[25]The Tribunal rejected the third, fifth and sixth suggested adjustments at paragraphs 70 to 76; and at paragraphs 80 to 82; they found that the fourth suggested adjustment, the allocation of some or all of the Claimant's duties to another person, should have been made.[26]At paragraphs 77 to 79 the Tribunal concluded, following the decision of the EAT in Mid-Staffordshire General Hospital NHS Trust v Cambridge [2003] IRLR 18, that Camden ought to have arranged for their own medical assessment of Mrs Price-Job. They said, at paragraph 79:
"We have concluded that it was a reasonable step for the Respondent to take to have arranged for its own medical assessment to be made in order possibly for the termination of the contract not to have been effected. As was said in the Mid-Staffordshire General Hospitals case such an assessment is a necessary precondition to the fulfilment of the statutory duty, and therefore a part of it."
[27]At the end of their individual consideration of the adjustments which, according to Mrs Price-Job, ought to have been made, the Tribunal said, at paragraph 83:
"We have concluded that there has been a failure of by the Respondent to comply with its obligations to make reasonable adjustments to the extent set out above, but not further. We have not considered the consequences of such failures."
[28]Having thus resolved the issues arising under s.4A of the Act the Tribunal then returned to the issue of justification and concluded at paragraphs 84 to 86 as follows: "84 We now return to the question of disability related discrimination. We repeat that Mr Short acknowledged that the dismissal was for a reason related to the Claimant's disability, that reason being her absence from work. The issue before us is whether that treatment was justified within the meaning of section 3A(3). 85 We must first consider the provisions of section 3A(6). We must hypothesise as to what the position would have been in the event that the Respondent had complied with its duty to make adjustments required by section 4A. We are here dealing only with the physical adjustments proposed as opposed to changes in the Claimant's working hours and similar matters. Miss Moss submitted that Dr White's evidence was that the absence of compliance with the Access to Work recommendations meant that the Claimant had increased sickness absence and decreased productivity. Mr Short, on the other hand, submitted that the effect of Dr White's evidence was that the provision of the adjustments would not have been sufficient to keep the Claimant in work. 86 The burden of proof is on the Respondent to show that the treatment was justified in accordance with the provisions of section 3A(1)(b) and 3A(6). On balance from those reports we find that if the Respondent had supplied an ergonomic chair, foot-rest and software then the Claimant would have been able to able to work in accordance with her contract, subject to the risk of absences caused by the spontaneous flares of disease activity mentioned by Dr White. We are therefore unable to find that the termination of the Claimant's contract would have been justified if the Respondent had complied with its duty in relation to the workstation. The termination cannot therefore be justified for the purposes of section 3A(1)(b) by reason of the provisions of section 3A(6). We therefore find that the Claimant had her employment contract terminated for a disability related reason and that the Respondent further discriminated against her in this respect. The heads of attack upon the Tribunal's conclusions as to liability[29]Mr Short, on behalf of Camden, presented and Ms Moss, on behalf of Mrs Price-Job, resisted (both of whom appeared before the Tribunal) the appeal with careful and well-directed arguments, for which we are grateful.[30]The heads of Mr Short's attack upon the Tribunal's conclusions were: 1) The Tribunal erred in law in concluding that Camden were under a duty pursuant to s.4A of the Act to arrange for their own medical assessment of Mrs Price-Job prior to her dismissal (ground 2 of the Notice of Appeal). 2) The Tribunal erred similarly in their conclusion as to the reallocation of Mrs Price-Job's duties (grounds 3 to 5 of the Notice of Appeal). 3) The Tribunal's conclusions as to justification were flawed(a) because they relied upon the existence on a duty to make the adjustments set out at 1 and 2 above when no such duty existed and(b) because the evidence did not support the conclusion that the dismissal would not have occurred had Camden supplied the equipment which, the Tribunal had found, should have been but was not provided.[31]No appeal is pursued against the Tribunal's conclusion that Camden had failed to make reasonable adjustments in relation to the provision of equipment and in failing to discuss Mrs Price-Job's future with her at home. Medical assessment (1) The point of law[32]Mr Short's criticisms of the Tribunal's decision that Camden should, as a reasonable adjustment, have obtained their own medical assessment of Mrs Price-Job before dismissing her in August 2005 fell into two separate submissions, one of pure law and one based on what Mr Short contends was the Tribunal's failure to take into account the factors which, by statute and authority, they were bound to take into account in reaching their decision.[33]The point of law requires us to consider a number of recent authorities; but it can be simply stated. It is that, as a result of the decision of the EAT (Elias P presiding) in Tarbuck v Sainsburys Supermarket Ltd [2006] IRLR 664 and other cases which have followed Tarbuck , Mid-Staffordshire was wrongly decided and that the self-direction of the Tribunal in the present case, based on that authority, that a medical assessment: "is a necessary precedent to the fulfilment of the statutory duty and therefore part of it" was no longer good law; as a result the Tribunal's decision on this part of Mrs Price-Job's claim was unsound.[34]There are no less then eight relatively recent decisions of the EAT and one of the Court of Appeal which are, to a varying degree, relevant to this point. The first in time is British Gas Services v McCaull [2001] IRLR 60 in which the Tribunal had concluded in favour of the employee that there had been a failure on the part of the employer to comply with the duty to make reasonable adjustments, at that time to be found in s.6 of the 1995 Act before it was amended in 2004 (but the amendments are not material for present purposes) in failing to give any consideration to what steps might reasonably be taken by way of adjustment. The EAT (Keene J presiding) held that there could be no breach of their duty arising from an employer's ignorance of the duty or failure to consider it; such breach could only arise from the steps which the employer took or did not take; see paragraph 42 of the EAT's judgment.[35]In Mid-Staffordshire the Tribunal found that there was a breach of the duty to make adjustments when the employer failed to consult the employee as to the adjustments which might be made to ameliorate the effect of the employee's disability and failed to obtain a medical assessment. The EAT (Keith J presiding) upheld the Tribunal's decision. However, in Tarbuck the EAT concluded that the reasoning in Mid-Staffordshire was in error.[36]The issue in Tarbuck arose as part of the employer's cross-appeal against the Tribunal's decision, following Mid-Staffordshire , that the employers had failed to make a reasonable adjustment by failing to discuss with the employee what reasonable adjustments she needed. Having set out the relevant parts of the EAT's judgment in Mid-Stafforshire , the EAT at paragraphs 68 and 69 of their judgment in Tarbuck said:
"68 Mr Jones submits that this reasoning is defective. He contends that the premise is incorrect: a failure to make enquiries could never render the breach of the duty imposed on employers by Section 6(1) unworkable. The premise of the argument, as Mr Jones suggests, is that an employer would be entitled to contend that he does not know what steps he ought to take by way of reasonable adjustment because he does not have the relevant information. We agree that that does appear to be the premise, and in our view, we respectfully consider that it is correct. 69 There can be no doubt that any employer would be wise to consult with a disabled employee in order to be better informed and fully acquainted of all the factors which may be relevant to a determination of what adjustment should reasonably be made in the circumstances. If the employer fails to do that, then he is placing himself seriously at risk of not taking appropriate steps because of his own ignorance. He cannot then pray that ignorance in aid if it is alleged that he ought to have taken certain steps and he has failed to do so. The issue for the tribunal will then be whether it was reasonable to take that step or not."
The EAT then referred to McCaull and continued, at paragraphs 71 to 74:
"71 We respectfully agree with that analysis and consider that it applies here. The only question is, objectively, ether the employer has complied with his obligations or not. That seems to us to be entirely in accordance with the decision of the House of Lords in Archibald v Fife Council [2004] IRLR 651 . If he does what is required of him, then the fact that he failed to consult about it or did not know that the obligation existed is irrelevant. It may be an entirely fortuitous and unconsidered compliance: but that is enough. Conversely, if he fails to do what is reasonably required, it avails him nothing that he has consulted the employee. In our view the McCaull case would have to be treated as wrongly decided if the Mid-Staffordshire case were correct, because inevitably, if the employer is unaware of his obligations under the Act and gives no thought to them, then he will perforce fail to carry out any necessary consultation. 72 Accordingly whilst, as we have emphasized, it will always be good practice for the employer to consult and it will potentially jeopardise the employer's legal position if he does not do so- because the employer cannot use the lack of knowledge that would have resulted from consultation as a shield to defend a complaint that he has not made reasonable adjustments- there is no separate and distinct duty of this kind. 73 We are reinforced in this view by the fact that the examples of reasonable adjustments given in s.6(3) of the Act do not include this duty. Whilst these examples are not intended to be exhaustive as the Mid-Staffordshire case noted, in our view if there were to be an obligation of this nature imposed on the employer, then we would expect it to be spelt out in very clear terms. 74 We were referred to the Code of Practice which also states that the obligation to consult is an aspect of making an appropriate reasonable adjustment. In our judgment this takes matters no further for two reasons. First, whether the failure to consult is capable of being treated as a failure to make a reasonable adjustment is a matter of law; and in any event we have no doubt that this passage in the Code is so framed precisely to reflect the ruling in the Mid-Staffordshire decision."
[37]The next EAT decision in the sequence is London Borough of Barnet v Ferguson (EAT/0220/06 judgment 18 September 2006) (HHJ McMullen QC presiding). Paragraph 31 of the EAT's judgment in that case is as follows:
"31. Mr Burns has presented arguments in favour of Tarbuck and we would follow it. Thus this case represents the kind of error illustrated in Tarbuck . It is not a failure to make a reasonable adjustment to fail to consider whether alternative work is available for the reasons given by Elias J (President) cited above. The sole basis was a failure to consider, which is equivalent to a failure to consult or to carry out an assessment. It is what is done that is important. If there is a failure to make adjustments when the duty applies then there will be a breach. Failure to assess, as the President pointed out, may put an employer who does not do this at risk, but it is itself not a breach. It would be good practice and common sense for employers always to consider an assessment because if it does not it is likely that it will miss an important avenue and an important possibility of there being an adjustment that could reasonably be made to save the employee's job, at least to adapt it for his or her present condition. For those three reasons therefore we uphold the submissions of Mr Burns."
[38]There followed the EAT's decision in Lewisham Social Services v Jackson (EAT/0331/06 judgment 8 December 2006) (Elias P presiding). The Tribunal had found that there had been a failure to make a reasonable adjustment consisting of consultation with the employee. The employer's appeal against that finding was allowed principally because the employee had not alleged that there had been such a failure; however, at paragraph 38 of its judgment, the EAT said:
"38. We should add that in any event the EAT has held that the reasoning in Mid-Staffordshire General Hospital Trust v Cambridge [2003] IRLR 566 ought not to be followed. That was in the case of Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664 . Tarbuck held that failure to consult is not of itself a breach of the legal duty to make any adjustments (although it is something which any sensible employer should do.) However, this ground succeeds because the claim was in any event never before the tribunal."
[39]In Hay v Surrey County Council [2006] AER (D) 322 the employee's complaint that the employer had failed to carry out a formal risk assessment of the employee's ability to perform her work in the light of her disability succeeded. The employers' appeal to the EAT was, in turn, successful; but on the point now in issue, the EAT followed Mid-Staffordshire , in the absence of any argument that it should not be followed. The employee's appeal to the Court of Appeal failed; but before the Court of Appeal the parties were agreed that the EAT ought to have applied the principle set out in Tarbuck and ought not to have followed Mid-Staffordshire . The Court of Appeal declined to add its weight to that agreement; Buxton LJ said, at paragraphs 9 and 10 of his judgment:
"9. Second, one of the complaints in this case, and a matter to which I shall have to return, s that Surrey were criticised in § 15.4 of the Employment Tribunal's determination, and elsewhere, for not having carried out a "formal risk assessment" of Ms Hay's ability to perform her work in the light o her disability. In thinking or appearing to think that a risk assessment was a separate component of the employer's duty under section 5 the Employment Tribunal saw itself as following the decision of the EAT in Mid-Staffordshire NHS Trust v Cambridge [ 2003] IRLR 566 . It was agreed between the parties in this appeal that that reliance had been incorrect, and that the law w properly stated in §§ 77-78 of the later judgment of the EAT in Tarbuck v Sainsbury's Supermarkets [ 2006] IRLR 664 , which held that the single question under section 5 was whether the employer had complied with his obligations there set out. If he had failed to conduct a proper (not a "formal") assessment then he could not use ignorance by reason o that failure to excuse lack of compliance; but there was no separate and distinct duty to perform that assessment. 10. Mr Allen QC however told us that despite there being no issue on the point between the parties to this appeal we needed to review and pass on the jurisprudence just referred to. That was because the industrial relations community would welcome confirmation from this court that Tarbuck rather than Mid-Staffordshire should be followed in future; and because he Disability Rights Commission was concerned about certain aspects of the guidance in Tarbuck , not arising in this case but which they would like to see clarified. I fear that, however well-intentioned either of those objects may be in general terms, they cannot be served through the medium of this appeal. If the court were to respond properly it would have to hear adversary argument, something not likely to be forthcoming when both sides are in agreement; and all in the interests of producing observations that would be obiter and thus carrying no certainty of resolving whatever concerns that exist. I would also add that, valuable as has been the intervention of the DRC in this case, that cannot justify attempts to use litigation between private parties as a platform for investigating the DRC's wider strategic concerns."
[40]For the sake of completeness we should refer next to two further EAT decisions which preceded Tarbuck . The first in time is Rothwell v Pelikan Hardcopy Scotland Ltd [2006] IRLR 24 (Lady Smith presiding) in which the EAT allowed the employee's appeal against the Tribunal's rejection of her claim that the employers had failed to make reasonable adjustments; the EAT held that the employers should, as part of their duty to make reasonable adjustments, have consulted with the employee prior to the decision to dismiss. The EAT's judgment was given in September 2005, 9 months before the decision in Tarbuck . It appears from the judgment that the point debated in McCaull , Mid-Staffordshire and, subsequently, in Tarbuck was not raised on behalf of the employers; see paragraph 19 of the judgment. Neither McCaull nor Mid-Staffordshire was referred to.[41]In Southampton City College v Randall [2006] IRLR 18 (HHJ Birtles presiding) the Tribunal had found that the employers had failed to comply with their duty to make reasonable adjustments in the case of a lecturer who had developed problems with his voice. One of the adjustments which the Tribunal found should have been made was consideration of the provision of amplification. The employers' appeal failed. On the issue of amplification the EAT said, at paragraphs 26 and 27:
"26 The fourth point made by Ms McLynn is directed towards the finding of the tribunal in respect of the failure of the appellant to consider amplification: judgment paragraph 55. In particular, Ms McLynn relies upon the fact that there was no evidence before the tribunal to suggest that voice amplification would have been effective by way of an adjustment. In our view, properly read, paragraph 55 of the tribunal's judgment provides one example of the sort of reasonable adjustment which the tribunal found that a reasonable employer should have considered in the light of the history that Mr Randall was a local councillor and therefore used amplification when speaking at some council meetings. 27 It seems to us that the answer to this point is found in the judgment of Keith J in Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566 , There must be many cases in which the disabled person has been placed at a substantial disadvantage in the workplace but in which the employer does not know what it ought to do to ameliorate that disadvantage without making enquiries. To say that a failure to make those enquiries would not amount to a breach of the duty imposed on employers by s.6(1) would render s.6(1) practically unworkable in many cases. We do not believe that that could have been Parliament's intention. The fact that the preliminary steps which the tribunal had in mind are not referred to in s.6(3) is not decisive since the list of steps in s.6(3) is not exhaustive, and although s.6(4)(a) is, in terms of language, difficult to link in with preliminary steps of the kind which the tribunal had in mind, s.6(4)(a) was only a consideration which the tribunal had to have regard to, and it was not one which was to be regarded, as decisive. A proper assessment of what is required to eliminate the disabled person's disadvantage is therefore a necessary part of the duty imposed by s.6(1) since that duty cannot be complied with unless the employer makes a proper assessment of what needs to be done. As the tribunal said, in paragraph 36 of its extended reasons: '…in the absence of such an assessment, it will often be impossible of ran employer to know what adjustments might e reasonable, possible or effective. The making of that assessment cannot, in our judgment, be separated form the duty imposed by s.6(1) because it is a necessary pre-condition to the fulfilment of that duty and therefore a part of it.'"
No submission to the effect that Mid-Staffordshire was wrong in law appears to have been made.[42]Finally in Spence v Intype Libra (EAT/0617/06 judgment 27 April 2007) (Elias P presiding) the employee's claim that the employers had failed to make a reasonable adjustment by failing to obtain and consult upon an updated medical report failed, the Tribunal applying the law as stated by the EAT in Tarbuck and declining to follow Rothwell . Before the EAT it was argued that Tarbuck was wrongly decided; reliance was placed on Mid-Staffordshire , Rothwell and Southampton City College . It was submitted that Mid-Stafforshire was but Tarbuck was not consistent with the principles expressed by the House of Lords in Archibald v Fife Council [2004] ICR 954 . The EAT rejected that argument in these terms at paragraphs 47 to 51:
"47 The legislation According to its long title, the purpose of the 1995 Act is 'to make it unlawful to discriminate against disabled persons in connection with employment, the provision of goods, facilities and services or the disposal or management of premises ...' But this legislation is different from the Sex Discrimination Act 1975 and the Race Relations Act 1976 . In the latter two, men and women or black and white, as the case may be, are opposite sides of the same coin. Each is to be treated in the same way. Treating men more favourably than women discriminates against women. Treating women more favourably than men discriminates against men. Pregnancy apart, the differences between the genders are generally regarded as irrelevant. The 1995 Act, however, does not regard the differences between disabled people and others as irrelevant. It does not expect each to be treated in the same way. It expects reasonable adjustments to be made to cater for the special needs of disabled people. It necessarily entails an element of more favourable treatment. The question for us is when that obligation arises and how far it goes. 48 The Act does not apply to everyone who has or has had some mental or physical impairment but only where that impairment 'has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities' (s.1(1)). It is lawful to discriminate against a spectacle wearer but not against a visually impaired person. This indicates that the Act is concerned with addressing the special needs of those with serious handicaps, in this case in the labour market. It is unlawful for an employer to discriminate against a disabled person in various ways in relation to the offering of employment, the terms on which she is employed, the opportunities afforded 'for promotion, a transfer, training or receiving any other benefit' during employment, dismissing her or subjecting her to any other detriment (s.4). This section largely repeats equivalent provisions in the sex and race discrimination legislation. The difference lies in the meaning given to discrimination in s.5. 49 There are two sorts of discrimination. Section 5(1) deals with less favourable treatment, that is where: '(a) for a reason which relates to the disabled person's disability, he treats [her] less favourably than he treats or would treat others to whom that reason does not or [2004] IRLR 651 at 658 would not apply; and (b) he cannot show that the treatment in question is justified.' 50 Section 5(2) deals with a failure to make adjustments, that is where: '(a) he fails to comply with a s.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.' 51 The justification defence is special to disability discrimination. It recognises that there may be good reason for less favourable treatment or failing to make the necessary adjustments, but in each case this can only be shown if the reason for it is both material to the circumstances of the particular case and substantial (s.5(3) and (4)). Furthermore, less favourable treatment cannot be justified if an employer has failed to comply with his duty to make adjustments unless it would have been justified even if he had complied (s.5(5))."
Leave was given to the employees to go to the Court of Appeal.[43]Ms Moss submitted that it was open to us to choose between the reasoning in Mid-Staffordshire and that in Tarbuck and that the conclusion of the EAT that the decision in Mid-Staffordshire was in error was, in both Tarbuck and Lewisham Social Services , obiter dicta; however persuasive that obiter dicta might be in Tarbuck (but not in Lewisham , it was submitted, in which there was or may have been no argument to the contrary effect) Mid-Staffordshire , Rothwell and Southampton City College should be preferred, on the basis that they were more consistent with the language used by Lord Hope in Archibald at paragraph 15 which indicated a broader and more purposive construction then that chosen in Tarbuck and Spence .[44]While accepting that a medical assessment in the present case could not of itself have ameliorated the effect of Mrs Price-Job's disability, it could, it was submitted, have stimulated a process of such amelioration by putting before Camden clear medical evidence as to what positive steps should be taken in a situation in which, as the Tribunal said at paragraph 79, there have been no detailed medical information before Camden at all before the dismissal. Had a report been obtained at that stage it was likely to have reached the conclusions reached by Dr White, who had reported for the purposes of this litigation, that Mrs Price-Job would, if free from fits, had been able to return to work on a part-time basis, at the first level of work re-entry programme, in September 2005. If Camden wished to contend that a medical report in July or August 2005 would not have affected the position, they could have called a witness to that effect and had not done so. Viewed in that way, it was submitted, in contrast to the factual situation in Tarbuck , the obtaining of a medical assessment prior to dismissal would, by the route we have described, have substantially affected Mrs Price-Job's position.[45]Ably as they were put, we have not been persuaded by Ms Moss's submissions. In our judgment the construction preferred by the EAT in McCaull , Tarbuck and Spence is more consistent with the words of s.4A of the 1995 Act which provide that the duty is to make adjustments (i.e. "such steps as it is reasonable in all the circumstances of the case for him to have to take") in order to prevent the effect of the substantial disadvantage which must be proved to exist. We respectfully agree with the reasoning of the EAT in paragraph 43 of the judgment in Spence ; the steps contemplated by s.4A must have the effect of preventing, in whole or in part, that disadvantage; the obtaining of a medical assessment does not ordinarily have that effect. It may inform the employer of a step or steps which could fall within s.4A; but there is nothing in s.4A to suggest that the duty to make reasonable adjustments arises only when the employer knows or ought to have known that such a step or steps is or are available; nor do the words of the statute suggest that the duty to make adjustments is absent where the employer is ignorant of the possibility of such an adjustment being made (in contrast to the absence of any such duty where the employer is ignorant of the disability). A conclusion that the duty is dependant on the employers' knowledge would substantially restrict the nature of that duty and cannot be derived, in our judgment, from the statutory words.[46]It is important to point out that the Tribunal in the present case were referred only to Mid-Staffordshire and to Southampton City College . At the date of the hearing before them, in June 2006, the EAT's judgment in Tarbuck had been handed down but was not yet reported; and none of the subsequent EAT decisions had yet been made. However, in our judgment, on analysis of the law as it now is, the Tribunal's conclusion that there was, on Camden's part, a breach of their duty under s.4A of the 1995 Act by failing to obtain a medical assessment of Mrs Price-Job before dismissing her was wrong in law. It goes without saying, that had Mrs Price-Job had an unfair dismissal claim, the absence of such an assessment would have been of considerable importance; but she had no such claim because she had only been employed for 9 months when her employment was terminated; and wholly different issues arise under the 1995 Act. Medical assessment (2) The necessary factors[47]Although, in the light of the conclusions we have just set out, it is strictly unnecessary for us to consider Mr Short's second submission as to this area of the Tribunal's judgment, the point which it raised was fully argued; and it is appropriate for us to let the parties have our views, particularly in case the Tarbuck stream of authority should hereafter be held by the Court of Appeal to be unsound. The foundation of Mr Short's second submission is to be found in s.18B(1) of the 1995 Act which, insofar as relevant, provides as follows:
"18B Reasonable adjustments: supplementary (1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to- (a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed; (b) the extent to which it is practicable for him to take the step; (c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;"
[48]As the Tribunal recounted at paragraph 73, Mr Short accepted that there was a practice within the meaning of the 1995 Act that employees unable to work were at risk of dismissal whereas those not so unable were not; the substantial disadvantage suffered by Mrs Price-Job was her inability to work fully and/or the consequent risk of dismissal. The threshold conditions set out at paragraph 85 of the EAT's judgment in Smiths Detection Watford Ltd were, therefore, satisfied; and Mr Short accepted that the Tribunal correctly considered the issue of reasonable adjustments on the facts as they were in August 2005 (paragraph 74). However, he submitted, the Tribunal omitted to have regard, as they were required to by s.18B(1), to the three highly relevant factors set out in sub-paragraphs (a), (b) and (c) of that sub-section and consequently failed to carry out the balancing exercise which necessarily arose from consideration of those factors on the one hand and Mrs Price-Job's passing the threshold conditions on the other. The Tribunal had, instead, he submitted, proceeded as though, once the threshold conditions were satisfied, they were obliged by Mid-Staffordshire to conclude that Camden had failed in its s.4A duty by not obtaining a medical assessment before dismissal.[49]Ms Moss conceded that the Tribunal do not appear from their judgment expressly to have carried out a discrete balancing exercise of the nature we have described and that it appeared from the fourth sentence of paragraph 79 that the reason for that lay in the Tribunal's view that the effect of Mid-Staffordshire was to treat the obtaining of a medical assessment before considering dismissal as a necessary pre-condition to the fulfilment of Camden's statutory duty. However, she submitted, if that sentence were removed from paragraph 79, it could be seen that the Tribunal had carried out the necessary balancing exercise, albeit neither expressly nor discretely. Thus, they set out that Camden had no detailed medical information, save what little they could learn from the certificates and from what Mrs Price-Job told them. The prognosis, in terms of returning to work, was wholly uncertain, as the Tribunal found. It could not have been impracticable for Camden to obtain a medical report; it would not have taken long to do so and would not have involved any substantial delay. The Tribunal must have taken these obvious truths into account in considering that obtaining such a report was a reasonable step for Camden to have to take. As to s.18B(1)(a), the evidence, Ms Moss submitted, did not support Mr Short's proposition that any report obtained in August could not have alleviated Mrs Price-Job's position because it would not have been able to put forward any prognosis for a return to work other then that conveyed to Camden by Mrs Price-Job; Camden did not obtain a contemporary medical report; it was, therefore, not known what such a report would or might have said; but the Tribunal did have before them the evidence of Dr White that, if she was then free from fits, Mrs Price-Job would probably have been able to make a phased return to part-time work in September 2005.[50]Mr Short submitted that Dr White's opinion, expressed in June 2006, was based on the hindsight and was after treatment; his examination of Mrs Price-Job was long after August 2005; and, in any event, the Tribunal's finding in paragraph 71 that in late July/early August 2005 Camden could not be expected to delay making the decision within a short timescale as to Mrs Price-Job's future necessarily led to the conclusion that, had Dr White expressed in August 2005 the views he expressed nearly a year later, the Tribunal, had they carried out the requisite balancing exercise, would have inevitably found that it was not practicable or was excessively disruptive for Camden to have to wait until September and then – and only if there were no further fits – have Mrs Price-Job back at work on a very limited basis. Furthermore, he pointed out, the tests which were referred to by Dr White were not completed until December 2005 (see the medical correspondence in the course of September and December 2005 which was before the Tribunal) and would have delayed Mrs Price-Job's return to work until December 2005 at least.[51]The principal difficulty which Ms Moss faced is the sentence in paragraph 79 of the Tribunal's judgment which we have identified above and which she felt had to be put on one side if that paragraph was, on her submissions, to be properly understood. In our judgment that sentence cannot be eliminated from the Tribunal's judgment in the manner proposed. The Tribunal appear from paragraph 79 to have regarded the decision in Mid-Staffordshire as going much further than, in reality, it did. That decision left it open (mistakenly in law it now appears) to a Tribunal to regard the obtaining by the employers of a medical assessment as to the condition of the disabled employee prior to consideration of the employee's dismissal as a reasonable adjustment; but although the judgment of the EAT in Mid-Staffordshire did use the words: "The making of that assessment cannot, in our judgment, be separated from the duty imposed by section 6(1) because it is of necessary precondition to the fulfilment of that duty and therefore a part of it" the EAT did not intend thereby to declare as law that, once the threshold conditions were satisfied, a medical assessment was requisite if the employers were to discharge the s.4A duty without carrying out the essential balancing exercise required by section 18B(1) (which existed in the Acts original form in s.6(4)). The Tribunal on any proper reading of paragraph 70 of their judgment, appear erroneously – but perhaps not unnaturally in the light of the word used in Mid-Staffordshire – to have taken a different view and, as a result, to have reached a conclusion without carrying out the necessary balancing exercise; for although there are strands of findings in other parts of their judgment which could have been part of such an exercise, the Tribunal can be seen not to have considered at any point what conclusions a medical assessment in August 2005 would have reached and whether such conclusions would have ameliorated Mrs Price-Job's position in the face of the threat of dismissal. Whereas realistically the obtaining of a report is unlikely to have been regarded as impracticable or disruptive (failing to act on any recommendation in such a report might have been a different matter) there was a serious issue as to whether such a report would have assisted Mrs Price-Job, which issue the Tribunal did not address. In failing to do so the Tribunal, in our judgment, erred in law by not having regard, as they were required to do, to s.18B(1)(a).[52]Mr Short sought to persuade us that, had the Tribunal not so failed, they would and could only have come to the conclusion that it was not reasonable for Camden to have to obtain a medical assessment in August 2005. Ms Moss sought to persuade us, basing herself on Dr White's evidence, to the contrary. Had we not decided on Mr Short's first line of attack on this part of the Tribunal's judgment as we have, we would have succumbed to neither of these arguments and would have felt it necessary to remit the issue to the Tribunal for determination on the basis of the law as we have set it out. However such a remission would be futile because we have decided that the obtaining of a medical assessment could not, in law, have been a reasonable adjustment, however the balancing exercise were to be resolved. Therefore on this issue we will make no such remission. Allocation of duties[53]The Tribunal's conclusion as to adjustment by reallocation of Mrs Price-Job's duties and their reasons for that conclusion are to be found in paragraph 80 (although most of that paragraph relates to other suggested adjustments i.e. the fifth and sixth of the adjustments in the list we have set out at paragraph 50 above) and 81. For the sake of completeness we will set out those two paragraphs in full:
"80 As mentioned, the final points made on behalf of the Claimant are that the Respondent should have changed the Claimant's hours and allowed her to work from home and that she should have been considered for alternative positions. Those matters are referred to in section 1 8B and in the Code at paragraph 5.18. The arrangements made by the employer were that the Claimant was employed on (predominantly) a four day a week basis working in London as the coordinator of the programme. The disadvantage suffered by the Claimant was that she was unable to fulfil her function on those terms. The Respondent was therefore under a duty. The question is whether it was reasonable to take the steps proposed by Miss Moss taking into account the wording of section 4A. That causes a difficulty because of the absence of contemporaneous medical information. 81 We do, however, have the reports of Dr White. That is the only evidence before us. His evidence was that the Claimant may have been able to return to work on a phased basis from September 2005. That would no doubt involve some of the Claimant's duties being allocated to another person. We are not satisfied that that was not possible. After all, the Respondent was able to arrange for the whole of her duties to be covered. We find that that was a reasonable adjustment which the, Respondent should have made to prevent the Claimant being dismissed."
[54]Mr Short's criticism of the relevant part of those paragraphs can, we think fairly, be summarised as follows:(1) The Tribunal applied the wrong test in paragraph 81; the test was not whether it was possible for Camden to reallocate some of Mrs Price-Job's duties to another but whether it was reasonable in all the circumstances of the case for Camden to have to do so.(2) The Tribunal failed, as in the case of the medical assessment, to carry out the necessary balancing exercise and concluded on the basis that, because it was possible for Camden to reallocate some of Mrs Price-Job's duties, doing so was a reasonable adjustment.(3) The Tribunal misdirected themselves as to the evidence in concluding (a) that there was no contemporaneous medical information and that Dr White's evidence stood alone and (b), based on Dr White's evidence, that Mrs Price-Job might have been able to return to work in September 2005. In considering the balancing exercise the Tribunal had to but did not take into account other evidence that Mrs Price-Job could at the relevant time only have reasonably been expected to be able to return to work, if at all, from much later then September 2005.(4) The Tribunal erred in relying on the fact that Camden was able to arrange for the home of Mrs Price-Job's duties to be covered. Mrs Watson was not bought in until after the dismissal of Mrs Price-Job; while she was away from work, the evidence was that the central part of her role was not being performed.[55]Ms Moss submitted, in respect of these four points, that(1) the Tribunal expressed themselves as they did in paragraph 81, in the words "we are not satisfied that that was not possible" not because they had applied the wrong test but because the only explanation put forward by Ms Doherty for not reallocating Mrs Price-Job's duties instead of dismissing her was that Camden could not afford to pay for someone to perform those duties and also to pay Mrs Price-Job's salary at the same time and therefore that adjustment was not possible, an expression used in Ms Doherty's letter to Mrs Price-Job of 22 August 2005 (the relevant part of which we have set out earlier). The Tribunal had, at paragraph 43, rejected the evidence of Ms Doherty that there was no money available to meet the cost of covering Mrs Price-Job's duties; therefore once that pillar of Camden's case on this issue had been undermined by that finding of fact, repeated in the words in paragraph 81 "we are not satisfied that that was not possible" there was no further balancing exercise to be carried out and the Tribunal were entitled to hold that reallocation of Mrs Price-Job's duties was a reasonable adjustment for Camden to have to make. As to(2) and (3), the Tribunal were entitled to take the view that Dr White's evidence stood alone. The Tribunal did consider the information given to Camden by Mrs Price-Job as to her medical condition at paragraph 79 and clearly did not regard that information as a sufficient basis for any adequate decision; therefore there was nothing other then Dr White's evidence as to when and in what circumstances Mrs Price-Job might have been expected to return to work. As to (4) it was accepted that in paragraph 81 the Tribunal referred to Mrs Watson taking on Mrs Price-Job's duties post dismissal. In the absence (on the basis of the Tribunal's findings referred to above) of any lack of funds to pay Mrs Price-Job's salary and the salary of the person who covered for her until she was able to resume full-time employment, Mrs Watson could have covered Mrs Price-Job duties pre-dismissal. The sixth sentence at paragraph 81 ("after all…") should be taken to mean "her duties were covered after the dismissal; they could have been covered had there been no dismissal".[56]In our judgment the Tribunal did not, in paragraph 81, apply the wrong test; it is not necessary for us to give to the words used by the Tribunal any benevolent construction in reaching that conclusion. It was part of Camden's case that reallocation of Mrs Price-Job's duties was not practicable for financial reasons; the Tribunal had already rejected that case at paragraph 43; and the fourth sentence in paragraph 81 should be read as reproducing or importing that rejection into the Tribunal's reasoning for their conclusion in favour of Mrs Price-Job on the issue as to the reallocation adjustment. That this is so is, as we see it, confirmed by the last sentence of paragraph 81 and by the penultimate sentence in paragraph 80. We do not regard paragraph 81 as, erroneously, based on a principle that if it is impossible for an employer to carry out an adjustment then it is reasonable that he should have to make it.[57]As to Mr Short's second argument, the Tribunal, in our judgment, must be taken to have carried out the requisite balancing exercise at least to some extent if, as we believe that they plainly did, they considered Camden's argument based on the financial impracticability or impossibility of, in effect, Camden's paying twice for the same work by providing cover to the extent that Mrs Price-Job was unable to perform her duties.[58]However, we do not agree with Ms Moss that Camden's case was only that they could not afford such cover and therefore could not provide it. Camden also relied, in addition to cost, on(1) the importance of the role of the programme coordinator and the pressure on Camden to proceed quickly with the programme which was behind schedule (see Ms Doherty's witness statement and her cross-examination as set out in the notes before us) and(2) the uncertainty of the prognosis.[59]The fact that it was possible for Camden to find funding for the reallocation of Mrs Price-Job's duties must have excluded from the balancing exercise required by s.18B the suggestion that no such funds could be found; but whether it was reasonable for Camden to be required to incur those costs necessarily, in the light of s.18B(1) as a whole, could not be determined only by the fact that funding could be found; and there is nothing in the Tribunal's judgment which demonstrates that they approach the balancing exercise by considering the above factors, except by considering – as they plainly did – the evidence of Dr White.[60]We can readily understand that, if the evidence of Dr White had stood alone and if it had clearly stated that Mrs Price-Job would probably have been able to return to her duties in September 2005, the cost of covering Mrs Price-Job's further absence from August 2005 by allocating her duties elsewhere for a brief period would have been unlikely to have been such as to render unreasonable an adjustment already found by the Tribunal to be possible.[61]However,(1) Dr White's evidence did not so state; it said only that, if she had in September 2005 been free from fits, Mrs Price-Job would have been well enough to return to work at, at least, the first level of a work re-entry programme (paragraph 11 Dr Whites answers to the first set of questions). In answer to question 8 of the joint questions put to him he estimated that such a return would start on the basis of 3 half days per week increasing to full hours over 12 weeks, assuming no difficulties.(2) There was other evidence before the Tribunal which was inconsistent with a return to work in September 2005. As the Tribunal found at paragraphs 37/8, Mrs Price-Job had told Camden on 2 August 2005, after her latest hospitalisation, that she was waiting to be referred to another hospital but was unable to give any indication as to when or if she would be able to return to work. The position when Camden had to make their decision was that there was no further information other than that as to the prognosis. Even if Dr White's evidence had been the only medical evidence, it was not the only evidence as to the future of a return to work.(3) Furthermore Dr White's was not the only medical evidence before the Tribunal. The Tribunal also had a series of letters between September and December 2006 passing between the hospitals to whom Mrs Price-Job had been referred and her GP which showed that the investigations into her seizures, for which she had been referred to another hospital i.e. the Queens Medical Centre in Nottingham, continued until December 2005; and, as Dr White said, Mrs Price-Job remained off work pending those further investigations. This evidence was before the Tribunal (although of course it was not before Camden when they came to make their decision; nor did Camden have Dr White's evidence).[62]We have concluded that Mr Short's second and third criticisms of the Tribunal's judgment on the reallocation issue are sound. The Tribunal do not appear to have taken into account, once they had decided that reallocation was not impossible, in carrying out the balancing exercise, any of the further material to which we have referred and to have considered, having regard to section 18B in particular and generally, whether it was reasonable for Camden to have to reallocate Mrs Price-Job's duties in the light of that material, and the Tribunal misdirected themselves in proceeding on the basis that Dr White's evidence stood alone. These were important errors of law which must lead to the conclusion that the Tribunal's decision on the reallocation issue cannot stand.[63]In these circumstances we do not need to analyse Mr Short's fourth criticism and Ms Moss's response to it in depth. It should suffice for us to say that we accept that response. If it was financially and physically possible for cover to be provided after the dismissal, it was natural for the Tribunal to infer that the same applied before it. What was important and what, in our judgment, the Tribunal failed properly to consider was the evidence, other than Dr White's evidence given with hind-sight, as to how long it might have been necessary for that cover to continue.[64]So far as this aspect of the appeal is concerned, Mr Short accepted that, if we found in his favour on the basis that the requisite balancing exercise had not been properly carried out, a remission to the Employment Tribunal would be necessary. We could not conclude that, if the balancing exercise had been properly carried out, only one result possible; and we agree that there must be a remission. The nature of that remission is an issue which we will address later in this judgment. Justification[65]It is important to set out the framework within which this aspect of Camden's appeal has to be considered, namely:(1) The reason for Mrs Price-Job's dismissal was, as set out in paragraph 39 of the Tribunal's judgment, in effect Mrs Price-Job's extended absence from her role which needed to be carried out on a consistent and reliable basis.(2) Camden accepted from the outset that dismissal was for a reason related to Mrs Price-Job's disability; see paragraph 20 above.(3) Camden have not criticised the Tribunal's conclusion at paragraphs 62 to 67 that they had failed to comply with their s.4A duty in respect of the provision of a suitable chair, footrest and the other physical equipment which we have described earlier.(4) The Tribunal had, by reason of s.3A(6) to consider the issue of justification on the hypothesis that Camden had complied with their s.4A duty; see paragraph 85 of the Tribunal's judgment at paragraph 29 above.(5) The burden of proof on the issue of justification rested on Camden; see paragraph 86 of the Tribunal's judgment.(6) Pursuant to s.3A(3) of the 1995 Act the disability-related dismissal could be justified if, but only if, the reason for it was material in the circumstances of the particular case and substantial; the Tribunal set out that sub-section at paragraph 48 and referred to it again at paragraph 85 of their judgment.(7) Paragraphs 84 to 86 of the Tribunal's decision demonstrate that the Tribunal did consider the issue of justification within that framework. Perhaps (but we do not know this to be the case) because of the shape of the submissions put to them, they approached the s.3A(6) exercise by hypothesising that the adjustment in respect of the provision of physical equipment had been made; they did not enter into any hypothesis in relation to the other adjustments which they had concluded Camden ought to have made. As has been seen from those paragraphs, which we have set out in full earlier in this judgment, the Tribunal concluded that if Camden had provided that equipment Mrs Price-Job would have been able to work in accordance with her contract, subject to the risk of absences caused by flares of "disease activity". It is that conclusion which is the focus of Mr Short's argument. He submits that the Tribunal did not consider what difference the provision of the physical equipment would have made. Secondly he submits that, if they did so consider, they reached a conclusion which was unsupported by any evidence, which failed to include consideration of the medical evidence consisting of the hospital letters which we have referred above or was perverse.[66]The first of these submissions is, at least in part, based on the Tribunal's words at the end of paragraph 83 "we have not considered the consequence of such failures"; but we do not believe that the Tribunal should be taken by those words to have meant any more than "at this stage we are not concerned with remedies". When the Tribunal came to consider justification they were not concerned with the consequences of Camden's failures to make adjustments but with what the factual situation would have been if Camden had not failed to make one of those adjustments; and the first two sentences at paragraph 85 correctly describe the issue; the remainder of the judgment demonstrates, in our view, that the Tribunal correctly set themselves to answer the right question.[67]But did they answer that question permissibly? In our judgment they did not. We propose to explain our reasons for this conclusion by referring first to Dr White's evidence, consisting of his report of 30 May 2006 his answers to questions posed by Camden of 9 June 2006, and his answers, bearing the same date, to further questions put by Mrs Price-Job's solicitors but on behalf of both parties in a letter of 5 June 2006.[68]In his original report Dr White set out the history, including the development of the epileptic seizures, his diagnosis and prognosis and his opinion that Mrs Price-Job was a disabled person within the meaning of a 1995 Act. As to adjustments and the effects of their being or not being made he said only this, in the last part of his report:
"A patient with inflammatory arthritis is at greater risk of developing work-related upper limb disorders, for example, than other computer workstation users. In addition to a work station risk assessment, it is important in all cases but in a person with inflammatory arthritis particularly important, that prompt action is taken on the recommendations made."
[69]In his answers to Camden's first question he said:
"Whether or not she would have remained at work had she been provided solely with the alternative chair and foot-rest, just two of the items recommended in the Risk Assessment, I cannot say with any degree of certainty. I believe it is likely that this would have been insufficient, particularly because of the problem with the joints in her hands and in her shoulders for which the new chair and foot-rest would provide only indirect benefits. I do not think the need for voice-activated software would have been identified and recommended as it was, had this not been thought necessary. On the balance of probabilities I suspect she would not have been able to continue with these modifications only."
[70]In his answers to the joint questions he said:
"6 I believe she could do work involving computer use in the immediate future if a suitably equipped workstation were provided. Spontaneous flares of disease may cause greater than average sick leave. She would not be able to do jobs requiring prolonged standing, lifting heavy weights repeatedly, or strong repetitive use of the hands. She is disadvantaged in the job market. It is unlikely she would be able to work until the retirement age envisaged in current proposals, or indeed to 65. 7 A "reactive condition" can in medical terms have more than one meaning. There is a form of arthritis: termed "reactive arthritis where the joint inflammation is caused by an acute over-reaction of the immune system triggered by a bacterial infection. The Claimant does not have this disease. When the immune system is profoundly dysfunctional, as in systemic lupus erythematosus, flares of the disease have been suspected of having a relation to normally quite benign viral infections, but this has never been securely proven. Such flares appear otherwise spontaneous and may affect body systems additional to the musculo-skeletal system. This Claimant clearly has spontaneous flares of disease activity as well as episodes which may be termed "mechanical" (see below). 8 Physical use of joints of a normal person of duration and intensity causing no symptoms may provoke pain and swelling if the joints mechanically provoked are already the site of low-grade inflammation and this clearly occurs in this case. Spontaneous episodes, or flares, are not altogether preventable and not predictable, whereas mechanically induced symptoms in vulnerable joints are at least in part preventable. 9 I assume the figures (i)-(vii) refer to those at the end of the section over the Statement of Claim in the Instructions (i) failing to make the recommended adjustments to her workstation including footrest, and hands-free telephone will have perpetuated the problems described in 8) above 11 She was clearly considered unfit for work in July and August, but in September 2005 when her joints were reported as showing no inflammation and if she was then free of fits she would most probably have been well enough to return part-time to her work with Camden Borough Council, at least at the first level of a work re-entry programme, setting out the hours per day during which she might do keyboard work Flexible programmes for this purpose are available and can accommodate most situations of this kind, but this would have depended on a full programme of adjustments having been fulfilled. However she remained off work, pending the further tests to clarify the diagnosis of her fits, undertaken by the Professor of Neurology since, following the MRI scan there was still some uncertainty. She was admitted for a lumbar puncture which showed increased fluid pressure and abnormal protein in the fluid. He then concluded that the fits were likely to be due, most probably though not quite certainly, to her systemic lupus erythematosus."
[71]In paragraph 6 of his answers Dr White, Mr Short submitted, was referring not to what would have been the position in August 2005 but what was the position at the time of writing i.e. June 2006. Ms Moss submitted that Dr White had not said that Mrs Price-Job's absence from work from July 2005 was attributed to a flare-up of the disease.[72]It is understandable but unfortunate that Dr White was not invited to amplify or explain his written views by oral evidence. It is difficult to spell out any clear conclusion on the issue of the reasons for Mrs Price-Job's continued absence from work from July 2005 from what Dr White said, taken as a whole, although there are strands on which both parties could rely. If Dr White's evidence stood alone, it might be difficult to conclude that there was no material on which the Tribunal could reach the conclusion they reached. However, as we have pointed out in another context in this judgment, Dr White's evidence did not stand alone. There was other evidence which we have gone through already,(1) that Mrs Price-Job had informed Camden that she was awaiting referral to another hospital and was unable to give any indication as to when or whether she was able to return to work and(2) the evidence as to the investigations, to which Mrs Price-Job had obviously been referring when she so described the situation in August, of her epilepsy following seizures in May and July 2005 and which continued until December without any suggestion that Mrs Price-Job could return to work and which were continuing up to the date of her dismissal.[73]This evidence, which appears to have been consistent with Dr White's description of the situation in paragraph 11 of his answers to the joint questions, does not appear to have been considered by the Tribunal. Yet in this context too it was important evidence; for it was relied upon by Camden as indicating that, from July 2005 onwards, Mrs Price-Job was off work not because of the symptoms of her condition which the adjustment by way of the provision of physical equipment would have been intended to alleviate but because of her epileptic episodes which were the subject of ongoing investigation. The Tribunal did not make any finding that the material in the letters to which we have referred was inaccurate or unreliable; nor did they find that the physical adjustment would or would not have alleviated consequences of Mrs Price-Job's disability so as to enable her to return to work earlier than December 2005, or, indeed, later. In our judgment the Tribunal ought to have considered but did not consider whether, in the light of that material, it was demonstrated that the provision of the physical equipment by way of reasonable adjustment would not have made any difference or would have enabled a return to work to occur, to use the Tribunal's expression from paragraph 71, within a short time scale. The Tribunal's words in paragraph 86 "on balance from those reports", referring to Dr White's report, confirm that the Tribunal did not consider the other relevant material to which we have referred; by omitting to consider important material on which Camden relied, the Tribunal, in this area too, erred; and the decision on the justification issue, for these reasons, cannot stand. Ms Moss submitted that the real reason for the dismissal was not Mrs Price-Job's absence from work from July 2005 but her sickness record as a whole and her lack of productivity or performance in her role. We do not regard this as a valid distinction. We have referred before to the Tribunal's finding as to the reason for dismissal in paragraph 39 of their judgment; as at August 2005 there was, so far as we are aware, nothing to show that Camden were concerned only with the past. The Tribunal's finding as to the reason for dismissal shows that Camden were looking to the future.[74]While we see some force in Mr Short's suggestion that we might substitute a different conclusion on this issue to that reached by the Tribunal, we have decided that the position is not sufficiently clear to enable us to do so and that this issue, too, must be the subject of a remission. Remission[75]We have concluded, for the reasons explained above, that the appeal against the Tribunal's conclusions as to the making by Camden of reasonable adjustments by obtaining a medical assessment and by reallocating Mrs Price-Job's duties and as to justification must be allowed. So far as the medical assessment adjustment is concerned, no remission is required; the Tribunal's decision must be reversed and the claim for that adjustment rejected. So far as the allocation of duties and justification are concerned there must be a remission. Mr Short submitted that any remission should be to a fresh Tribunal; Ms Moss submitted that there was no question of any loss of confidence in the Tribunal and that the remission should be to the same Tribunal. We agree with Ms Moss. It is not necessary in this case to go through all the factors discussed by the EAT in the leading decision of Sinclair Roche & Temperley v Heard [2004] IRLR 763 , which was not the subject of detailed argument before us in any event. The remission is necessary principally because the Tribunal did not consider the other evidence as to Mrs Price-Job's condition and her probable absence from work and the reasons for that absence, other than that of Dr White. With the assistance of this judgment, we see no reason why the Tribunal should not now be able to reconsider the remitted issues in accordance with the law. The Tribunal have investigated and made detailed findings of fact as to the history; and it is, in our judgment, not necessary for the delay and expense of starting afresh before a new Tribunal to be incurred.[76]We heard no argument as to whether any further evidence might be required on such a remission. We can see that there might be room for clarification or expansion of the medical evidence; but that will be a matter to be decided by the Tribunal. The compensation appeal[77]The Tribunal's assessment of compensation cannot, it seems clear, survive the outcome of the appeal against the findings of discrimination. As we indicated at the beginning of this judgment, we heard no argument on the compensation appeal because of time constraints and because the parties wished to know the outcome of the primary appeal and its effect upon the compensation appeal. We therefore invite the parties to agree that the Tribunal's compensation decision should be set aside; if they do not so agree we would like to receive written submissions as to the compensation appeal within 14 days from the date of which this judgment is handed down.