Secretary of State for Work & Pensions v Wakefield UKEAT/0435/09/JOJ

Appeal by employer against a decision by the ET that, whilst the claimant had not been discriminated against by reason of disability, the employer had failed to make reasonable adjustments. The EAT found that no proper identification of the substantial disadvantage had been made and therefore the ET could not make a proper assessment of what steps it would be reasonable for the employer to take. Appeal succeeded and remitted to the same Tribunal for re-consideration.

_____________________

Appeal No. UKEAT/0435/09/JOJ

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 26 July 2010

Judgment handed down on 13 September 2010

Before

HIS HONOUR JUDGE ANSELL

MS G MILLS CBE

MS H PITCHER

THE SECRETARY OF STATE FOR WORK AND PENSIONS (APPELLANT)

MRS M WAKEFIELD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant MR DIJEN BASU (of Counsel) Instructed by: Messrs Field Fisher Waterhouse LLP 27th Floor, City Tower Piccadilly Plaza Manchester M1 4BD

For the Respondent MS LOUISE QUIGLEY (of Counsel) Instructed by: Messrs Ormrods Solicitors 19a Marsh Mill Village Fleetwood Road North Thornton-Cleveleys FY5 4JZ

**SUMMARY**

DISABILITY DISCRIMINATION – Reasonable adjustments

Tribunal in finding a failure to make reasonable adjustments under the Disability Discrimination Act 1995 failed to follow the guidance set out in Environment Agency v Rowan [2008] ICR 218.

**HIS HONOUR JUDGE ANSELL**
  1. This has been the hearing of a full appeal against a decision of a Manchester Tribunal chaired by Employment Judge Howard who, after a four-day hearing in May 2009, gave reasons on 1 July 2009 in which they dismissed claims of disability discrimination being less favourable treatment and harassment but found that the Appellant had failed to comply with a duty to make reasonable adjustments pursuant to the provisions of sections 3A(2) and 4A of the Disability Discrimination Act 1995 (DDA). Permission for this appeal was given at a preliminary hearing chaired by HHJ Richardson on 22 February 2010.
  1. The appeal is based on the Tribunal's alleged inadequacy of reasons in dealing with the adjustment issue, and, in particular a failure to follow guidance given by this court in Environment Agency v Rowan [2008] ICR 218 where, at paragraph 27 HHJ Serota QC gave the following guidance:

"It is helpful, therefore, if we restate that guidance to have regard to the amendments to the Act. In our opinion an employment tribunal considering a claim that an employer has discriminated against an employee pursuant to section 3A(2) of the Act by failing to comply with the section 4A duty must identify: (a) the provision, criterion or practice applied by or on behalf of an employer, or (b) the physical feature of premises occupied by the employer, (c) the identity of non-disabled comparators (where appropriate) and (d) the nature and extent of the substantial disadvantage suffered by the Claimant. It should be borne in mind that identification of the substantial disadvantage suffered by the Claimant may involve a consideration of the cumulative effect of both the 'provision, criterion or practice applied by or on behalf of an employer' and the 'physical feature of premises' so it would be necessary to look at the overall picture. In our opinion an employment tribunal cannot properly make findings of a failure to make reasonable adjustments under sections 3A(2) and 4A(1) without going through that process. Unless the employment tribunal has identified the four matters we have set out above it cannot go on to judge if any proposed adjustment is reasonable. It is simply unable to say what adjustments were reasonable to prevent the provision, criterion or practice, or feature, placing the disabled person concerned at a substantial disadvantage."

  1. Later in his judgment, in applying these principles to the facts of the case he said this, at paragraph 55 onwards:

"Conclusions on issues of disability discrimination

55. It is unnecessary to decide all the points raised by the employers because we are satisfied that they have made out their principal point; the employment tribunal failed to identify clearly the nature and extent of the substantial disadvantage suffered by the claimant. In the absence of such findings the employment tribunal was unable to determine properly what adjustments were reasonable to prevent the requirement to work in the employer's office (the provision, criterion or practice, or feature, that placed the Claimant at a substantial disadvantage having that effect). We accept that there was evidence that might have justified a finding that the Claimant was placed at a substantial disadvantage; however, that is not the point. There was a volume of conflicting evidence and powerful points were made by the employers which the employment tribunal simply has not addressed. We cannot be sure of what facts were found by the employment tribunal.

56. The employment tribunal, because it has failed to identify clearly the nature and extent of the substantial disadvantage suffered by the claimant, has not explained how the proposed adjustment (a trial period of home-working) would alleviate the claimant's substantial disadvantage. The substantial disadvantage not having been clearly identified, it is impossible to know how home-working would have overcome this disadvantage, and the employment tribunal fails to explain in its decision how home-working would have overcome the adverse effects said to have been suffered by the claimant. As we have said there may have been evidence that would have justified the finding but the evidence was conflicting and we can only guess as to what was accepted and what was not. There must be some explanation as to why home-working would alleviate the substantial disadvantage said to have been suffered by the claimant. The parties when considering the decision should not be expected to have to make assumptions as to facts found by the employment tribunal in a case where there was powerful evidence to suggest that home-working was not a reasonable adjustment and without an explanation having been given by the employment tribunal as to why the employers' evidence and explanations were rejected.

57. The employment tribunal has failed to explain or make findings on a number of major factual issues. There is no analysis of the claimant's duties. […]"

  1. We should also make it clear at the outset that both at the sift stage (Burton J) and at the preliminary hearing, concern was expressed about the adequacy of the Tribunal's reasons and, indeed, consideration was given at that stage to applying the Burns/Barke principle and requiring further information from the Tribunal; however, it was decided at the preliminary hearing not to adopt that process.
  1. The facts taken from the Tribunal's decision are that the Respondent commenced employment on 22 September 2003 as a Band C Officer engaged as a New Claims Adviser, working 37 hours per week during term time. She was a highly competent worker and in January 2005 moved to a role as a New Deal Personal Adviser, again, with considerable success. This role, although described as more prestigious and challenging, still fell within Band C Officer grade.
  1. On 8 November 2006 the Respondent sustained a workplace accident, injuring her right arm which was eventually diagnosed as damaged tendons. A report from a consultant orthopaedic surgeon on 1 December 2006 confirmed that she had sustained a serious arm injury which would take some considerable time to resolve.
  1. Between November 2006 and January 2007 the Tribunal recorded that the Respondent, on at least six occasions, asked for an occupational health referral but this was not done until 18 January 2007, a few days after the Respondent had attempted to return to work on 15 January 2007. However, she was unable to use the computer properly and could only hold a pen with considerable pain. The interviewing of customers also caused her considerable discomfort.
  1. The Tribunal in their conclusions did not accept the proposition advanced by the Appellant that it was sensible to wait the Respondent's return to work in January 2007 before referring her for an occupational health assessment. Whilst having particular sympathy with the manager, Ms Jacques, who had her own personal problems, the Tribunal commented at paragraph 17 that this:

"Does not detract from the Respondent's responsibility, as a large and well-resourced employer to ensure that appropriate adjustments are put in place, in a timely manner, for its employees and this simply did not happen in the Claimant's case."

  1. On 20 February 2007 a workplace assessment was arranged and certain reasonable adjustments were recommended. It seems that the report may not have reached the Appellant until the beginning or middle of March 2007. The report suggested that the Respondent's desk height be altered to 74 centimetres, that the monitor arm be checked for ease of movement and that she would be provided with a left-hand desk, a mounted document holder, a Sejin mini-keyboard, a Cirque Smart Cat touchpad mouse, an ergo armrest, a footrest and an ergonomic pen and refills.
  1. On 19 March 2007 the Respondent returned to work following a four-week absence. At this stage no adjustments had been put in place. The employer suggested that she should move back to the Restart Division which was said to be a less onerous task, the Respondent, expressing her unhappiness about this decision, as she considered it a backward step in her career. However, it appears that after a few days that plan was abandoned.
  1. There was also consideration given to the provision of a writing assistant, but since the writing element of the role was required both during the course of interviews and at the conclusion of the interview, the Tribunal was satisfied that the proposed adjustment was unrealistic and could not have been put into practice, although they commented that Ms Jacques had not given any thought as to whether some lower grade administrative support could have been given.
  1. The Respondent then went on Easter leave and whilst on that leave she was invited into the office on 19 April 2007 to try out the new workstation which had arrived. Upon inspection it was agreed by both parties that it was not fit for the purpose and that a new assessment was required. The problems with the workstation were as follows: the armrest supplied was too high causing the Respondent discomfort as it kept catching on her chair, the armrest supplied was not big enough, the desk height caused her problems, the arms on the chair caused her problems, the monitor was too difficult to manoeuvre and the computer base unit was not enclosed in a cupboard.
  1. Thereafter, the Respondent was sent home for a further period of special leave with pay by reason of disability commencing on 23 April 2007. Ms Jacques acknowledged in evidence that the requisite adjustments had not been put in place. She cancelled the outstanding desk order and decided to recommence the whole process of workstation assessment and occupational health referral.
  1. There was some delay because the Appellant changed their occupational health provider to Capita, but on 23 May 2007 a second assessment took place and, as a result the following recommendations were made: (i) the Claimant to be allowed micro-breaks of five minutes every 40 minutes; (ii) she should sit at the straight edge of her current desk with her keyboard directly in front of her and a mounted-right document holder; (iii) the computer screen arm be replaced with a longer and lighter extension arm; (iv) she would be provided with a desk tidy and her equipment to be situated on her left side; (v) she would be provided with a side table to the left of her curved desk; (vi) her computer be moved from under her desk to the left in the pedestal drawers or placed in a lockable unit; (vii) the posture-right ergo rest with mouse pad was unsuitable; (vii) the chair be fitted with padded adjustable arms; (ix) the chair should have the controls on the left-hand side if possible; (x) the right arm of the chair be provided with a wrist support; (xi) she be provided with a wrist and arm support with a recess where the wrist and forearm are positioned and the support be fixed to the desk; (xii) she had regular meetings with her line manager to discuss her progress; (xiii) there would be a phased return to full contractual hours.
  1. The Respondent's special paid leave continued until 19 July 2007 when she then went on to her non-contracted (school holiday) weeks. She returned to work on 13 September 2007 and the Tribunal found that the equipment had still not been provided and she was given a further period of special paid leave.
  1. The Tribunal in their decision reminded themselves of the relevant statutory provisions set out in sections 3A, 4A(1) and 18B(1) of the Disability Discrimination Act:

"3A Meaning of 'discrimination'

(1) For the purposes of this Part, a person discriminates against a disabled person if -

(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and

(b) he cannot show that the treatment in question is justified.

(2) For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.

(3) Treatment is justified for the purposes of subsection (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.

(4) But treatment of a disabled person cannot be justified under subsection (3) if it amounts to direct discrimination falling within subsection (5).

(5) A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.

(6) If, in a case falling within subsection (1), a person is under a duty to make reasonable adjustments in relation to a disabled person but fails to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with that duty.

[…]

4A Employers: duty to make adjustments

(1) Where -

(a) a provision, criterion or practice applied by or on behalf of an employer, or

(b) any physical feature of premises occupied by the employer,

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

[…]

18B Reasonable adjustments: supplementary

(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to -

(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

(b) the extent to which it is practicable for him to take the step;

(c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;

(d) the extent of his financial and other resources;

(e) the availability to him of financial or other assistance with respect to taking the step;

(f) the nature of his activities and the size of his undertaking;

(g) where the step would be taken in relation to a private household, the extent to which taking it would -

(i) disrupt that household, or

(ii) disturb any person residing there.

[…]"

  1. The court also reminded themselves of Rowan and also Latif v Project Management Institute [2007] IRLR 579 where, at paragraph 54, Elias J (President) giving the EAT judgment said this:

"In our opinion the paragraph in the Code is correct. The key point identified therein is that the claimant must not only establish that the duty has arisen, but that there are facts from which it could reasonably be inferred, absent an explanation, that it had been breached. Demonstrating that there is an arrangement causing a substantial disadvantage engages the duty, but it provides no basis on which it could properly be inferred that there is a breach of that duty. There must be evidence of some apparently reasonable adjustment which could be made."

  1. Reading through the decision it appeared to us that the hearing below was very much concerned with the timing, the failure and the reasons for that failure as regards the implementation of the adjustments, rather than whether they were necessary to assist the Respondent in the performance of her duties. There did not appear to be a substantial issue that the adjustments were required to deal with the substantial disadvantage the Respondent had suffered as a result of her arm injury.
  1. Neither counsel before us had appeared below. Mr Basu for the Appellant, in his elegant and thoughtful submissions, argued that the case below was not simply about timings and referred us to the way in which the issue had been set out at paragraph 2.3 of the reasons. He also referred to passages from the submissions of counsel before the Tribunal which did suggest that all the issues set out in the statutory provisions and in Rowan were before the Tribunal. He also commented generally, concerning what he contended was a growing practice of Tribunals accepting without question recommendations in an occupational health report without a proper analysis of whether those proposed adjustments were actually required to satisfy the employer's statutory obligations. He argued that these reports were not focussed on the statutory provisions but rather a desire to improve the health and wellbeing of the employee within the working environment.
  1. As will be seen below when we deal in more detail with his submissions, he argued there was a particular danger in this case because the reports referred to other medical complaints apart from the arm injury, he also submitted that there was also a degree of conflict between the two sets of recommendations in February and May.
  1. The Tribunal's conclusions were set out in paragraphs 45 to 50 as follows:

"45. Failure to make reasonable adjustments

The Tribunal found that the claimant was placed at a substantial disadvantage by the requirements of her role as band C adviser, to sit at a workstation, interview customers and complete paperwork. The workstation amounted to a physical feature and the requirements of the role amounted to a practice applied by the respondent. By way of comparison, an adviser without the claimant's disability, being an injured arm, would not have been disadvantaged by the requirements of the role and utilising a workstation.

46. The respondent was under a duty, therefore, to take such steps as it was reasonable in all the circumstances of the case, for it to have to take in order to prevent the practice and feature concerned having that effect on the claimant. The Tribunal found that the respondent had not taken such steps. There had been significant delay throughout the process of assessing the claimant, identifying and providing appropriate adjustments. The adjustments contended for by the claimant were those recommended by the respondent's occupational health advisers in their various reports and which, with the exception of a writing assistant, the Tribunal considered to be reasonable for the respondent, in these circumstances, to provide.

47. Whilst the Tribunal accepted that there was inevitably some delay caused by the process of conducting workplace assessments and referrals to occupational health, the delays in this matter went well beyond that which was reasonable, given the employer's size, resources and the expertise available to it. Further these delays were exacerbated by the delay in undertaking an initial referral to Occupational Health, the change in Occupational Health provider, the leisurely subsequent timescales and the fact that the equipment provided in April 2007 was simply not appropriate and fit for its intended purpose. Despite the claimant's pro-active attempts to obtain the appropriate equipment to enable her to return to the workplace, throughout May to July 2007, when the claimant commenced her non-contracted weeks, there was still no appropriate equipment in place.

48. The Tribunal accepted that once Ms Jacques returned to work on 15th January 2007, she had made considerable efforts to obtain the appropriate equipment to accommodate the claimant's disability and resolve the position to her and the claimant's satisfaction. However, the Tribunal did not lose sight of the fact that the duty to make reasonable adjustments belonged to the respondent, as an employer and an organisation as a whole, and the duty did not fall upon the shoulders of one specific individual. Whilst, after an initial delay, Ms Jacques made real efforts to resolve the matter, the unwieldy referral processes, the use of two different Occupational Health providers and the lack of clear and straight forward communication between suppliers and the respondent, itself, all contributed to the respondent organisation being responsible for a failure to provide the claimant with the straightforward adjustments required to enable her to return to her workplace for some nine months from the date of her injury and which situation remained ongoing as at the date her claim was submitted.

49. For the reasons identified at paragraph 14 above, the Tribunal found that the respondent knew and/or could reasonably be expected to know that the claimant was a disabled person by reason of her injured arm by, at the latest, 27th February 2007. Therefore, the respondent could not successfully rely upon S4A(3) in defence of the claimant's claim.

50. The fact that the claimant was placed on special leave with pay on disability grounds amounted to a tacit acknowledgement on the part of the respondent that the appropriate adjustments were not in pace to enable her to return to the workplace and which was quite evidently the case. The claimant had proved facts from which the Tribunal could conclude, in the absence of an adequate explanation that reasonable adjustments had not been made to accommodate her disability. The Tribunal did not accept the respondent's explanation that it had taken all steps that it reasonably could, as adequate. The Tribunal was not satisfied that the respondent had taken all reasonable steps to accommodate the claimant's disability and accordingly had failed in its duty to make reasonable adjustments and, to that extent, the claimant's claim of disability discrimination was well founded."

  1. Since this is a reasons appeal we also remind ourselves of the well-known dicta of Bingham LJ in Meek v City of Birmingham District Council [1987] IRLR 205 paragraph 8:

"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted."

  1. We would also refer to the judgment of Lord Philips in English v Emery Reimbold and Strick Ltd (Practice note) [2001] WLR 2409, where, at paragraph 19, he said this:

"It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the Judge reached his decision. This does not mean that every factor which weighed with the Judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the Judge's conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the Judge to identify and record those matters which were critical to his decision. If the critical issue was one of fact, it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon."

**Appellant's Submissions**
  1. Mr Basu submitted that the Tribunal had found that the Respondent had been placed at a substantial disadvantage, in comparison to a Band C Adviser without an injured arm, in relation to the requirements of her role in, (1) sitting at a workstation, (2) interviewing customers, and (3) completing paperwork, but argued that in judging whether a section 4A duty arose the Tribunal failed to make findings as to the requirements of her role as a Band C Adviser and which aspect of them placed her at a substantial disadvantage and how. He also argued that the Tribunal did not identify the nature and extent of any disadvantage she was placed at by the above tasks.
  1. Further, without proper identification of the substantial disadvantage that she suffered, he argued the Tribunal could not properly analyse which steps would have been reasonable for the Respondent to have to take in order to prevent her suffering from that substantial disadvantage. He argued that it was wrong for the Tribunal simply to accept (save as to the provision of a writing assistant) the recommendations set out in both the February and May reports. He argued the dangers in such a broad-brush approach could be seen from a closer analysis of the two reports. For example, the report dated 27 February had referred to the Respondent having a:

"Past history of right-sided neck pain which had resolved however her symptoms have returned and this may be due to the use of inappropriate equipment."

  1. The report of 20 February had said this:

"Michelle also informed me that she had a previous workstation assessment due to pain in her shoulder and neck and has been experiencing some back pain which can radiate into her legs.

The Capita report said this:

"She also reports that she has calcification; areas within her right shoulder, that are also causing pain on a continuous basis."

  1. Further examples of the conflict between the two reports were in relation to the footrest which appeared in the first set of recommendations but not the second set, and the recommendation for a curved desk which later became a recommendation for a straight-edged desk. He also queried the recommendation concerning a chair with controls on the left-hand side which the manufacturer had advised could not be provided and occupational health advised on the few occasions when such adjustments might be needed the Respondent could be assisted by a colleague. Yet, the Tribunal again adopted this adjustment. He also argued there was conflict between paragraphs 23 and 46 as to the Tribunal's view concerning the provision of a writing assistant.
  1. Mr Basu also criticised the Tribunal's language in dealing with the employer's duty under section 4A(1), which refers to:

"The duty of the employer to take such steps as is reasonable, in all the circumstances of the case, for him to have to take in order to prevent […]."

  1. Whilst this test was correctly identified at the beginning of paragraph 46 of the decision he criticised the Tribunal's language in paragraph 50 when speaking of the Appellant not having: "Taken all reasonable steps to accommodate the Claimant's disability." Later in paragraph 46, the Tribunal suggested the question was what adjustment: "The tribunal thought to be reasonable for the Respondent in these circumstances to provide."
  1. Mr Basu also argued that the Tribunal had failed to make any findings as to what time frame for the provision of equipment would have been reasonable and, therefore, gave insufficient reasons as to how the Appellant was guilty of unreasonable delay.
  1. Finally, he argued that in paragraph 50 the Tribunal had failed to deal with the burden of proof adequately. The Tribunal, in that paragraph, found that the: "Claimant had proved facts from which the Tribunal could conclude […]". He submitted that the Tribunal could not find that such facts had been proved without first going through the steps that Rowan had made clear were required under section 4A. Further, it had failed to explain what relevant facts had been proved.
**Respondent's Submissions**
  1. In her submissions, Ms Quigley, whilst conceding that the Tribunal's decision was "succinct" argued that it did contain enough. She repeated that before the Tribunal the issues were very much about the timing and the failure to implement adjustments. She submitted that there was no disputing the case that the Respondent's writing and typing, which were key elements of her job, were affected. Even though that may not have been set out in detail by the Tribunal, it was a clear inference from all the Tribunal had said. Indeed, she argued that as a matter of common sense the nature of the Respondent's job was clear to both sides and clearly involved considerable writing and computer desk work. Indeed, the Tribunal made reference when dealing with the issue of the writing assistant as to the necessity of writing, both during and after interviews. Paragraph 11 had referred to her inability to use her computer properly or hold a pen without considerable pain and paragraph 21 referred to the restart role involving significantly less writing than was involved in the new deal interviews. She also submitted to us there was no cross-examination on the issue before the Tribunal.
  1. Further, she submitted that the fact that the Respondent had been sent home on several occasions on special paid leave was clearly an indicator that she was not able to do the job. She also referred us to the occupational health report of February which referred to the Respondent's difficulty in gripping a pen, that she was only able to write for short periods, her inability to click the mouse with an index finger, she was only able to type with three fingers, and an inability to use her right hand to move the screen to face the customer.
  1. She further submitted that the reports and assessments had set out in clear terms why the adjustments were required in order to remedy the substantial disadvantage and that the Appellant had accepted those recommendations as being reasonable and did not adduce any argument pursuant to section 18B save in respect of the left-handed chair controls and armrests said to be not practicable, although these arguments had been rejected by the Tribunal. However, certainly as far as the original February report was concerned the Appellant had attempted to supply the items tacitly accepting the reasonableness of the same, although accepting that some of the original adjustments put in place in April were not fit for the purpose.
  1. As to the issue of timing, she submitted that the Tribunal had given a history of the Appellant's attempts to supply the items and, whilst they had not necessarily set out precise timescales within which the item should have been provided, found that the delays "went well beyond that which is reasonable given the size, resources and expertise available to it." The fact that some adjustments had been made was, in her submission, relevant if others had not been provided.
  1. As to the issue of the correct test under section 4A, she argued that the Tribunal had correctly reminded themselves of the statutory provisions and, indeed, set out those provisions correctly at the beginning of paragraph 46. That paragraph had also contained the Tribunal's finding as to facts which caused it to apply the reverse burden of proof in paragraph 50.
**Conclusions**
  1. We are still faced with some difficulty in this case insofar as what issues were being challenged or contested before the Tribunal. Brief reference to the parties' submissions within the body of the Tribunal's decision would have been of assistance. However, we are satisfied that the Tribunal adopted too much of a broad-brush approach, although we do have some sympathy with them if, as Ms Quigley submitted was the case, the main issues in front of them were to do with timing and implementing of adjustments rather than the reasonableness of them.
  1. In our view there should have been some greater detail and findings as to the requirements of her role as a Band C Adviser, particularly in relation to the requirements that the Tribunal found of sitting at a workstation, interviewing customers and completing paperwork and how she was, thereby, placed at a substantial disadvantage because of her disability. In the light of that proper identification of the substantial disadvantage there could then have been a proper assessment of what steps it would be reasonable for the Appellant to have to take.
  1. It does seem to us that there is a danger in simply accepting, and without much critical analysis, recommendations in an occupational health report, even if the employers appear to accept those recommendations and without seeking to analyse those recommendations in the light of the statutory requirements. The particular dangers in this case are easily apparent, particularly as all the reports made reference to other physical difficulties and, indeed, a previous workstation assessment. There are also conflicts between the two reports in relation to some of their recommendations and the Tribunal, again, did not set out if particular recommendations had been implemented how they would have prevented the substantial disadvantage. We, of course, accept that it is often the cumulative effect of the recommendations rather than any particular individual recommendation that has to be taken into account.
  1. We also accept Mr Basu's criticism that the Tribunal should also have made a proper assessment of what was a reasonable timescale for taking such action as the Tribunal felt was needed to comply with the statutory provisions.
  1. As to the issues concerning burden of proof and also as to whether the Tribunal has dealt properly with the correct test under section 4A, we are satisfied that the Tribunal did remind themselves of the statutory provisions as well as Latif and set out the position correctly in paragraphs 46 and 50. Our complaint, therefore, relates to the failure to make sufficient findings in relation to the Rowan issues, the reasonable adjustments required to prevent the substantial disadvantage and, if appropriate, the timescale within which such adjustments should have been provided.
  1. In our view it is a pity that this matter was not referred back at the outset of these proceedings to the Tribunal under the Burns/Barke procedure, as we feel that a schedule could have been provided for the Tribunal to deal with to cover the outstanding issues. However, at this stage all we can do is to set aside the finding in relation to reasonable adjustments and order that the matter should be remitted to the same Tribunal for a rehearing.
  1. We were asked to consider sending it to a fresh Tribunal but no major perversity issues have been alleged and we see no reason why the original Tribunal cannot have fresh consideration of the adjustment issues.

Published: 14/09/2010 15:25

message