Rodriguez -Noza v Abertawe Bro Morgannwg University Health Board (Disability Discrimination : Reasonable adjustments) [2013] UKEAT 0091_12_1604

EAT
Rodriguez -Noza v Abertawe Bro Morgannwg University Health Board (Disability Discrimination : Reasonable adjustments)
[2013] UKEAT 0091_12_1604 · 2013-04-16
[1]The Claimant, Mrs Glenda Rodriguez-Noza, comes from the Philippines. She was employed by the Respondent, the Abertawe Bro Morgannwg University Health Board (“the Board”), as a staff nurse at the Princess of Wales Hospital, Bridgend (“the hospital”), from 9 August 2001 following a recruitment drive in the Philippines. On 31 July 2009, she gave notice of her resignation from her employment, and her employment came to an end on 3 September 2009. By the time of her resignation, Mrs Rodriguez-Noza had brought two separate claims in the employment tribunal. The first, which she brought on 15 December 2008, was a claim of race discrimination, and the second, which she brought on 3 April 2009, was another claim of race discrimination together with a claim of disability discrimination. Following her resignation, Mrs Rodriguez-Noza brought a third claim in the employment tribunal. That was on 22 October 2009. That claim too consisted of claims of race and disability discrimination, but it also included a claim of unfair dismissal on the basis that her resignation had amounted to her constructive dismissal. Her claims were heard by an employment tribunal (Employment Judge John Thomas presiding) at Cardiff over five days in November 2010, but all her claims were dismissed.[2]Mrs Rodriguez-Noza filed a notice of appeal with the Employment Appeal Tribunal. It was drafted by herself. She is not a lawyer, and it was not drafted as crisply as a lawyer would have drafted it. It referred only to what Mrs Rodriguez-Noza described as “discrepancies” in the dates given in the tribunal’s judgment, and to her complaint that the proceedings in the tribunal had not been recorded. The only other thing which it did was to attach a copy of the written submissions she had made to the tribunal. It did not set out any grounds of appeal by reference to any errors of law which the tribunal was supposed to have made. Not surprisingly, Judge McMullen QC decided that the notice of appeal did not contain any grounds of appeal which had any reasonable prospect of success, and in accordance with rule 3(7) of the Employment Appeal Tribunal Rules, no further action was to be taken on the notice of appeal.[3]Mrs Rodriguez-Noza was dissatisfied with that, and she asked for the question whether her appeal should proceed to be reconsidered at a hearing. The hearing took place before Judge David Richardson on 10 August 2011. On that occasion, Mrs Rodriguez-Noza was represented by Ms Nabila Malik under the ELAAS Scheme. Ms Malik formulated a number of grounds of appeal, but Judge Richardson did not think that any of them were arguable with the exception of two possible grounds of appeal relating to the claim of disability discrimination. Accordingly, apart from those two possible grounds, he ordered that no further action be taken on any of the original grounds of appeal or on any of the new grounds of appeal formulated by Ms Malik, but in order to decide whether the two possible grounds relating to the claim of disability discrimination were arguable, he directed that the employment tribunal be asked two particular questions. We shall come to those questions later.[4]Following the receipt of the tribunal’s answers to those questions, Judge Richardson ordered that there be a preliminary hearing of the appeal. The preliminary hearing took place on 10 October 2012 with Judge Peter Clark presiding. By then amended grounds of appeal had been drafted by Ms Malik. They related to the two possible grounds of appeal identified by Judge Richardson at the previous hearing, but at the hearing presided over by Judge Clark, Ms Malik sought to add additional grounds of appeal. She was not permitted to do so. However, the Employment Appeal Tribunal decided on that occasion that the two possible grounds of appeal identified by Judge Richardson should proceed to a full hearing. This is the Employment Appeal Tribunal’s judgment following that hearing.[5]There are a couple of things we should add before we consider the merits of the appeal. Mrs Rodriguez-Noza is now representing herself again. In a letter she wrote to the President of the Employment Appeal Tribunal, she said that she had “discharged” Ms Malik as “it appears she is not on my side”. The reason why she was writing to Langstaff P was because the Registrar had refused her request to be allowed to rely on fresh evidence on the appeal and to re-amend her grounds of appeal. She had also requested the Registrar to order the attendance of various witnesses, and to order the Nursing and Midwifery Council to respond to her request that a number of nurses who had been her colleagues at the hospital be investigated for their fitness to practice. Langstaff P considered those requests, but he refused them all.[6]Mrs Rodriguez-Noza has complained about the way members of staff at the Employment Appeal Tribunal have dealt with her correspondence. Those complaints were considered by the Registrar and rejected. She also requested the Registrar to order that the appeal be stayed or the hearing fixed for today be postponed so that she could prepare a bundle of documents which included the fresh evidence she wanted to call as well as her correspondence with the Employment Appeal Tribunal and its staff. That application was also refused by the Registrar on the basis that the documents she wished to include in the bundle had not been before the employment tribunal, and were not relevant to the only two grounds of appeal which the Employment Appeal Tribunal would be addressing. The consequence is that the only bundle of documents which has been prepared for the appeal is the bundle of documents prepared by the Board’s solicitors.[7]We should add that Mrs Rodriguez-Noza yesterday repeated her request for a postponement of today’s hearing on the same grounds as before. She added that she would not be able to come to today’s hearing because there was yesterday not sufficient time for her to book her transport and accommodation. That renewed application for a postponement of today’s hearing was placed before me yesterday. I did not think that a postponement of today’s hearing should be granted. Mrs Rodriguez-Noza could have made arrangements for coming to London before yesterday, and she had had ample time to prepare a bundle of documents incorporating the documents she wished the Employment Appeal Tribunal to see, provided, of course, that it was appropriate for the Employment Appeal Tribunal to look at them. In the event, Mrs Rodriguez-Noza has come to today’s hearing, and we have been pleased to see her.[8]With that introduction, we turn to the appeal itself. Although the two grounds of appeal cover relatively narrow points, it is necessary to put them into their factual context. Mrs Rodriguez-Noza initially worked on surgical ward 7 before moving to surgical ward 8 in 2003. There was evidence which the tribunal evidently accepted of her very high clinical standards, her dedication, her caring nature and her popularity with her colleagues. However, by 2006 Mrs Rodriguez-Noza was starting to have time off work with stress and depression. She had a month off in July 2006 which she attributed to the improper refusal by the ward sister to authorise the scrubbing of a cubicle which had been occupied by a patient infected with MRSA. Mrs Rodriguez-Noza had further time off from 16 July 2007. When she returned to work the following November, she did not work on surgical ward 8 but worked first on the urology ward and then on the orthopaedic ward. She was then off work from 15 February 2008, and she never returned to work again. Her sick pay ended on 19 October 2008.[9]In the meantime, Mrs Rodriguez-Noza had raised a formal grievance on 30 May 2008 in which she claimed that she had been harassed, bullied and victimised. It was not considered under the grievance procedure (which was for the resolution of grievances which could be resolved relatively quickly and informally) but under the Dignity at Work Policy, because it was thought that if her grievance was upheld, it might result in disciplinary action being taken against those members of staff who Mrs Rodriguez-Noza had complained about. As it was, her grievance was rejected in September 2008, as was a further grievance which she had raised in February 2009 complaining of the handling of her earlier grievance. She appealed against the rejection of her later grievance. She was told on 27 July 2009 that that appeal had been dismissed, and it was a few days later that she submitted her resignation.[10]In its decision, the tribunal considered each of the incidents in which according to Mrs Rodriguez-Noza she had been treated as she had because of her ethnicity. Not only was there the incident relating to the scrubbing of the cubicle. There were incidents relating to a disagreement between Mrs Rodriguez-Noza and the ward sister about the care plan for a patient with pancreatitis, the posting of Mrs Rodriguez-Noza’s name on a message board, the use of coarse language about her by a registrar, the cancellation of a review into her performance, the instructions she received on occasions to serve food to patients and the unavailability of counselling for her. The tribunal also dealt with her complaints about how her grievances had been handled, about the Board’s delay in dealing with them, and about the wards which she had worked in after she returned to work in November 2007, her complaint being that she had not been given enough work to do. For the most part, the tribunal found that the Board had treated Mrs Rodriguez-Noza properly and fairly. The tribunal rejected the claim that she had been harassed, bullied and victimised. The tribunal was critical of the fact that her name had been put on the message board in connection with a minor mistake concerning blood transfusion policy, but it found no evidence of a racial motive for that. If there was anything which could have been described as less favourable treatment, it had not been on racial grounds. When it came to her claim of unfair dismissal, the tribunal found that there had not been any fundamental breach of her contract of employment, saying that where there had been elements of discord between Mrs Rodriguez-Noza and other staff, that had arisen because of what the tribunal described as Mrs Rodriguez-Noza’s “misperception of the ‘rough and tumble’ of professional life”.[11]Against that background, we turn to the claim of disability discrimination. The facts relied upon in Mrs Rodriguez-Noza’s ET1s were as follows. In April 2007, Mrs Rodriguez-Noza went to see Annette Sage, the senior nurse manager in the Board’s Occupational Health Department. She told Ms Sage that she felt bullied, harassed and discriminated against. Ms Sage diagnosed her as suffering from work-related stress, and said that she would review Mrs Rodriguez-Noza at four to six weekly intervals “to provide support for her to deal with her current stress levels” and would refer her for counselling. After she went on sick leave on 17 July 2007, she was examined by Dr Mansouri, a specialist registrar in occupational medicine. He recommended a gradual return to work with an “increased level of support and professional supervision”. Following her return to work in November 2007, Dr Mansouri said that Mrs Rodriguez-Noza was fit for work provided that the “relationship difficulties” at work were reasonably resolved, and he repeated her need for an “increased level of support and professional supervision”. Prior to 15 February 2008 when she went on the prolonged period of sick leave from which she did not return to work, Mrs Rodriguez-Noza did not receive, so she said, the counselling which she was to be referred for. Dr Mansouri saw her again on 20 February 2008. Following that consultation, he said that she thought that his advice about the provision of support and supervision had not been followed.[12]Mrs Rodriguez-Noza’s claim of disability discrimination was formulated in her second ET1 as follows:
“On 20 March 2008 [Mrs Rodriguez-Noza] was referred by her GP to the Community Mental Health Team. [Mrs Rodriguez-Noza] has developed work-related stress and depression. This condition has lasted over 12 months and has had a substantial adverse affect on her ability to carry out normal day to day activities. [Mrs Rodriguez-Noza] therefore believes she is a disabled person as defined by the Disability Discrimination Act (DDA) 1995. [Mrs Rodriguez-Noza] believes the [Board] has discriminated against her in breach of the DDA by failing to make reasonable adjustments - she considers that providing the increased level of support and supervision recommended by Dr Mansouri would have been a reasonable adjustment.”
The reference to reasonable adjustments was a reference to section 4A(1) of the 1995 Act which required an employer to take such steps as were reasonable to prevent any provision, criterion or practice which the employer applied from placing any disabled worker at a substantial disadvantage in comparison with persons who were not disabled.[13]The tribunal dealt with Mrs Rodriguez-Noza’s claim of disability discrimination in the following way. In para. 6 of its judgment, it said:
“It is accepted by the [Board] that [Mrs Rodriguez-Noza] was a disabled person from May 2008. Following a discussion between [Mrs Rodriguez-Noza] and the Panel, it was agreed that so far as the disability claim is concerned, all matters were open to challenge and that it was not simply a claim limited to reasonable adjustments.”
The tribunal’s conclusion on the claim of disability discrimination appears in paras. 60 and 61 of its judgment, which read as follows:
“60. The disability claim is one in which [Mrs Rodriguez-Noza] must be the subject of a provision criterion or practice [applied] by the [Board] which placed [Mrs Rodriguez-Noza] at a substantial disadvantage in comparison with persons who are not disabled. The statutory provisions are found at Section [4A] of the Disability Discrimination Act 1995. 61. In these circumstances the employer is to take such steps as is reasonable in all the circumstances to prevent that. It has not been identified for us what the condition provision or criterion [ sic ] is that Mrs Rodriguez-Noza says has been breached and which then gives rise to the duty. All we can see is that there was a need for her as an absent employee to eventually return. In any event we are satisfied that even if the duty had arisen, which we do not think it did, all the reasonable adjustments were made. There were very, very regular health reviews almost monthly up until the date of her resignation. There was an extended period allowed to Mrs Rodriguez-Noza for her to remain an employee though unpaid, and finally there was the continuing encouragement and availability of counselling to her. Against that background we know having read the evidence that it was Mrs Rodriguez-Noza who was saying I cannot come back to work yet. In those circumstances we do not think that there has been failure, even if there had been a duty arising to take the appropriate steps.”
So although the tribunal had said in para. 6 that it would not treat Mrs Rodriguez-Noza’s claim of disability discrimination as “limited to reasonable adjustments”, that is the only feature of the claim of disability discrimination which it addressed. However, that cannot be relied upon as a ground of appeal, because the Employment Appeal Tribunal expressly decided on 10 October 2012 that it could not be.[14]The questions which Judge Richardson wanted the tribunal to answer were set out in para. 1 of his order of 10 August 2011. First, did the tribunal reach any conclusion about the date on which Mrs Rodriguez-Noza became a disabled person for the purposes of the Disability Discrimination Act 1995 ? If so, what were the tribunal’s conclusions and why? Secondly, why did the tribunal find, as it said at the beginning of its judgment that it had, that no duty had arisen to make reasonable adjustments?[15]The employment judge responded to the first question by saying that the tribunal had found that Mrs Rodriguez-Noza had been a disabled person from June 2008 since that was what the Board had conceded, but not before then: although Mrs Rodriguez-Noza had been suffering from a “mental impairment”, namely work-related stress, which was what Dr Mansouri had said her absence from work from 16 July 2007 had been attributable to, she had not established that it had had a substantial adverse effect on her day-to-day activities. The employment judge noted that Dr Mansouri had said that following her return to work, Mrs Rodriguez-Noza had enjoyed her work, having undertaken the full range of duties without any reported problems. He also referred to a report in the trial bundle dated 31 March 2008 from Dr Stephen Madelin, which recorded “a history of fluctuating amounts of anti-depressant drugs”, and noted an inability on Mrs Rodriguez-Noza’s part to work because in his view her distress and unhappiness about working for the Board was so deeply ingrained. Finally, the employment judge referred to a later report from Dr Mansouri dated 10 November 2008 in which he said that Mrs Rodriguez-Noza “… has been diagnosed with a long standing common mental health problem for which she receives appropriate medical treatment through her family Doctor and is also under the care of other support services. Her perceived work related issues that you are aware of have had an impact on her mental wellbeing. Regrettably her symptoms have not altered significantly over the past few months and I am unable to add anything to her treatment plan that can be valuable.” The employment judge ended by saying:
“We concluded that even though there was minimal evidence of substantial adverse effect on her day to day activities, we accepted that, looking back from [Dr Mansouri’s report of 10 November 2008] over a period of ‘past few months’ … by June 2008 … there must have been a point reached over the passage of time from 16 th July 2007, when her condition would have satisfied the statute definition and whilst it was a matter for the Tribunal’s judgment, we accepted the concession made by the [Board].”
[16]The employment judge’s answer to the second question is far more opaque. The answer was this:
“The finding by the panel of no duty arising on the part of the [Board] in Paragraph 61, we accept cannot be correct. The provision criterion or practice applied by the [Board] was that [Mrs Rodriguez-Noza] was required to return to work. Any application for a review on that issue could only have been allowed. Our thinking was whether or not the [Board] had in fact discharged its duty (see … below).”
What the employment judge then went on to do was to purport to answer what he thought were other questions which the Employment Appeal Tribunal had asked. In fact, the Employment Appeal Tribunal had not asked any further questions. Para. 2 of Judge Richardson’s order of 10 August 2011 had simply said:
“Except insofar as it concerns the questions – (1) [f]rom what date [Mrs Rodriguez-Noza] was a disabled person (2) whether the [Board] made reasonable adjustments], [t]he appeal remains subject to Rule 3(7) of the Employment Appeal Tribunal Rules 1993 and is in effect dismissed.”
Wrongly believing that the tribunal was being asked whether it had found that the Board had made reasonable adjustments, the employment

judge went to say this:

“Seeking to take care not to give evidence in these responses we took into account the following medical reviews of the 18 th September 2008, 30 th September 2008, 21 st October 2008, 20 th November 2008, 18 th December 2008, 2 nd February 2009, 13 th March 2009, 9 th April 2009, 21 st May 2009 and the 22 nd June 2009 as being genuine and practical attempts in accordance with the medical advice of Dr Mansouri to reintegrate [Mrs Rodriguez-Noza]. Further, this reflected the kind of attitude shown by the [Board] in considering the graduated return on reduced hours with an offer of a choice of wards. This of course being prior to our finding of the date of disability.”
[17]The first ground of appeal identified by Judge Richardson and then by Judge Clark was whether the tribunal had erred in law in simply accepting the Board’s concession that Mrs Rodriguez-Noza had been disabled from May 2008 without investigating whether she had been disabled before then. The second was whether the tribunal had misdirected itself as to what provision, criterion or practice might have placed Mrs Rodriguez-Noza at a substantial disadvantage in comparison with persons who were not disabled, and whether the tribunal had erred in law in concluding, if it did so conclude, that the Board had taken such steps as were reasonable to prevent whatever provision, criterion or practice had been applied to her from having that effect.[18]We can dispose of the first ground of appeal relatively quickly. Anyone reading the tribunal’s judgment would have been forgiven for thinking that the Tribunal had simply accepted the Board’s concession that Mrs Rodriguez-Noza had been disabled from May 2008 without investigating whether she had been disabled before then. The period during which she was disabled was dealt with in para. 6 of its judgment, and what the tribunal said there speaks for itself. However, in our opinion, what it said in response to the first question it was asked makes it clear that the tribunal had in fact found that Mrs Rodriguez-Noza had only been disabled since May 2008. There is a discrepancy between the date given in para. 6 of the judgment (May 2008) and the date given in the answer to the first question (June 2008), but nothing turns on that. It looks as if, but for the Board’s concession that Mrs Rodriguez-Noza had become disabled by June 2008, the tribunal may well have found that she had not even become disabled by then, because there was what the tribunal described as “minimal evidence of [a] substantial effect on her day-to-day activities”. But in the light of the employment judge’s answer to the first question the tribunal was asked, there can be no doubt that, having investigated the matter for itself, the tribunal had found that Mrs Rodriguez-Noza could only be proved to have become disabled in 2008. Having read with care the points which the employment judge made when answering the first question the tribunal was asked, we think that that was a conclusion which was reasonably open to the tribunal to reach.[19]The more difficult question relates to the second ground of appeal. The first issue there is whether the tribunal made any finding about whether the Board had applied a provision, criterion or practice to Mrs Rodriguez-Noza which was capable of having placed her at a substantial disadvantage in comparison with persons who were not disabled, and, if so, what that provision, criterion or practice was. The tribunal said in para. 61 of its judgment that Mrs Rodriguez-Noza had not identified any “condition provision or criterion” [ sic ] which she said had been “breached”, which we take to mean that she had not identified any provision, criterion or practice which had placed her at a substantial disadvantage in comparison with persons who were not disabled and whose effect the Board had had to take steps to prevent.[20]When one looks at the various ET1s, we are inclined to agree. Mrs Rodriguez-Noza made it clear what steps she was saying the Board had had to take, namely referring her for counselling and providing her with an increased level of support and supervision to neutralise the substantial disadvantage which she had been placed under. But she never said what it was which had put her under that substantial disadvantage. Having said that, though, it was the tribunal itself which identified in para. 6 of its judgment what it thought the provision, criterion or practice had been, namely the “need for [Mrs Rodriguez-Noza] as an absent employee to eventually return”, or to put it in the way in which the employment judge did when answering the Employment Appeal Tribunal’s questions, “[t]he provision criterion or practice applied by the [Board] was that [Mrs Rodriguez-Noza] was required to return to work”. We do not know what the evidence was about Mrs Rodriguez-Noza being required by the Board to return to work. We had been under the impression that once she had become disabled, she had not been required to return to work during her last period of time off work, especially after her sick pay had ended. After all, her employment came to an end when she resigned following the dismissal of her appeal against the rejection of her second grievance rather than because she was dismissed for not being able to return to work. However, since the tribunal found that she had been required to return to work, and since the Board does not challenge that finding, we have to proceed on the assumption (which is, of course, favourable to Mrs Rodriguez-Noza) that it is correct.[21]In approaching the case in that way, we have not overlooked the following finding in para. 44 of the tribunal’s judgment:
“There was never any question of her not being able to return to Ward 8 or to return to Ward 8 on reduced hours, or whatever Ward on reduced hours. It was her choice. There was no insistence from the [Board] as to how the return to work should be managed.”
But it is apparent from paras. 41-43 of the tribunal’s judgment that that finding was made in the context of Mrs Rodriguez-Noza’s return to work in November 2007, which was many months before the tribunal was to find that she had become disabled. At the very least, that is a possible reading of what the tribunal was saying. If that is right, it does not undermine the tribunal’s express finding, in the context of a claim of disability discrimination when that disability began in May or June 2008, that she had been required to return to work following her disability.[22]The next question is whether the tribunal made any finding about whether the requirement on Mrs Rodriguez-Noza to return to work had placed her at a substantial disadvantage in comparison with persons who were not disabled. The Board’s case, as succinctly articulated by Mr Julian Allsop, is that the tribunal must have found that the requirement on her to return to work had not placed her at such a disadvantage. If it had, there would have been a duty on the Board to take reasonable steps to prevent the requirement from having had that effect. For the tribunal to have said that the Board had not been under such a duty, the tribunal must have concluded that the duty had not been triggered, and that can only have been because it had concluded that the requirement had not placed Mrs Rodriguez-Noza at a substantial disadvantage in comparison with persons who were not disabled. Such a conclusion would have been justified because, to quote from para. 13 of Mr Allsop’s skeleton argument, “[a]n absent employee who did not share her disability but who had been absent from work on sick leave … [when Mrs Rodriguez-Noza had been absent] would have been similarly affected”. That was said to have been borne out by the decisions of the Employment Appeal Tribunal in Royal Bank of Scotland v Ashton [2011] ICR 632 and Newcastle upon Tyne Hospitals NHS Foundation Trust v Bagley [2012] EqLR 634.[23]W e do not agree. In the employment judge’s answers to the Employment Appeal Tribunal, the employment judge himself said that the tribunal had been wrong to say that there had been no duty on the Board to take reasonable steps to prevent the requirement on Mrs Rodriguez-Noza to return to work from placing her at a substantial disadvantage in comparison with person who were not disabled. The employment judge acknowledged that the tribunal’s “thinking” was whether the Board had discharged that duty, which can only have meant that the tribunal had found that such a duty had been owed to Mrs Rodriguez-Noza by the Board. This was not a case of the tribunal impermissibly going beyond that which the Burns/Barke procedure permits, which is limited to clarifying what it said and, if necessary, supplementing or providing reasons for what it had previously said. The employment judge was not saying in his answer that the tribunal was then saying what it had not intended to say before, namely that although it had originally thought that the Board had not been under a duty to take reasonable steps to prevent the requirement on Mrs Rodriguez-Noza to return to work placing her at a substantial disadvantage when compared with people who were not disabled, it had changed its mind, and it had subsequently thought that it had been under such a duty. The employment judge was saying that the tribunal had always thought that the Board had been under a duty to take those steps, but that the tribunal had expressed itself badly, and what more accurately reflected its thinking at the time of the promulgation of the original decision was that the Board had been under a duty to take such steps, but that it had discharged that duty. At the very least, that is a possible reading of what the tribunal was doing. The difficulty for us is that the tribunal did not then go on to say what the substantial disadvantage was which Mrs Rodriguez-Noza faced in comparison with persons who were not disabled. That is important because it is only when you know what that substantial disadvantage was that you can assess whether such steps as the Board took to prevent the requirement on Mrs Rodriguez-Noza to return to work having that effect were reasonable.[24]That brings us to the next issue which is whether the tribunal made any findings about precisely what steps the Board had taken to prevent the requirement on Mrs Rodriguez-Noza to return to work placing her at a substantial disadvantage when compared with persons who were not disabled, and whether those steps were reasonable. That again is something which we just cannot tell. We know from the answer which the employment judge gave what medical reports the tribunal took into account. We know that the tribunal found that those reports showed that there had been “genuine and practical attempts … to re-integrate” Mrs Rodriguez-Noza into the workplace. We also know that the tribunal thought that those attempts had been consistent with the consideration shown to Mrs Rodriguez-Noza about her working fewer hours and working on wards which enabled her to work in a less pressurised environment. But these observations do not tell us what the tribunal found had been the steps which the Board had in fact taken to get her back to work once she had become disabled in May or June 2008. The tribunal did not say what the “genuine and practical attempts” were. We cannot tell what they were from the various medical reports which the Tribunal referred to because no copies of any of them have been provided to us. We acknowledge, of course, the finding which the Tribunal made in its original decision in para. 61 of its judgment:
“There were very, very regular health reviews almost monthly up until the date of her resignation. There was an extended period allowed to Mrs Rodriguez-Noza for her to remain an employee though unpaid, and finally there was the continued encouragement and availability of counselling to her.”
But monitoring her ability to return to work (which was what conducting “very, very regular health reviews” on her must have been about) and keeping her on the staff, if not on the payroll (which was what the extended period being allowed to her for her to remain an employee although unpaid must have been a reference to) did not amount to steps taken to get her back to work. Indeed, the tribunal did not say how the continuing encouragement and availability of counselling was made to her, nor did it expressly deal with her case that what Dr Mansouri had said she needed was an increased level of support and professional supervision.[25]Moreover, even it were possible for us to identify what steps the tribunal had found had been taken by the Board to prevent the requirement on her to return to work placing her at a substantial disadvantage when compared with persons who were not disabled, we have not been able to see the basis on which the tribunal found that such steps had been reasonable. The tribunal must have come to the conclusion that those steps were reasonable, of course, for it to have dismissed the claim of disability discrimination, but the absence of any reasons for its conclusion that such steps as the Board took were reasonable means that we are not able to assess for ourselves whether it was open to the tribunal to reach the conclusion which it did.[26]So what course should we take? We really have only two options. The first is to refer the case back to the tribunal with a series of specific questions designed to tease out the information which is not apparent either from the tribunal’s judgment or the previous answers it has given. With some reluctance, we have decided that that would not be an appropriate course for us to take here. If our reading of the answers given by the employment judge is correct, the tribunal has accepted that it expressed itself incorrectly in its judgment when it said that the Board had not been under any duty to take reasonable steps to prevent the requirement it had imposed on Mrs Rodriguez-Noza to return to work from placing her at a substantial disadvantage when compared with people who were not disabled. It would, with the advantage of hindsight, have been helpful for the tribunal then to volunteer what it had found on(a) what the substantial disadvantage for Mrs Rodriguez-Noza had been,(b) what steps the Board had taken to neutralise its effect, and(c) what the basis had been for the tribunal’s finding that such steps as the board had taken had been reasonable. But we can understand why, when requested to answer questions put by the Employment Appeal Tribunal, an employment judge is anxious to ensure that no information is volunteered over and above that which the tribunal has been expressly asked for. The worry here, though, is that the employment judge attempted to volunteer the information in (b) and (c), but did not do so sufficiently clearly to enable us to form a view about the proper outcome of this appeal. Having attempted to deal with the issues which the case raised twice, first in its judgment and then by answering the questions it was asked by the Employment Appeal Tribunal, we do not think that the tribunal should be asked to do so for a third time. Apart from anything else, our sense is that the parties may have less confidence that the tribunal will have considered the case with the scrupulous fairness and the intellectual rigour which is required of it. We have no doubt, of course, that that is how the tribunal would attempt to approach any further questions asked of it, but we are less sure that the parties would see it that way.[27]In the circumstances, the only alternative is to allow the appeal against the dismissal of Mrs Rodriguez-Noza’s claim of disability discrimination, and to remit the claim to a differently constituted tribunal to consider that claim afresh. By way of reassurance for Mrs Rodriguez-Noza, we confirm that it will be open to her and the Board to call such evidence as they wish on her claim of disability discrimination provided that the evidence is relevant, and the tribunal will not be bound by any of the findings made by the earlier tribunal in connection with the claim, including the tribunal’s finding on when she became disabled. Of course, the hearing of the claim of disability discrimination will not last anything like as long as the previous hearing because the only claim to be considered will be the claim of disability discrimination. We greatly regret the inconvenience and expense which this will put the parties to, but in our judgment that is what fairness requires.[28]We direct that a transcript be prepared of this judgment for three reasons. First, Mrs Rodriguez-Noza will need to be able to study why we have allowed her appeal. Secondly, it is important that the tribunal which decided the case knows why the appeal was allowed so that it approaches similar cases more appropriately in the future. Thirdly, the tribunal which hears the case afresh will need to know what Mrs Rodriguez-Noza’s claim is now limited to and the issues which it will have to address on her claim of disability discrimination.