SHAW & CO SOLICITORS v MISS K ATKINS [2009] UKEAT 0224_08_1102

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0224_08_1102Case No Appeal No. UKEAT/0224/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
SHAW & CO SOLICITORSAPPELLANTMISS K ATKINSRESPONDENT
Before
His Honour Judge ReidDate 11 February 2009
[1]APPEARANCES For the Appellant MR STEVEN WHITE (of Counsel) Instructed by: Messrs Walker Morris Solicitors Kings Court of Appeal 12 King Street Leeds LS1 2HL For the Respondent written submissions SUMMARY DISABILITY DISCRIMINATION: Reasonable adjustments DISABILITY DISCRIMINATION: Disability related discrimination The Claimant suffered from ME. The Tribunal found disability discrimination in that her employer had failed to make reasonable adjustments in that(1) over a short period it had failed to offer her the adjusted hours of work she wanted;(2) it had not installed a stair lift to enable her to access the employer's first and second floor offices;(3) (alternatively) permitted some home working; and(4) (in the further alternative) rented adjoining ground floor accommodation for her use. There was no appeal in relation to (1). Held: in relation to (2), the matter should be remitted to the Tribunal for further consideration in the light of the Tribunal's apparent failure to take a number of important matters into account: in relation to (3), there was no evidentiary basis for finding that home working was a realistic possibility, and as to (4), assuming that renting further office space could in certain circumstances amount to a reasonable adjustment, there was no evidentiary basis for holding such office space was available. HIS HONOUR JUDGE REID QC This is an appeal against the Reserved Judgment made by Employment Judge Trayler on 25 February 2008 on the Claimant's claim for disability discrimination. It was accepted that the Claimant was a disabled person (suffering from chronic fatigue syndrome with some irritable bowel manifestations) with the meaning of the Disability Discrimination Act 1995 . The issues before the Tribunal related to whether the Respondent (a firm of solicitors, "the Firm") (i) discriminated against the Claimant (a trainee legal executive) on the grounds of her disability by failure to make reasonable adjustments as required by section 3A(2) of the Act and (ii) discriminated against her for a reason relating to her disability by the way it dealt with her entitlement to statutory sick pay.[2]On the hearing of the appeal the Firm appeared by counsel. The Claimant, who had appeared in person before the Tribunal, did not appear but put in written submissions. She had also earlier put in written submissions as to why the appeal had no reasonable prospect of success.[3]By its decision the Tribunal found against the Firm on both issues. The Firm's appeal relates only to the first of these findings, and no challenge is made to one of the Tribunal's findings in respect of one point, a failure to make a reasonable adjustment to the Claimant's 'working hours and days'. This does not mean the appeal is academic because the result may have a substantial impact on the issue of damages. The effect of the 'hours and days' point itself is entirely dependent upon a combination of other adjustments also being made to facilitate the Claimant's return to work. It is these other adjustments which lie at the heart of this appeal. Unless the Firm was under an obligation also to make other adjustments, the adjustment in respect of her hours and days would not have permitted the Claimant to return to work.[4]The findings adverse to the Firm which were made by the Tribunal were that it failed to make reasonable adjustments in that it failed i. to alter the Claimant's working hours from 11 am to 3 pm and provide Wednesday as a day off. ii. to install a stair lift to its first floor offices; iii. (alternatively) to allow 'some home working'; iv. (alternatively) to take a tenancy of part of the next door office unit's premises to provide some ground floor working space. The Background[5]The Firm has three offices at Doncaster, Newcastle upon Tyne and Telford. The Claimant, who lives in Doncaster, worked solely at the Doncaster office. She began working for the Firm on 6 June 1998 and continues to be employed by them, though it is clear that there has been a total breakdown in trust and confidence and she has not attended work since May 2005.[6]Initially the Claimant was an administrative assistant and subsequently became a trainee legal executive.[7]The Firm's principal work related to claims by former mineworkers in relation to Respiratory Disease and Vibration White Finger. Although there were no separate departments in the Doncaster office where the Claimant was employed before her absences from work beginning in December 2004 she had been engaged in work on Respiratory Disease ("RD") claims. She had however, prior to this, experience of work in relation to the Vibration White Finger ("VWF") work. Both of those areas of work were effectively time limited and had she not been absent due to illness from May 2005 that she would at some point have had to become involved in work on VWF cases in any event.[8]The Claimant has written terms and conditions of employment. There is also a written job description. The main areas of work are set out in bullet points under a heading "Undertake certain elements of fee earning work under supervision in particular handling industrial disease claims under National Agreement for ex British Coal workers and developing and implementing procedures for handling mining related claims." There is also a main area of involvement with more general personal injury claims including accident and non industrial disease. She is to deal whenever possible with routine client enquiries and communications and it is pointed out that the job holder is not designated as a matter handler for file review purposes and does not therefore have her own file case load. She is to ensure the confidentiality and security of the F irm's and client's documentation and information at all times.[9]The Firm occupies its leasehold premises in Doncaster under two separate leases. In each lease there is a covenant against all structural alternations. Any non-structural alteration is only permitted with consent of the landlord, such consent not to be unreasonably withheld. There is a break clause in the leases so that the Firm could determine the term at the end of the third year of the lease giving 6 months notice. Each of the two leases ran from 13 October 2003 for six years.[10]The premises comprise a ground floor entrance hall accessed by pressing an intercom button. The width of that entrance hall after entering a swing door is 11 feet 6 inches at its deepest. It is 6 feet 4inches from the swing door to a door directly opposite to it giving access to a toilet and the ground floor tenant's premises. On entering the entrance hall through the swing door it is necessary to turn 90 degrees to the left and travel the 11 feet 6 inches along the hallway approximately 3 feet wide to reach the staircase at the end of the entrance hall and then turn 90 degrees to the right to access that staircase. There is no lift in the premises nor is there a stair lift. The Firm occupied a unit on the first and second floors which comprises, on the first floor the reception area, two work stations for secretaries and two small interview rooms. On the second floor there is an open plan office where the claim handlers including the Claimant usually worked. The Firm has no ground floor premises in Doncaster.[11]Mary Ann Charles was a supervising partner in the Firm from December 2002. She was based at the Newcastle Upon Tyne Office. Rebecca Moore-Yelland worked at the Doncaster office from October 2000. Ms Charles' responsibilities related to RD claims and Ms Moore-Yelland in relation to VWF work. In addition she was the supervising solicitor for the Doncaster office. Ms Charles had the responsibility for finalizing RD claims and these were her professional responsibility. Ms Moore-Yelland however had a responsibility as supervising solicitor in Doncaster. Therefore the Claimant would refer finalization of claims or professional advice on claims to Ms Charles in addition to technical issues on the claims themselves. In relation to any other issues she could approach Ms Moore-Yelland. Lower value claims such as for chronic bronchitis could be concluded at the Doncaster office but for others a settlement was referred to the Newcastle office for Ms Charles to deal with.[12]In the early part of 2005 a change was developing in dealing with the VWF and RD claims. Deadlines were set for finalizing the presentation of such claims and also new software and other arrangements were introduced for calculating entitlement and compensation. The first of two deadlines in dealing with claims meant that all within the office had to get involved to ensure that they were presented within time. As a result changes were made so that all workers in the office did their own typing and there were some general pressures within the office to meet the deadlines. Between March and May 2005 the Claimant was not enthusiastic about taking on her own typing[13]By Christmas of 2004 the Claimant had become ill. She had cold and flu symptoms and had time off work as a result. There were concerns that she might have cancer. On 14 February 2005 Sharon Sevenoaks, an office manager from Newcastle, and Ms Moore-Yelland visited the Claimant at her home. The Claimant had been on full pay to that date but was due to move onto statutory sick pay as from 18 February 2005. The Claimant then hoped to be back at work on the following Thursday and was asked to obtain a certificate from her doctor that she was fit to return if that was the case. There was a short delay and a return to work was planned for 3 March 2005.[14]When she discovered that she was required to carry out her own typing the Claimant raised objections and complained about this and the change in the nature of her job. On 7 March the Claimant contacted Miss Charles to say that she was unable to work on a Wednesday as she needed a rest and on 8 March the Firm confirmed that her working week was to be one of four days with a proportionate reduction in her pay and holiday entitlement. It also suspended her ILEX (Institute of Legal Executives) training until the Claimant was able to resume it. A review was set to take place in 6 weeks time. Miss Charles told her that if she needed to reduce her hours further she should let Miss Charles know.[15]The Claimant was absent from work due to illness on seven occasions for a whole or part day between 21 March 2005 and 25 April 2005. It was suggested to her that she might prefer to reduce her working week to 3 days but the Claimant wished to continue on a 4 day week and continued to do so with continuing sickness absences until she was signed off work sick by her GP on 23 May 2005. She attempted unsuccessfully to return on 31 May but was unable to get out of the car in the car park and so was unable to attend work that day. The Claimant has remained signed off as sick and unable to attend work from this date onwards.[16]In the second week of June the Claimant's consultant advised her that she might have ME or chronic fatigue syndrome. On 21 June Miss Sevenoaks requested a medical report but the Claimant responded that that she did not yet have a diagnosis and that the Firm did not need a report as it had sick notes. She said that her GP would not be able to give any information. Miss Sevenoaks explained that the Claimant's health was the most important thing and they had to assess the information they had to hand to ensure they were doing the best by her as well as the Firm. The Firm kept making inquiries as to her health and on 17 August the Claimant complained about the inquiries and comments about her appearance. She was described as being down to size 6 and skeletal.[17]In September 2005 Miss Sevenoaks requested a specialist medical practitioner's advice and the Claimant enquired as to what was required. On 3 October 2005 the Claimant saw her consultant, Dr Al Najar, and was told of the diagnosis of ME. On 17 October 2005 Miss Sevenoaks wrote to her saying that she was very sorry to hear that the Claimant might be suffering from ME and pointing out they would like to request a medical report from the GP to have a clearer idea of her medical condition. Miss Sevenoaks stressed that the reason the information was requested was to ensure that the respondent as her employer was kept properly informed about her medical condition.[18]The Claimant agreed in writing to a report being obtained from her GP, Dr Ahmad; so on 26 October the Firm wrote to the GP requesting a report. He was provided with the Claimant's job description and asked a number of questions regarding her state of health and detailed inquiries as to her ability to carry out her job, which duties the Claimant would currently be unable to fulfil or any relevant limitations on her abilities arising from her condition, for a prognosis as to what was likely to happen in future as regards her condition, any available treatment, when the Claimant would receive it and the likely outcome, the best estimate for her absence from work and if she would be able to return sooner if her duties could be adjusted to accommodate her condition, and if so which duties would need to be adjusted and how long her needs would need to be accommodated before she was able to return to normal duties. He was also asked to state the nature of any alternative employment she could undertake.[19]By letter of 18 November Dr Ahmad replied confirming the Claimant "eventually diagnosed as suffering from chronic fatigue syndrome along with possible irritable bowel syndrome". He concluded she was neither capable of doing her current employment nor would she be able to do any alternative job, "for an unforeseeable future." Everything depended on her improvement, which might take many months. The Firm waited till after the Christmas period to discuss this with the Claimant because of the negative advice and prognosis received from Dr Ahmad. At this stage the Claimant had a certificate certifying her as unfit for work for 3 months from 8 November 2005.[20]Before the Firm got in touch with her the Claimant telephoned on 10 January 2006, saying that she wanted to get back to work but did not think that she could do full time work. She said she wanted to wait until she saw her consultant and suggested two days working.[21]On 17 January 2006 Miss Sevenoaks responded by letter stating that in view of her GP's letter the Firm was considering terminating the Claimant's employment on the grounds of incapability. She pointed out that the Claimant has been on long term sick leave since May 2005, that there had been a number of discussions during her sickness absence and from the information contained in Dr Ahmad's report there did not appear to be any prognosis of her return to work in the foreseeable future. She stated "We would like to meet with you to discuss the position with you prior to making any decision in this regard. In particular we would like to consider your comments on Dr Ahmad's report and to discuss whether you think there are any adjustments that could be made to enable you to return to work"[22]The meeting was eventually scheduled for 16 February 2006. On 13 February the Claimant saw Dr Hassan (Dr Al Najar's associate specialist). At the meeting the Claimant (who was by now taking advice from another solicitor) said that she felt most active between 11am and 3pm and suggested a phased return to work, four days per week, 4 hours per day, working on Monday and Tuesday in the office and Thursday and Friday at home. She suggested that she could manage her duties in full. She believed reasonable adjustments would be to be provided with transport to and from home, and assistance with the handling of files. She confirmed she has a fully functioning computer with internet access and space to work at home. She did not say adjustments would be needed for her to use a wheelchair.[23]The Claimant agreed to the Firm obtaining a report from Dr Al Najar as to her fitness to return to work and 20 February a detailed letter of instruction was sent to him which enclosed a copy of Dr Ahmad's report. On 21 February the Claimant was sent a copy of the disciplinary and grievance rules and procedures and the Firm's employment action procedure. On 23 February the Claimant sent a detailed response. She proposed a phased return to work, four hours a day, two days a week in the office and two days a week working at home and building up under a pacing technique she was using. She felt confident that she could do enough walking to get to work but was doubtful about then getting up the stairs after this, so she suggested she should be provided with transport to work.[24]There followed some communication between the Firm and the Claimant about the instructions to Dr Al Najar. Following an examination Dr Al Najar wrote to the Firm on 4 April. His conclusion was "On balance, I think it is probably fair to say that Kristy could manage to work with some adjustment and I would certainly suggest cutting down on the working hours, possibly initially down to 16 hours per week, and this could be adjusted further if she is able -and wishes - to accept more responsibility. This would need to be assessed at the time. I am sorry that I cannot be more specific, but this is due to the inherent nature of the syndrome when compared to other, more defined illness."[25]The Firm raised no queries about this report: in particular it did not ask whether the 16 hours was to be split as the Claimant suggested or could be any 16 hour week. On 25 April the Firm wrote to the Claimant proposing "As and when your GP considers you fit to return you will return on the following basis for an initial three month period: Hours of work 10.00 to 14.00, Days Tuesday to Friday. Duties: Working under Rebecca's supervision assisting with the VWF cases." The work was to be given to her on a case by case basis. Her salary and holiday entitlement were to be reduced pro rata. The Claimant's response was to raise a grievance complaining about a large number of matters, summarized in twelve bullet points. She suggested amongst other things the installation of a lift at the offices, a requirement for a private office in which to work and a taxi being provided to take her to and from work. On 6 May Mr Christopher Shaw responded that he would deal with the grievance hearing himself on 31 May and his brother Mr David Shaw would deal with any appeal.[26]The grievance hearing took place at the Claimant's home on 31 May and on 5 June Mr Shaw sent his response to the grievance. He proposed a return to work from11.00 to 15.00 two days a week, Monday and Tuesday for a 4 week period to be followed by a review. He rejected the idea of home working because of the limited possibilities for a trainee legal executive, and issues of supervision and risk management. He said that successful re-integration would be best achieved by her working on specific tasks delegated by the office solicitor. He stated that working in a private office might be possible for some of the time but was dependent on operational requirements. The two private offices were used for client interviews and also by members of staff when they had a need for a private office for some particular purpose. He dealt at length with her complaints about the type of work she might be expected to do and the level of supervision. So far as transport was concerned, he said that the firm would be prepared to support any scheme she had for enrolling on the Access to Employment provisions.[27]The Claimant responded with a detailed letter which she said was to be taken as an appeal. The appeal hearing was fixed for 19 July but re-arranged for 26 July at her home and then further re-arranged for 31 August. In her letter she stated she hoped to be able to increase her hours within months rather than years.[28]On 12 July she presented her claim to the Employment Tribunal. Throughout this time the Claimant was certified as unfit for work. As the Employment Tribunal observed, matters after 12 July were not the subject of the Tribunal proceedings, but there was correspondence and then the appeal hearing on 31 August by which time the Claimant's condition had deteriorated so that she needed a wheelchair. Dr Benneker reported that she had been suffering from stress "due to events related to her problems at work" and that "a reduction in stress is likely to bring about an improvement in her medical condition." Following the appeal hearing the appeal was rejected but it was suggested and it had been agreed that an occupational health consultant would be helpful; arrangements could be made following the Claimant's return from holiday.[29]The Tribunal found that the cost of installing a chairlift would have been about £12,500, it would take two weeks to install and that "on balance there was a very real chance" that a contribution of 50 per cent of the cost would have been available from Access to Work.[30]During the course of the Employment Tribunal hearing the Claimant suggested that the Firm could and should have made a reasonable adjustment by renting ground floor office space adjoining the Firm's offices. On 3 February 2006 Unit 2, in the adjoining building 5 Portland place became vacant. The area of the vacant unit was 1222 square feet. The old internal partitioning was then removed and the unit refurbished, work starting on 22 March 2006 and finishing on 21 April 2006. It was marketed from 22 March 2006 and heads of terms for a re-letting were issued on 24 August 2006, although the new tenant did not take occupation until 9 January 2007. The layout was such it could not be split and part let. The managing agents would not have recommended a sub-letting of part and their view was that the landlord would not have accepted such a proposal. The unit was being marketed as a whole. The Judgment[31]The Tribunal's lengthy judgment dealt with the complaints raised in relation to the alleged failure to make reasonable adjustments in chronological order. The judgment dealt with a considerable number of points raised by the Claimant which it rejected.[32]As to the points on which it found for the Claimant, first it dealt with the complaints arising out of Miss Charles's offer on 25 April 2005 of a return to work. It found against the Firm in respect of the offer of a return to work 10.00 to 14.00 for four consecutive days rather than offering a return on Monday, Tuesday, Thursday and Friday from 11.00 to 15.00: against this there was no appeal. It went on to find:
"Following Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664 a failure to carry out an assessment or make enquiries is not of itself a failure to make reasonable adjustments. If the Respondent had made proper enquiries as to provision of a stair-lift, Access to Work financial and practical help on eg, storage devices and transport and as to alternative ground floor space it could have removed the physical barrier presented by the location of its offices in the light of the Claimant's disability. There is therefore in our view a failure to make reasonable adjustments."
[33]The Tribunal then considered the "5 June issues", ie the issues arising from Mr David Shaw's consideration of the grievance. At paragraph 142 of the judgment the Tribunal concluded (after holding that the installation of a lift would not have been a reasonable adjustment) that:
"Installation of a chairlift however would be reasonable as set out above as would temporary provision of accommodation in the nearby vacant unit. The [Firm] failed to consider this. As above we find this was feasible and reasonable."
[34]At paragraph 145 the Tribunal went on to find that "some homeworking was possible and by refusing this a reasonable adjustment has not been made." It noted that the Law Society had no objection in principle to home working (though it was contrary to the Firm's policy), that there could have been adequate supervision, that there had been no investigation of the insurance position, or of secure transportation and storage "by USB device for the Claimant to access at home" [this apparently being a reference to the suggestion that the contents of files in the Firm's paper-based practice could be scanned onto a "memory stick" for use by the Claimant at home].[35]At para 148 the Tribunal noted:
"So far as working from home is concerned it appeared that although Mr Christopher Shaw at the appeal stage had grave concerns about this he did not rule it out completely and it was hard to understand why it would not be possible for example for the claimant to carry out reading work and preparatory work e.g. combined with USB use which could be completed on her days in the office on Monday and Tuesday of each week. The same points can be made as to exploration of this which was felt to be lacking on the part of the respondent."
[36]At paras 152 and 153 of the judgment where the Tribunal concluded:
"152. The respondent was aware that the claimant required a later start (11am) and a break after two days in the office, two days working at home and transportation. 153. We find that it was a reasonable adjustment for this employer to make to provide a combination of adjustments."
[37]The Tribunal's final summary of its findings in relation to the Firm's failings was set out at paras 158 to 161. At 158 it repeated its findings in relation to working times and days. It then went on at 159:
"The respondent further could have arranged Access to Work assistance as to costs of transport for the claimant and the provision of assistance towards further practical adjustments. This would extend in our view to the provision of a stair-lift (which could be fitted within two weeks of order at a cost of £12,500 with a contribution of cost from Access to Work of 50% of the cost). We believe on balance there was a very real chance of Access to Work contributing that sum as there would be a benefit to the respondent's premises and its clients having stair-lift access. That of itself could have enabled the claimant to attend four days. As an alternative the respondent could have explored the prospect of a short term let of premises at number 5, Portland Place. The premises, as above, were available refurbished from March 2006 and not let until January 2007, although heads of terms were sent out in August 2006."
[38]At para 160 it concluded it was " by no means clear that a part letting for a limited period could not have been contemplated ." And at para 161:
" These adjustments could have avoided the obstruction presented by the offices being on two floors ."
The Firm's submissions[39]The Firm's first point related to the finding "on balance there was a prospect that a short term let [of No.5 Portland Place] would have been available and should have been explored by the Respondent." It was submitted that the only evidence before the Tribunal in relation to the issue was to the effect that 'the floor was marketed as a whole, it was not refurbished until 22 April, partitioning for a part let would not have been feasible, the managing agents would not have recommended such a course of action and felt certain that the landlord would not have accepted it. Thus the finding was one for which there was no evidence. In these circumstances the finding that alternate premises were even available is not simply against the weight of the evidence but wholly without foundation.[40]Even if the Tribunal was entitled to find that space at No.5 was available for rent, the Tribunal should next have considered the reasonableness of the adjustment (including elements as diverse as the part let of the premises and all that entailed, the setting up of a 'satellite office' suitable for the Claimant and then maintaining it on an open ended basis). In doing so the Tribunal should have applied the approach set out in s.18B of the DDA 1995.[41]There is no indication in the Judgment that the Tribunal followed this approach at all. Indeed they considered the use of portable telephones and that was it. The Tribunal ignored the numerous arguments put forward by the Firm that the adjustment would not have been realistic, feasible or reasonable. It ignored the practicalities (the cost of heating, lighting, cleaning and insuring the premises and maintaining security), the cost of further rent and of negotiating a new lease, issues as to the supervision of the Claimant if working alone, health and safety issues, the effect on other staff of files, post moving etc to and fro between the buildings, many of which concerns reflected factors highlighted in the DRC Code of Practice.[42]The Firm said it could not see why it had lost on this point and referred to the usual passages in Meek v City of Birmingham District Council [1987] IRLR 250 per Bingham LJ at para. 8.[43]This type of adjustment (the renting and maintenance of further office space, additional to the employer's own) for a disabled employee does not fall within the scope of the s.4A duty. The duty is concerned with either alterations to 'a provision, criterion or practice applied by or on behalf of an employer' or 'any physical feature of premises occupied by the employer'. It is contemplated that any adjustments will be made to requirements imposed by an employer or some physical aspect of the premises occupied by them. The list of examples of adjustments in s.18(B)(2) is not exhaustive but contains nothing along the same lines.[44]So far as the home working point was concerned, the Tribunal found only "some home working" was possible. The Claimant's work had changed considerably during her absence and more familiar work could not be given to her. The work she could do at home was restricted to reading and preparatory work. The Tribunal commented at para 139 of its judgment that "no consideration was given for example to a shorter period of home working or a time limited arrangement". There was a failure by the Tribunal to say with full particularity what 'some home working' amounted to, and therefore what adjustment the Respondent was supposed to be making. This amounted to a key failing in the Judgment and an error in law. If something less than two days per week home working was being contemplated, then this would not have alleviated the disadvantage posed to the Claimant by the physical arrangement of the premises. The position she would be left in would have been little different from that in the June 2006 proposal (of two days in the office, 11.00 to 15.00) which she had rejected as not meeting her requirement of 16 hours per week. Had the Tribunal adopted the correct approach set out in s.18B DDA and posed themselves the question 'would some home working have allowed the Claimant to return to work for 16 hours per week', then the answer would have been 'no'. Instead they leapt into considering whether the adjustment of some home working would be reasonable.[45]The Tribunal accepted she needed supervision particularly as part of her second return from ill health, having effectively been absent for 18 months, but disregarded this finding on home working. The nub of this is that having accepted that a change from the more remote supervision from Newcastle was a reasonable adjustment, it is then said that working from home is no different from this type of remote supervision (which no longer existed and which the Tribunal had agreed was no longer appropriate) and hence should not be a problem. This wholly ignores the previous finding on a question which was vital in relation to the issue of reasonableness; the principal objection of the Firm being that it felt it could not adequately supervise the Claimant at home. As such the Tribunal have either disregarded their own findings, which amounts to an error of law, or come to a decision which is perverse.[46]As to the stairlift point, bearing in mind the installation cost (even with a 50 per cent contribution from Access to Work), running costs, the need for landlord approval and the obligation to reinstate at the end of the tenancy, the installation of a stair lift was a significant step to take in circumstances where the Claimant's ability to successfully sustain a return to work at all was in doubt. It would be less reasonable for the Firm to make this type of adjustment if its value was to be short-lived. The Tribunal concluded that the period the Claimant would require adjustments for was 'uncertain' and by implication that they might be short-lived due to the prognosis of an improvement in her health. In fact the opposite occurred: by August 2006 the Claimant's condition had deteriorated to the extent she was using a wheelchair. The lift therefore would have been of use for about 4-6 weeks.[47]The Tribunal then made the opaque statement at para 144:
"Our finding is that preparation could have been made at this stage to assure the Claimant as to adjustments by a stair lift, ground floor working and some work from home. In failing to do this the respondent failed to make reasonable adjustments'"
Two possible conclusions might be drawn from looking at this paragraph as a whole. Either the Tribunal failed to take into account a crucial factor - namely that the need for a stair lift might be short-lived hence impacting on the reasonableness of making the adjustment -or preparatory steps should have been made towards installing a lift while it was seen how the Claimant could build up her abilities. This is despite already having decided earlier in the Judgment that a failure to take a preparatory step is not a failure to make a reasonable adjustment following the decision in Tarbuck .[48]The overall position was that in relation to each of these three findings the Tribunal erred in law or acted perversely and without evidence. The Claimant's submissions[49]The Claimant's written submissions dealt largely with factual issues and sought to expand on the findings of fact. It was the Firm's duty to consider adjustments which it knew might have to be long term because of the nature of her disability. Although she hoped to improve she could give no indication how long it would be before it would be before she could increase her hours. She required an adjustment to enable her to get to work and her employers had sufficient information to ascertain that any adjustment would need to be long term. The Firm was obliged to make such adjustments as would have the cumulative effect of preventing disadvantage.[50]As to the premises next door the Tribunal based its decision on the evidence. The Tribunal was considering the earlier period in February 2006, when the floor was still partitioned and at that stage the employer could have obtained a tenancy of part. So far as the home working point was concerned, the Solicitors Regulatory Authority had no objection to her working at home and in effect the Firm was saying that its levels of supervision did not meet the criteria required by the SRA. In effect she would be supervised by a solicitor whom she would see two days a week rather than merely one at the end of a telephone in Newcastle. So far as the stair lift was concerned, she did not need a wheel chair at all times. The Firm had had ample opportunity to take steps to make adjustments before May 2006. It should have made adjustments rather than suggesting that she return to the office for two days a week for which she could cope. The installation of the stair lift would not have been merely short term. Because the Firm knew in February that she was disabled, it knew that her disability and her problem with mobility would be likely to last at least a year. Discussion[51]The Tribunal set out the law it sought to apply in paras 11 to 13 of its Judgment. Its reference to the statutory provisions was in short form and for some reason it did not refer to section 4A of the Act at all though it is clear that it must have had the section in mind.[52]The judgment also makes a number of references to assistance for the Claimant in relation to transport costs. Any approach to Access to Work for assistance with transport costs would have had to come from the Claimant rather than from the Firm, though no doubt the Firm would have had to support any such application. Presumably these references were intended to be regarded as background, helping to paint the picture of how the Firm had approached the question of reasonable adjustments, rather than as free-standing findings of failure to make reasonable adjustments. This follows from Kenny v Hampshire Constabulary [1999] ICR 27 (decided on the old section 6 of the Act) in which the EAT held that the question of adjustments applied to 'the workplace and to job related matters' so that the provision of transport and to and from work was said to lie outside the duty. Morison J said at p35 E-G:
"For example, the provision of transport for getting to and fro from the employers' premises is outwith the section. If a disabled person needs assistance from another to get to work, that is for him/her to provide and pay for, but is not the employers' responsibility. The effect of a failure to provide this service may deprive the disabled person of an opportunity to be employed in an undertaking, but without involving a breach of the Act. Therefore, the fact that the failure to make an arrangement will have this effect does not, of itself, bring the arrangement within the Act. In other words, not every failure to make an arrangement which deprives an employee of a chance to be employed is unlawful."
[53]The Tribunal's conclusions after a lengthy consideration of the evidence and findings of fact centred on the desire of the Claimant to work four hours a day, four days a week with Wednesday off. It held that an adjustment allowing her to work those hours was reasonable and (by implication, though it does not mention the point expressly) that this adjustment would be a reasonable step in all the circumstances of the case to prevent the Claimant being at a substantial disadvantage from the provision, criterion or practice ("PCP") of the Firm of requiring its employees to work a full day five days a week at the Firm's offices and from the physical features of those premises, namely being on the first and second floors. There is now no dispute that this could form part of a reasonable adjustment, but it could not of itself amount to a reasonable adjustment because without other adjustments it would not achieve the objective of preventing the Claimant being at a substantial disadvantage because of the PCP and the physical features.[54]The other parts of the package needed to achieve the aim related to(a) access to the offices and(b) home working. So far as the first of these was concerned the Tribunal posited two possible reasonable adjustments (i) the short term renting of the adjoining ground floor office premises or (ii) the installation of a stair lift. Each of these adjustments the Tribunal held to be reasonable.[55]So far as the first of them is concerned, we are not prepared to say that the renting of additional office space could never be a reasonable adjustment. It is true that section 18B(2) does not refer to the acquisition of additional premises. The nearest the subsection comes to the point is at (e) "assigning him to a different place of work or training". Nothing is said there about any limitation on when or why that place of work or training should have been acquired. However the matters set out are examples. The section does not provide a closed list of categories. It provides a check list of possible adjustments without limiting the list. In the appropriate case other adjustments not on the list may be required. It would be an exceptional case in which an adjustment requiring the acquisition of other premises would be held to be reasonable, but we are not persuaded that such a case could never arise.[56]The problem with the Tribunal's decision on this point in this case is that there is simply no evidence to support it. The only evidence was that the layout was such it could not be split and part let. The managing agents would not have recommended a sub-letting of part and their view was that the landlord would not have accepted such a proposal. The unit was being marketed as a whole. There was nothing which suggested that the Firm would have been able to acquire a short lease of the premises.[57]Even if there were evidence on which the Tribunal could have found that a part of the premises would have been available on a short let, the Tribunal failed to consider the financial and other costs as required by section 18A(1)(c). The only matter referred to was the availability of telephones. There was no discussion of any of the major expenditure, such as rent, rates or insurance.[58]In these circumstances the finding as to the failure to make a reasonable adjustment by the renting of the adjoining premises cannot stand.[59]So far as the stair lift is concerned, the Tribunal stated its conclusions on the issue at paragraph 159. It referred to a two week installation time, but made no reference to the time scale of seeking permission from the landlord as required for any non-structural alteration to the premises, the cost of obtaining the landlord's licence, the cost of maintaining the stair lift whether under a maintenance contract or otherwise, or the cost of re-instating the premises by removal of the stair lift at the end of the lease in October 2009. In failing to address anything other than the capital cost of the stair lift the Tribunal did not properly address the requirements of section 18B(1)(c), though it did address section 18A(1)(e) by considering the financial assistance available to it and from the silence both of the Tribunal and of the Firm on the question of the Firm's financial and other resources it is apparent that it was not suggested that the Firm's financial resources should be a material factor in any decision on the point.[60]The Firm suggested that in considering the costs the Tribunal erred in that it did not take account of the fact the use of the stair lift might be short-lived because(a) the Claimant was at the material times expecting to improve so that the stair lift might have only been required for a few months and(b) in the event the Claimant would have been able to use the stair lift only for a few months because by the end of August she needed to use a wheel chair, her condition having deteriorated. The Tribunal was entitled to take the view that the length of time over which the stair lift would be used was uncertain. It did not follow that because the Claimant hoped to improve she would not continue to need the stair lift particularly when she started coming into the office more than two days a week. The fact that subsequently her condition deteriorated so she needed a wheelchair did not alter the case. First, when she got to that stage a further reasonable adjustment would have been to provide a separate wheelchair to be kept and used in the office area and second, the reasonableness of making an adjustment cannot be determined by subsequent events. It is not, for example, possible to argue that because an employee is subsequently killed in a motor accident a particular adjustment sought while he was alive was not reasonable because in the event it has turned out that an expenditure would have had to be made for something that turned out to have a limited use.[61]So far as the criticism made of para 144 of the Judgment is concerned, it is justified in that whilst the Tribunal is not wrongly discounting the fact that the use of the stair lift might be comparatively short, it appears (contrary to Tarbuck , which it purported to apply) to be treating the failure to make reasonable inquiries or preparation as itself being a separate failure to make a reasonable adjustment. Insofar as the Tribunal made such a finding, it cannot stand.[62]The cost involved in the installation was itself heavy and could reasonably be said to go to the very limit of what amounts to a reasonable adjustment. In the light of the failure of the Tribunal to consider the expenses (apart from the capital cost of the equipment) involved in the installation of the stair lift the Tribunal's finding on the point cannot stand. The point must be remitted to the same Tribunal to re-consider taking into account the financial and other costs which were not previously taken into account.[63]As to the working from home point, the Tribunal failed to identify what the reasonable adjustment was. The Claimant wanted to work at home two days each week. The Tribunal referred to "some home working". It does not identify what weekly amount of home working would have been possible. It evidently believed that "reading work and preparatory work eg combined with USB use" was possible. If the home working had been less than two days a week she would still have been faced with a third day of going to the office (with which she said she could not cope) or something very much akin to the offer of two days work in the office which she had been offered and rejected.[64]The Firm took the view that work from home was not practicable because(i) it was contrary to the Firm's policy;(ii) the need for supervision;(iii) the limited amount of work she could do at home (no meetings with clients, no telephone calls);(iv) security and insurance problems; and(v) practical problems given that the office practice was paper-based.[65]The Tribunal's decision does not deal adequately or at all with these concerns. The Firm was criticised for having failed to make inquiries and investigations as to what was possible but there was no positive evidence and no findings as to the practicability of the proposed adjustment.[66]Whilst the firm's policy was a PCP which could be adjusted to prevent a substantial disadvantage, the need for supervision remained. The Tribunal had accepted as appropriate the change of supervision from Newcastle, when she was well and was dealing with work with which she was familiar, to a partner at the Doncaster office, when she was returning from extended sick leave, was still unwell and was dealing with work with which she was not longer familiar, given all the changes that had occurred during her absence. Because of the additional need to keep an eye on the Claimant, who would be making a second attempt to return to work after ill health and the nature of the work she was doing had changed, the nature of the supervision necessary had changed. In these circumstances it is surprising that the Tribunal did not recognise the force of the Firm's concerns in relation to supervision. The issue was not whether the supervision available would fall foul of the minimum standard required but whether allowing her to work at home given the level of supervision available was part of a reasonable adjustment.[67]So far as the work she could do at home, this amounted to reading and preparation. There was no finding as to the practicality of her doing two days reading and preparation at home each week. Because the practice was paper based, she would need help with handling files (she had suggested to Ms Charles that assistance with handling files would be a reasonable adjustment) and there were security and insurance concerns about the files being taken home, the practical position was that any files she proposed to work on at home would have to be scanned and saved onto a USB stick. The Firm had made no investigation as to the practicability of such a measure. The Tribunal commented that "some exploration could have been made as to secure transportation and storage of documents by USB device" but made no findings as to what could have been done. It merely held "The home working could have been facilitated by the respondent if it had a mind to do so": see para. 146. There was no evidentiary basis for any finding as to the extent of the work it would have been practicable for her to do at home each week and, given the uncertainty of what adjustment could be made, no basis for finding that there was a failure to make a reasonable adjustment by not permitting home working. The finding of disability discrimination in respect of the home working point therefore cannot stand. Conclusion[68]The issue of failure to make a reasonable adjustment in respect of the installation of a chair lift must be remitted to the same Tribunal for re-consideration. It will be a matter for that Tribunal as to whether it will admit further evidence on the point or re-consider it on the basis of the evidence already given. It may well be convenient to deal with the matter at the commencement of the remedies hearing rather than holding a separate hearing.[69]At the remedies hearing the Tribunal will be considering the question of remedy on the basis that there was no failure to make a reasonable adjustment by not acquiring a tenancy of the adjoining office premises and no failure by not offering an opportunity for home working.[70]At the hearing the Tribunal will also, of course, be dealing with the question of remedy in respect of the admitted failure to make a reasonable adjustment in respect of the "days and hours" point and in respect of the statutory sick pay issue and another issue as to whether by reason of the Firm's discrimination and following from Meikle v Nottinghamshire CC [2004] EWCA Civ 859 the Claimant is entitled to full pay during her sickness absence.