United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Ronald Mackay (Solicitor) Messrs Burness Solicitors LLP 242 West George Street Glasgow G2 4QY
For the Respondent	Ms Linda R Marsh (of Counsel) instructed by: Messrs Harper MacLeod LLP 14-18 Cadogan Street Glasgow G2 6QN


 


SUMMARY

Disability Discrimination – Reasonable adjustments

The EAT would follow the judgment of the EAT most recently upholding the British Gas line of authorities set out in Tarbuck. A Tribunal is under a duty to decide whether reasonable adjustments have been made irrespective of whether they were actually considered by an employer. The trigger point for a duty to arise is when the employee who is absent indicates that she will be returning to work. The Home Office v Collins applied. If adjustments will have no practical effect in mitigating the substantial effect on a disabled person of the atmosphere in which she works, there is unlikely to be any breach of the duty to make reasonable adjustments.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about disability discrimination and Employment Tribunal procedure. The judgment represents the views of all three members except for where we indicate the divisions between us. We will refer to the parties as the Claimant and the Respondent.

Introduction

2. It is an appeal by the Respondent in those proceedings against a judgment of an ET sitting in Glasgow over five days, registered with Reasons on 23 November 2005. The Chairman was Mr W A Muir. The Claimant was represented by Mr G Millar, a solicitor, who today instructs Ms Linda Marsh of Counsel; the Respondent was represented by Mr Ronald Mackay, Solicitor. The Claimant claimed unfair constructive dismissal and unlawful disability discrimination, resting entirely on a failure by the Respondent to consider making reasonable adjustments. The Respondent contended it had not dismissed her. It had complied with its duty and further had consulted her and considered measures but there was no duty so to do. The Tribunal dismissed the claim for unfair dismissal, but upheld the claim of disability discrimination. The Respondent appeals. Directions sending this appeal to a full hearing were given in chambers by Lady Smith.

The issues

3. On appeal the issues raised by the Respondent can be summarised under the following headings:

a. Did the Tribunal err in failing to consider justification for the breach of duty it found?

b. Is there a duty to consider, as well as to make, reasonable adjustments: Tarbuck v Sainsbury Supermarkets Ltd [2006] IRLR 664, the "Tarbuck point".

c. If Tarbuck is not to be followed and there is a duty to consider, was there yet a failure to consider and consult the Claimant on such adjustments?

d. Was any duty triggered while the Claimant was off work and indicating no return date: The Home Office v Collins [2005] EWCA 598 CA. The "trigger point".

e. Was there a duty to make adjustments which were futile or not practicable in removing the disadvantage: The Home Office v Collins, per Ouseley J: the "utility point".

f. Was the complaint out of time? The "futility point".

The facts

4. The Tribunal began its recitation of the facts in the following way:

"2. …

(a) The respondents, as their name suggests, are the Scottish arm of a well known United Kingdom childrens' charity. The claimant, who is at present 50 years of age, is a qualified social worker and, by April 1997 she had a wealth of experience throughout the broad range of social work activities with an expertise in placing children with families. Up to April 1997 she had been employed by various local authorities in Scotland. The respondents deliver services through a number of projects. In the early part of 1997 they advertised for a person to take up the position of Project Manager for a brand new project named Community Attendance Placement Scheme (hereinafter referred to as CAPS). The claimant successfully applied for this position and she commenced employment with the respondents on 14 April 1997. In this role as Project Manager the claimant was generally responsible for promoting the aims of the project, to be involved in public relations exercises with local authorities, to manage a group of staff and to help them acquire new skills with a view to assisting foster carers. The respondents devoted a considerable amount of their resources to the success of this project."

5. By April 2001 the Claimant was finding the situation she was working in stressful, and on 24 April 2001 she was certified unfit to work on the ground of depression. She never returned before her employment was terminated by her resignation, effective on 1 July 2004. Between those dates, considerable attention was given to the Claimant's condition.
6. On 22 August 2001, the Claimant's GP advised the Respondent's occupational health adviser that the Claimant continued to suffer from moderately severe depression but would be able to return to work when her mood had sufficiently recovered and that she hoped to be able to undergo a phased return to work towards the end of the year.
7. On 10 December 2001 the Respondent met the Claimant to discuss her return to work. The possibility of a staged return to work was discussed. She enquired as to whether a staged return to work in the training section of the Respondent's organisation would be possible. The Claimant was advised that this would not be possible as there were currently no vacancies.
8. On 1 February 2002 the Respondent met the Claimant. The Claimant asked that she be allowed to retire early on the grounds of ill health and the Respondent agreed to explore whether this would be possible.
9. On 10 February 2002 the Claimant wrote to her GP to advise that she intended to apply for early retirement on the grounds of ill health as she felt her career in the field of social work was over. She advised that the Respondent would be contacting the GP for medical details in order to progress her request for early retirement. She said that she had started to recover from her illness.
10. On 13 March 2002 the Respondent's occupational health adviser advised the Respondent that he had received a report from the Claimant's GP. The report concluded that it would not be advisable for the Claimant to return to work for the Respondent and supported the Claimant's application for early retirement on the grounds of ill health.
11. On 25 April 2002, the Respondent met the Claimant. It advised the Claimant that the application for early retirement had not been submitted to the Trustees for the Respondent's Superannuation Fund for approval, as the application had not been supported by the Respondent's occupational health advisers who did not consider, based on medical information received from the Claimant's GP, that she was permanently incapacitated. The Claimant was informed of the current management vacancies within the organisation, namely a post in the Western Isles and a post managing a Criminal Justice Project in Glasgow (she had previously indicated that she would want to return to a management position only). She indicated that the Western Isles post was not suitable as she was based in Glasgow and rejected the Criminal Justice Project post on the grounds that it would require considerable retraining on her part.
12. On 30 May 2002 the Respondent met the Claimant to consult her in relation to the medical evidence provided by her GP and to explore a possible return to work in light of that. The Claimant indicated that, although she had been attending a training course one evening a week, she was unable at times to complete even basic forms. The Respondent and the Claimant agreed to seek a specialist medical report and the Respondent agreed to send the Claimant details of current vacancies. The Respondent indicated that it would be willing to welcome the Claimant back to work through a managed programme, which would require an indication of a return date from her. The Claimant agreed to consult her GP as to a potential return to work date and agreed to contact the Respondent by 17 June 2002 with that information. At the Claimant's request, no dates for future meetings were arranged.
13. On 25 June 2002, the Respondent was advised that the Claimant had instructed a solicitor and that the Respondent should not communicate directly with her.
14. On 4 July 2002 the Respondent's occupational health adviser requested a medical report from the Claimant's consultant with a view to obtaining more information on her current medical condition. The specialist report concluded that it was possible that the Claimant may return to health over the following six to twelve months, but that it was unlikely that she could return to her old role and that early retirement on the grounds of ill health should therefore be considered. On the basis of the specialist report, the Respondent's occupational health adviser indicated to the Respondent that he did not consider the Claimant to be permanently incapacitated (this being the requirement for ill health retirement).
15. On 4 February 2003 the Claimant's consultant advised the Claimant's GP that she considered that the Claimant was fit for work, but that a return to her previous position with the Respondent would not be advisable.
16. On 24 April 2003, at the Claimant's request and on her behalf, the Respondent submitted a further application for early retirement on the grounds of ill health to the Respondent's occupational health adviser. The Respondent was advised by its occupational health adviser that there was no indication from the medical records that the Claimant would never be able to return to work, but simply a statement to the effect that the Claimant would not be able to return to work for the Respondent. Accordingly, he advised the Respondent that the Claimant did not meet the condition for the granting of early retirement on the grounds of ill health and was therefore unable to support her request.
17. In August 2003 at the request of the Respondent's Superannuation Fund, the Respondent instructed a further independent medical assessment of the Claimant's current medical condition and the prognosis.
18. On 13 October 2003 following a consultation with the Claimant, the independent medical adviser advised the Respondent that he would be unwilling to support an application for early retirement on the grounds of ill health. The Claimant's application for early retirement on the grounds of ill health was therefore progressed no further.
19. On 17 March 2004 the Respondent instructed a further occupational health report in relation to the Claimant's medical condition to assess fitness for a possible return to work.
20. On 13 May 2004, the Claimant resigned with notice. On 14 May 2004 she attended a meeting with the Respondent's occupational health adviser.
21. On 26 May 2004 the Respondent's occupational health adviser advised the Respondent on the terms of the independent medical adviser's report and concluded that there was no evidence of any underlying medical conditions at that time and that, as the Claimant's only major complaint appeared to be her perception of the workplace and her treatment there, he felt unable to certify that the Claimant fulfilled the criteria for early retirement on the grounds of incapacity. He also advised that he considered that it would be reasonable to terminate the Claimant's employment on the grounds of capability.
22. The Tribunal rejected the Claimant's case that she had been dismissed constructively. It then turned to the reasonable adjustments issue and made its conclusions in one long paragraph at the end of its 18-page judgment. Since this has properly been pored over by the representatives before us, we will cite it in full:

"e) Turning now to the disability discrimination, case which is a case resting entirely on the alleged failure of the respondents to consider reasonable adjustments, it is worth pointing out that the duty to consider these adjustments rests on the employer — see Cosgrove —v- Caesar & Howie [2001] IRLR 653. To her credit the claimant did suggest a training role in some shape or form and the respondents rejected that. The Tribunal was satisfied that the respondents were entitled to do so. However, the matter does not and cannot remain there. The plain fact was that the respondents were principally concerned with getting the claimant back to work on a full time basis at CAPS. The Tribunal was in no doubt that they would have entertained a phased return. The Tribunal was in no doubt also that if that could not have been achieved then they were prepared to offer the claimant an equivalent managerial role if a suitable vacancy occurred. Mrs Sullivan stated in her evidence that, in addition to considering a staged return, she also considered a variation of the claimant's hours, partial tasks and placing the claimant with other managers. What the claimant needed, however, as she correctly stated in her evidence, was physical support. The respondents well knew what her issues of concern were. In particular they knew that the claimant was complaining about being overworked and inadequately supported.' There was no evidence led on their behalf that they ever considered these issues or that they said to the claimant that they were capable of being addressed so that there would be an acceptable reduction in her working hours, a reduction in her on call duties and an increase in supervision and support. These were exactly the matters that were of interest to the claimant. The Tribunal was in no doubt that, had the respondents applied their mind to these issues, then there was a very good chance that this would have facilitated her return to work. This may well have been achieved by altering her working hours and providing the necessary support. . There was evidence that the number of senior practitioners had or was about to be increased to 4 by the time the claimant went off work and Mr Turnbull was, of course, in place by that time and had made his sympathies with the claimant's situation well known to her. What the respondents needed to do in those circumstances was to spell out to the claimant how they saw an acceptable level of work and support being given to her in practical terms. This they failed to do. They failed to consider and spell out to the claimant how her role could be structured and organised to take account of her concerns. The Tribunal was in no doubt that it should have been possible for the respondents to make these adjustments without any significant financial consequence to them. The respondents were well aware that the claimant was a disabled person within the meaning of the 1995 Act when they were considering the issue of getting her back to work. The Tribunal concluded that the Claimant was placed at a substantial disadvantage by failing to, for example, provide her with support from a colleague which would enable her to carry out her duties and responsibilities as set out in the statement of particulars of employment (R9) where her working week is stated to be 35 hours. It seemed to the Tribunal that the respondents simply did not ever take on board the actuality of the claimant's working hours which were far in excess of 35 hours per week, the continuous level of inadequate staffing against ever increasing targets for carers and placements and inadequate support and supervision. That, to a very great measure, was caused by the failure of Mr Connolly to appreciate how much the claimant was doing and how much this must have been taking its toll on her. It was, therefore, not surprising that the respondents failed miserably to consider any reasonable adjustments to the claimant's working arrangements given that Mr Connolly seemed to view the claimant working excess hours against this background as being entirely reasonable. To be wholly fair to the respondents, they were being faced by a dual approach from the claimant from December 2001 onwards. On the one hand she was giving them a signal that she wanted to terminate her employment on ill health grounds whilst on the other hand and at the same time she was engaging with them in discussions and suggesting a return to work in a training role. The Tribunal concluded that, whilst these, mixed signals were being given to them, it did not in any way absolve them from their duty to consider reasonable adjustments under Section 6(1) of the 1995 Act. Accordingly and for the reasons stated the Tribunal find that the respondents have failed in this duty."

23. It put off to another time a hearing on compensation.

The legislation

24. We substantially agree with the summary of the legislation provided by Mr Mackay as applicable to its pre-amendment form and relevant in this case.The duty to make reasonable adjustments, under the old statutory regime, is contained in S5(2) and S6 of the DDA. The duty arises where any arrangement by an employer places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled. The duty is to take such steps as are reasonable in all the circumstances of the case in order to prevent the arrangements having that effect. Section 6(2) provides that Section 6(1)(a) applies only in relation to:-

" (b) Any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded."

25. Section 6(3) provides examples of the steps which an employer might be required to take. As is apparent, most of these refer to quite practical or physical changes. One such example is allowing a person to be absent for rehabilitation.
26. Section 6(4) provides that in determining whether it is reasonable for an employer to take a particular step, regard shall be had inter alia 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.

27. The provisions of the DDA should be read in conjunction with the Code of Practice. The legal status of the Code is set out in s53 of the DDA.
28. Reference is made to paragraphs 4.12 to 4.34 of the Code. Guidance is given there on the practicability of the steps (4.23) and, in "Other Factors" at paragraph 4.32, there is reference to the extent to which the disabled person is willing to co-operate.
29. By s5(2)(b), now repealed, a person is liable for failing in their duty if "he cannot show that his failure to comply with that duty is justified".
30. We regard it as implicit in the duty to make adjustments that the purpose is to enable an employee to gain work, to continue to work, or to return to work in an environment which is not to their disadvantage by reason of their disability. The adjustments to be made are what are objectively considered to be reasonable. But each disabled person's case must be considered individually in the light of what is reasonable for that particular person.

Discussion and conclusions

31. It will be convenient to deal with the submissions under each of the heads which we have set out above as being the issues in this case, as we give our conclusions.

Justification

32. It is common ground that there is no finding on justification. This is a matter of substance, for the Respondent contends that the failure by the Claimant to consider with the Respondent any further steps after she directed communication to be with her solicitor constitutes justification for any failure to comply with the duty. This is both material to the circumstances of the case and substantial pursuant to s5(4). It is contended that this decision by the Claimant effectively tied the hands of the Respondent and made the situation unworkable. Ms Marsh told us engagingly that the justification issue is difficult, the Chairman forgot it, it was not pled, it should have been disposed of. She accepts that if this ground of appeal succeeds it would have to be remitted to the Employment Tribunal. Mr Mackay asserts that there is some overlap between justification and the reasonableness of the adjustments. And so, with that finding on adjustments in place, it would be difficult for us if we found an error to substitute our view.
33. We do consider it was an error by the Tribunal to make no finding on justification, which under the ancien regime is an employer's defence to a finding of beach of duty. The appeal succeeds and the finding of unlawful discrimination must be set aside and the matter would otherwise be remitted to the Tribunal. It is perhaps unnecessary therefore for us to consider the five other points, since they do not control the disposed outcome of this appeal. But the points are said to be important by both of the representatives, and Ms Marsh wishes us to make decisions, taking us down one route or another of EAT authority. As will become clear, we put up some partial resistance to that submission.

The Tarbuck point

34. The Tarbuck point is this: is an employer who gives no consideration to the making of reasonable adjustments, by that failure alone, in breach of duty? The answer given by Elias J (President) and members in Tarbuck is that the duty is to make reasonable adjustments. If such adjustments are made without reference to the duty but, perhaps adventitiously, are adjustments which are reasonable to make, there is no breach. That was the conclusion, resolving two conflicting lines of authority in the EAT. On the one hand, and followed in Tarbuck, is British Gas Services Ltd v McCaull [2001] IRLR 60, Keene J and members. On the other is Mid-Staffordshire General Hospital NHS Trust v Cambridge [2003] IRLR 566, Keith J and members, in which British Gas was not cited; Southampton City College v Randall [2006] IRLR 18 decided by HHJ Birtles and members on 8 November 2005, where Mid-Staffordshire was cited but British Gas was not; Rothwell v Pelikan Hard Copy Scotland Ltd [2006] IRLR 24, Lady Smith and members, where authorities on neither side of the argument were presented; Surrey County Council v Hay UKEAT/0710/05, heard by myself and members on 28 April 2006 where the correctness of Mid-Staffordshire was not disputed. Permission has been given by the Court of Appeal to appeal against the judgment in Surrey County Council v Hay but in the light of there being no dispute about this issue, the issue in the present case may not be resolved. Tarbuck was heard after those three last judgments were given but none of them was cited. It seems to us that that does not make any difference, since the point was clearly in issue and recognised by the EAT in Tarbuck and a clear decision was made to follow the British Gas approach. In all of the cases we have mentioned there was legal representation on each side. In Humphries v Chevler Packaging Ltd UKEAT/0224/06 at para 24, HHJ Reid QC cited and followed Southampton City College v Randall. In London Borough of Barnet v Ferguson UKEAT 0220/06 I gave judgment on behalf of the EAT after Tarbuck, but before the hearing in this case, although a transcript has only just been produced. We followed Tarbuck for the reasons we there gave.
35. As we said at the hearing, in the light of such careful and recent examination of the central issue in this case by the President and members, we would have to find that approach wholly wrong in order not to follow it. We cannot say that. There plainly are arguments on both sides. It is in the interests of certainty at appellate level that we should not add further to the debate. We will, out of respect for the judgment in Tarbuck, follow it. It has to be said, however, that all employers should take heed of what the EAT said in Tarbuck about any failure to consider taking reasonable adjustments and to consult with a disabled employee. It should also be noted that in The Home Office v Collins (above) at paragraph 31, Pill LJ began his examination of this matter with the following words:

"31. It was necessary for the Appellants to consider their duty under s6 of the 1995 Act."

This authority was not shown to the EAT in Tarbuck. It was a case where there was consultation with the employee but she was not fit to return to work. We will return to this case when we consider the "trigger point".

36. As the Tribunal has recognised that the sole issue in the instant case was the failure of the Respondent "to consider" reasonable adjustments, and it found that it had so failed, this judgment is inconsistent with Tarbuck and cannot stand. It is true that there is some support for the contention that the Tribunal looked further into the duty as being one "to make these adjustments". But its repetition of the formula of a failure to consider throughout paragraph 4(e) cited above echoes the same frequent attention given to this word through the passages recording its findings, and indicates that this was the focus of the Tribunal's self-direction. It follows that this ground of appeal succeeds. We will deal with the outcome when we consider the next issue.

Consideration and consultation on adjustments

37. If Tarbuck is held to be wrongly decided, and we have wrongly followed it, we would hold that there was in any event consideration and consultation sufficient to meet the alternative line of authority: Mid-Staffordshire. The Tribunal upheld the Respondent's case that it would have entertained a phased return to work by the Claimant and if that could not have been achieved a suitable alternative offer would have been made. There is an express finding by the Tribunal that the relevant management "considered a variation of the Claimant's hours, partial tasks and placing the Claimant with other managers." It was never suggested that those were improper factors to consider or unreasonable adjustments to consider making. It will be recalled from the beginning of the citation of the Tribunal's reasons that the sole claim made by the Claimant was that she wanted to come back in a training role, but the Tribunal held that the Respondent was entitled to reject that.
38. The criticism made by the Tribunal is that the Respondent did not consider "physical support", essentially that the Claimant was overworked and inadequately supported. The Respondent failed to "spell out" how her new role could be organised. But, with respect, the citation of the evidence of the manager, Mrs Sullivan, does do precisely that. Further, it is clear from the evidence that there was consultation with the Claimant. There was a sequence of meetings which were expressly to deal with, as the Tribunal found, the "rehabilitation" of the Claimant. We take it that that means her reinstatement at work in an environment in which her disability does not put her at a disadvantage, precisely because the kind of factors we have cited above were considered. Yet that was met by a consistent certificated inability to return to work and at the same time a plea that she be retired on ill-health grounds. In any event, after 25 June 2002, some two years before the resignation, the Claimant had instructed all communication to go through her solicitor, which we accept was effectively tying the hands of the Respondent and making communication and meaningful consultation with her very difficult.
39. We would be very reticent about overturning a judgment made in such firm language as this about a miserable failure by the Respondent to consider reasonable adjustments. With respect, the findings do appear to be mutually inconsistent, for the kind of "physical support" envisaged by the Claimant is apt to include precisely those matters suggested by Ms Sullivan. It follows that on this ground, too, we would allow the appeal.

The trigger point

40. The question under this ground of appeal is when does any duty arise? For this it is necessary to consider the judgment of Pill LJ in The Home Office v Collins (above) where he said this:

"[31] It was necessary for the Appellants to consider their duty under s 6 of the 1995 Act. The requirement was triggered but in a situation where the proposed arrangement or adjustment suggested was a phased return to work and nothing else. Such a proposal does not fit easily into a section which contemplates adjustments to manage disability while at work but I assume, for present purposes, that it comes within the definition. That being so, and if, following the decision to grant a further medical assessment, the evidence in September 2002 had been that the Respondent was fit to commence a phased return to work, different considerations would have arisen. That was not the evidence, however, and given the length of the absence and other circumstances, s 6 did not require the Appellants to delay their decision further. Since the Respondent could not return to work at all, consideration of part-time working did not arise. Nor, on the present facts, was it incumbent on the Appellant to provide, or the employment tribunal to require them to provide, further financial or operational reasons why they should, by virtue of s 6, again have extended the period before which a decision to dismiss would be taken. The absence was of very considerable length.

[32] In my judgment, the employment tribunal were entitled to find that the employer had taken such steps as were reasonable, in all the circumstances of the case. That is the s 6 issue to which submissions have correctly been directed. If that is established, justification under s 5(1)(b) is also established. The factors which establish that there is no breach of the s 6 duty also establish justification under s 5(3) by providing a reason for dismissal which is material to the circumstances of the case and substantial. (Post Office v Jones [2001] EWCA Civ 558, [2001] ICR 805)

[33] The essential finding of fact is clearly stated, and repeated, in para 6 of the employment tribunal's decision and on the evidence was entirely justified. By September 2002, the Respondent had been absent from work for over a year and this had followed a poor attendance record during the first six months of employment. Two extensions of the probationary period had been granted. In January 2002, return to work in 6 to 8 weeks was contemplated. The Respondent had still not returned to work by September 2002 and the prognosis on 22 August was that the Respondent should be able to return, on a part-time basis, in "3/6 months". A sick note covering four weeks from 10 September 2002 was submitted. The Respondent had been kept informed of the position and interviewed.

[34] In those circumstances, the tribunal were entitled to conclude that it was reasonable for the Appellants not to pursue the possibility of a phased return to part-time work until the Respondent could indicate a definite date for her return to work for any period of time. The tribunal noted that all material times the Respondent was medically certified as unfit to return to work."

The application of that approach, with its trigger date, arises in connection with the Tribunal's finding that the failure was to provide physical support. Yet at all relevant times, the Claimant was presenting no willingness or ability to return to work, nor was that the medical evidence. The highest it could be put in the documents which were supplied to us, in addition to the core bundle, is that on 7 May 2004 the Respondent was in receipt of an eight-week medical certificate and as she had shown some improvement, the Respondent wished to have her medically examined again. It is true that as long ago as 4 February 2003 a consultant psychiatrist had indicated her opinion that the Claimant was fit to work, but that was not a consistent view or one which was taken at the time. Given that the Claimant was absent for three years, the Respondent's intention to obtain independent medical evidence of her fitness to return was entirely correct.

41. We consider Mr Mackay is correct when he analyses the Tribunal's findings. If these are that there was to be a reduction in the Claimant's working hours, a reduction in her on-call duties, or an increase in supervision and support, these could not have been effected until the Claimant was back at work or at least indicated with a start date when she would come back. We agree that a managed programme of rehabilitation depends on all the circumstances of the case, but it does include a return to work date. And certainly, if additional management and supervision is to be required, they must be arranged in advance and not in a vacuum. Similarly, if additional costs were to be incurred by (not this case) the purchase of new equipment to counteract the effect of the environment on the disabled person, there would be no need to spend that money in advance of a clear indication that the Claimant was returning. In our judgment, applying the trigger approach cited above, it was not reasonable for the Respondent to pursue the possibilities which the Tribunal noted until there was some sign on the horizon that the Claimant would be returning.
42. This authority was not cited to the Employment Tribunal. Had it been, we consider it would have been bound to have found that the duty to make reasonable adjustments had not been triggered by the time the Claimant resigned.

The utility of the adjustments

43. The Home Office v Collins is also relevant to this aspect of the appeal, this time through the judgment of Ouseley J. The proposition, which we accept, is that if an adjustment is not going to cure or limit the substantial disadvantage in which the disabled person is placed, it cannot be reasonable under the terms of the Act to make it. Ouseley J said this:

"[42] The step which it was said should reasonably have been taken for the purposes of s 6 of the 1995 Act was to offer part time work instead of full time work. Assuming that to be within the scope in principle of reasonable steps, such an offer would plainly not have been a reasonable step by reference to s 6(4)(a), because it could not prevent the effect in question. The employee was not ready to return to work after a long absence, even if part time work were offered, and whatever she herself might have hoped. As the ET found, she would not be ready to return for some months yet.

[43] The ET did not make the error attributed to it by the EAT of regarding the employer's policy of not offering part time work to someone until they were ready to return to work as the simple answer to the reasonableness of taking that step. It considered that issue in the light of the employee's employment history and prognosis as well. But it cannot be regarded as an irrational policy, even if it may not be the complete answer on reasonableness."

44. It follows from the above analysis that while the Claimant was unable or unwilling to give a return to work indication, any adjustments would be futile. She was, after all, indicating through her medical certificates that she was unfit to work at all. If the indication were that she was fit to work part-time, an adjustment would have to be made for that. But while she is incapable of all work, it does seem pointless to impose a duty on an employer to make adjustments in case she can return, unless there is some reasonable prospect of that occurring.
45. In any event, this criticism of the Respondent must be seen in context. The Claimant insisted on dealing through her solicitor, and was at the same time seeking to leave on ill-health retirement grounds. This is the antithesis of seeking to return to work through reasonable adjustments.

The time bar point

46. It is contended by the Respondent that on a proper analysis of the issues in this case, the claim of breach of duty was made out of time. There was no application to extend the time on the grounds that it was just and equitable to do so. The claim must be made within three months of a relevant act unless it is a continuing act. In Humphries v Chevler Packaging Ltd UKEAT/0224/06 HHJ Reid QC held that a DDA claim was out of time, since time ran from the date the employer made it clear that no further adjustment could be made, and not from the date of termination of employment. He said this:

"In my judgment neither of these points is a good one. The failure to make adjustments is an omission. The Respondents are omitting to do what (in the Appellant's case) they are obliged to do. They are not doing any act, continuing or otherwise. As is made clear by Southampton City College v Randall [2006] IRLR 18 a proper assessment of what is required to eliminate the disabled persons' disadvantage is a necessary part of the duty of reasonable adjustment, since the duty cannot be complied unless the employer makes a proper assessment. If there had (as the Appellant contends) been no proper assessment by 11 April it is clear from the letter that there was not going to be one thereafter. That is sufficient to bring paragraph 3(4)(a) into play."

47. It must be recalled that in our case the Claimant pled that the failure to consider adjustments took place in 2001. The Respondent accepts that if the breach was as the Tribunal determined a failure "to spell out" what it might do to facilitate her return, that would be a continuing breach, but it could not survive the instruction by the Claimant that any further communication should be through her lawyer and that there would be not meetings with her. Since the Tribunal found that the breach here was a failure to provide physical support, it was bound to say when that occurred and it did not. Applying logically the judgment in The Home Office v Collins, no breach could occur until an indication of a return to work was given and it never was.
48. We are asked by Ms Marsh to hold that HHJ Reid QC was wrong in his analysis. For the reason we have given above it is unnecessary for us to take that step. In any event we are not so minded. As the tribunal did not address the trigger point but seems to have confined itself to assuming there was a continuing act, we would hold that it approached this question correctly. As alleged, this was not a single one-off failure, but the continuing failure after numerous medical reviews to consider making the adjustments which the Claimant felt were appropriate.

The minority judgment

49. Mr Thomson differs from Mr Sibbald and me on certain aspects of this judgment. We all consider that consultation with a disabled employee is very important prior to a phased return to work. In this case, consultation was attenuated by reason of the Claimant's instructions. Nevertheless, there was reasonable consultation in the circumstances and there was consideration of the adjustments which should reasonable have been made. That being so, Mr Sibbald and I consider it unnecessary to take any view diverging from the Tarbuck judgment. Mr Thomson disagrees. In his opinion the effects of the decision in Tarbuck that there is no duty to consult with the employee would be contrary to the purpose of the DDA and specifically against the intention of S.6 on reasonable adjustments which is to get persons/employees into work, to stay at work, or return to work. See para 30 above. It is also contrary to the advice in the Code of Practice. The importance of consultation and consideration of all measures is crucial to achieving the intentions of the Act. An employer does not behave reasonably unless it consults with the employee as to what measures the employee envisages as being necessary to reduce the disadvantage as a disabled person returning to work. In the instant case, it was not disputed that the Claimant was disabled by stress and that she alleged it was caused by overwork. The effect of Tarbuck is that she could be expected to return to work without knowing what, if any, adjustments had been, or would be made to the conditions which disadvantaged her. In the event she did not return to work and this could be the outcome in similar cases. He would thus support the line of authorities stemming from Mid-Staffordshire. Apart from that, the judgment is unanimous.

Disposal

50. If the only errors we had found in this judgment were the failure to consider justification, and the misdirection in relation to Tarbuck, it would be appropriate for us to remit this case, and to remit it to the same Employment Tribunal, it having found partly in favour and partly against the parties. However, none of these points, even if reconsidered, can overcome the fatal effect of this judgment on the trigger point. As we have we hope demonstrated, the degree of error in this case would make it inappropriate for it to be remitted. The judgment is set aside and the appeal is allowed.
51. We are grateful to both Mr Mackay and Ms Marsh for their very helpful oral and written submissions in this case which we have not found easy to resolve.