United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MARTIN KURREIN (of Counsel) Instructed by: Disability Rights Commission 2nd Floor Arndale House The Arndale Centre Manchester M4 3AQ
For the Respondent	DAMIAN McCARTHY (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors Swinton House 324 Grays Inn Road London WC1X 8DH


 


THE HONOURABLE MRS JUSTICE COX

Introduction

1. This is an appeal from the decision of an Ashford Employment Tribunal, promulgated on 30 October 2002, dismissing the Appellant's complaint of unlawful discrimination contrary to the Disability Discrimination Act 1995 ("the Act").
2. The Appellant (Mr Paul) is a disabled person within the definition of section 1 of the Act by virtue of a chronic depressive illness, for which he is under the care of a consultant psychiatrist. In November 2001 he applied to the Respondents for the position of part-time Community Service Supervisor, working on approximately one day per week. He attended an interview, during which he volunteered information concerning his disability. The Respondents then offered him the job subject to a satisfactory Occupational Health report. Following receipt of the Occupational Health Advisor's report the Respondents wrote to Mr Paul on 16 January 2002, informing him that they were withdrawing their offer of employment due to an unsatisfactory Occupational Health report. This remained their decision after further communication with Mr Paul and, on 11 February 2002, he submitted his Originating Application to the Tribunal complaining of disability discrimination. The Respondents resisted the claim, contending that they were entitled to withdraw the offer of employment on the basis of the Occupational Health advice they had received.
3. The Tribunal accepted the Respondents' submissions and decided that the Respondents were justified in withdrawing their offer of employment. The issue in this appeal is whether, as the Appellant contends, the Tribunal erred in law in their approach to the provisions of sections 5 and 6 of the Act and in arriving at their conclusion as to justification. Mr Paul appeared in person below but was represented before us by Martin Kurrein of counsel, with the assistance of the Disability Rights Commission. Damian McCarthy of counsel appeared on behalf of the Respondents both before us and below. We are grateful to both Counsel for their assistance in this appeal.

The Relevant Facts

4. The facts found by the Tribunal are set out in paragraphs 2 to 19 of the Extended Reasons. There was no dispute that Mr Paul had a disability within the meaning of section 1 of the Act, in that he had a chronic, depressive illness constituting a 'mental impairment' and had been under the care of a consultant psychiatrist since February 2000. Although he had not been in paid employment since 1994 he had, however, been doing voluntary work with young people and for the Victim Support Scheme and was also doing some private teaching and part-time work as a self-employed carpenter and plumber.
5. In November 2001 Mr Paul applied separately for two positions with the Respondents, namely the position of part-time handyman, working three hours per week, and the position of part-time Community Service Supervisor ("CSS"), working on one day per week supervising groups of convicted offenders sentenced to undertake community service and organising their work. He received a favourable reference from Victim Support, the organisation for which he had been doing voluntary work for a number of years. The Tribunal found that he was highly regarded by them (see paragraph 27 of their Reasons).
6. At interview for the CSS post the Tribunal found that Mr Paul volunteered information concerning his disability and that, after considering the matter, the panel decided to offer him the position subject to, amongst other things (irrelevant in this case), a satisfactory Occupational Health report. This is standard procedure, all positions with the Respondents being offered on this basis. Mr Paul completed an Occupational Health questionnaire, indicating that he had a depressive condition, was under the care of a psychiatrist and on medication and that he was unable to work full-time. Subsequently he was interviewed for the handyman post and was offered this post subject to the same condition, namely receipt of a satisfactory Occupational Health report.
7. The completed questionnaire was sent to Mrs Bader, an experienced Occupational Health Advisor employed by Kent County Council and providing Occupational Health services for the Respondents, and they asked her to make an assessment of Mr Paul for both positions. Due to the information on the questionnaire Mrs Bader asked for a report, not from the consultant psychiatrist treating Mr Paul but from his GP. This report stated as follows (see paragraph 10 of the Reasons):

10 "Mr Paul's medical records indicate that he first experienced panic attacks during 1991. This was thought to be due to his inability to handle stress in life and he also had some financial pressures at that time. He was referred to a Psychologist at All Saints Hospital, in Chatham. Assessment by the Psychologist revealed that his then problems were due to his unhappy childhood, during which time it was felt that he probably suffered emotional neglect from his mother. There were also some difficulties in his marriage and business. In spite of psychological intervention, and counselling his depression and anxiety continued into 1996. During 1997 he was assessed by a Psychiatrist in Medway Hospital, who felt that Mr Paul was not exhibiting any signs of depression and he was accordingly referred for counselling service, from which he appeared to have benefited, according to the counsellor's closing report in February 1997. He was reviewed by Dr H Youssef, Consultant Psychiatrist, in Medway Hospital, during December 1997 and he felt that Mr Paul was not suffering any major depressive illness, or hypermania, but basically was a cyclothymic personality and advised him to reduce the dose of Seroxat, on which he has been for a considerable length of time. Mr Paul continues to be under regular follow-up, under the care of a Consultant Psychiatrist and he is on long-term medication with Fluoxetine, for his chronic depressive illness.

In view of the chronicity of his problem, the prognosis has got to be guarded and he is likely to be on medication for his illness for the foreseeable future.

Dr. M R Sastry"

8. The Tribunal found, at paragraphs 11 and 12:

11 "Mrs Bader took the view that the post of Community Service Supervisor was particularly stressful and she was aware of people who had had to take sick leave from that position because of its challenging and stressful nature. She formed this view because of the fact that the supervisor is solely responsible for the organisation of the work, provision of the materials and tools, and driving the offenders to the site. In addition, she considered that coping with the challenging behaviour of some offenders was also stressful.

12 Having considered the completed occupational health questionnaire and the doctor's report, Mrs Bader formed the view that it would not be fair on Mr Paul to put him in such a stressful job, albeit only for one day a week. She considered, particularly given his lengthy absence from employment, that it would be best to put him in a stress-free job and review his progress. She felt that his situation should be reviewed in three months and the Community Service Supervisor job could then be offered to him if he was reassessed as fit. Such reassessment would involve a review of his sickness absence during the three months, his work performance and a further health review. Mrs Bader therefore informed the Respondent of her conclusions and recommended that Mr Paul was fit for the handyman role, but that he was not currently fit to undertake the CSS role. She also recommended that the situation should be reviewed in three months time."

9. After discussing the matter with Mrs Bader, Miss Dill of the Respondents wrote to Mr Paul informing him:

"Unfortunately due to an unsatisfactory Occupational Health report we are having to withdraw the offer of employment and are unable to process your application any further. If you require further information regarding this please contact an Occupational Health Advisor."

She suggested that if he was still interested in the post after three months he was to contact the acting community service manager who would discuss a further referral to Occupational Health. Mr Paul was offered the handyman's position and took that up, but he expressed his dissatisfaction with the withdrawal of the CSS offer. At paragraph 16 the Tribunal found:

16 "Mr Paul had contacted Mrs Bader after the offer of employment was withdrawn. He had told her that his consultant psychiatrist fully supported him working, that his new doctor did not know him well as he had hardly seen him, and that he had been accepted to do supply teaching. He asked her if he could provide further evidence, but she told him that the decision was a management decision and referred him back to the Personnel Department."

It is clear from paragraph 20 that Mr Paul's evidence to the Tribunal was also that his GP did not know him well and had only seen him a few times.

10. On 1 February Miss Dill wrote to Mr Paul again stating:

"As you are aware the offer of employment was subject to a satisfactory medical report from Occupational Health who assess all pre employment medical questionnaires. The OH Adviser gathered further information from your local GP and the conclusion was drawn that at present you were 'unfit' for the position of Community Service Supervisor. This decision was based on your pre employment medical questionnaire and the report from your GP.

OH wanted to ensure that your return to employment after a long period of time of being unable to work was phased and that at present the role of CSS would not be appropriate. However, if you are still interested in this area of work in three months time, and a suitable vacancy is available, please contact the CS department and a further review of your health can be carried out by OH.

With regards to your contact with Occupational Health, I would like to apologise for the way you felt you had been dismissed and not communicated to appropriately."

11. At paragraph 19 the Tribunal found:

19 "Miss Banfield had applied for the position of Community Service Supervisor at the same time as Mr Paul and had been accepted. She gave evidence that she had been gradually inducted into the role, had shadowed another supervisor on five or six days, had been asked if she felt that she was capable of taking her own group before being allocated such a group, and had been advised that she could use the mobile phone provided if she encountered any problems with her group. She also testified that the known trouble-makers or offenders with previous convictions are placed with the most experienced supervisors."

The Tribunal's Decision

12. At paragraphs 20 to 23 the Tribunal directed themselves as to the law. They recognised at paragraph 20 that Mr Paul's complaint encompassed the provisions of both sections 5 (1) and (2) of the Act and they set out those two subsections. At paragraphs 21 to 23 they directed themselves as follows:

21 "The failure by the Respondent to allow the Applicant to take up the post of Community Service Supervisor, which had been offered to him, because of his disability clearly falls within section 5(1)(a) since it was the Applicant's mental impairment which prevented him from being allowed to take up the post, and the Tribunal is not required to do any more than make that finding in order for the discrimination to have occurred (Clark v Novacold Ltd [1999] IRLR 318 CA). As regards section 5(2) of the Act, the arrangements for deciding to whom employment shall be offered do place the Applicant, as a disabled person, at a substantial disadvantage in comparison with persons who are not disabled, by having a requirement that all posts will be offered subject to occupational health clearance.

22 The only question for us to decide therefore is whether the Respondent can show to the Tribunal that the withdrawal of the offer of employment was justified since we cannot envisage any arrangements which could be made to obviate the disadvantage to the Applicant in having that requirement other than to abolish it altogether.

23 By section 5 (3) and (4), justification can be shown if the reason for the treatment or the failure to make adjustments is both material to the circumstances of the particular case and substantial."

No other provisions of the Act are referred to and nowhere in the Reasons is there any reference to the Code of Practice issued by the Secretary of State for Education and Employment pursuant to section 53 (1) (a) of the Act, which came into force in December 1996. It is clear that the Tribunal considered justification to be the only issue they had to determine in this case.

13. After referring to the Respondent's submissions the Tribunal stated at paragraph 26:

26 "It is clear that there were in fact a number of steps which Mrs Bader could have taken, any of which might have altered her view about the Applicant's fitness for the post. Firstly, she could have examined Mr Paul herself. It is not her practice to examine applicants because of the volume of referrals being dealt with by the Occupational Health Department of Kent County Council. Secondly, she could have considered obtaining a report from the psychiatrist, Dr. Amin. Thirdly, she could have spoken to Mr Paul's general practitioner or to the psychiatrist with a view to obtaining further information. Finally, she could have allowed Mr Paul to provide her with further information as he had requested."

At paragraph 27 they also referred to a report from Dr. Amin, the treating consultant psychiatrist, dated May 2002 which was before the Tribunal and which included the following statement: "Although he presents with some motor and verbal ticks he appears to be in full remission with no evidence of depressive symptoms." However, they went on to direct themselves that:

27 "In considering the materiality and substantiality of the Respondent's reason for withdrawing the offer of employment as a Community Service Supervisor to the Applicant, however, we must respect the Respondents' opinion if it is not unreasonable and if the reason given is material and substantial."

They had regard to the case of Post Office v Jones [2001] ICR 805 and in particular to the following passage in the judgment of the Court of Appeal:

"A Tribunal is not permitted to make up its mind on justification on the basis of its own appraisal of the medical evidence and to conclude that the reason is not material or substantial because the medical opinion, on the basis of which the employer's decision was made, is thought to be inferior to a different medical opinion expressed to the Tribunal."

14. The Tribunal's conclusions were then set out at paragraphs 29 to 33 as follows:

29 "Mrs Bader is not a doctor, but she has been working in the occupational health field for 15 years and she based her opinion about the Applicant's suitability for the post of Community Service Supervisor upon the report from the Applicant's own doctor and the fact that the Applicant had not been in paid employment for a number of years.

30 In considering the reasonableness of Mrs Bader's opinion, we have borne in mind that she was ready to declare the Applicant fit to carry out the role of handyman and that she invited the Applicant to reapply for the position of Community Service Supervisor in three months time, giving an indication that clearance would be given if all had gone well in that three-month period. That approach was not unreasonable in the circumstances.

31 We do have some misgivings about the Respondent's reliance upon Mrs Bader's opinion, having regard to Mrs Bader's failure to see the Applicant, to consult further with his general practitioner or with his psychiatric consultant, or to allow him to present further information to her. We understand however that the provision of occupational health services to Kent County Council and to other organisations may well mean that the taking of steps such as these would not have been practicable. It is the Respondent's actions in accepting the occupational health report which we have to look at in deciding whether the Respondent has proved justification. We cannot find that the Respondent was unreasonable not to demand that further health checks were made by the Occupational Health Department of Kent County Council. The report which had been obtained from the Applicant's doctor did identify the possibility of a person with a chronic depressive illness being unable to cope with the demands of a stressful, pressured job working with aggressive confrontational individuals. Those factors were material to the circumstances of the particular case and substantial. In addition, we do not consider that any other prognosis could have excluded that possibility in the light of the Applicant's medical history.

32 Had the Respondent closed the door on any possibility that the Applicant could ever do the work of a Community Service Supervisor, we might have concluded that the Respondent had not discharged the onus of showing justification. That was not the case.

33 For these reasons, we find that the Respondent was justified in withdrawing the offer of employment as a Community Service Supervisor made to the Applicant conditionally upon his obtaining occupational health clearance, with an added proviso that were he able to show the Respondent that he was able to carry out the role of handyman for a three-month period, they would then reconsider the matter if he so wished and if there were a vacancy."

The Law

15. Part II of the Act contains provisions dealing with discrimination by employers against both disabled applicants for employment and disabled employees. Mr Paul's complaint was of unlawful discrimination by the Respondents contrary to both section 5 (1) and section 5 (2) of the Act and the relevant provisions are as follows:

5 "Meaning of 'Discrimination'

(1) For the purpose 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.

(5) If, in a case falling within subsection (1), the employer is under a section 6 duty in relation to the disabled person but fails without justification to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 6 duty.

6 Duty of Employer to make Adjustments

(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.

(2) Subsection (1) (a) applies only in relation to-

(a) arrangements for determining to whom employment should be offered;

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

(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

(d) and the extent to which taking it would disrupt any of his activities;

(e) the extent of the employer's financial or other resources;

(f) 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).

(5) In this section, 'the disabled person concerned' means -

(a) in the case of arrangements for determining to whom employment should be offered, any disabled person who is, or has notified the employer that he may be, an applicant for that employment;

(b) in any other case, a disabled person who is-

(i) an applicant for the employment concerned; or

(ii) an employee of the employer concerned."

16. Pursuant to the power given to the Secretary of State in section 53 of the Act to prepare a Code of Practice, admissible in evidence in any proceedings under the Act before an Employment Tribunal or Court, section 53 (6) provides that:

(6) "If any provision of a Code appears to a tribunal or court to be relevant to any question arising in any proceedings under this Act, it shall be taken into account in determining that question."

In Ridout v T.C. Group [1998] IRLR 628 this Appeal Tribunal at paragraph 28 stressed the importance of Tribunals consulting the Code of Practice. Whilst that case concerned section 6 (6) and whether the employer knew or ought to have known of the applicant's disability the remarks were of general application and we endorse them. The Code provides much practical guidance to help employers in eliminating discrimination and is, where relevant, of considerable assistance to Tribunals interpreting the Act and considering an employer's acts or omissions.

17. In Post Office v Jones an employee working as a delivery driver was a diabetic, suffered a heart attack and became dependent on insulin treatment. He was initially told that he could no longer carry out driving duties but, after consulting their principal medical adviser, the Post Office offered him a return to limited driving duties. The employee rejected that offer and complained of unlawful disability discrimination. The Tribunal found that the deterioration of the employee's condition had made no material difference to the existing risk and that the Post Office had therefore failed to justify the less favourable treatment under section 5 (1) (b) and (3). It upheld his complaint. The EAT allowed an appeal by the Post Office and remitted the question of justification for rehearing. The Court of Appeal, who dealt only with discrimination contrary to section 5 (1) and (3) dismissed the employee's appeal, holding that in a case involving assessment of risk the statute did not confer on an Employment Tribunal a general power and duty to decide whether the employer's assessment of risk was correct; that section 5 (3) in its context restricted the Tribunal to considering whether the reason given by the employer for the less favourable treatment met the statutory criteria, namely, whether it could properly be described as both material to the circumstances of the particular case and substantial. Accordingly, where a properly conducted risk assessment by the employer provided a reason which was not simply an assertion that its conduct was reasonable in a general way but was on its face both material and substantial and was not irrational, the Tribunal was not entitled to substitute its own appraisal of the medical evidence; and that the Appeal Tribunal had been right to set aside the Employment Tribunal's decision in respect of the employer's decision relating to the applicant's driving duties and to remit the matter for rehearing. At page 814 at paragraphs 25 and 26 of his judgment Pill LJ stated:

25 "Upon a consideration of the wording of section 5 (3) in context, I conclude that the employment tribunal are confined to considering whether the reason given for the less favourable treatment can properly be described as both material to the circumstances of the particular case and substantial. The less favourable treatment in the present case is the limit upon the hours of driving. The reason given for it is the risk arising from longer periods of driving. The employer obtained what are admitted to be suitably qualified and expert medical opinions. Upon the basis of those opinions the employer decided that the risk was such as to require the less favourable treatment. In order to rely on section 5 (3) it is not enough for the employer to assert that his conduct was reasonable in a general way; he has to establish that the reason given satisfies the statutory criteria. The employer asserted in this case that the risk arising from the presence of diabetes is material to the circumstances of the particular case and is substantial. Where a properly conducted risk assessment provides a reason which is on its face both material and substantial, and is not irrational, the tribunal cannot substitute its own appraisal. The employment tribunal must consider whether the reason meets the statutory criteria; it does not have the more general power to make its own appraisal of the medical evidence and conclude that the evidence from admittedly competent medical witnesses was incorrect or make its own risk assessment.

26 The present problem will typically arise when a risk assessment is involved. I am not doubting that the employment tribunal is permitted to investigate facts, for example as to the time-keeping record of the disabled person or as to his rate of productivity, matters which would arise upon some of the illustrations given in the Code of Practice. Consideration of the statutory criteria may also involve an assessment of the employer's decision to the extent of considering whether there was evidence on the basis of which a decision could properly be taken. Thus if no risk assessment was made or a decision was taken otherwise than on the basis of appropriate medical evidence, or was an irrational decision as being beyond the range of responses open to a reasonable decision maker, a test approved by Sir Thomas Bingham MR in a different context in R v Ministry of Defence, Ex p Smith [1996] ICR 740, 777-778, the employment tribunal could hold the reason insufficient and the treatment unjustified."

At page 816 Kay LJ observed at paragraph 32:

32 "In a case such as the present one where evidence, medical or otherwise, which was not available to the employer is put before the tribunal, provided the employer has taken into account all the evidence reasonably available to it, including if medical issues are raised, sufficiently well-qualified expert medical evidence, then the fact that other evidence is available by the time of the hearing cannot render the treatment unjustified."

The Parties' Submissions

18. Mr Kurrein submits that the Tribunal erred because they failed to direct themselves correctly as to the provisions of sections 5 and 6 and failed to draw a proper distinction between the relevant elements of the section 5 (1) and section 5 (2) complaints pursued by Mr Paul. He contends that they did not have regard to section 5 (5), which required them logically to resolve the section 5 (2) complaint first, that they conflated the two separate complaints and the issue of justification and did not expressly determine the section 5 (2) complaint. In relation to section 5 (2) they concluded that the only arrangement which was disadvantageous to Mr Paul under section 6 (1) (a) was the requirement that all posts are offered subject to Occupational Health clearance. They did not consider section 6 (2) (a) and (b) and the real condition which the Respondents applied in this case which was that, in order to fulfil the duties of a CSS, Mr Paul should be able to withstand stress. They should then have considered whether the Respondents had taken reasonable steps to prevent that condition disadvantaging Mr Paul. They did not have regard to the Code of Practice, which contains paragraphs of relevance to the question they had to determine and which it was mandatory for them to have regard to. Even in relation to the arrangement which they did identify, Mr Kurrein submits that the Tribunal failed to consider whether the Respondents had taken reasonable steps to prevent the Occupational Health assessment disadvantaging Mr Paul. He therefore submits that the decision was flawed because the Tribunal failed properly to consider reasonable adjustments and to make findings in accordance with section 5 (5) and, further, failed properly to consider justification under both section 5 (2) and section 5 (1). Even if the failure properly to consider section 5 (5) was not fatal to the decision, they erred in law in failing to consider the extent to which the requirements of section 6 (4) had been satisfied in relation to the misgivings they identified in paragraph 31 and the steps which could have been taken (see paragraph 26).
19. Mr McCarthy, on behalf of the Respondents, acknowledged that the decision could have been better drafted and that the omission of any reference to section 6 was unfortunate. However, he submitted that there was no error of law in the Tribunal's reasoning and that they had addressed all the issues even though they had not expressly referred to them. Given the chronic nature of Mr Paul's condition, as found by the Tribunal, they were entitled readily to conclude that any reasonable adjustments were impracticable without the necessity to go through the statutory checklist or to refer expressly to the statutory provisions. The Tribunal's decision was expressed as shorthand for the statutory procedure, which they did in fact follow and which is implicit in their decision. They clearly felt that the Code of Practice was not relevant which is why they have not referred to it. Recognising that the Respondents might have done more, as they do at paragraph 31 of their Reasons, does not mean that the Tribunal erred in law. The Respondents were entitled to rely on the GP's report, the information contained in the questionnaire and their Occupational Health advice. There was an appropriate and reasonable medical enquiry and the Tribunal cannot substitute their own view as to the medical evidence.

Our Conclusions

20. It is common ground that, by withdrawing their offer, there was a refusal of employment by the Respondents within the meaning of section 4 (1) of the Act. It is also common ground that, as the Tribunal recognised, Mr Paul was complaining about discrimination contrary to both sections 5 (1) and 5 (2) of the Act. These sections raise discrete issues and should be considered separately by a Tribunal. In a case such as the present involving the refusal of employment, by virtue of section 5 (2) an employer must justify any failure to comply with the section 6 duty to make reasonable adjustments. Under section 5 (1) an employer must justify the refusal of employment. By virtue of the provisions of section 5 (5), the inter-dependency of these subsections is such that the Tribunal should have asked themselves the following questions:

(i) "For a reason which relates to Mr Paul's disability, did the Respondents treat him less favourably than they treated or would have treated others to whom that reason did or would not apply?

(ii) Were the Respondents under a section 6 duty in relation to Mr Paul, that is:

(a) Did arrangements made by the Respondents for offering employment place Mr Paul at a substantial disadvantage in comparison with non-disabled persons?

(b) If so, did the Respondent's fail to take such steps as it was reasonable for them to have to take in all the circumstances in order to prevent the arrangements having that effect?"

If the Tribunal answered this question in the negative there would be no need to consider justification and the section 5 (2) claim has failed. In answering this question however the Tribunal should have regard to the provisions of section 6 (3) and (4).

(iii) "If the Respondents did fail to take a step or steps which it was reasonable for them to have to take, have they shown that their failure is justified, that is, shown that the reason for their failure to comply is material to the circumstances of the case and substantial?"

If so the section 5 (2) claim fails. If not the section 5 (2) claim succeeds and the Tribunal must then return to section 5 (1). If the Respondents have not shown that their failure to make reasonable adjustments was justified then their less favourable treatment of Mr Paul cannot be justified under section 5 (1) (b) unless the treatment would have been justified even after those adjustments had been made. Thus the Tribunal should ask:

(iv) "Would the Respondents' treatment of Mr Paul have been justified even if they had complied with their duty to make reasonable adjustments?"

If so the section 5 (1) claim fails. If they answer that question in the negative however the claim succeeds.

21. Whilst we accept that there is no requirement for a Tribunal always to follow a rigid, formulaic approach to the questions to be asked, we consider that it must be possible (a) to discern from their reasons that they have applied the relevant statutory provisions correctly and taken into account the Code of Practice if relevant; and (b) to understand the reasons for their decision. The parties must know why they have won or lost.
22. Examining this Tribunal's approach to the statutory provisions it is clear, firstly, that the Tribunal found that the Respondents treated Mr Paul less favourably than others for a reason relating to his disability (paragraph 21) and this is not in dispute. The Respondents decided to withdraw their offer of employment as CSS because of the Occupational Health Adviser's assessment that Mr Paul was 'unfit' for the CSS position (see paragraphs 13 and 15), on which they relied. This assessment was based on Mr Paul's answers to questionnaire and the report from his GP and clearly related to his disability, namely mental impairment due to a chronic, depressive illness.
23. Secondly, in considering the section 6 duty, the Tribunal found (paragraph 21) that Mr Paul as a disabled person was placed at a substantial disadvantage, compared with non-disabled persons, by the Respondents' requirement that all posts will be offered subject to Occupational Health clearance. However, in our judgment, the Tribunal were wrong to identify the requirement for Occupational Health clearance as a discriminatory requirement within the meaning of section 6. It was the Respondents' policy to offer all prospective employees employment subject to Occupational Health clearance. In many cases, having a disability does not adversely affect an individual's general health and the Occupational Health assessment will not lead to a refusal of employment unless the disability affects the applicant's ability to do the work and no reasonable adjustments can be made. The existence of a disability does not of itself therefore substantially disadvantage a disabled person who is subject to this general requirement. Mr Paul was not placed at a substantial disadvantage in comparison with persons who are not disabled merely because of the need for Occupational Health clearance.
24. The substantial disadvantage to Mr Paul arose essentially from the Occupational Health Adviser's assessment as to the challenging and stressful nature of the CSS post and Mr Paul's unfitness for it, due to the information in the questionnaire and the GP's report and to his lengthy absence from paid employment. This assessment was part of the arrangements for determining to whom employment should be offered and placed Mr Paul at a substantial disadvantage in comparison with persons who were not disabled.
25. It was therefore necessary for the Tribunal to consider whether the Respondents failed to take reasonable steps to prevent Mr Paul being disadvantaged in this way. However, having misidentified the 'arrangement', the Tribunal concluded that they could not envisage any arrangements to obviate the disadvantage other than abolishing the requirement for Occupational Health clearance altogether. This we find was an error because it led the Tribunal straight to the issue of justification, which they saw as the only question they had to decide. They therefore omitted any consideration of reasonable adjustments and the Respondents' section 6 duty and of any paragraphs of the Code of Practice, if relevant, though it is not difficult to identify from the Tribunal's decision potentially reasonable steps that the Respondents could have taken to comply with their duty to prevent disadvantage to Mr Paul.
26. Firstly, they could have scrutinised the Occupational Health assessment with more care. Whilst they give, and the Tribunal find, the reason for withdrawal of the employment offer as Mr Paul's unfitness for work as a CSS, the GP's report in fact makes no reference to his fitness for the post. The GP refers only to a chronic condition, which will probably continue to require medication in the future and to the fact that on review in 1997 his consultant considered that he was not suffering any major depressive illness. Further the Tribunal find that Mr Paul contacted Mrs Bader and told her that his consultant fully supported him working, that the GP did not know him well as he had hardly seen him and that he had recently been accepted as a supply teacher.
27. Secondly, the Tribunal accepted the evidence of Miss Banfield, the successful applicant for the post of CSS, that she had been gradually inducted into the role, had shadowed another supervisor on five or six days, that she had been consulted before being allocated a group of offenders of her own and that known troublemakers or offenders with previous convictions were placed with the most experienced supervisors.
28. It seems to us that the Tribunal should have considered, amongst other things, having regard to the provisions of section 6 (3) and (4), whether it would have been a reasonable step in the circumstances for the Respondents to prevent disadvantage to Mr Paul:

(i) by obtaining appropriate specialist advice from Mr Paul's treating consultant on the issue of his fitness for the CSS post. On this issue they may have considered it relevant to look at the Code of Practice and in particular paragraph 5.24 which deals with how employers should take account of medical evidence and which states amongst other things:

"Advice from an Occupational Health expert simply that an employee was 'unfit for work' would not mean that the employer's duty to make a reasonable adjustment was waived".

Other paragraphs of the Code which may have been of particular relevance in this case are those at 3.1, 3.2, 3.3, 4.16, 5.2 and 6.3. Clearly, the resources available to the Respondents as an organisation would be relevant to these considerations;

(ii) by speaking further to Mr Paul following receipt of the GP's report and if appropriate referring the matter back to Mrs Bader;

(iii) by taking any steps in relation to adjusting the job they had already offered Mr Paul, for example increasing his period of induction and/or the training or supervisory periods.

Having undertaken such adjustments as were considered reasonable the Respondents could then have referred the matter back to Mrs Bader to enable her to make a final assessment as to Mr Paul's fitness, having regard to these adjustments. The Tribunal were clearly troubled by some aspects of the evidence in this case (see paragraphs 26 and 31) and yet they never considered these matters in the context of the section 6 duty and reasonable adjustments. We consider that they should have done.

29. In our judgment the Tribunal's failure to consider all these issues was an error, which prevented them from proceeding to answer the third and fourth questions above correctly and means that their decision cannot stand. This error is fatal to the finding that the discrimination contrary to section 5 (2) was justified, which seems in any event to be an implied decision because it is nowhere referred to expressly. It is also fatal to their findings as to justification under section 5 (1) because the Tribunal were not in a position to make the findings they were required to make by virtue of section 5 (5), to which they make no reference. The refusal of employment to Mr Paul contrary to section 5 (1) (a), if the Respondents have not made any reasonable adjustments, cannot be held to be justified, when the consequences of such adjustments may well have been that there would not have been such a refusal in the first place.
30. Even if we are wrong in our view that this Tribunal misidentified the arrangement and that the requirement for an Occupational Health assessment was the requirement which substantially disadvantaged Mr Paul, we consider that the Tribunal still erred in moving immediately to the question of justification and not first considering the Respondent's section 6 duty. The misgivings expressed by the Tribunal in paragraphs 26 and 31 should have been considered in the context of that duty and the reasonableness of any adjustments; and the same points made above in paragraphs 26 to 28 of this judgment would apply here.
31. Further, the Tribunal's reliance on the case of Post Office v Jones in this context seems to us to be misplaced. That authority decides that a Tribunal is not permitted to make up its own mind on justification on the basis of its own appraisal of an employer's medical evidence, when there has been a properly conducted risk assessment by reference to competent and suitably qualified medical opinion. The nature and quality of the GP's evidence in this case was plainly in issue before the Tribunal, as it had been when the matter was being considered by the Respondents, since the GP had never treated Mr Paul for his condition, did not know him well and said nothing in his report about his fitness for the CSS post or his ability to cope with stress. No approach was ever made to Mr Paul's treating consultant, who could have provided an assessment of the kind required.
32. Finally, we are not persuaded by Mr McCarthy's submissions that the offer of the handyman's post was a reasonable adjustment by the Respondents. We agree with Mr Kurrein's submission that this was always a completely separate employment application and it does not seem to us to have any bearing on the Respondents' duty in relation to his application for the CSS post. Nor do we accept the submission made as to the legal obligation on the Respondents to avoid subjecting Mr Paul to any risks of stress related illness, which justified their withdrawal of the employment offer. Mr McCarthy based his submissions on a recent decision in the Court of Appeal, namely Sutherland and Others v Somerset County Council and Others [2002] IRLR 263 dealing with the duty of care in this respect owed by employers to their employees and in particular to vulnerable employees. However, there is no suggestion in this Tribunal's decision that the Respondents' duty of care to Mr Paul or any liability they might have for causing him to suffer any stress related illness in the post was relied on by the Respondents at the time of the withdrawal of their offer. It does not appear to have been relevant in any way to the Respondents' decision, nor was it referred to by Mrs Bader. There is only one reference in paragraph 12 of the Tribunal's Reasons to her view that it would not be 'fair' on Mr Paul to put him in a stressful job. However, this is the only time it is mentioned, the Respondents do not refer to it in their letter of withdrawal and in any event it does not amount to the same point Mr McCarthy now seeks to take, which relates to the duty of care owed by an employer. We are not satisfied that concern over a potential liability for the Respondents and/or their duty of care to Mr Paul were live issues, either at the time of the withdrawal of the offer or of the hearing before the Tribunal. If it had been then it would no doubt have been one of the factors to be taken into account.
33. For these reasons we allow this appeal and order that the matter be remitted to a freshly constituted Tribunal for rehearing.