United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JAMES LADDIE (of Counsel) Instructed By: Royal College of Nursing Legal Services Dept 20 Cavendish square London W1G 0RN
For the Respondents	MR DIJEN BASU (of Counsel) Instructed By: Messrs Beachcroft Wansbroughs Solicitors 100 Fetter Lane London EC4A 1BN


 


JUDGE D SEROTA QC:

1. This is an appeal by the Applicant from a decision of the Employment Tribunal at London Central chaired by Mrs J.R. Hill that was promulgated on 8 June 2001. The Employment Tribunal dismissed the Applicant's claim that she had been discriminated against by reason of disability.
2. This matter was permitted to proceed to a full hearing by an order of the Employment Appeal Tribunal of 10 December 2001, the Employment Appeal Tribunal on that occasion being presided over by His Honour Judge D M Levy Q.C. Further, the Applicant was given permission to add further grounds of appeal, subject to lodging amended grounds within 14 days and giving the Respondent the opportunity to object at the hearing. In the event there has been no issue as to the grounds of appeal which are essentially those set out in the very helpful skeleton argument prepared by Mr Laddie.
3. The Applicant is an insulin-dependent diabetic who needs to use a continuous infusion pump. This pump maintains a low blood sugar level but, as a result, the Applicant has a higher than average propensity to hypoglycaemic episodes. The symptoms of these episodes include tremors, palpitations, irritability, tiredness, blurred vision, sweatiness, slurred speech, loss of concentration and on occasions aggressive behaviour.
4. The Applicant was diagnosed as suffering from diabetes as long ago as 1957. At some date she worked for the predecessor to the Respondent, the Camden & Islington Community Health Services NHS Trust as a Health Visitor but she took ill-health retirement in 1996, whereafter she worked as a Bank Health Visitor. In 1993 she had a hypoglycaemic episode at work. In 1994 she had three hypoglycaemic episodes at work. In 1995 she had an hypoglycaemic episode at work. In 1998 she had two hypoglycaemic episodes at work, one resulting in the Applicant having to curtail a visit to the client. She collapsed outside the client's home and was taken to hospital.
5. In 1999, having worked as part of the Bank, the Applicant applied for a permanent part-time post as a Health Visitor and in fact was appointed subject to references and an Occupational Health Assessment. In the questionnaire she was asked to complete when applying for the job, she stated that she had in fact had no hypoglycaemic episodes in the last year. In March 1999 she did in fact have a hypoglycaemic episode as she subsequently told Dr Smith, who was a Respondent to this matter and the Occupational Health Consultant of the Respondent Health Authority. On 13 September 1999 she had seen Dr Smith, who noted that there had been no hypoglycaemic episodes in recent months, none at night and the last one was at work four years ago. At that point in time (this is the time when the job was initially offered) Dr Smith concluded that her diabetes was under control and that is why she recommended that the Applicant be offered the post.
6. On 20 September 1999 there was a further hypoglycaemic episode. The Applicant had delayed having her lunch and collapsed in a car. The incident was reported to the Second Respondent who was the Clinical Services Manager and the Applicant's Line Manager, who was concerned and arranged a further meeting with the Applicant and a further referral to Dr Smith, who saw the Applicant later that day. On that occasion Dr Smith was told about the incidents that had taken place in March 1998 and March 1999. These matters are set out in paragraph 11 of the Decision of the Employment Tribunal:

"Dr Smith concluded that the way Mrs Johnson had behaved in tackling the problem of hypoglycaemic episodes and not taking food regularly indicated a lack of awareness and control. She noted that once a diabetic reaches the stage of being of concern to others, they are at the point of having no insight into their own state and could end up in a comatose state. The concern for Dr Smith was that if Mrs Johnson were to have a period of confusion while undertaking her clinical duties, namely home visiting or administering vaccinations, the risk to the clients was great."

7. From October 1999 she did act as a Bank Health Visitor doing clinical work only. In March 2000 she was told she would have to cease her role in April but in fact she continued working until July. There had been a reorganisation in the organisation of Health Visitors and the Authority asserted there was no job for her. She maintained this was a sham. Employment terminated, so far as we can understand this, in July 2000.
8. It was therefore on the basis of Dr Smith's advice that we have just quoted that in order to avoid the risk she described, she proposed the adjustments that were required to be made to Mrs Johnson's work as a Health Visitor. The responsibility of immunisations was taken from her and she was to be clinic based. The latter requirement was the reason why Mrs Johnson was assessed as being unfit to work as a Health Visitor. She could not undertake domiciliary visits which were central to the role of a Health Visitor
9. The medical view was not accepted by the Applicant or her Consultant, Professor Betteridge, who wrote to Dr Smith to the effect that the diabetes was totally under control and it would not hinder Mrs Johnson's part-time employment as a Health Visitor. Dr Smith was unable to agree and on 24 February 2000 wrote in terms, quoted by the Employment Tribunal, at paragraph 13:

"It was when she applied for the post permanently that her case came to me again. Clearly she had managed the duties generally but there had been a couple of incidents which caused her manager quite serious concern. It seemed to be related to hypoglycaemic episodes but the concern was to do with being out and about, dealing with babies and very young children, including giving immunisations and giving advice to parents. Her behaviour had temporarily become very inappropriate and her speech and hence the advice given incoherent. They were also concerned about the risk of accidents. I therefore advised that she was fit for the work with certain considerations. I felt some adjustments to the work would be needed and on balance it was felt that her work would have to be limited to a clinic setting and to avoid giving vaccinations."

10. It is unclear whether in fact the Respondent Health Authority accepted that the Applicant was disabled because there is a reference in the papers, which we have seen, to a preliminary hearing that took place on 27 November, when the Employment Tribunal found that the Applicant was disabled within the meaning of the Disability Discrimination Act 1995. We have not, however, been able to find any further reference in the Decision of the Employment Tribunal or in any of the other papers we have to that hearing. The Employment Tribunal in paragraph 16 of their decision state that "the Respondent accepts that the Applicant is a person disabled within the meaning of the DDA".
11. It is helpful to note the findings made by the Employment Tribunal, as to the work of a Health Visitor:

"A Health Visitor is responsible and accountable at all times for promoting and monitoring the health development and identification of any abnormalities of the children for whom they are responsible. It is a holistic role and includes the identification of the children's, and their families', needs, meeting those needs and evaluating the care. It involves home visits, observing the children within the home and within their family, assessing the children and ensuring that they maintain their development at child health clinics, and giving immunisations having first given advice about such matters. A full-time Health Visitor in the South Camden area would expect to have a caseload of about 250 children of whom 80 per cent would be on a standard programme of care, 15 per cent might present some concern on an ad hoc basis, and five per cent would be on a high-care programme including children on the Child Protection Register. A Health Visitor is a front line member of the child protection team who are required to keep accurate records of the child, which contributes to the overall knowledge for the purposes of child protection."

12. We would also refer to paragraph 19 of the Decision of the Employment Tribunal, where they consider in the round the evidence which appears to have been unchallenged as to the nature of the job of Health Visitor. The Employment Tribunal, referring to the evidence given on behalf of the Respondents, had this to say:

"They were clear that it is a job which must be fulfilled in its entirety and in the round to ensure continuity of care and observation of the children concerned, both in a clinical setting and within a family setting. The evidence before the Tribunal was that, whilst it was possible to arrange a Health Visitor's day to a certain extent, of necessity issues concerning children and their care cannot be timetabled precisely and, inevitably, there would be some slippage in the arrangement of a day such that the proposals for adjustments as set out in the Applicant's final submissions [and we say in parenthesis we will return to these shortly] were neither realistic nor sustainable. The only adjustments that they as members of the Trust were able to identify clearly were those proposed by Dr Smith. Those adjustments met the dual need of providing protection of the employee and for the clients."

The Employment Tribunal found that the Applicant was unable to fulfil the role of a Health Visitor as she was unable to undertake home visits.

13. We would interpolate here that the Health Authority, on the advice of Dr Smith as we have noted, had come to the conclusion that there were two adjustments that might be made to the manner of working. The first was to remove from the Applicant the responsibility for immunisations. This was regarded by everyone as a reasonable adjustment. The second adjustment was effectively to remove from her the responsibility of home visits.
14. The Applicant must make her case under Section 5 of the Disability Discrimination Act to which we now turn. Initially the Applicant's case was put firmly on the basis that the Respondents were in breach of Section 5 (1) by refusing to employ her as a Health Visitor. We refer to Section 5 of the Act.

"5(1) For the purposes of this Part, an employer 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, an employer also discriminates against a disabled person if –

(a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and

(b) he cannot show that his failure to comply with that duty is justified.

(3) Subject to subsection (5), for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.

(4) For the purposes of subsection (2), failure to comply with a section 6 duty is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial."

15. As we have said the case that was put forwards on behalf of the Applicant at the Employment Tribunal was a case put under Section 5(1); that the simple failure to appoint the Applicant to the position of a Health Visitor amounted to direct discrimination. The Applicant did not in her evidence address questions of what might be considered, as we would put it by way of shorthand as 'reasonable adjustments' within the meaning of Section 6 of the Act. Neither did she cross-examine Dr Smith on these matters. At some point during the hearing, and we do not know when, the Applicant did seek to argue that the Trust was in breach of its Section 6 duty. However, the two specific adjustments that she now relied upon before the Employment Tribunal and before us, to which we shall come shortly, were first raised during final submissions.
16. We now turn to Section 6.

6 (1) Where –

(a) any arrangements made by or on behalf of an employer, or

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

place 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 arrangements or feature having that effect."

…

(3) The following are examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1) –

(a) making adjustments to premises;

(b) allocating some of the disabled person's duties to another person;

(c) transferring him to fill an existing vacancy;

(d) altering his working hours;

(e) assigning him to a different place of work;

(f) allowing him to be absent during working hours for rehabilitation, assessment or treatment;

(g) giving him, or arranging for him to be given, training;

(h) acquiring or modifying equipment;

(i) modifying instructions or reference manuals;

(j) modifying procedures for testing or assessment;

(k) providing a reader or interpreter;

(l) providing supervision.

(4) In determining whether it is reasonable for an employer to have to take a particular step in order to comply with subsection (1), regard shall be had, in particular, to –

(a) the extent to which taking the step would prevent the effect in question;

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

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

(d) the extent of the employer's financial and other resources;

(e) the availability to the employer of financial or other assistance with respect to taking the step.

This subsection is subject to any provision of regulations made under subsection (8)."

17. It is quite clear that in considering whether in fact there has been a breach of Section 6 the Employment Tribunal should follow the guidance set out in the case of Morse v Wiltshire, [1998] IRLR 352, a decision to which we have been referred. The Employment Appeal Tribunal, presided over by Bell J, on that occasion set out a four-stage approach to the question of reasonable adjustments as follows, in paragraphs 41 to 49:

"41 Firstly, the tribunal must decide whether the provisions of s. 6(1) and s. 6(2) impose a s. 6(1) duty on the employer in the circumstances of the particular case.

42 If such a duty is imposed, the tribunal must next decide whether the employer has taken such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the s. 6(1)(a) arrangements or s. 6(1)(b) feature having the effect of placing the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled.

43 This in turn involves the tribunal enquiring whether the employer could reasonably have taken any steps including any of the steps set out in paragraphs (a) to (l) of s. 6(3). The purpose of s. 6(3) is to focus the mind of the employer on possible steps which it might take in compliance with its s. 6(1) duty, and to focus the mind of the tribunal when considering whether an employer has failed to comply with a s. 6 duty.

44 At the same time the tribunal must have regard to the factors set out in s. 6(4) paragraphs (a) to (e).

45 If, but only if, the tribunal (having followed these steps) finds that the employer has failed to comply with a s. 6 duty in respect of the disabled applicant, does the tribunal finally have to decide whether the employer has shown that its failure to comply with its s. 6 duty is justified, which means deciding whether it has shown that the reason for the failure to comply is both material to the circumstances of the particular case and substantial (see s.5(2) and (4)).

46 In taking these steps, the tribunal must, in our view apply what Mr Ciumei called an objective test, asking for instance whether the employer has taken such steps as were reasonable, whether any of the steps in s. 6(3) were reasonably available in the light of the actual situation so far as the factors in s. 6(4) were concerned; and asking whether the employer's failure to comply with its s. 6 duty was in fact objectively justified, and whether the reason for failure to comply was in fact material to the circumstances of the particular case and in fact substantial.

47 No doubt, in carrying out these exercises, the tribunal will pay considerable attention to what factors the employer has considered or failed to consider, but it must scrutinise the explanation for selection for redundancy, for instance, put forward by the employer, and it must reach its own decision on what, if any, steps were reasonable and what was objectively justified, and material and substantial.

48 We reject, therefore, Mr Wilken's argument, carefully reasoned though it was, that it is sufficient if the tribunal judges that a reasonable employer could have acted as the respondent did or, more specifically, that the respondent must advance an explanation for its conduct but that, once it has done so, the tribunal can only consider whether that explanation is reasonably capable of being material and substantial.

49 We were referred to authorities on the point including, of course, Hampson v Department of Education and Science [1990] IRLR 302 as well as Cobb v Secretary of State for Employment [1989] IRLR 464 and Staffordshire County Council v Black [1995] IRLR 234. The first of those cases might help Mr Ciumei's argument and the last might help Mr Wilken's. But those cases were concerned with different Acts of Parliament and we do not accept Mr Wilken's argument that employment lawyers and employer and employee representatives reading ss. 5 and 6 would read them with authorities on other Acts in mind and that the sections must have been drafted with such a readership in mind. Acts of Parliament are supposed to mean what they say to readers outside the initiated and, in any event, this is a new Act breaking new ground. There is nothing in the wording of ss. 5 and 6 which indicates that the industrial tribunal should not substitute its own judgment for that of the employer. To say, in effect, that it is for the employer and not the industrial tribunal to say what it can and cannot afford to do would be greatly to limit the aims of the Act. The employer is given sufficient economic protection by the provisions of section 6(4)."

18. The thrust of this judgment is that in considering whether an employer has complied with his Section 6 duties the Employment Tribunal must apply an objective test. It must determine objectively whether the employer could make reasonable adjustments to prevent the disabled person being placed at a substantial disadvantage as compared with persons who were not disabled. It is only if the Employment Tribunal is satisfied that employer has failed to comply with its Section 6 duty that it is necessary to consider the defence under Section 5(4).
19. Mr Laddie submits that the Employment Tribunal in this case failed to apply the approach laid out by the Employment Appeal Tribunal in Morse, which surprisingly was not cited. The Employment Tribunal referred to the decision of the Court of Appeal in the case of Jones v The Post Office, a decision which was, at that stage, unreported but has now been reported and we have the decision in [2001] ICR 805. The Jones case involved Section 5(1) and Section 5(3) and the significance of the Jones case is that the Court of Appeal, made it quite clear that so far as Section 5(3) was concerned the Employment Tribunal is required to consider the reasons given by the employer by way of justification. Pill LJ who gave the leading judgment said at paragraph 27:

"The tribunal cannot, however, in my judgment conclude that the reason is not material or substantial because the suitably qualified and competently expressed medical opinion, on the basis of which the employer's decision was made, was thought by them to be inferior to a different medical opinion expressed to them. Moreover, a reason may be material and substantial within the meaning of the section even if the employment tribunal would have come to a different decision as to the extent of the risk. An investigation of the facts by the tribunal will often be required, but it cannot go to the extent of disagreeing with a risk assessment which is properly conducted, based on the properly formed opinion of suitably qualified doctors and produces an answer which is not irrational. This constraint limits the power of tribunals to provide relief to disabled employees, but in my view it follows from the wording of the section, which requires consideration of the reason given by the employer, and recognises the importance of the employer's responsibility for working practices."

20. The test that is thus to be applied to Section 5(3) is in many ways similar to that in relation to the band or range of reasonable responses approach to the issue of reasonableness or unreasonableness of a dismissal. It differs from the test propounded by Bell J in Morse as to the justification defences under Section 5(4).
21. There is an interesting point, which it is unnecessary for us to consider as to whether the reasoning of Pill LJ in the case of Jones v Post Office, which as we say is directed to Section 5(3), also applies to the similar wording of Section 5(4) of the Act and whether to that extent the statements of Bell J in the Morse case are to be regarded as overruled in that regard. Nothing that we say in this judgment is in any way intended to suggest that we regard the case of Jones v Post Office as overruling what was said by Bell J in relation, at least, to the approach of an Employment Tribunal to the obligations placed on an employer under Section 6, which we have read, and the approach to the defence of justification under Section 5(4) which we have also mentioned.
22. Mr Laddie may be correct in saying that the Employment Tribunal did not explicitly follow the guidance and approach set out in Morse v Wiltshire. There is no reference in the decision to the case of Morse and it does not appear that either Counsel referred to it. Mr Basu explained to us that that was because the case, when originally put, was on the basis of a breach of Section 5(1). However, it is quite clear that during the course of submissions a case was also put on the basis of breaches of the duty under Section 6 and Mr Laddie seems to us to be correct in suggesting that the Employment Tribunal may have regarded the test propounded by Pill LJ as applying in such a case, for example, in paragraph 16 of the decision the Tribunal state:

"16 The Respondents accept that the Applicant was a person disabled within the meaning of the DDA. They accept that they were under a duty under section 6 of that Act to make adjustments in relation to the arrangements on which the employment was afforded. The Respondents argue that they made such adjustments balancing their duty as an employer to the Applicant with their duty to their clients, namely the children."

The Employment Tribunal went on to say that in addressing this matter, the Tribunal was assisted by the guidance given within the case of Jones v The Post Office, and it then refers to passages from the judgment of Pill LJ part of which we have quoted.

23. In paragraph 20 the Employment Tribunal stated that the Trust had recognised that they had a duty under Section 6 of the Disability Discrimination Act to make adjustments and they endeavoured to fulfil that duty in the adjustments that they made. Those adjustments, as we have noted, were two-fold, the first relating to immunisations which was accepted by everyone as being reasonable. The second adjustment that they made was the adjustment that in effect prevented the Applicant from carrying out the job; that was the requirement she should not take home visits. That was clearly recognised by everyone as not being a reasonable adjustment. The Tribunal then, in paragraph 23, came to this conclusion:

"23 We conclude therefore that the Respondents conducted a risk assessment and reached a view that was within the reasonable band of responses – that the risk to the public, namely the children, was too great if they were to allow Mrs Johnson to continue in her role of Health Visitor including home visits. The fact that she was unable to do those home visits mean that she was unable to fulfil the role offered to her in the form of permanent part-time Health Visitor and that offer was withdrawn. It was less favourable treatment which was justified."

24. It seems to us that Mr Laddie may be correct in suggesting, therefore, that the Employment Tribunal considered that it should apply the reasonable band of response test to the question of whether the Trust had complied with its Section 6 duties as opposed to the test set in Morse, as to the approach to the adjustments that an employer should have made under Section 6. However, we have read the decision as a whole and in our opinion the Employment Tribunal did address its mind to the question of whether in fact the adjustments propounded by the Applicant were reasonable, and came to the conclusion that they were not from an objective viewpoint. It was, therefore, unnecessary for the Tribunal to go on to consider the defence under Section 5(4)
25. It seems quite clear to us that the parties were agreed before the Employment Tribunal that the Applicant was treated less favourably because of her disability. In other words, she was treated less favourably because firstly she was prevented from performing immunisations and, secondly, she was unable effectively to be appointed as a Health Visitor. Although we have told that there was in fact no issue about this, it seemed that Mr Basu may have been minded to challenge whether she had been treated less favourably. However, for the purposes of this judgment both parties accepted that the Applicant had suffered detriment so Section 6 came into play. If one then asks, "well, what were the adjustments that might reasonably have been made, apart from immunisation which is not controversial?" In paragraph 15 of the Tribunal's Decision, one finds five specific matters set out. Firstly, that an adjustment should have been to require the Applicant to restructure her hours so that she should carry out home visits shortly after having a meal, such as breakfast or lunch, and secondly, to provide her with transport, such as a taxi to convey her to and from the home she would visit. These are two of the four adjustments that Mr Laddie submits should have been considered and were not.
26. Before the Tribunal other adjustments were put (see paragraph 15 of the decision) Mr Laddie does not seek to rely upon these today. These proposed adjustments (made for the first time during final submissions) were to require the effects of her disability to be regularly reviewed and monitored by the Trust, the discussion of these and any further steps which could be taken with the Applicant, and the obtaining of medical or expert medical evidence about other possible steps include specifically with a view to addressing the risk of a future hypoglycaemic episode. As these are not relied upon we say nothing further about them.
27. There were two further matters that were relied upon by Mr Laddie before us as follows. These were not relied upon before the Employment Tribunal. Firstly, one of the witnesses called on behalf of the Respondent, in her evidence Ms Timms, the Trust's Deputy Director of Primary Care and Women's and Children's Services, had suggested that the Trust had considered the possibility of enabling Mrs Johnson to carry out domiciliary visits by having someone accompany her at all times. However, Ms Timms rejected this suggestion. This is a matter which is to be found at paragraphs 21 to 23 of her witness statement. This is not a matter that was raised with Dr Smith by the Applicant, nor is it a matter that was relied upon by the Applicant's Counsel in submissions to the Tribunal. The other possible adjustment that was considered was, whether it was appropriate to inform clients and families to be visited by Mrs Johnson that she might have a hypoglycaemic episode. This, again, was rejected as being impracticable by Ms Timms and also by Ms Joseph (the Applicant's Line Manager) and this matter also was not challenged by the Respondent's Counsel with Dr Smith, nor was it relied upon in submissions.
28. So far as the earlier adjustments are concerned, that is, the making adjustments to the working day and providing taxis, these again were not taken up with Dr Smith, as we understand it, and were raised for the first time during the course of submissions.
29. It seems to us, although we are quite satisfied that the Employment Tribunal's Decision was not felicitously worded and despite the fact that they may have misdirected themselves as to the law, it is nonetheless quite clear that the Tribunal came to a clear conclusion that the adjustments propounded by the Applicant could not be regarded as adjustments that would be regarded as reasonable in all the circumstances, having regard to the provisions of Section 6(3) and Section 6(4) of the Act. In our opinion, in paragraphs 19 – 21 of its Decision, the Tribunal was effectively setting out its findings when it said:

"The evidence before the Tribunal was that, whilst it was possible to arrange a Health Visitor's day to a certain extent, of necessity issues concerning children and their care cannot be timetabled precisely and, inevitably, there would be some slippage in the arrangement of a day such that the proposals for adjustments as set out in the Applicant's final submissions were neither realistic nor sustainable. The only adjustments that they as members of the Trust were able to identify clearly were those proposed by Dr Smith [and those were the two that we have already mentioned]."

30. It seems to us that in its finding that those proposals for adjustments were neither realistic nor sustainable, the Employment Tribunal clearly had in mind Section 6 of the Act and was, in fact, making a finding that those adjustments would not be reasonable in all the circumstances of the case for the Respondent to make so as to enable the Applicant to carry out domiciliary visits. We note as well that in his skeleton argument for final submissions, Mr Adedeji had submitted that the Trust should have taken "all of the following steps together….(his underlining)".
31. Mr Laddie drew our attention to the decision of the EAT in Cosgrove v Caesar and Howie [2001] IRLR 653. In that case the Applicant had been away from work as a legal secretary for a year. She suffered from depression. The employer dismissed her without considering in any way what steps it might take under Section 6 because it did not appreciate that her illness brought her within the ambit of the Disability Discrimination Act. During the hearing before the Employment Tribunal the Applicant and her doctor had not been able to suggest any adjustments that might have been made under Section 6. The EAT presided over by Sir John Lindsay considered that this did not exonerate the employer from its duties of consideration of possible adjustments under Section 6.
32. We reject the submission made by Mr Laddie that Morse requires an Employment Tribunal to consider the reasonableness of adjustments that have been considered and rejected by an employer and are not suggested to have been reasonable by the Applicant. In this case the possible adjustments mentioned by Ms Timms were considered to be unreasonable. No suggestion was made to the Occupational Health Physician, Dr Smith that they were reasonable. The Applicant was properly represented and did not seek to rely upon these matters as constituting reasonable adjustments. It seems to us that an Employment Tribunal, in those circumstances, is entitled to treat it as having been accepted that such matters cannot be regarded as being reasonable adjustments.
33. We consider that this case is quite different from the case of Cosgrove v Caesar & Howie. We do not believe that an Employment Tribunal has an obligation to go beyond the evidence and submissions, particularly in a case where both parties are competently represented, to see whether the employer's duty under Section 6 has been satisfied. Clearly, if an Applicant in such circumstances chooses not to challenge the evidence, as was the case here, that possible adjustments are not reasonable it seems to us unrealistic and inappropriate for the Employment Tribunal to take a different view.
34. In the circumstances, as we have said, we do accept that this Employment Tribunal could have set out its findings more clearly. Also we accept that it appears to have applied the wrong test in determining whether or not the proposed adjustments were or were not reasonable, nonetheless the findings of fact made are clear. The Employment Tribunal found that the proposed adjustments were not reasonable. It did not merely find that the Trust considered them not to be reasonable. There were no other adjustments suggested that may have been reasonable. This was not the case of an employer that failed to consider the issue, but an employer that considered the matter and took advice from Dr Smith. Accordingly the Employment Tribunal was bound to find that the Trust had complied with its Section 6 duties. In the circumstances it seems to us that there is no purpose in sending this matter back to the Employment Tribunal which heard the case because it seems to us inevitable, on the evidence that was given, it would nonetheless come back with the same answer, having directing itself in accordance with Morse. We would not consider, in any event that it would be appropriate on the particular facts to remit this matter for a rehearing before a differently constituted Tribunal because the case on adjustments was either not put to the Tribunal by the Applicant or was not put to Dr Smith and only put to the Tribunal in the course of Mr. Adedeji's final speech.
35. In those circumstances it seems to us that the appeal must fail and is accordingly dismissed.
36. There is one further matter we need to mention. We have been told that the Trust referred the Applicant's case to the Nursing and Midwifery Council. The Trust has received a report from the Nursing and Midwifery Council that, contrary to the view of Dr Smith, there was no medical reason whatever why the Applicant could not be employed as a Health Visitor without any restrictions. It seems to us that this information cannot really assist us as we have to consider the matter on the basis of the material that was before the Employment Tribunal. However, we would say that were the Applicant to make a further application to the Respondent for a Health Visitor's post this report would clearly have to weigh extremely heavily with the Trust.