E A GIBSON SHIPBROKERS LTD v MR E J STAPLES [2008] UKEAT 0178_08_1710

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0178_08_1710Case No Appeal No. UKEAT/0178/08/RN UKEAT/0179/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
E A GIBSON SHIPBROKERS LTDAPPELLANTMR E J STAPLESRESPONDENT
Before
His Honour Judge Ansell Mrs J M Matthias Mr D WelchDate 17 October 2008
[1]APPEARANCES For the Appellant MISS LUCY BONE (of Counsel) Instructed by: Messrs CMS Cameron McKenna LLP Solicitors Mitre House 160 Aldersgate Street London EC1A 4DD For the Respondent MR ANDREW BURNS (of Counsel) and MR GARRETH WONG (of Counsel) Instructed by: Messrs Bates Wells & Braithwaite Solicitors Scandinavian House 2-6 Cannon Street London EC4M 6YH SUMMARY DISABILITY DISCRIMINATION: Reasonable adjustments Tribunal was entitled to conclude that a combination of adjustments would have allowed an employee suffering from disability to return to work. HIS HONOUR JUDGE ANSELL In these appeals the Respondent employers ("Gibsons") seeks to appeal from a unanimous decision of the Employment Tribunal sent to the parties on 12 February 2008 following a hearing on 14 January 2008 which held that Gibsons had failed to make reasonable adjustments and so had discriminated against the employee ("Mr Staples") contrary to the Disability Discrimination Act 1995 . The Tribunal also adjourned for further submissions and deliberation a claim in relation to a failure to pay sick pay. The second appeal is from a decision of the same Tribunal of 11 March 2008 which refused Gibsons' application for a review of the decision to adjourn the sick pay issue.[2]The judgment of 12 February 2008 followed a hearing on 14 January 2008 which was held pursuant to an order of the Employment Appeal Tribunal of 18 September 2007 which was in turn issued following a judgment of the Employment Appeal Tribunal handed down on 18 September 2007 which allowed an appeal against the judgment of the Tribunal promulgated on 3 April 2007.[3]The background facts are that Mr Staples, born on 15 December 1948, commenced employment with Gibsons on 28 October 1991 as a broker, being remunerated by salary, bonus and in addition was provided a car. He was appointed a director of the company on 1 July 1996 and acted as Executive Director responsible for business development from 19 August 1998 to 7 February 2003 when he reverted to the role of ordinary director.[4]In 1999 Mr Staples went through a divorce, and although in February of that year he tended his resignation it was not accepted and Gibsons allowed Mr Staples to reduce the number of accounts he was handling, initially for a six month period though later extended to the end of April 2000 when he returned to full-time working.[5]From 16 August 2004 until the dismissal of Mr Staples' appeal following his dismissal in April 2006 he was a disabled person within the meaning of the Disability Discrimination Act 1995 . The condition giving rise to his disability was recurrent atrial arrhythmia. In layman's terms Mr Staples would experience episodes in which his heart rate increased and he needed to rest, these episodes on occasion being sufficiently severe that he would become dizzy and black out. Prior to this illness his work had involved a degree of long haul travel and entertaining clients. He was paid by way of salary and bonus and a remuneration in the order of £280,000 gross. His contract of employment provided for sick pay 26 weeks at full basic salary and a further 26 weeks at half pay. There was also a PHI scheme through an external insurer, Unum. Following six months' full sick pay the insurer began making payments under the PHI scheme on 15 February 2005. Those payments represented the equivalent of half basic salary plus 50 per cent of the average of fluctuating emoluments over the previous three years, which amounted in total to around 75 per cent of his earnings. In August 2005 the insurers decided to cease cover and despite attempts to appeal this decision no further payments were made under the PHI scheme. However, from 1 October 2005 until 30 January 2006 Gibsons paid Mr Staples at the rate of the PHI benefit.[6]On 23 February 2006 a meeting took place between Mr Staples and Mr Brook, Company Secretary and Finance Director. Following that meeting Mr Brook dismissed Mr Staples on ill health capability grounds by letter dated 1 March. An appeal by Mr Staples to Mr Lilley against that decision was heard on 6 April and dismissed by letter dated 20 April.[7]By its first decision in April 2007 the Tribunal decided that Mr Staples was disabled within the meaning of the Disability Discrimination Act 1995 , that he had been discriminated against by Gibsons contrary to the Act, that he had been unfairly dismissed and that Gibsons were in breach of the contract of employment by failing to pay Mr Staples his normal rate of pay during his notice period.[8]Gibsons' appealed to the Employment Appeal Tribunal only in relation to the conclusions on disability discrimination.[9]The Employment Appeal Tribunal found that the Tribunal had erred in the following respects:(i) In respect of the failure to consider to making reasonable adjustments, the Tribunal failed to indicate whether it preferred to follow the case of Tarbuck v Sainsburys Supermarket Ltd [2006] IRLR 664 or Mid-Staffordshire General Hospital Trust v Cambridge [2003] IRLR 566 .(ii) The Tribunal had not sufficiently explained its reasoning leading up to its conclusion that Gibsons had failed in its duty under s4A of the Disability Discrimination Act to make reasonable adjustments such as would have prevented Mr Staples from being dismissed.(iii) In relation to its findings on sick pay the Tribunal had not explained how the adjustments found to be reasonable would have resulted in Mr Staples being back at work in February 2006.[10]We note that the Employment Appeal Tribunal found that the first decision was deficient only as to its insufficiency of reasoning and Gibsons were not successful in persuading the Employment Appeal Tribunal the Tribunal had actually made an error of principle in its approach or conclusions. By order of the Employment Appeal Tribunal dated 18 September 2007 the matter was remitted back to the Tribunal back in these terms:
"The issue of reasonable adjustments be remitted back to the same Employment Tribunal for reconsideration and clarification."
[11]On 29 October 2007 the second Tribunal held a CMD at which neither party made an application for any further evidence to be considered at the second hearing. The parties were content, and the Tribunal so decided, that the second hearing would therefore involve only further written and oral submissions from the parties. However, the Tribunal did determine that they could make further findings of fact if necessary based upon the evidence produced at the first hearing.[12]As stated above the second hearing took place before the Tribunal on 14 January 2008 and in a decision sent to the parties on 12 February the Tribunal decided that(i) their task on remission was not restricted simply to clarifying the reasons for the first judgment but extended to reconsidering its findings and providing clear reasons whatever their conclusions might be.(ii) Tarbuck was good law; Mr Staples accepted that view although reserving his position to argue to the contrary in the Court of Appeal if necessary. The issue was again raised in the Respondent's Answer by way of cross-appeal to protect their position. Mr Burns, on behalf of Mr Staples, did not advance any arguments in relation to Tarbuck before us and in effect invited us to formally dismiss the appeal again to protect their position should the matter proceed further.(iii) The case for Mr Staples at the first hearing was not restricted to an argument that the breach of the duty in s4A Disability Discrimination Act was that Gibsons had failed to consider and discuss reasonable adjustments but that it included the claim that they had failed to make such adjustments.(iv) Having considered the judgment in Project Management Institute v Latif [2007] IRLR 579 , Mr Staples had given sufficient detail of the proposed adjustments for the burden to shift to the employers to show that it did comply with the duty.(v) Gibsons had not established in the balance of probabilities either that the proposed adjustments were not reasonable or that if they had been made Mr Staples would still have been dismissed and therefore they failed in their duty under s4A.(vi) The issues in relation to sick pay for February 2006 had not been adequately ventilated to enable the Tribunal to make a proper decision and the proper and efficient way of dealing with the sick pay claim was to adjourn it for the Tribunal to receive further submissions on the matter at a future remedies hearing.[13]As set out above, in due course an application for review of the sick pay decision was rejected by Judge Baron on the basis that "There appears to have been some confusion about the exact nature of the claim which has been made by the Claimant and that confusion only came to light when the Tribunal was last considering the matter. The Tribunal wishes to receive representations from both parties as to what is now in issue so that a proper judicial determination can be made on the matter. The Judge agrees with the Claimant's solicitors when they refer to the procedure as being proportionate and efficient. There will no doubt be a hearing as to remedies and this matter need not increase costs to any material extent."[14]At the time of the hearing before us, the remedies hearing had in fact taken place, a decision being awaited. We were informed that Mr Staples' losses placed before the Tribunal included an allegation that had proper adjustments been made he would have returned to work in February 2006.[15]Before returning to the grounds of appeal we would note that, on behalf of Mr Staples, Mr Burns argued that this entire appeal was merely an attempt to relitigate the issues that had been properly determined by the two Tribunal decisions. He reminded us that it was not our job to microscopically examine every single line and nuance of the Tribunal's two decisions but to satisfy us that there was sufficient within those decisions to enable parties to know why they had won and lost. He also submitted that the issue in terms of adjustments was one of reasonableness which was very much an issue for the Employment Tribunal being the "industrial jury". We would concur with those general comments as to our task. The law[16]The relevant statutory provisions are from the Disability Discrimination Act 1995 as follows:- "3A Meaning of "discrimination"(1) For the purposes of this Part, a person discriminates against a disabled person if- (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and (b) he cannot show that the treatment in question is justified.(2) For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.(3) Treatment is justified for the purposes of subsection (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial. … (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 if he had complied with that duty.]" 4A Employers: duty to make adjustments (1) Where- (a) a provision, criterion or practice applied by or on behalf of an employer, or (b) any physical feature of premises occupied by the employer, places 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 provision, criterion or practice, or feature, having that effect. 17A Enforcement, remedies and procedure (1C) Where, on the hearing of a complaint under subsection (1), the complainant proves facts from which the tribunal could, apart from this subsection, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act.] … 18B Reasonable adjustment: 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; (d) the extent of his financial and other resources; (e) the availability to him of financial or other assistance with respect to taking the step; (f) the nature of his activities and the size of his undertaking; (g) where the step would be taken in relation to a private household, the extent to which taking it would- (i) disrupt that household, or (ii) disturb any person residing there. (2) The following are examples of steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments – (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 hours of working or training; (e) assigning him to a different place of work or training; (f) allowing him to be absent during working or training hours for rehabilitation, assessment or treatment; (g) giving, or arranging for, training or mentoring (whether for the disabled person or any other person); (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 or other support."[17]It is well established and agreed between the parties that it is therefore necessary for the Tribunal to identify(a) provision criteria or practice applied by or on behalf of an employer or(b) the physical feature of premises occupied by the employer(c) the identity of non-disabled comparators (where appropriate) and(d) the nature and extent of the substantial disadvantage suffered by the Claimant; see Smith Detection Watford Ltd v Berriman UKEAT/0712/04 9 August 2005.[18]The Notice of Appeal sets out 19 grounds. In her skeleton argument Miss Bone presented her case under six main headings. We propose to adopt those headings indicating which grounds in the original notice relate to that particular heading.[19]The first heading is the failure of the Tribunal to decide the sick pay point (ground 1 and second appeal). As indicated above the case was remitted to the second Tribunal to determine the issue of reasonable adjustments including Mr Staples' complaint that it would have been a reasonable adjustment to pay him sick pay notwithstanding that his contractual entitlement to the same had been exhausted, relying on the authority of Nottinghamshire County Council v Meikle [2004] IRLR 704. The Tribunal did not decide this point but adjourned it for further submissions. The basis on which they adjourned it was that they considered that the issue was more properly a claim for actual pay or could be expressed as a claim of indirect discrimination under s3A, i.e. had Gibsons made other appropriate adjustments it could reasonably be expected that Mr Staples would have returned to employment by February 2006 and therefore the claim for pay from that date could more properly be characterised within the compensation claim flowing from Gibsons' failure to make such adjustments as would have enabled Mr Staples to return to work. Miss Bone described the Tribunal's failure to decide the sick pay issue as a procedural mishap allowing Mr Staples a further opportunity to recharacterise his complaint.[20]We cannot agree with this submission. As was made clear by Lord Justice Keene in the Meikle case (see paragraphs 65-67), one of the Tribunal's tasks is to consider what the position would have been if reasonable adjustments had been made and Mr Staples' case has always been that had they been made he would have returned to work in the early part of 2006 thus setting up a potential claim for loss earnings from that date. We do not see this as a recharacterisation of the claim and certainly the Tribunal's decision was well within its case management powers set out in Rule 10 of Schedule 1 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 . It follows that the decision to refuse a review was entirely reasonable and the second appeal is therefore dismissed.[21]The second heading is II: The Tribunal erred in its characterisation of the Claimant's complaint under s4A(1) as a complaint of failure to make, rather than consider, reasonable adjustments. Miss Bone argues that on a proper reading of the originating application and the amended Particulars of Claim, the complaint under s4A has always been only that the employers failed to consider making reasonable adjustments rather than a failure to make those adjustments and on the authority of Tarbuck this could not amount to a breach of s4A. Under this heading Miss Bone also submits that the Tribunal erred in that it considered new and additional adjustments which had not been raised at the first hearing and were not set out in the amended Particulars of Claim. Those additional adjustments were(a) additional support to enable Mr Staples to get up to speed on market conditions(b) reduction of his client list or the hours that he was on call(c) use of modern communications technology(d) the provision of a mentor to Mr Staples(e) alternative employment as a spot broker. There is also a complaint that Mr Staples had failed to cross-examine as to the nature and reasonableness of each contended adjustment.[22]On the issue of failing to consider adjustments, we remind ourselves of the decision in Tarbuck and particularly paragraphs 71 and 72 of the judgment of Mr

Justice Elias:

"71. We respectfully agree with that analysis and consider that it applies here. The only question is, objectively, whether 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] ICR 954 . 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 emphasised, 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."
[23]Miss Bone firstly took us to certain passages in the ET1 where Mr Staples had repeated complaints that his employer did not consider or discuss any reasonable adjustments with him which would enable him to return to work – see paragraphs 15, 16, 18, 20 and 21. She also argued that the cross-examination of Gibsons' witnesses was entirely based on a failure to consider rather than make adjustments. She referred us to passages in a transcript prepared by the employer's solicitors; see in particular pages 242-243, 246, and 258-262. She argued that the Tribunal had erred in permitting Mr Staples to run a new case on remission to that run at the first hearing in January 2007, namely that of a failure to make reasonable adjustments. It was not open to a claimant to run a new case on remission to that run at the initial hearing; see Nelson v BBC [1977] IRLR 148.[24]The issue was dealt with by a Tribunal in paragraphs 13-15 of their decision as follows:
"13. In paragraph 31 of the Claimant's written closing submissions presented at the first hearing Mr Wong stated that the Claimant was able to return to work, subject to the recommendations of his doctor. In the subsequent paragraph reference was made to specific recommendations. Subsequent paragraphs refer to the failure of the Respondent to discuss or consider adjustments. However in paragraph 41, Mr Wong listed five specific adjustments which it would have been reasonable to make. 14. Miss Bone also prepared written submissions for the first hearing. She submitted in paragraphs 44 and 45 that the Respondent had complied with any duty to consider and consult about reasonable adjustments, and said that none of the suggested adjustments were in fact reasonable. Importantly in paragraph 47 she then considered each of the adjustments which had been suggested. Miss Bone had also cross-examined the Claimant at some length about each of the proposed adjustments during the hearing. 15. We therefore conclude that the case for the Claimant at the first hearing was not restricted to an argument that the breach of the duty in section 4A was that the Respondent had failed to consider and discuss adjustments. We do not accept Miss Bone's submission that as a fact the case for the Claimant was so restricted, and the Claimant could not therefore pursue issues relating to the making of any adjustments."
[25]In response Mr Burns argued that the case has always been about a failure to consider and to make reasonable adjustments and that to seek to split the two was an unreal straining of the language since a failure to make adjustments will often incorporate a failure to consider them with the employee. He took us to passages in the original claim, for example paragraph 14 "the Respondent's decision … was a failure to make reasonable adjustments", paragraph 20 the Respondent "could … have agreed a reduction in the Claimant's work load and/or responsibilities for a period of time until he had regained his strength". He argued that the claim taken as a whole could only sensibly be read as complaints about the employers' wholesale failure to make reasonable adjustments and their repeated failures to discuss or consult with the Claimant about adjustments that would have made all the difference. He pointed out that the submissions at the first hearing on behalf of Mr Staples had made reference to both a failure to consider adjustments and a failure to make them, and the Respondent made extensive submissions at the first hearing as to why making adjustments would not be reasonable. The Tribunal at paragraph 76 of the first decision had made reference to the issues raised before it namely that the employers had failed to make reasonable adjustments and concluded at paragraph 89 that they had failed in their duty under s4A to make those adjustments.[26]He further argued that the first appeal to the Employment Appeal Tribunal was not on the grounds that the Tribunal had erred in law in concluding that the case before it was only a failure to consider rather than a failure to make adjustments and he argued that that ground could and should have been in the first appeal if it was arguable – see Henderson v Henderson [1843] 3 [HAR] 100 and Divine – Bortey v Brent London Borough Council [1998] IRLR 525. He also reminded us that the Tribunal's attention was drawn to the agreed list of issues and the allegation that there had not been adequate or any cross-examination on a failure to make adjustments and that they set out adequately their reasons for concluding that the case did indeed include one of a failure to make adjustments. We were referred to the agreed list of issues prepared for the first Tribunal hearing and also the notes of cross-examination: and we cannot disagree with the Tribunal's views that a proper interpretation of the language used was that the employers neither considered nor made the relevant adjustments, and this had clearly been Gibsons' understanding of the case both during the first and second hearings. We would refer particularly to a passage from the first decision referring to evidence given by Mr Brook. At paragraph 84 the Tribunal said this:
"Mr Brook stated in cross –examination that it was his view that the Respondent could not make any adjustments which would enable the Claimant to return to work."
We agree with Mr Burns that it is therefore surprising that in this second appeal the point is raised that the case was only about a failure to consider. That matter should properly have been raised at the first hearing and for that reason alone we would have dismissed this ground. As we have made clear, however, we are quite satisfied that the case was always about both the failure to consider and the failure to make reasonable adjustments.[27]As to the Tribunal's error that it had considered new and additional adjustments which had not been raised at the first hearing. Mr Burns referred us to paragraphs 76 and 80 of the first decision as follows:
"76 .In the details of his claim the Claimant simply stated that there were a number of reasonable adjustments that could have been made, but only specifically referred to a phased return to work, and a reduction in his work load and responsibilities. Mr Wong submitted that the Respondent should have made the following adjustments: 76.1 a phased return to work; 76.2 additional support to enable the Claimant to get up to speed on market conditions; 76.3 a reduction in his working hours or duties; 76.4 homeworking; 76.5 reduced travel. Mr Wong also submitted that the Respondent had failed to consider any suitable alternative positions elsewhere in the company or the group of which it was a member. 80. On 3 rd April, 2006 without any warning nine brokers involved in the spot market resigned. The Claimant had been working in the long-term market. The resignations occurred in between the dismissal of the Claimant and the hearing of his appeal. The resignation of nine brokers did not automatically create nine vacancies because some clients were taken by those who resigned and the Respondent did not seek to replace all those who had resigned. No consideration was given by Mr Lilley as to employing the Claimant in any capacity to assist with the problems caused by the sudden resignation of a significant number of brokers."
[28]The Particulars of Claim had also dealt with the issue of the spot brokers at paragraph 16.[29]Mr Burns also submitted, and we agree, that it did not appear from the second judgment that a complaint was being made that some of the adjustments were new adjustments and therefore this ground should also fail under the principle in Kumchyk v Derby City Council [1978] ICR 1116 .[30]Whilst we agree that the issue of a mentor was detail that may only have emerged during the second hearing, it certainly fell within the category of additional support to enable the Claimant to get up to speed on market conditions. The authority of Project Management Institute v Latif [2007] IRLR 579 makes it clear that, whilst a Claimant would not necessarily have to provide the detailed adjustment that would need to be made before the burden would shift, an employer had to understand the broad nature of the adjustment proposed, we are quite satisfied that this employer was put on proper notice as to the broad nature of the adjustments that the Claimant was suggesting.[31]The final ground under this heading relates to the error in upholding the complaint where no cross-examination had taken place as to the nature and reasons of each contended adjustment. Miss Bone argued that having failed to cross-examine on the making of proposed adjustments it was not open to Mr Staples to submit or to the Tribunal to find that Gibsons had failed to make those adjustments: see Browne v Dunn [1894] 6 R67, HL.[32]In response Mr Burns reminded us that the Tribunal in their second decision had expressly recorded the question that "Questions relating to various specific adjustments were raised during the earlier hearing" – see paragraphs 14 and 30 of the second judgment. We have also seen the Notes of Evidence. We are satisfied that there was questioning of the employers' witnesses concerning part-time home working, alternative employment, reduced travel and entertainment, reduced hours, reduced duties and alternative employment as a spot broker. We are satisfied that Gibsons had a fair opportunity to deal with the proposed adjustments during the hearing and call evidence they saw fit. They did not seek to call further evidence at the second hearing and it was therefore open for the Tribunal to make findings of fact about the reasonableness of the adjustments based upon the evidence they had heard at the first hearing. Again we cannot find that this ground of appeal discloses any error of law.[33]The next major heading is III: The Tribunal has failed to make findings as to what reasonable adjustments the Respondent should have made, but did not. (Ground 2) The Tribunal dealt with this issue firstly by in paragraphs 26 and 27 setting out the various proposed adjustments that had been raised by Mr Wong on behalf of Mr Staples. "26. Mr Wong also referred us to the various proposed adjustments which had been raised by him at the first hearing. They were as follows:26.1 A phased return to work;26.2 additional support to enable the Claimant to get up to speed on market conditions;26.3 a reduction in his working hours or duties;26.4 homeworking;26.5 reduced travel;26.6 a suitable alternative position. 27. There was also mention made of the entertaining of clients. Mr Wong accepted at this hearing that the level of entertaining and international travel did not substantially disadvantage the Claimant, and consequently the duty to make adjustments in those respects did not arise." And came to conclusions in paragraphs 31 and 32:
"31. We therefore find that the criterion in Latif has been satisfied in that the Respondent was aware by the first hearing at the very latest of the nature of the changes which the Claimant was seeking. The duty is to make reasonable adjustments which would have the effect of (in this case) preventing the dismissal of the Claimant. Having considered in particular the Claimant's evidence about the Respondent's business, and also the steps taken to assist him in 1999, we are satisfied that we could conclude that the making of the one or more of the adjustments mentioned was reasonable taking into account the factors in section 18B, and also that the making of such adjustment(s) could have prevented the Claimant's dismissal. 32. We therefore conclude that the burden of proof has shifted to the Respondent to show that it did comply with the duty."
[34]The Tribunal then went on to analysis Miss Bone's submissions that none of the proposed adjustments were reasonable and that they would not have been effective in practice bearing in mind the criteria set out in s18B and came to conclusions in paragraphs 42 – 45 as follows:
"42. Having considered in particular the evidence given at the first hearing to which our attention was drawn, and the conclusions which we reached, we have again come to the same decision. The Respondent has not established to our satisfaction on a balance of probabilities either that the proposed adjustments were not reasonable or that if they had been made then the Claimant would still not have suffered the dismissal. Those are the two elements of the duty. 43. We therefore conclude that the Respondent has failed in its duty under section 4A(1) of the 1995 Act. 44. In coming to the conclusion concerning the reasonableness of the proposed adjustments we have also considered the various paragraphs in section 18B(1). We have mentioned above that the two principal elements are in paragraphs (a) and (b). Linked to paragraph (b) are the financial matters set out in paragraphs (c) and (d). It was not suggested by Miss Bone that there was any financial impediment. The Respondent is a large company (and part of a larger group) with a substantial turnover. We have considered the issues of the nature of the Respondent's activities (as mentioned in paragraph (f)) and any disruption of them (as mentioned in paragraph (c)). We again come back to the point that we were faced with bare assertions by Mr Brook and Mr Lilley that no adjustments were possible in the particular business. There was no factual evidence to support those assertions. 45. We also considered the possibility of there being alternative employment. This was not a matter upon which there was much concentration at this hearing. It is not necessary for us to consider it in any detail either in the light of our findings above. We are satisfied that there was no non-executive or similar position available for the Claimant. We found facts concerning the resignation of nine brokers involved in the spot market between the decision having been made to dismiss the Claimant and the hearing of his appeal. The Respondent has not proved to us why it would not have been possible for the Claimant to have worked in the spot market with modified hours. This matter is really a variation or extension of the principal points made by Mr Wong concerning a reduction in duties with a phased return to work."
[35]Miss Bone's submission was that those final paragraphs do not state whether they correspond to the proposed adjustments cited earlier in the Tribunal's judgment at paragraph 26. We do not agree with that submission. On reading the decision as a whole it is quite clear that it is based on the paragraph 26 adjustments save for reduced travel. We therefore reject this ground of appeal.[36]The next heading is IV: The Tribunal has erred in its consideration of the complaint of failure to make reasonable adjustments (grounds 5, 9, 10, 14 – 19). These complaints lay at the heart of this appeal. Miss Bone argues that the Tribunal erred in failing to consider in relation to each adjustment whether it satisfied the constituent parts of s4A by failing to analyse in detail what each adjustment was and how it fulfilled the statutory requirements. She reminded us of the tests set out in Smiths Detection set out above. In Environment Agency v Rowan [2008] IRLR 20 the Employment Appeal Tribunal made it clear that the Smiths Detection test was not the full extent of the analysis required by s4A but the necessary starting point. At paragraph 27 HHJ Serota QC observed "Unless the Employment Tribunal has identified the full matters we have set out above it cannot go on to judge if any proposed adjustment is reasonable". In particular Miss Bone criticised the Tribunal's use of the phrase "the making of the one or more of the adjustments mentioned" as far too much of a broad brush approach thereby reversing the burden of proof before the Claimant had established a prima facie case. She contends that the Tribunal had not even identified in relation to which of the adjustments it considered there was such a case.[37]She further argued that the Tribunal failed to consider whether or not the cost and ease of implementing the adjustments individually and cumulatively would have been proportionate and in the event the Tribunal did undertake this analysis the Tribunal did not give sufficient reasons for finding that each adjustment was proportionate.[38]She went on to criticise in particular the reasonableness of a phased return without making any findings as to the length of such return and without having any submissions from Mr Staples on the proper length of such a return. She argues that such a finding as to the length was relevant and necessary in order to proceed with consideration of reasonableness. She also argues that the Tribunal erred in finding that it was irrelevant that there was no evidence that the Claimant would ever be able to return to work without adjustments in place. Since that evidence was the key to the question of the effectiveness and reasonableness of a phased return, she argues that the Tribunal erred in finding that the making of one or more adjustments could have prevented the Claimant's dismissal in that the Tribunal did not address Gibsons' submission that none of the adjustments would have overcome Mr Staples very limited ability to travel into the office.[39]She further criticised the Tribunal's broad brush approach in that they failed to consider the submission that it was necessary to consider the appropriate combination of adjustments because no one adjustment alone would have achieved the aim of Mr Staples' return. She criticised the finding that a reduction in clients would have reduced the hours that Mr Staples was on call, rejecting the evidence that the nature of the business was very much a "24/7" business particularly in terms of client contact.[40]She criticised the Tribunal utilising Mr Staples' previous absence from the office following his divorce as a ground for suggesting that similar arrangements could prevail in 2006. In particular she highlighted the differences which the Tribunal had not taken into account – his illness, his limited ability to travel, the fact that he had been absent for some 18 months and that in 1999 he was able without any difficulty to come into the office for meetings if required.[41]She also criticised the Tribunal raising the issue of a mentor since there had been no evidence on this matter particularly as the employers' witnesses had not had an opportunity of dealing with it. Also the Tribunal failed to consider how the mentor could affect the reasonableness of adjusting Mr Staples' role to permit reduced hours and/or working from home. Finally she criticised the Tribunal for coming to the conclusion that there was no factual evidence to support Gibsons' contention that no adjustments could reasonably be made ignoring the evidence from their witnesses which o some extent was collaborated in cross-examination.[42]In response Mr Burns, in answer to the argument that the Tribunal were in error in considering the proposed adjustments in the round, reminded us of the provisions of paragraphs 5.1.9 and 5.2.9 of the DDA Code of Practice. 5.1.9 suggests that "it may sometimes be necessary for an employer to take a combination of steps". 5.2.9 provides "however an adjustment which, taken alone is of marginal benefit, may be one of several adjustments which, when looked at together, would be effective. In that case, it is likely reasonable to have to make it".[43]He went on to remind us that in paragraph 28 of the Tribunal's decision Miss Bone had submitted to the Tribunal that insufficient details had been provided in relation to the proposed adjustments which the Tribunal rejected, reminding themselves of the passage in Latif to which we have made reference above that whilst precise details of individual adjustments may not be given an employer had to understand the broad nature of the adjustment.[44]We read the reference to one or more adjustments as no more than the Tribunal saying that each suggested adjustment appeared to be reasonable in itself but that it may need a combination or package of them for them to be effective in preventing a substantial disadvantage arising, i.e. in this case to prevent the dismissal. We see no error in law for a Tribunal to consider such adjustments cumulatively in considering whether s4A duty arises. At this stage the Tribunal was only considering what prima facie evidence is before them such as would cause the burden to shift. At this stage the Tribunal had set out the proposed adjustments, argued that sufficient detail had been given of them rejecting the employer's arguments to the contrary and concluded that the employer was aware of the nature of the changes the Claimant was seeking by reference firstly to discussions with Dr Milne, the Claimant's doctor, further discussions at the dismissal and subsequent appeal and further details given at the first hearing. We repeat that the Tribunal had excluded the proposal of reduced travel and we are satisfied that the Tribunal had therefore concluded that a prima facie case had been made out in relation to all the other proposed adjustments. We do not find it necessary for them to have found that each individual adjustment taken by itself would have had the ability to prevent the substantial disadvantage but when considering them cumulatively the Tribunal were entitled to form the view that they did have that potential i.e. that they could have had the effect of preventing dismissal. Having determined that a combination of these adjustments could have prevented dismissal, the Tribunal then correctly went on to consider submissions from the employers as to the effectiveness of the proposed adjustments and issues of proportionality and cost. Again we can find no criticism in the Tribunal's approach.[45]In answer to the criticism in relation to the failure to consider the length of a phased return to work, we agree with Mr Burns' submission that this is the sort of detail that an employee does not need to provide. Indeed following a long absence from work it would in our view be totally unrealistic to prejudge exactly how a return to work would progress and the employer would be in a much better position to assess the length of a possible phased return bearing in mind current work circumstances, procedural changes and office workloads; but obviously an important component part would be a monitoring of the employee's health following such a return.[46]As regards ground 10 where the Tribunal were criticised for coming to the conclusion that it was irrelevant that there was no evidence that the employee would ever be able to return to work without adjustments in place, we agree with the Tribunal's views as set out in paragraph 35 that adjustment duties under the DDA are not confined to temporary measures or interim steps until an employee can return to work as before and that reasonable adjustments can and will often be permanent. The purpose of these duties was to make reasonable adjustments to prevent Mr Staples from being dismissed not necessarily with the ultimate goal of bringing him back to work on exactly the same basis. Further, we do not find the Tribunal being in error in failing to address the Appellant's submission that none of the adjustments would have overcome the employee's very limited ability to travel into the office. Since the Tribunal only found that he did not want to commute during rush hours, the proposed adjustments and home working reduced hours had the potential to remove the need for him to commute during those periods.[47]The remaining grounds under this head appear to be no more than arguing that the judgment was not Meek compliant. Having already analysed this decision in some detail we are quite satisfied that there were no errors of law as alleged in those grounds.[48]The next heading V is the burden of proof (grounds 7 and 8). This was a complaint that the Tribunal failed to consider whether Mr Staples had given sufficient detail of each of the adjustments to enable the Appellant to engage with the question of whether it could reasonably be achieved or not, and in particular failed to indicate the period of time for which the adjustments were to endure: thereby failing to set out the broad nature and/or sufficient detail of each adjustment. Secondly, it was alleged that the Tribunal erred in finding that the employee had made out a prima facie case in respect of each and every adjustment and that therefore the burden of proof shifted.[49]In response to this ground Mr Burns argued that the ground appeared to relate to a failure to raise a prima facie case of "discrimination" for a reason related to disability. In so far as it can only mean a reference to the duty to make reasonable adjustments, we have already dealt with this matter above and indicated we were satisfied with the Tribunal's approach as to how they got to the stage where the burden shifted to the employers.[50]As regards the shifting burden, the guidance set out in the Latif was as follows:
"53. We agree with Ms Clement. It seems to us that by the time the case is heard before a tribunal, there must be some indication as to what adjustments it is alleged should have been made. It would be an impossible burden to place on a respondent to prove a negative; that is what would be required if a respondent had to show that there is no adjustment that could reasonably be made. Mr Epstein is right to say that the respondent is in the best position to say whether any apparently reasonable amendment is in fact reasonable given his own particular circumstances. That is why the burden is reversed once a potentially reasonable amendment has been identified. . 54. In our opinion the paragraph in the Code is correct. The key point identified therein is that the claimant must not only establish that the duty has arisen, but that there are facts from which it could reasonably be inferred, absent an explanation, that it has been breached. Demonstrating that there is an arrangement causing a substantial disadvantage engages the duty, but it provides no basis on which it could properly be inferred that there is a breach of that duty. There must be evidence of some apparently reasonable adjustment which could be made. 55. We do not suggest that in every case the claimant would have had to provide the detailed adjustment that would need to be made before the burden would shift. However, we do think that it would be necessary for the respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage with the question of whether it could reasonably be achieved or not."
[51]We agree with Mr Burns that the sufficiency of detail that has to be given by an employee before the burden shifts, would depend very much on the nature of the disability. Particular or subtle disability may require specialised adjustments which would mean more than basic details. In other cases an adjustment proposed in more general terms would be sufficient. In HM Prison Service v Johnson [2007] IRLR 951 at paragraph 90 Mr

Justice Underhill giving the decision of the Employment Appeal Tribunal said this:

"The degree of specificity required would depend on the nature of the evidence and the issues. In some circumstances a finding that there were "plenty of other jobs" which a Claimant could have been moved to might be sufficient (at least for liability purposes). But it is necessary that the finding be made."
As we have already indicated the Tribunal in this case did indeed engage in the Latif approach and set out such evidence as had been given to the employers either before or at the time of the first hearing and it is clear that the test had been satisfied in respect of the proposed adjustments. There is no reason for us to interfere with the Tribunal's decision which essentially was a finding of fact.[52]A complaint is again made that the Tribunal erred in concluding that the burden of proof transferred in relation to the "additional and new adjustments". Again we have dealt with this issue above and demonstrated that all the adjustments had been identified, discussed and argued at the first hearing.[53]As regards the complaint that the employers had failed to indicate the period of time for which adjustments would endure, again we repeat that this is the sort of level of detail which we do not believe an employee could be expected to give particularly one returning from a lengthy period of sickness absence.[54]Heading VI is erroneous consideration of the requirement of substantial disadvantage (grounds 11, 12 and 13). The complaints under this ground were that the Tribunal erred in failing to set up its reasoning for the conclusion that each or any of the adjustments could have prevented dismissal. They failed to identify the test adopted in relation to the requirement under s4A that the adjustment is a reasonable one to take "in order to prevent a substantial disadvantage" and there was an error in finding that the Claimant had made out a prima facie case when it was for the Claimant to prove that adjustments could prevent the substantial disadvantage.[55]Miss Bone argued that the Tribunal did not find in relation to each and every adjustment that it would not prevent or limit the substantial disadvantage suffered by the employee i.e. dismissal. Further the Tribunal had failed to identify the test that [it] adopted in relation to the requirement under s4A that the adjustment is a reasonable one to take "in order to prevent the substantial disadvantage".[56]We see nothing in this point. The Claimant had always submitted that the adjustments were reasonable and practical and that they would have enabled Mr Staples to return to work thereby preventing dismissal. The employers argued that the adjustments were not reasonable, could not have been taken and therefore would not have prevented dismissal. The Tribunal at the end of the day gave reasons why the adjustments would, if implemented, have reduced the need for Mr Staples to be on call, of allowing him to work from home, to work reduced hours and duties and to receive assistance to enable him to get back into work. It is clear from the language of the Tribunal that they considered that had these adjustments been made he would have been able to return to work and therefore as a matter of logic the substantial disadvantage of dismissal would have disappeared. The adjustments would have therefore accommodated his inability to fulfil the requirements of the job. Again, we repeat in our view there was no requirement for each adjustment to be considered individually. The Tribunal were entitled to conclude that on a reasonable approach a cumulative effect of these adjustments would have been sufficient to prevent dismissal. In our view it is unrealistic to suggest that in relation to ease of adjustment it would have to prevent the substantial disadvantage. In our view a step would be reasonable if it alleviates a disadvantage on an individual basis and cumulatively prevent it.[57]It therefore follows from the above that we reject the Appellant's submissions and dismiss this appeal.