1. I refer to the parties as the Claimant and the Respondent, as below. This is the hearing of the Claimant's appeal, and the Respondent's cross-appeal, against a Judgment of the Bristol Employment Tribunal (Employment Judge Livesey, sitting with members on 4-6 November 2013; "the ET"), sent to the parties on 27 November 2013. The ET dismissed the Claimant's disability discrimination claims and made an award of costs against him. He appeared before the ET in person but before the EAT has had the benefit of pro bono representation by Mr Lewis of counsel. The Respondent was represented at all times by Miss Trotter of counsel.

1. The Claimant appeals. The proposed grounds of appeal were initially considered on the papers by HHJ David Richardson, who took the view that they disclosed no reasonable basis for the appeal to proceed. At a subsequent hearing under Rule 3(10) of the Employment Appeal Tribunal Rules 1993, before HHJ Peter Clark, the appeal was permitted to proceed on the basis of amended grounds. Subsequently, after consideration on the papers by HHJ Serota QC, the Respondent's cross-appeal was also permitted to proceed.

1. Since then the Claimant has applied to re-amend and to re-re-amend his grounds of appeal. For convenience and with the parties' agreement, I have considered those applications at the same time as hearing arguments on the merits of all points taken by the Claimant.

1. In September 2004, the Claimant commenced employment with the Respondent as a Grade AA employee. Subsequent events (the ET found) would have fixed the Respondent with knowledge of the fact that the Claimant suffered depression and was a disabled person for the purposes of the Equality Act 2010 ("EqA"), thus giving rise to an obligation to make reasonable adjustments.

1. In 2010 the Claimant started a course as part of the Respondent's Business Driven Development Programme ("BDDP"). As such he was temporarily promoted to Grade Band O and moved to a team in Bristol while he undertook training over two years for possible promotion - if he successfully completed the BDDP - to Grade HO. Unfortunately, the Claimant was unable to pass the second BDDP module and, from 28 November 2011, he reverted to Grade AA, but there was very little available work for that grade in Bristol.

1. Shortly before the reversion to Grade AA took effect, the Claimant commenced a long period of sickness absence, which lasted from 14 November 2011 to 22 April 2012. He was certified as suffering from stress and depression. There was evidence before the ET that the Claimant had found it hard to accept his failure on the BDDP course.

1. As the Claimant had reverted to Grade AA and did not have a substantive post, efforts began to find him a position but he was informed that promotion opportunities could only arise through open competition. Although not initially identified as a problem by the Claimant, this later became an issue and was one of the main planks of his case before the ET, specifically in relation to what I shall call the July 2012 recruitment process referred to below.

1. After some four months, the Claimant was notified that he would be placed within the Respondent's redeployment pool. This was shortly before he returned to work from his period of ill-health absence. As the ET found (paragraphs 4.17 and 5.6), this was designed to retain employees and find them permanent roles. After six months in the pool, if a permanent job had still not been found, the employee would be deemed surplus. That might ultimately mean they were to be made redundant, but that was not something of which there were any examples, and there was no suggestion that the Claimant was considered redundant, although, as the Claimant observes, the Respondent had not expressly told him he would not face redundancy.

1. In April 2012, the Claimant raised for the first time what he referred to as a phobia of the job application process. He contended that to go through the job application procedure was very stressful for him and put him at a disadvantage because of his disability. There was a meeting with the Claimant about this but the Respondent re-stated its policy that allocation of a higher-graded job could only be through open competition. At the same time, a risk assessment was completed recording that the Claimant wanted assistance with the job application process but not that he could not complete it. Later, in July 2012, the Claimant applied for promotion to a Grade O vacancy. He did so with the support of his manager, Mr Stanford, who confirmed he considered the Claimant was ready for promotion to a Band O or even a Band HO position based on his BDDP experience. Having made his application, the Claimant then said he could not undertake the online test part of the selection process as he was too stressed due to his disabilities, which he described as his frame of mind and phobias.

1. An offer was made that Mr Stanford could sit with the Claimant and talk him through the questions. He was also offered a private room and computer on which he could take the test and was told of how he could complete a form to ask for more time. All of these options were, however, declined; the Claimant refused to complete the test as he did not want to expose himself to any "psychological 'triggers'" (paragraph 4.33). The ET found that the possible alternative of doing a paper test was discussed between but also discounted by the Claimant, his position being that he was not prepared to do a test in any form or circumstance (paragraph 4.34). He argued that the test was not essential and a way round should be found but did not put forward any positive suggestions as to what (paragraph 4.35).

1. The Claimant's application was kept open pending further reports from his psychological therapist but those forwarded did not state that he would not be able to undertake the kind of tests required, although it was allowed that a psychological assessment might be required if further information were necessary. A later letter from the Claimant's GP did address this issue, as did the Claimant's own letter sent along with the GP's opinion. These were considered by the Respondent, but it took the view that exception from the online recruitment process was not a reasonable adjustment, not least as so many people were applying for the posts, many of whom needed reasonable adjustments for medical reasons. The Claimant submitted his evidence in this respect was corroborated by the subsequent medical report obtained as part of the ET proceedings, which recorded his suggestion that he might be tested by means of an oral examination with someone who could write down his answers in his presence. As for the Respondent's position, the ET noted (paragraph 4.41):

"4.41. … there were 4,468 internal applicants for the grade O role recruitment process in 2012. The online test was deemed to be an essential element of the filter process by the Respondent. 3,588 people passed that test."

1. There were two claims before the ET: one of indirect disability discrimination, pursuant to section 19 of the EqA 2010; and one of disability discrimination due to a failure to make reasonable adjustments, pursuant to sections 20 and 21.

1. In his indirect disability discrimination claim the Claimant complained of two provisions criterions or practices ("PCPs"): (1) placing employees into a redeployment pool if they did not have a substantive role, and (2) requiring applicants in the July 2012 recruitment exercise to take an online test. The Claimant claimed he suffered disadvantages as a result of these PCPs because of his disability: he was less able to actively participate in the redeployment process and could not take the online test. The Respondent contended he had suffered no disadvantage. In any event, these were proportionate means of achieving legitimate aims.

1. On the reasonable adjustments claim, the Claimant relied on the same PCPs, arguing that adjustments would have removed the disadvantage. The Respondent contended it did not have sufficient knowledge of the Claimant's disability to make it liable to make these adjustments, but in any event they were not reasonable.

1. It was common ground there was a PCP that people without a substantive role would be placed within the redeployment pool. There was also no dispute that the requirement of taking the online test in the July 2012 recruitment exercise was a PCP. As to whether there had been a disadvantage for section 19(2)(b) purposes, on the redeployment pool PCP, the ET found:

"5.6. … we were not satisfied that people with the Claimant's disability, namely depression and stress, would necessarily been [sic] disadvantaged by being placed into the pool, neither were we satisfied that he was himself disadvantaged. We reached that conclusion because the redeployment process enabled a range options [sic] to be deployed by the Respondent to help jobless employees. They were not disadvantaged by the process. …

5.7. This issue was effectively put to rest during the course of the Claimant's evidence in cross-examination; he accepted, in answer to a question from Miss Trotter, that he was treated more favourably when he was in the redeployment pool than he might have been when not in the pool."

1. As for the online test PCP, the ET found:

"5.8. … We were able to accept that people with stress or depression, especially those with dyslexia which might have been exacerbated by anxiety, might have been caused a disadvantage by being required to take an online test. …"

1. The ET considered whether this had caused the Claimant a particular disadvantage. Reminding itself of the relatively low threshold, it concluded the Claimant was exposed to a disadvantage because he would have preferred not to have taken an online test (paragraph 5.9).

1. Having so found, the ET considered the question of justification. It accepted that the Respondent had made out a legitimate aim, namely:

"5.11. … the need to have had a fair and objective method of ensuring that candidates met basic competency requirements and the need to filter nearly 5,000 applicants …"

1. It further accepted that the PCP was a proportionate means of achieving this aim:

"5.12. … the online test was necessary because of the large number of candidates and because some fair and objective manner was needed to assess them in the initial stages. The use of an online test was also appropriate because, in our experience, online psychometric testing of this sort was in widespread use in a broad range of workplace recruitment processes, particularly at the initial stages of such processes. …"

1. That disposed of the indirect discrimination claim.

1. The ET then returned to the reasonable adjustments claims. On the redeployment pool the ET had already found there was no disadvantage. In the alternative, however, it considered whether there was (in any event) a breach of any reasonable adjustments obligation. The Claimant had relied on two adjustments: (1) counselling, and (2) being slotted into a job.

1. Although the Claimant contended that counselling would have alleviated his stress, he had never requested it, despite having numerous opportunities to do so. He had, however, twice been referred to the Respondent's counselling services and to the employee assistance programme, as he entered the redeployment process. Neither Occupational Health reports recommended counselling, and the ET did not think that the Respondent's failure to organise and/or pay for other counselling was capable of being criticised (paragraph 5.15).

1. The ET considered the Claimant's real complaint was that he should have been slotted into another job, the other reasonable adjustment he contended for. The only such vacancy identified was part of the July 2012 recruitment process (paragraph 5.16), of which the Claimant had made separate complaint.

1. Turning then to the Claimant's complaints arising from the requirements of the July 2012 recruitment process, the ET noted that the test under section 20 was differently worded. It required that the Claimant had suffered substantial, not merely particular, disadvantage. The ET was not satisfied that the Claimant had suffered substantial disadvantage:

"5.17. … He had done tests before on line. He took one in 2010 before admission to the BDDP programme. That was after a significant period of absence as a result of depression. There was nothing in the Occupational Health Report to suggest he could not actually do online tests and much of the correspondence from him at that time indicated a lack of confidence in the process and a lack of desire to take the test because of his frame of mind. It did not indicate that he was incapable or unable to undertake it as a result of a particular disability."

1. In the further alternative, the ET went on to consider the particular adjustments contended for by the Claimant. First, that the test should have been provided in a different format. The ET found that had been discussed and declined by the Claimant:

"5.18. …He would not have wanted to take the test in any form at that time …" [ET's emphasis]

1. Specifically, there was no evidence that the provision of a paper test was some form of solution to the Claimant's difficulties.

1. Second, the Claimant argued he should simply have been exempted from the online test. The ET did not accept that was a reasonable adjustment; it would have been neither appropriate nor justified (paragraph 5.19). The ET was not satisfied that the Claimant was qualified for a Grade O job at the relevant time, albeit that he might have been in the future.

1. After the end of the hearing but before the ET had reached its decision - it having reserved its Judgment - an email was received from the Claimant making various allegations against the Respondent and its witnesses of falsifying documents and/or of lying to the ET. The ET investigated those allegations and found none were made out (paragraphs 6.1 to 6.6).

1. Finally the ET considered the Respondent's application for costs, limited to £10,000 (albeit that was less than 50 per cent of the costs it had actually incurred). It had regard to a deposit order made by Employment Judge Gill on 15 November 2012 and to Rule 39(5) and (6) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 ("ET Rules 2013"). The ET had regard to the Claimant's means (he remained in employment with the Respondent) also to the Respondent's warnings of a possible costs application (paragraph 7.6). It asked itself whether its costs jurisdiction was engaged under Rule 76. It considered that as a result of the way in which Rule 39(5) operated the Claimant must be treated as having behaved unreasonably. The ET then asked whether it should in fact make a costs award, reminding itself it retained discretion as to whether it was appropriate to do so even if its jurisdiction was engaged. Given the deposit order, the Respondent's warnings and the Claimant's blinkered and intransigent approach, it considered it was appropriate. Taking into account the Claimant's means, the ET considered an award of £5,000 was appropriate.

The Claimant's Case

1. The Claimant pursued various specific points of challenge. First, as to disadvantage in respect of the redeployment policy PCP, the ET erred in asking whether the Claimant was disadvantaged by comparison to the position if he had not been included in the redeployment pool rather than whether he was disadvantaged by comparison to those who did not have his disability. It might have been better to be part of the redeployment scheme, but that did not mean the Claimant did not suffer more gravely or find it harder to access the benefits. He suffered simply by being part of the redeployment pool, particularly as the Respondent had not expressly stated he would not face redundancy. The ET's erroneous conclusion on this point impacted upon its approach to reasonable adjustments.

1. On the reasonable adjustments claim, there was no obligation on the Claimant to have raised the adjustments with his employer, albeit he had an obligation to do so in broad terms before the ET (Project Management Institute v Latif . Once he had done so, the legal burden shifted to the Respondent. The ET erred in assessing the reasonable adjustments on the evidence before the Respondent (see the last sentence of paragraph 5.19), not on the basis of the evidence that it might reasonably have obtained, for example a fuller psychological assessment (raised as a possibility by the Claimant's psychological therapist).

1. On the July 2012 online test PCP, the ET had further erred in its approach to substantial disadvantage; it had applied too high a test. It was sufficient that the Claimant faced difficulties that did not apply (to the same degree) as to others without his disability. It was apparent that the ET did not apply the correct test, and, given the medical evidence, it was incontrovertible that the Claimant suffered substantial disadvantage in terms of the online test.

1. On the ET's alternative findings on the Claimant's specific arguments on reasonable adjustments, the Claimant's submissions raised the following points of challenge. On the redeployment pool PCP, the ET failed to address or gave inadequate reasons regarding the Claimant's case that a reasonable adjustment was for his placement in the redeployment pool to be delayed or for the process to be adjusted. It had, further, failed adequately to assess the Claimant's case on counselling: a reasonable adjustment would have been for the Respondent to provide him with counselling or to have paid for his private counselling, a matter raised by the Claimant in evidence before the ET and which he now sought to pursue by way of an additional ground of appeal, which should be permitted by way of re-re-amendment.

1. Separately, the ET ought to have found that the failure to carry out an adequate medical assessment was itself a breach of the obligation to make reasonable adjustments. On this point the decision of the EAT in Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566 was to be preferred to the line of authority following Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664. It could not be right to say that even if a medical assessment was an essential part of deciding upon a reasonable adjustment that medical assessment was not a reasonable adjustment itself. If it was a step on the way to avoiding the disadvantage, then it could itself be a reasonable adjustment.

1. The ET had, further, failed to adequately explain its reasoning as to the Claimant's case that a reasonable adjustment would have been to have slotted him into a role in respect of vacancies in July 2012 or to have exempted him from online testing. It considered the issue only in terms of a general need and failed to engage with the Claimant's individual case. To the extent that the answer was that there were so many applicants who required reasonable adjustments, the ET needed to enquire into the size of the Respondent's undertaking and form a view as to whether that meant the adjustment would not be reasonable. A similar point could be made on the question of justification for the purposes of the section 19 indirect discrimination claim: the ET had failed to assess proportionality of the PCP against the legitimate aim, assessing the possibility of alternatives in the light of the disadvantage.

1. Returning to the specific reasonable adjustments postulated by the Claimant, the ET failed to address his case as to alternatives to online testing such as delaying the requirement until after there had been an adequate health and risk assessment (albeit this had not been specifically raised before the ET), taking into account other evidence as to the Claimant's competence as an alternative to online testing, or assessing his competence at a later stage. The ET also failed to explain its conclusion that it was not satisfied that the Claimant was qualified for the Grade O job; alternatively, it erroneously placed the burden on the Claimant to show he was qualified for the role or might be if provided further training. Specifically, it failed to engage with the manager's endorsement that the Claimant was ready for promotion to Grades O and HO and had relevant experience. More generally, the ET failed to make findings regarding the Claimant's case that other employees were exempted from the online tests.

1. On the cross-appeal against the finding of group disadvantage for the purposes of section 19(2)(b), in respect of the requirement to take the online test, this was based on an over-reading of the ET's reasoning. All the ET was saying was that it was unnecessary for everyone to suffer from the Claimant's disadvantage: it did not have to impact upon everyone in the pool; it was sufficient it would disproportionately have that impact on others sharing that disability.

1. On the appeal against the award of costs, the ET had wrongly proceeded on the basis that, if the claims failed for the same reasons as they had been found likely to do in the deposit order, the Claimant had acted unreasonably. To the extent the Respondent relied on the Claimant's conduct post-dating the hearing, the ET had not identified that as the basis for its award and would have needed to set out what costs related to that conduct (Yerrakalva v Barnsley MBC [2012] ICR 420, CA, per Mummery LJ, at paragraph 41).

The Respondent's Case

1. This was a perversity appeal, which did not meet the high test required by Yeboah v Crofton [2002] IRLR 634 CA and included matters not advanced before the ET, which could not be pursued on appeal. In particular, it was not open to the Claimant to now rely on specific reasonable adjustments that he had not raised before the ET (Latif).

1. Turning to the PCP of the Respondent's redeployment policy and the question of disadvantage, the ET's Reasons made clear that the proper statutory tests under the EqA were applied and it had reached conclusions open to it on the evidence. It plainly had in mind the Claimant's particular stress and depression. The Claimant had accepted that by being placed in the redeployment pool he was treated more favourably than if outside it (ET paragraph 5.7). It was thus open to the ET to conclude he was not thereby disadvantaged. The Claimant now objected there was no reassurance that he would not be made redundant, but that was not the focus of his case below, which had been on the July recruitment exercise.

1. As for disadvantage in respect of the online test PCP, the ET expressly considered substantial disadvantage (paragraphs 5.7 and 5.18); this was a perversity challenge which did not meet the high hurdle laid down in Yeboah.

1. On the cross-appeal, here the Respondent took issue with the ET's finding of particular disadvantage for the purposes of section 19(2)(b) EqA in respect of the requirement to take the online test (paragraph 5.8). Specifically, the ET failed to apply the correct statutory test. Under section 19, a finding was required that the PCP "puts, or would put, [those who shared] the characteristic at a disadvantage". That required a positive finding to be made: were those employees disadvantaged as alleged or not? A finding that such an employee might be disadvantaged - which was all the ET found - was insufficient; it left open to debate the question of what the effect actually was. The authorities made plain (see Royal Bank of Scotland v Ashton that the ET must consider what disadvantage has actually been established rather than theoretical constructions of disadvantages which might have been.

1. Returning to the appeal and the reasonable adjustments claim, taking each of the Claimant's complaints in turn. On the redeployment pool, as the Employment Judge's notes made clear, the Claimant's case below had not been advanced on the basis that delay would have been a reasonable adjustment and it was thus not a point that could be taken on appeal. In any event, as for the suggestion that the Respondent needed to delay putting the Claimant in the redeployment pool until after an adequate medical assessment, it was clear the Claimant considered the Respondent was in possession of all reports and did not require anything further.

1. On the question of counselling, the Claimant's counselling had begun in 2002, before his employment with the Respondent had commenced. The medical evidence suggested the trigger for his depression was the failure to pass the BDDP exams and continuing psychotherapy was recommended even after he had left the redeployment pool (having found a permanent job). The need for counselling was not caused by the Claimant's admission to the redeployment pool. If there was any disadvantage, it would not have been removed by the provision of counselling; that was not a reasonable adjustment ([Conway v Community Options Ltd]() [2012] All ER (D) 302). On the question of payment for counselling, that was not a case advanced by the Claimant below. In any event, he had failed to identify the disadvantage he contended the Respondent paying for his counselling would remove.

1. As for the argument that the ET ought to have found the failure to obtain further medical evidence was itself a breach of the obligation to make reasonable adjustments, the line of authority following Tarbuck made clear this was not so. In Scottish & Southern Energy plc v Mackay UKEATS/0075/06, Elias J (as he then was) specifically stated Tarbuck was to be preferred to Cambridge, until the Court of Appeal ruled otherwise. Even if not bound by authority, the relevant statutory duty was concerned with practical effect: if the employer failed to make reasonable adjustments, no amount of consultation or assessment could rectify that mistake. Conversely, if the employer had not consulted or assessed fully but still made the reasonable adjustment, the route by which it had got there was immaterial.

1. Turning to the suggestion that a reasonable adjustment would have been to have slotted the Claimant into a role in the July 2012 recruitment process or to have exempted him from online testing, there were no roles in which the Claimant could have been slotted (paragraph 5.16), and the Claimant had rejected testing in all formats (paragraphs 5.18 to 5.19). As it was not possible for these adjustments to be made, the Claimant could not establish they were reasonable. To the extent he now argued that a reasonable adjustment would have been to delay the requirement of an online test until a fuller assessment was carried out, that was not the case he had put below. Generally, the ET addressed the specific circumstances giving rise to the Respondent's requirement for the online test, and by extension it rejected the alternative methods of assessment now being relied on but not raised at the time by the Claimant.

1. As for the alternative of requiring no test but relying on managerial endorsement, this was a different and additional part of the assessment and not a substitute for online testing. The ET had regard to Mr Stanford's support for the Claimant, but the Claimant had not been able to pass the second stage of BDDP and could not therefore be assumed to be suitable for a higher-graded post. Related to this was the Claimant's contention that the ET had failed to properly address the question of further training (albeit this had not been advanced as a separate case by the Claimant before the ET). As for the Claimant's case that other employees had been exempted from the online tests, he failed to advance evidence to support this claim save in respect of a temporary exemption for candidates who were blind who were unable to take the test because of a failure by the Respondent to provide online tests in Braille. This had not related to any unwillingness on the part of those candidates to take the test.

1. These matters also went to the Claimant's challenge to the ET's finding on proportionality for the purposes of the section 19 claim. The ET had expressly adopted the Claimant's argument as to the legal approach and had carried out the requisite assessment given the case before it (as to which, see above).

1. On the award of costs, it was necessary to read the last four pages of the ET's Judgment as a whole. The Claimant had made extremely serious allegations of document falsification and perjury on the part of the Respondent and its witnesses, and the ET had rejected those allegations. At an earlier preliminary hearing, Employment Judge Gill had taken the view that the Claimant's claims had little prospect of success. At the end of the final hearing the ET was entitled to rely on that. The Respondent had warned the Claimant of the risk of costs on more than one occasion. The Claimant had been given the opportunity to make submissions responding to the application. Meek v City of Birmingham District Council [1987] IRLR 250 did not require an ET decision to be the product of refined legal draughtsmanship but merely that it must contain a statement of reasons as to why a party had won or lost. The ET took all relevant aspects into account and properly explained the basis for its costs award.