England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT
APPEAL TRIBUNAL (HHJ SEROTA QC
PRESIDING)

		Royal Courts of Justice Strand, London, WC2A 2LL
		17th February 2005

Lord Justice Mummery :

Legal Background

1. This is a very unusual disability discrimination case, coupled with a related claim for constructive unfair dismissal. It is important to bear its unusual character in mind when trying to understand how some of the difficult provisions in the legislation apply to the facts found by the employment tribunal.
2. In some cases the applicant in a disability discrimination case has not been offered employment for a reason relating to the disabled person's disability. In other cases a person already in employment becomes disabled and seeks reasonable adjustments and retention of employment. In this case the disabled applicant was engaged by an employer, who was aware of the disabled person's disability, to do a job which the applicant was unable to do, because the employer failed to provide the necessary training and equipment in order to do the job and failed to provide the applicant with suitable work. The employer then attempted to assert the reasonableness of its position and to justify its less favourable treatment of the applicant and its failure to make reasonable adjustments by relying on reasons which it contended were material and substantial.
3. The main points raised on the appeal are about the reasonableness of the employer's actions and the availability of the defence of justification for less favourable treatment and for failure to make reasonable adjustments.
4. The appeal is from the order of the employment appeal tribunal on 19 November 2003 (HHJ Serota QC presiding). It allowed an appeal by J Walter Thompson Group Limited (JWT) from the decision of the employment tribunal that JWT had unlawfully discriminated against Ms Sue Williams, who is totally blind. She was employed by JWT as a computer software operator from September 1999 to October 2001. The case was remitted by the appeal tribunal for rehearing by a differently constituted employment tribunal.
5. The employment tribunal held that JWT constructively unfairly dismissed Ms Williams and acted contrary to ss5 and 6 of the Disability Discrimination Act 1995 (the 1995 Act) in its treatment of Ms Williams. Those provisions apply to discrimination by employers against disabled employees. Discrimination can occur in the opportunities afforded for training and other benefits, or by dismissal of the employee or by subjecting the employee to any other detriment: s4 of the 1995 Act.
6. Two different types of disability discrimination in employment are defined in s5. The first type is direct discrimination. It takes place if, for a reason which relates to the employee's disability, the employer treats the employee less favourably than he treats or would treat others to whom that reason does not or would not apply: s5(1)(a). The discriminatory treatment in question can only be justified if the reason for it is both material to the circumstances of the particular case and substantial: s5(1)(b) and (3).
7. The second type of disability discrimination, sometimes unhelpfully labelled "indirect discrimination", takes place if the employer fails to comply with a s6 duty (i.e. a duty to make reasonable adjustments) imposed on him in relation to the disabled person: s5(2). The second type of discrimination is only justified if the reason for the failure to comply with the s6 duty is both material to the circumstances of the particular case and substantial: s5(4). The interaction of the justification defence in the two types of discrimination was covered by s5(5). It provided that if, in a case of direct discrimination, the employer was under a s6 duty, but failed, without justification, to comply with it, the employer could not justify the treatment under s5(3), unless it would have been justified even if he had complied with the s6 duty. (The law was changed with effect from 1 October 2004 so as to remove the justification defence afforded by s5(4): see Disability Discrimination Act 1995(Amendment) Regulations 2003 SI 1673.)
8. Where any arrangements made by or on behalf of an employer place the disabled employee concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer under s6(1) and (2) 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 arrangements from having that effect. Examples of steps which an employer may have to take in relation to a disabled employee in order to comply with the duty imposed include giving or arranging for him to be given training and acquiring or modifying equipment: s6(3)(g),(h). In determining whether it is reasonable for an employer to have to take a particular step in order to comply with the duty imposed regard is to be had, in particular, to the extent to which the step would prevent the effect in question, the extent to which it is practicable for the employer to take the step and the financial and other costs which would be incurred by the employer in taking the step.
9. In this case the employment tribunal held, in extended reasons sent to the parties on 12 February 2003, that JWT had, for a reason relating to the blindness of Ms Williams and without justification, treated her less favourably than someone to whom that reason did not or would not apply; failed to make reasonable adjustments to arrangements in compliance with the duty imposed by s6; and unfairly constructively dismissed her.
10. With the permission of this court Ms Williams appeals, seeking reinstatement of the original tribunal decision in her favour on both types of disability discrimination. She contends through her counsel, Mr Thomas Kibling (who did not appear below) that the employment tribunal properly applied to the facts found by it (a) the law on directly discriminatory conduct in s5(1) of the 1995 Act and on the duty under s5(2) and s6 to make reasonable adjustments and (b) the defences of justification in ss5(3),(4) and (5), available to JWT at the material time and as interpreted by this court in Jones v. The Post Office [2001] IRLR 634. Mr Kibling contends that the employment tribunal decision in favour of Ms Williams is also consistent with relevant appellate rulings on the defence of justification delivered since the original hearing in the employment tribunal, in the Court of Appeal in Collins v. Royal National Theatre Board Limited [2004] IRLR 395 and in the House of Lords in Archibald v. Fife Council [2004] IRLR 651 at paragraph 71.
11. According to Jones what is material to the particular circumstances of the case and what is substantial, as a reason for the purposes of establishing the justification defence under s5(3), is a matter for the decision of the employer. It is not for the tribunal to substitute its own decision as to whether the reason relied on by the employer is material and substantial. The function of the employment tribunal, in adjudicating on the employer's defence of justification, is to apply an objective test to the reason relied on by the employer and to the known facts. The approach is similar to the familiar band or range of reasonable responses test applied by an employment tribunal in determining whether a dismissal by an employer is unfair. It is for the employment tribunal to decide whether the reason advanced by the employer for the treatment of the disabled employee was within or outwith the range of what a reasonable employer would have relied on as a material and substantial reason for less favourable treatment or for failure to make reasonable adjustments.
12. According to Collins and Archibald the justification for the second type of discrimination contained in s5(4) had to be something other than the circumstances taken into account for the purposes of s6(1). In practice this meant that, if there was a breach of the s6 duty, it was extremely difficult, if not impossible, to conceive of circumstances in which the defence of justification to the second type of discrimination would be available to an employer.
13. Taking account of these rulings it was submitted on behalf of Ms Williams that there was no error of law in the decision of the employment tribunal, which would entitle an appellate body to set aside its decision and to order a re-hearing of the case. The appeal tribunal had wrongly substituted itself for the fact-finding employment tribunal. It had embarked upon an impermissible forensic analysis of the evidence relevant to justification. Further, it had concentrated on only three selected allegations, out of a total of nine allegations, of discrimination, on which the employment tribunal had found in favour of Ms Williams (failure to provide suitable work; failure to provide adequate training; and failure to acquire or adapt appropriate software). The appeal tribunal was wrong to hold that the employment tribunal had erred in law by substituting its views for those of JWT on the crucial issues relevant to justification.
14. Ms Williams also seeks a ruling, which both the employment tribunal and the appeal tribunal declined to make, that her constructive unfair dismissal was itself an act of disability discrimination within s 4(2)(d) of the 1995 Act, as recently interpreted by this court in Nottingham CC v. Meikle [2004] IRLR 703. (With effect from 1 October 2004 the definition of "dismissal" in s4(2)(d) of the 1995 Act expressly includes constructive dismissal: see the 2003 Regulations referred to in paragraph 7 above.)

Factual Background

15. I have already indicated that this is no ordinary disability discrimination case. The facts are a timely reminder of the potentially serious risks run by both employer and employee if normal recruitment procedures are not followed. Good intentions and praiseworthy initiatives may pave the path to the employment tribunal.
16. JWT is a well-known advertising agency with about 275 employees. It is part of the WPP Group Plc, which employs about 65,000 people worldwide.
17. Ms Williams is a remarkable person. She is now 30. She has obtained a BSc Honours degree in Business Information Systems from the University of Central Lancashire. In 1999 she obtained a postgraduate Diploma in Computer Science from Cambridge University. The tribunal found that she is very intelligent; that she is well educated and well versed in information technology, and that she is able to use her initiative.
18. Through the Industrial Supporters' Club at Cambridge she made contact with Sir Martin Sorrell, the chief executive of the WPP Group. She expressed interest in a job with JWT and forwarded her CV to him with a covering letter. Sir Martin replied that he would pass her CV to the relevant person in the WPP Group. A month later Mr Baxter of WPP's New York Office telephoned Ms Williams. In April 1999 she was interviewed by him in London. No particular job was identified. In June 1999 she met Mr Crowley, the European Regional Technology Director, and others. They talked about her doing "Lotus Notes development work" for JWT. Lotus Notes is a leading software application now produced by IBM and used by JWT with a Domino server. The programme was installed on all users' workstations at JWT. It provided access to e-mails, databases and resources. Ms Williams said that she did not have much knowledge of Lotus Notes, but she was happy to give it a try. She needed training to help her understand Lotus Notes.
19. On 25 June 1999 JWT made a formal job offer to Ms Williams. She accepted. On 7 July a written contract of employment was issued. Ms Williams was employed as a "Worldwide IT Developer" in JWT's Worldwide IT Department in London at a salary of £25,000. She was to work 37 ½ hours a week. It was agreed that she should work for a six-month probationary period and that she could work at home for three of the five-day working week.
20. She was concerned to see that everything was sorted out before she started work. She contacted Access to Work, a government agency providing assistance to disabled workers. They agreed that she would need a screen reader, a Braille display and a speech synthesiser, which could be provided through them. They did not, before she started work, carry out an assessment to determine what software and equipment would be required or secure the agreement of JWT for its provision.
21. On 1 September 1999 Ms Williams reported for work to Mr Crowley at JWT. The tribunal found that JWT was ill prepared for her arrival. It was ill equipped to manage a blind employee, whom its chief executive had decided should be given an opportunity of working for it. It did not have available the equipment needed by her to do the job for which she was employed. JWT staff had no training on disability discrimination. JWT had not prepared a plan of action for the commencement of her employment.
22. At a meeting on 22 September 1999 between Ms Williams and others from JWT with Cragside Consultants, instructed by Access to Work, it was agreed that she would need a Braille display and a speech synthesiser, that the best screen reader for her use was a system known as JAWS and that she should use Lotus Notes 5, rather than Lotus Notes 4.6 used by JWT. Lotus Notes 5 worked best with JAWS, which was a system designed to enable blind people to work with or access a screen based and visually directed software. Ms Williams was given some basic information on Lotus Notes. Lotus Notes 5 was installed on her home computer in October 1999. She was told that she was not required to go into work until her equipment had been installed. She proposed that, if JWT purchased the equipment she needed and arranged for Access to Work to reimburse them, the equipment would arrive in a couple of days. As no-one at JWT was keen on that idea, it was not pursued.
23. The equipment did not arrive until the end of January 2000. It took several weeks to set it up. There were problems installing the JAWS software. Repeated crashes occurred. Eventually an outside company was called in to assist. As one JWT employee said at the time, "not much was happening" so far as Ms Williams was concerned. She returned to work on 17 February after an absence of 5 ½ months. For the next 3 months she went to the London office 2 to 3 days a week, later reduced to 1 day. Despite repeated requests by her for work and training to be provided, she was given nothing to do until July 2000, when she was instructed to work on the JWT holiday Lotus Notes database. She made numerous inquiries about training on Lotus Notes. Quotes were obtained for the cost of her attending a 5 day course (£4,800), but it was decided that it was too expensive, even though Access to Work was prepared to pay £3,500, which was available from her travelling expenses, to cover the cost.
24. On 6 October 2000 Mr Tony Clasper (who is himself blind) of T & T Consultancy, which specialises in software and equipment for the disabled, visited JWT's London offices. On 12 October he produced a report on the situation. He proposed three options- (i) commissioning a JAWS scripting consultant to produce the necessary scripts; (ii) a JAWS scripting consultant and a Lotus Notes expert working together with Ms Williams to achieve a specified set of goals (which he recommended); and (iii) defining a different career path for Ms Williams. JWT agreed to pursue the recommended course (ii).
25. Attempts were made to set up the necessary arrangements, including the attendance of an independent consultant/trainer in January 2001 to carry out JAWS scripting work. Ms Rebecca Ballard attended, but she did not have a detailed knowledge of Lotus Notes. Little progress was made on the JAWS scripts. Ms Ballard estimated that it would take between about 12 and 18 months to work through the stages of the plan envisaged by her. There was a difference of recollection in the evidence given to the employment tribunal by JWT and by Ms Ballard as to whether Ms Ballard also said that the cost would be something like £100,000. JWT formed the view that it could not afford the cost of this, having regard to the period of time involved in training Ms Williams and to the fact that there was no guarantee that JAWS and Lotus Notes would work for her.
26. On 8 May 2001 Ms Williams received 1 day's training on Lotus Notes from Mr Mark Fitzgerald of ICT. Some of the costs of this were reclaimed by JWT from Access to Work out of Ms Williams's travel funds. Mr Fitzgerald made a report identifying the problem areas in using JAWS.
27. On 17 May there was a discussion between Ms Williams and Mr Hudson, who was responsible, as Director of Information Technology, for all staff matters within World Information Technology in JWT. They discussed her career path in JWT. Mr Hudson informed her that taking 18 months to get JAWS and Lotus Notes up and running was not a viable option. Other options were discussed. Mr Hudson said that he would see whether there were any other possible job vacancies in JWT or in WPP. He made inquiries, but he had not achieved a successful outcome by September 2001.
28. Ms Williams was informed that there would be no more external training. She was required as from 1 September 2001 to attend at the London office on a full time basis of 5 days a week. She was given video conferencing work to do. There was a meeting on 2 October 2001 to see if there was any point in her continuing as a Lotus Notes programmer. Soon afterwards she sent her resignation to JWT in the e-mail of 8 October 2001 referred to in paragraph 31 below.
29. Just over two years after she started Ms Williams decided to part company with JWT in circumstances that led her to present an originating application to the employment tribunal on 7 January 2002. She listed eleven incidents of disability discrimination and claimed constructive unfair dismissal. Eight of the claims were of direct discrimination and three of the claims were of a failure to make reasonable adjustments
30. The above is a summary of a much more detailed account of the intervening two years set out in pp2-23 of the 40 pages of extended reasons of the employment tribunal Before discussion of the decision of the employment tribunal a short practical suggestion on the format and style of the tribunal extended reasons may be worth making. Although it is always useful to break down a long decision into numbered paragraphs, the use of small roman numerals running up to (lxxxiii) is not the most user-friendly method available. I have come across this numbering style in a number of recent tribunal decisions. In this case it led to some unnecessary presentational problems at the oral hearing on the appeal. I would also add that, although tribunals must always make clear findings of fact on all relevant issues and give reasons for their conclusions on disputed questions of fact, it is not normally necessary to rehearse the evidence at such length or to include long verbatim quotations from background documents.
31. The summary of the relevant events of the two years of Ms Williams's employment may be thought to be too brief, but there is no escaping the fact that nothing much happened. That is the central complaint made by Ms Williams against JWT. She was not trained to use Lotus Notes, except for one day on 8 May 2001, 18 months after her employment started. She was not supplied with adequate software or with suitable work as a Worldwide IT Developer. Apart from some research work, completing the holiday database (2 months for a sighted person) and some video conferencing (3 days), none of which was challenging for a person of her intellect and industry, she was given nothing to do for 2 years. As Ms Williams made clear in the e-mail of 8 October 2001 tendering her resignation "the whole exercise has become a fruitless and despairing one." She "found the whole thing a complete nightmare" and "two years on and [she had] not really got anywhere": she had been "left nowhere without any work to do."

Decision of employment tribunal

32. The stark facts found by the tribunal were that when Ms Williams first reported for work in September 1999, she could not perform her duties because there was neither software nor equipment at JWT available for use by an unsighted person. The programme JAWS would normally have enabled an unsighted person to have access to databases and other software applications and to the internet by speech synthesiser and Braille. It was unavailable for the tasks to be performed by Ms Williams. She needed training to help her understand the Lotus Notes. Full training would take up to 18 months. It would cost money. Ms Williams never received the necessary training. She was not provided with suitable equipment or with suitable work.
33. It is not surprising that this sorry state of affairs founded her complaints of (a) direct disability discrimination in the form of less favourable treatment contrary to s 5(1) of the 1995 Act; (b) disability discrimination in the form of a failure of WJT to carry out reasonable adjustments contrary to ss5(2) and 6 of the 1995 Act; and (c)constructive unfair dismissal within the meaning of s95(1)(c) of the Employment Rights Act 1996.
34. The conclusions of the tribunal on these claims are structured under specific headings of the particularised acts of less favourable treatment and failure to make reasonable adjustments pleaded by Ms Williams: failure to provide suitable work; failure to undertake adequate appraisals; failure to provide adequate training; failure to acquire or adapt software to enable her to carry out her duties; exclusion from departmental team building exercises (which the tribunal found was proved in part and was not appealed); exclusion from private health care cover, which was held not to be discriminatory; moving her desk in May 2001 (which was held to be discriminatory and was not appealed); requiring her in October 2001 to work full time in the office, which was also held to be discriminatory; and failure to allow her to work from home in October 2001, on which Ms Williams made out her case on failure to make reasonable adjustments.
35. As a question of law is the only ground on which an appellate body is entitled to interfere with the decision of the employment tribunal it is unnecessary to track the extended reasons line by line or even paragraph by paragraph. Unless conducted with a proper sense of perspective, that approach can easily lead the appellate body to take up the wrong role and to fall into the trap of substituting itself for the employment tribunal on matters of fact and degree, such as reasonableness and objective justification, which the employment tribunal was entitled in law to make, even though the appellate body might not itself have made it.
36. I shall concentrate on alleged disability discrimination in the three core areas of JWT's failure to provide the (a) necessary or adequate training, (b) adequate software, and (c) suitable work. They are the chief complaints.

A. Failure to provide training

37. The tribunal found direct discrimination and breach of the duty to make reasonable adjustments in the failure of JWT to provide adequate training. Ms Williams had made it known, even before her employment began and again early on in her employment, that she would require training in Lotus Notes. Apart from 1 day in May 2001, no training was provided, as JWT was unwilling to invest money in properly training her (p35 at paragraph (iii)(a))-

"Her treatment was based on financial concerns on the part of [JWT] as well as the perceived problems in relation to JAWS script. Those reasons did relate to the Applicant's disability. She was treated less favourably as [JWT] was able to provide training to sighted employees. Moreover she was not given other work in order to establish…on the job training."

38. The less favourable treatment in the provision of training was not justified under s5(3) of the 1995 Act. JWT contended that Ms Williams had been trained to the extent that it was possible to train her, given the difficulties with the equipment. It had taken advice. There was a limited training budget available.
39. The tribunal was unconvinced that these reasons justified JWT's failure to provide adequate training. It held that there was a duty on JWT to provide training, as she had no previous knowledge of Lotus Notes and needed training to understand what was going on in Lotus Notes. A proper investigation and assessment of her training needs and the potential cost at the outset ought to have been carried out. Ms Williams was in need of such training as was reasonable and appropriate in understanding the Lotus Notes and working around some of the problems with JAWS. There was no proper assessment of the cost to JWT. Moreover a contribution (£3,500) to the cost of training was available.
40. On the issue of failure to carry out reasonable adjustments in relation to training, the tribunal concluded (p37 at paragraph (x)) that there was a duty on JWT under s6(1) and (2) of the 1995 Act to provide Ms Williams with training, that no training was provided, that JWT was in breach of its duty and that the failure was not justified under s5(4) or (5).

" Without training the Applicant was going to be at a substantial disadvantage compared with her sighted colleagues, as it would be difficult for her to carry out her duties as a Lotus Notes Developer. She had stated at the outset that she had no experience in Lotus Notes, the software used by [JWT]. Only one day's training had been provided to her by [JWT], in May 2001. The Applicant required more than one day's training on Lotus Notes."

41. The tribunal held that JWT's failure to provide further and ongoing training could not be justified by reference to the expense of the training with no immediate likelihood of achieving short or medium term capability on the part of Ms Williams to use Lotus Notes or to the fact that Ms Williams chose to leave her employment. JWT made an assessment of the cost of further work on the JAWS script without reference to the expert opinion of Miss Ballard that training would have been of assistance, even before the scripting issues were sorted out.

B. Failure to acquire or adapt adequate software to enable Ms Williams to carry out duties

42. This complaint was made out under the heading of failure to make reasonable adjustments. JWT acknowledged that there was a duty to provide suitable soft ware so far as it was able, but asserted that it had taken such steps as were reasonable in all the circumstances to prevent the arrangements in relation to the provision of software having a substantial disadvantage to Ms Williams compared with her work colleagues, having regard to s6(3) and (4). JWT submitted that, although it had obtained the best advice and followed it, the results were disappointing and there was no realistic likelihood of a short term or medium term improvement and no guaranteed outcome in the longer term with the prospect of having spent significant sums of money.
43. The tribunal held that there had been a failure of duty under s6 on the part of JWT. It was aware from the advice given by Miss Ballard that further investigations were needed, but she was not asked to carry them out by way of following up her report. Without reference to the opinions of Miss Ballard Mr Hudson had made a number of assumptions about the costings. JWT had not taken all such steps as were reasonable in all the circumstances to prevent the arrangements in relation to the provision of software having a substantial disadvantage to Ms Williams compared with her work colleagues.
44. The tribunal rejected the defence of justification on the ground that JWT's reasons for not continuing in the investment in software, that is time and cost, were difficult to justify until it had exhausted enquiries from Miss Ballard into the possibilities of what was involved in carrying out the further work in relation to the JAWS script and Lotus Notes. If JWT had done that, the position would have been much clearer. In those circumstances the reasons for the failure to make adjustments were neither material nor substantial.

C. Failure to provide suitable work

45. The tribunal found direct discrimination in this respect. Had Ms Williams been a sighted person, work would have been available at the commencement of and during employment. Ms Williams was treated less favourably, as she was not provided with work that would occupy her fully because of a reason related to her disability, that is her need for equipment which she would be able to use.
46. The tribunal rejected the defence of justification for the less favourable treatment. JWT's treatment of her was not justified, as she was able to carry out other available work, such as the holiday database and video conferencing work, when she was given it to do. The technological difficulty, although material, was not substantial within s5(3) and was not a bar to her engaging in other work. Some of the problems experienced by her could have been addressed by further training and work on JAWS scripts.

Decision of the Employment Appeal Tribunal

47. The appeal tribunal correctly identified the principal issue as justification of discrimination. It concluded that, in general,

" 76(a)…….the Employment Tribunal has not given a satisfactory explanation as to why JWT's justification in the particular circumstances we have examined is neither material nor substantial as the case may be nor why it is irrational. We were left with the strong feeling that the Employment Tribunal has in effect substituted its views for those of JWT rather than asking itself in each case whether JWT's investigation and its justification for more detrimental treatment, fell within the band of reasonable responses" (that being the test laid down by the Court of Appeal in Jones v. The Post Office [2001] IRLR 384.)

48. On the three specific issues examined by it the appeal tribunal held that there were errors of law and that the matter should be remitted for consideration by a different employment tribunal. Firstly, on the technical difficulties concerning use of Lotus Notes, the appeal tribunal said (paragraph 77) that "..it was uncertain whether the difficulties could be overcome." Secondly, as to cost, it was bound to exceed the total budget of $12,000 and there was no certainty that the new scripts would work, "so an employer might reasonably be justified in not spending the entire budget on one employee." Thirdly, on the failure to acquire and adapt software, the employment tribunal had substituted its views for those of the employer, when it should have considered whether decisions of JWT not to seek further information and not to spend further sums in adapting and acquiring software were within the range of reasonable responses.
49. On the issue of failure to make reasonable adjustments the appeal tribunal also concluded that the employment tribunal had impermissibly substituted its views for those of JWT on matters of training that were going to be expensive, time consuming and uncertain and had failed to explain why JWT's justifications were neither material nor substantial.

Conclusion

50. I would not seriously criticize the appeal tribunal, as Mr Kibling has done, for dealing only with the three main areas in which the employment tribunal had found disability discrimination. I agree that the appeal tribunal should normally deal with all the grounds of appeal, even if not in the same detail. In this case the appeal tribunal was faced with a lengthy Notice of Appeal by JWT setting out 17 principal grounds of appeal and 19 subsidiary grounds. It was entitled to use the time available to focus on the most important areas in which discrimination was alleged to have occurred. They were at the heart of Ms Williams' case. If the employment tribunal had made an error of law in its decisions on those points there would in all probability have to be a re-hearing of the case or of most of it.
51. In my judgment the error that the appeal tribunal itself fell into was not in the narrowness of its focus on the grounds of appeal, but in its committing "the sin of substitution": it overstepped the mark of reviewing a tribunal decision on questions of law and entered the arena of disturbing permissible conclusions of fact and degree made by the employment tribunal on a proper self-direction of law. It set aside the conclusions of the employment tribunal on the issues of materiality and substantiality relevant to justification of discrimination, with which they did not agree, but which did not raise any question of law.
52. In my judgment the employment tribunal had correctly directed itself in law in accordance with the ruling of this court in Jones and it correctly applied the ruling in reaching its conclusions on the issue of justification.
53. In overturning the decision of the employment tribunal the appeal tribunal lost sight of the most exceptional feature of this case. It is a feature which is unlikely to occur in the general run of cases, but it is material to direct discrimination, to the duty to make reasonable adjustments, to objective justification of non-compliance with that duty and to objective justification for less favourable treatment.
54. JWT agreed to employ Ms Williams to do a specific job (Worldwide Software Developer) knowing that she was totally blind; that she did not know how to use Lotus Notes; and that she would need to learn and be trained how to use them in order to do the job she was employed to do in JWT. Having taken Ms Williams on in those circumstances, JWT then failed properly to investigate either before or after she started her employment the cost and time that it would take fully to train an unsighted person for the job that she was employed to do. She was not supplied with the necessary equipment and training to do the work she was employed to do. She was not given work of the kind she was employed to do or other suitable work instead.
55. In contending that JWT had not discriminated and had taken all reasonable steps in the circumstances Mr Mead for JWT naturally sought to rely heavily on the magnitude of the technological difficulties facing the JWT and on expert advice taken regarding possible solutions as a material and substantial reason for its treatment of Ms Williams and for its failure to adapt the software for and to provide the training to her. JWT had not, when it appointed Ms Williams, known about the technological difficulties involved. Mr Mead repeated his criticisms of the employment tribunal decision that it had not taken an objective view of JWT's reason for its treatment of Ms Williams nor had it identified the reasonable steps which an employer ought to have taken. Instead, it had substituted its own decision for that of JWT. It had not applied the correct test for justification: see, for example, paragraph (x) (c) and (xi) (c) on p38 of the extended reasons.
56. The issue of justification in relation to training and the provision of software raised matters of materiality and substantiality in terms of the time and cost of training, on which the tribunal found as a fact that JWT had failed to conduct adequate investigations or assessment. JWT employed Ms Williams in circumstances in which it knew that adjustments would have to be made. Investigation into the technological possibilities and training options would be involved, as would expenditure. The tribunal was entitled to conclude that JWT was not justified in its treatment of her. It was not the response of a reasonable employer in the circumstances of the particular case. In my judgment, there was no error of law in that conclusion, even if it was not the conclusion to which the members of the appeal tribunal would have reached if they had been members of the employment tribunal, which they were not, and even though the employment tribunal did not frame its conclusions in the language of reasonable responses used in Jones.
57. As for justification of the failure to make reasonable adjustments JWT faced the added difficulty that, since the decision of this court in Collins, it is unable to rely for the purposes of s5(4) on any circumstances taken into account for the purpose of s6.

Constructive dismissal as act of discrimination

58. In the light of its decision to remit the matter of disability discrimination for a fresh hearing by a differently constituted employment tribunal, the employment appeal tribunal and the parties regarded the cross appeal by Ms Williams to it on the constructive dismissal point as academic. It accordingly dismissed the cross appeal (see paragraph 94). As the appeal tribunal recognised (paragraph 95), however, the cross appeal could be considered by this court in the event of an appeal by Ms Williams.
59. On the facts found by the employment tribunal it was entitled to hold that JWT was liable for the constructive unfair dismissal of Ms Williams. As was held by this court in Meikle (see paragraph 11 above), which was decided after the hearing in the employment appeal tribunal, constructive dismissal falls within the scope of "dismissal" in s 4(2)(d) of the 1995 Act. It ought to have been concluded on the facts found by the employment tribunal that the detriment to Ms Williams occasioned by the discriminatory conduct was the effective cause of her resignation and that her constructive unfair dismissal was itself a discriminatory act relating to her disability.

Result

60. I would allow the appeal by Ms Williams and reinstate the decision of the employment tribunal, adding a declaration that the unfair constructive dismissal of Ms Williams was a further act of disability discrimination within s4(2)(d) of the 1995 Act. The employment tribunal's finding of constructive unfair dismissal stands.

Lord Justice Chadwick

61. I agree.

Lord Justice Tuckey

62. I also agree.