United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PAUL CADNEY (of Counsel) Instructed by: Messrs Davies and Partners Solicitors 135 Aztec West Almondsbury Bristol BS32 4UB
For the Respondent	MR DAVID READE (of Counsel) Instructed by: ABA Law 8 Palm Court Rochester Gardens Hove East Sussex BN3 3AY


 


THE HONOURABLE MR JUSTICE WALL

1. In this appeal, the University of Brighton ("the University") appeals against the unanimous decision of the Employment Tribunal held at Brighton on 4 & 5 February 2002, 18 & 19 March 2002 with 20 March 2002 comprising a reserved decision discussion in chambers. The decision itself was promulgated on 14 May 2002. It was that the University had discriminated against the Applicant before the Tribunal Thalia Tabary-Peterssen ("the Applicant") contrary to the provisions of section 5 (1) and (2) of the Disability Discrimination Act 1995 ("the Act").
2. Section 1 (1) of the Act defines disability as "a physical or mental impairment which has a substantial and long term adverse effect" on a person's ability to carry out normal day to day activities. Section 5 (1) of the Act, which is headed "Meaning of discrimination" reads: -

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

(a) or 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. Section 6 of the Act, which is headed "Duty of employer to make adjustments" reads as follows: -

6 (1) "Where –

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

(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)…

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

(d) altering his working hours;

(e) assigning him to a different place of work…"

4. The Tribunal also made reference during the course of its reasons to the Code of Practice for the elimination of discrimination in the field of employment against disabled persons or persons who have had a disability (1996/1396), and in particular to paragraphs 3.1, 3.2, 3.3 and 3.4 of the Code of Practice. We do not, however, think it necessary at this point to set out those provisions.

The Facts

5. The Applicant was employed by the University with effect from 5 September 1994 as a senior lecturer in the Department of Library and Information Studies. It was common ground before the Tribunal that the Applicant is disabled. She suffers from Chronic Fatigue Syndrome ("CFS") and the University accepted that she was a disabled person within the meaning of section 1 of the Act.
6. Despite that concession, a point arises in this appeal as to the nature of the Applicant's disability, because she also suffered from severe migraine headaches, which affected her ability to lecture. We will deal with this point in more detail in due course.
7. In order to explain the basis of the Applicant's case it is necessary for us to set out the facts in some detail. In so doing, we follow the logic and order of the Tribunal's Reasons.
8. In the background to the current dispute was a disagreement between the Applicant and Professor Enser, the head of the Applicant's school. They had disagreed over the timetabling and the allocation of work for the Applicant before the onset of the Applicant's disability. The disagreement was based essentially on a different interpretation of the amount of time which should be spent on the delivery of some of the Applicant's modules. Professor Enser took the view that these modules could be approached more efficiently, thereby reducing the time allocated, whereas the Applicant felt from her experience that Professor Enser was being unreasonably optimistic in relation to the amount of time which could be saved.
9. Paragraph 8 of the Tribunal's reasons begins with this sentence: - "The Applicant reported sick on 11 August 1999, and has never returned to work". The date is uncontentious. That was, indeed, the date she reported sick. Whether she had returned to work was, however, in issue. The University's case was that she had never returned to work after 11 August 1999 as the Tribunal stated. The Applicant's case was that she had returned to work, albeit that she had not attended the University premises to lecture or for other teaching purposes. For reasons which will become apparent, Mr Paul Cadney, for the University, puts the Tribunal's finding that the Applicant never returned to work after 11 August 1999 at the forefront of his submissions. He also criticises the Tribunal for not making a finding as to why it was that the Applicant had not returned to work, although he submits that the plain implication of the sentence we have cited is that the Applicant never returned to work because she was not fit enough to do so.
10. Prior to 6 April 2000, the Tribunal found that attempts were made by Professor Enser to contact the Applicant, without success. The Professor told the Tribunal that after 6 April 2000 the matter was in the hands of the Personnel Department, and that the initiative and responsibility had passed from him to them.
11. On 2 June 2000, the Applicant wrote to Laura Brackpool of the University's Personnel Department, advising her that, with her general practitioner's approval, her period of sickness would expire on 19 June 2000 and that, once terms could be agreed for her return to work, she would return. On 12 June 2000, the Applicant wrote once again, this time to Mrs Blackman the University's Personnel Services Manager, enclosing an outline for her return to work which appears to have been endorsed by her medical advisors.
12. The Tribunal found it necessary to set out this outline in its entirety and we do the same:-

"Outline for a successful return to work – June 2000

Following Dr Nisbet's medical report requested by the University of Brighton it is proposed that a successful return to work would take into account his recommendations as follows:

1 That all work be possible to undertake in a sitting position for the academic year 2000/2001. Where this is applied to teaching it will be necessary to ensure that the student numbers are not more than can be realistically and effectively taught from this projection. It is possible to teach in a classroom of approximately 30 in this way.

2 That work before a computer screen be minimised for the academic year 2000/2001. Neatly handwritten work being acceptable to facilitate this.

3 That Ms Tabary-Peterssen's previous teaching subject-matter be undertaken as of the beginning of the academic year of 2001/2002, and is reduced by one-third during the academic year of 2000/2001.

4 That the terms of an agreed return to work for the academic year 2000/2001 be written and signed by the appropriate members of personnel and management and Ms Tabary-Peterssen.

5 That the outstanding work difficulties experienced by Ms Tabary-Peterssen and to date not resolved be addressed by the procedures laid out in the staff handbook with a view to resolving these permanently and removing much of the stress which has contributed to the cause of this long-term sickness.

6 Dr Nisbet advised the University that a return to work was intended for the middle of May 2000 in his medical report of March 2000. The University have thus been alerted to the aim of a return to work in early summer since this time. Ultimately medical opinion had felt May 2000 was too early. We now advise that if the above terms and conditions can be agreed we are of the opinion that Ms Tabary-Peterssen can return to work as of June 2000 and successfully work towards achieving her previous level of working capacity. As normal duties during the summer vacation are possible under the above terms and conditions a full time return to work is medically approved as of June 2000".

13. The reference to the medical report of Dr Angus Nisbet in paragraph 6 of the outline is important. There is in the papers – and was before the Tribunal – a report from Dr Angus Nisbet dated 8 March 2000. Dr Nisbet is a Consultant Neurologist practising at the General Hospital in Brighton. He had been seeing the Applicant since 17 November 1999. His report gives a vivid description of the Applicant's migraines – as related by her – in its final, lengthy paragraph. This part of the report reads as follows: -

"I formed the opinion that she had quite severe and disabling migraine attacks and that these had become more frequent, at least partially in relation to the increased stress in her life. However I also thought there were clear features of Chronic Fatigue Syndrome and of some mixed anxiety and depression. I commenced her on anti-migraine prophylaxis and I recommended time off work to facilitate recovery together with a self-managed gradual rehabilitation programme. I last saw the patient on the 8 March 2000. There had been no improvement in her Chronic Fatigue Syndrome although her migraines had been slightly less severe. I have recommended some further changes to her medication and have made a referral for some supervised graded rehabilitation for her chronic syndrome. She is aware of the pressure on her to return to work and I have agreed with her that a return in the middle of May would give her enough time for some further rehabilitation for her Chronic Fatigue Syndrome and improvement in her migraines. From the point of view of modification to her working environment or work practice that may assist her, I think she would benefit from a role which involved more research and writing with less lecturing. One of her problems is of occurrence of migraines during lectures. Because of the disabling nature of her migraines, not surprisingly, she feels she would be unable to complete the lecture. I also feel that pressure to perform, subliminal conflict with colleagues and an uneasy atmosphere in her working environment may well be maintaining conflict in her mind which I think is likely to be contributing to both her Chronic Fatigue Syndrome and her migraines. If this could be addressed in some way, it is my opinion that if this could be achieved she could return to her previous level of working capacity."

14. There is also reference in the Tribunal's reasons to a statement from a Dr McKee to the effect that: - "it would be valuable to discuss with her the possibility of a phased return to work and also to explore relationships at work to see whether there are any positive steps that can be taken to ease her return to the workplace".
15. The outline contained in the letter of 12 June 2000 represented the Applicant's proposals for her return to full time work. A meeting was, accordingly, arranged with the Applicant to discuss her proposals. That meeting took place on 4 July 2000. Professor Enser was unable to attend, but his deputy chaired the meeting, having with him the draft teaching allocation for the Applicant for the academic year 2000/2001 which, Professor Enser asserted, took account of the need to provide a reduced workload. That proposal for a reduced workload was set out in an e-mail dated 30 June 2000 from Professor David Enser to the Deputy Vice-Chancellor of the University, Mr David House. The meeting on 4 July comprised the Applicant, Mr House, Professor Simpson (the Dean of the Applicant's Faculty), Mrs Blackman of Personnel and Dr Daniels.
16. As a consequence of the meeting, Mr House wrote to the Applicant on 7 July 2000. In that letter he put to the Applicant the University's proposals for her return to work on 10 July 2000. The Tribunal described those proposals as "comprehensive" and set them out in full. We propose to do the same:-

(i) "that you return to work on Monday 10 July 2000;

(ii) that you ease yourself back into work throughout the summer period by undertaking self-directed research and scholarly activity, including preparation work for your teaching schedule at the start of semester 1;

(iii) that from the start of semester 1 you undertake the teaching load as indicated in the e-mail message to me from Peter Enser dated 30 June 2000. This teaching represents approximately half the normal teaching load required of a Senior Lecturer.

The remainder of your working time will be devoted to duties other than scheduled teaching;

(iv) that, given the above, you will continue to be paid full pay;

(v) the university will provide for you an amplification system to enable you to project your voice to some of the larger groups of students without undue strain, and to teach from a sitting position;

(vi) the university will ensure that there are regular reviews of your progress throughout the next academic year;

(vii) the university will formally investigate the concerns your raised about your working environment and relationships. The Dean will take responsibility for communicating the outcome of that investigation, and for arranging any necessary further support for you".

17. The Tribunal pointed out that when Mr House wrote to the Applicant on 7 July 2000, the University was aware of the Applicant's illness, her proposals with regard to a return to work and, in particular, her request for a reduction in workload.
18. The Tribunal found that the letter of 7 July 2000 contained the adjustments proposed by the Respondent as required by section 6 of the Act. The Tribunal was reinforced in that conclusion because in a subsequent letter of 18 July 2000 to the Applicant, Mr House stressed that the University's obligations extended only to giving her a workload "which is reasonable in all the circumstances" rather than allowing her to determine her own duties on the basis of personal preference. The Tribunal found that the adoption of the language of section 6 (1) could not be a coincidence.
19. On 12 July 2000 the Applicant responded to Mr House's letter asking for more information, and also saying that she wished to discuss the matter with her doctor and her legal advisor. In his letter of 18 July 2000, to which reference has already been made, Mr House acknowledged that for the Applicant to seek advice was a reasonable step for her to take.
20. What happened next was a meeting on 4 August 2000 between the Applicant and Dr Daniels, who was deputising for Professor Enser in the latter's absence on holiday, at which the Applicant once again raised concerns about certain aspects of the timetabling. At the end of the meeting, Dr Daniels and the Applicant agreed to meet again on 14 August 2000. In the interim, Dr Daniels, had been referred to one Nicola Smith in connection with the Applicant's timetable. Dr Daniels met Miss Smith, and whilst neither was called to give evidence, the manuscript memorandum of their meeting was before the Tribunal and the Tribunal noted that it stated without qualification: - "It transpired that the time-table "portfolio" that we had been discussing with the Applicant is rather out of date and misleading in several details".
21. From the Applicant's point of view, this is a critical finding since at all times it was her case that (1) her teaching responsibilities needed to be reduced and (2) Professor Enser's proposition that the teaching load contained in his e-mail of 30 June 2000 (informing paragraph (iii) of the University's proposals) did not represent either one half of the normal teaching load required of a senior lecturer nor a reduction by one third of the Applicant's previous teaching responsibilities.
22. As the Tribunal commented, Dr Daniels then went on compassionate leave and the matter was passed to the Dean of the Applicant's Faculty, Professor Simpson. So far as the Tribunal was aware, neither Dr Daniels nor Nicola Smith communicated the information about the timetable portfolio being out of date and misleading to Professor Simpson or indeed to anyone else.
23. Professor Simpson met the Applicant on 16 August 2000. The Tribunal described that meeting in these terms: -

"…at this stage the discussions veered off in a totally different direction, that of an arrangement to leave the University. Professor Simpson told the Tribunal, and the Tribunal accepts his evidence, that the Applicant was in a dreadful state when she attended the meeting and could hardly walk (the notes of the meeting ,,,, record the applicant as being able to get down the corridor by using the heating radiators as a handrail). At one point in the memorandum Professor Simpson described the Applicant as "Put simply she is in a very bad mess both physically and mentally."

24. Professor Simpson had a second meeting with the Applicant on 8 September 2000 at a coffee bar in Brighton. He recorded her health as improved but not better, and he appears to have initiated with the Applicant a process which might lead to her ill-health retirement. Professor Simpson subsequently e-mailed the Head of Personnel Miss Dowson suggesting that the Applicant "wanted to talk about all her possible futures".
25. Basing herself upon Professor Simpson's memorandum of the meeting of 16 August and his e-mail dated 8 September 2000, Miss Dowson attended a meeting with the Applicant on 15 September. Miss Dowson went into the meeting with the impression she was being asked to negotiate in some shape or form the ending of the Applicant's employment. Her evidence to the Tribunal was that she was surprised when this did not appear to be what the Applicant herself wanted to talk about. The Applicant was still asking about details of the workload described in the Professor Enser's e-mail of 30 June 2000. Miss Dowson made a memorandum of the meeting, in which she said: -

"She seemed unclear as to the precise number of hours teaching she would have to undertake and how much movement this would require. She was determined to continue to try to negotiate her workload to suit her perceived physical limitations but had met with a wall of silence. She also raised some professional issues regarding a request for copies of module specifications to enable her to prepare, but these had not been forthcoming."

26. Miss Dowson's memorandum of the meeting with the Applicant on 15 September 2000 also sets out the four possible scenarios/options for the Applicant's future namely: -

1) "A return to work to undertake the teaching and other workload outlined in Peter Enser's e-mail as envisaged;

2) A declaration that she was not medically fit to return as envisaged on 2 October. I said that given that she had only attended 3 meetings and had been reported as appearing to be unwell, that I would in any case insist on a further referral to Occupational Health for a medical opinion before she was able to resume any teaching. If the medical opinion was that she was not fit, her pay would be reduced accordingly backdated to 10 July. Continuing the scenario, I explained that if she continued to remain unfit, the University would consider terminating her contract on grounds of incapability due to ill health.

3) She could apply for retirement on health grounds to Teachers' Pensions, although I expressed that view that this might not be successful unless her doctor was able to judge that her condition was permanently incapacitating. I provided her with an application form and leaflet from TP explaining this process.

4) We could reach a compromise agreement which would basically involve her agreement to resign in return for a sum of money, an agreed reference etc, which we would negotiate with her and her adviser(s). I indicated that the University would be willing to consider an offer in the region of 6 months' salary."

27. On 17 September 2000, the Applicant wrote a long letter to Miss Dowson. Enclosed with that letter was a list of questions that the Applicant said needed to be clarified before either her general practitioner or her specialist could properly assess the workload which the e-mail from Professor Enser (given to her by Mr House during the meeting 4 July 2000) described. It is quite clear from that letter that this issue was the crux of the Applicant's concerns, and she reiterated her view that it was impossible for her to make a final decision regarding a successful phased return to work until the points had been clarified. She then sets them out over the balance of the letter. The letter concludes with these paragraphs: -

"Depending on the answers to these questions my timetable could be upwards of 20 hours teaching a week in semester 1, and 10 hours plus teaching in semester 2. This constitutes a heavy teaching load in semester 1, much more than most lecturers normally have, and an average load in semester 2.

I met with Dan Simpson a second time on the 7 September (this is the meeting which Professor Simpson says took place on 8 September) and expressed my concern that I still had no answers to the above questions and that this lack had effectively frozen any further negotiations with the University towards a successful phased return to work which had increased the stressfulness of the situation and lowered my morale and hopes for this outcome."

28. Miss Dowson told the Tribunal that not only had she been taken by surprise by the direction which the Applicant had moved the meeting of 15 September, but that it was a direction in respect of which she had no background knowledge or expertise; nor one in which she had been briefed. As a consequence, she sent a somewhat tart e-mail to Professor Enser requesting information. Professor Enser provided that information on 22 September 2000, but pointed out that because he had not himself anticipated the Applicant returning to work in time for the Autumn Term, he had had to make other arrangements. The e-mail begins: -

This poses some difficulties, because both Martin Daniels and Dan Simpson had expressed the view that Thalia would almost certainly not be fit to take up teaching duties in semester 1. We couldn't put the delivery of courses at risk, awaiting the outcome of Thalia's latest course of treatment this month; as a result we had to find external people who could take up some of her work, and various arrangements have now been made which cannot be unpicked. This is reflected in my answers below to the questions which she asked in her letter to you dated 17 September.

29. As a consequence of Professor Enser's e-mail, Miss Dowson wrote to the Applicant on 2 October 2000 setting out much of the detailed information which the Applicant had requested, but did not consider that she should put to her the prospect of part time working based on the availability of hours in Professor Enser's most recent e-mail. The reason given for this was that the Applicant had previously indicated that she could not afford to work part time.
30. On 5 October 2000 the Applicant wrote again to Miss Dowson with further enquiries, but on 13 October 2000 Miss Dowson replied again bringing the correspondence to a close by saying: -

I note your comments…I would like to remind you that I have twice offered you the option of discussing terms of an agreement for you to leave the University on mutually acceptable terms. You have not responded on either occasion, nor have you given any indication that you wish to do so. I have no wish to pressure you in any way into a course of action you are not interested in, and therefore I propose to withdraw the offer of further discussions on this option if I do not hear from you within the next 10 days.

I note that you sought to cancel your appointment with Dr McKee which had been arranged for 24 September. It would be most regrettable if you were unable to make this appointment as it will only delay your return to work and a clarification of your fitness to return to your post as a senior lecturer on the terms proposed by the University. If it is impossible for you to attend on that date, I shall rearrange the appointment for the earliest possible date, which I understand may now be December.

Since we met on 15 September, I understand that you have not attended the University for meetings with your Head of School or his nominee, nor have you presented yourself as available for work at the start of term. As you appear to be continuing to seek medical advice on your fitness to undertake the work proposed by the University, and in view of the fact that you have indicated to Dan Simpson and me that you were not fully fit, I believe we have no alternative but to regard you as currently on sick leave. You will need to obtain a certificate from your doctor to cover your continued absence so that the University can pay you appropriately.

It may be that when we receive the medical opinion from your doctor and our Occupational Health Adviser, that your sickness will be deemed to have been continuous since 7 July 2000. You will recall that you were due to move from half pay to nil pay entitlement in July. The conditions that were attached to your being returned to full pay from 10 July 2000 do not seem to have been met. In the circumstances, I am intending to treat your absence since our meeting on 15 September as sick leave. The implications for your pay (assuming for the time being that you are treated as being fit for work during the period 10 July to 15 September) are that you will receive half pay for the period 18 September to 29 November and thereafter, if you remain unfit, you will have exhausted your entitlement to sick pay.

If you wish to arrange a further meeting with me to discuss any of these issues, I would be pleased to do so, otherwise, I will write to you again once I have confirmed a revised date for your medical interview with Dr McKee at Occupational Health.

The Tribunal's Findings

31. The Tribunal's analysis of the facts is set out in paragraphs 22 to 25 of the reasons. We think it appropriate to set these out in full: -

22 "The Tribunal finds that the letter from the Deputy Vice Chancellor dated 7 July 2000 is the Respondent's firm proposal of the adjustments which it was prepared to make in order to assist the Applicant's return to work. The Applicant continued to raise queries upon the work allocation because, put simply, she did not readily accept, for historical reasons, Professor Enser's assessments of the amount of work involved in separate modules. It was therefore not unreasonable that, to a certain extent, she should ask for further information. Realistically it was not until Ms Dowson's letter of 2 October 2000 that that information was made available. The Tribunal would accept that at that stage there was enough information before the Applicant to make a decision about a return to work, but what is known from the memorandum of Dr Daniels is that Mr House had written his letter on 7 July 2000 upon a false premise. The Deputy Vice Chancellor acted upon the e-mail dated 30 June 2000 from Professor Enser as the basis for return to work. Nicola Smith, who appears to have been the repository of information in this regard, told Dr Daniels on 9 August that this was rather out of date and misleading in several details. The Tribunal finds that an offer of adjustment based upon a false premise and therefore misleading cannot be a reasonable step taken by the employer.

23 Secondly, in respect of the letter (of 7 July 2000) there are a number of conditions upon which the Applicant should return to work and the condition at paragraph (vi) involves the University formally investigating the concerns raised by the Applicant about her working environment and relationships. The Dean (Professor Simpson) "will take responsibility for communicating the outcome of that investigation, and for arranging any necessary further support for you".

The evidence of Professor Simpson is that he did speak to a few people, made no notes and decided, very much of his own volition, that seeing the Applicant apparently unfit to return to work he saw no purpose in continuing the investigation. The matter was discussed with Mr House and it appears with his concurrence the investigation just died. No report was made to the Applicant either of the progress or lack of it or the conclusion of the exercise. If conditions are to be applied to the return of the Applicant, then the conditions which involve a commitment on the part of the employer are just as important as those involving a commitment by the Applicant. There is a clear breach of the University's commitment in this regard.

24 The difficulty in this matter is the failure for anybody, with the exception of Mr House, to take responsibility for the Applicant's position. Professor Enser told the Tribunal that it was nothing to do with him after April 2000 when he passed the matter to Personnel. Personnel could clearly not deal with time- tabling, as that was Professor Enser's field. Dr Daniels, who stood in for Professor Enser, sadly went on compassionate leave and failed to pass on the information he had obtained from Nicola Smith. Professor Simpson really made no attempt to address the question of disability and adjustment because he, without taking advice from Personnel, did not think it was any longer of importance and Ms Dowson went to a meeting with the Applicant believing the issues to be something quite different to those about which the Applicant wanted to speak. The lack of management, the lack of communication between the people involved clearly led to a failure properly to address the need to provide reasonable adjustments to the working arrangements which would enable the Applicant to return. The Tribunal in this respect has particular regard to the Code of Practice: Disability Discrimination (1996) and the general guidance contained at the beginning of that Code. The lack of communication and the lack of responsibility meant that the exhortation to be flexible not to make assumptions and to plan ahead were never addressed. The adjustments which an employer might have to make (paragraph 4.20) include altering the person's working hours with the provision of additional breaks to overcome fatigue.

The Tribunal does not believe that the Respondent's failings were wilful, but rather the failure of good management, the failure for managers to accept responsibility and a willingness to presume that somebody else was responsible without ever clarifying that was the case.

In consequence, the Tribunal are satisfied that the Respondent failed to make proper adjustments in accordance with Section 6 and that they therefore discriminated against the Applicant contrary to the provisions of Section 5 (2)

25 By its failure to make reasonable adjustments, the Respondent made it impossible for the Applicant to return to work and determined, without medical evidence, that the Applicant should properly be classified as being on sick-leave, thereby reducing her pay. This was an act of discrimination which would not have constituted treatment applied to another who was not disabled and therefore discrimination against the Applicant, contrary to the provisions of Section 5 (1) of the Act."

The Case for the University

32. For the University, Mr Paul Cadney argued that a number of findings of fact made by the Tribunal were perverse. The first point related to the Applicant's fitness to return to work. He pointed out that paragraph 6 of her outline for a successful return to work (set out at paragraph 12 of this judgment) predicated a return to work in June 2000. The adjustment proposed only related to the reduction in teaching load from October 2000. However, he submitted, it was quite clear on the evidence that the Applicant was not in a fit state to return to work and could not have done so by the end of September in any event. The University's case was that the Applicant had, accordingly, never reached the starting point for the programme which she proposed.
33. Mr Cadney went on to submit that the reason she had not reached that point was that throughout the summer of 2000 she was too ill to work, and that the finding made by the Tribunal that she had "never returned to work" had to be seen in that context. In any event, it was not the University's failure to make reasonable adjustments which had caused the Applicant to be unable to return to work.
34. Mr Cadney argued that the Tribunal's findings in this regard were perverse in that a failure to give accurate time-tabling information for the Autumn Term 2000 could not have prevented the Applicant from returning to work in June/July 2000 as proposed by her. Further, he argued, the findings did not reflect the evidence of either the Applicant or the University. It must follow from those findings that the Tribunal rejected the Applicant's contention that she had returned to work, but went on to speculate as to why, and to construct a reason for it which had never been put forward by the Applicant in evidence.
35. In short form, Mr Cadney's submission was that if the Applicant was not fit to return to work, then any adverse finding against the University in relation to proposals for the Applicant's timetable were irrelevant. There was no causal link between the Applicant's ongoing disability and no need for the University to put forward adjustments under section 6 of the Act.
36. We are unable to accept this submission. In our view, with all respect to Mr Cadney, it demonstrates too atomistic an approach. The medical evidence from Dr Nisbet and others was to the effect that if the Applicant's difficulties and concerns were properly addressed she could return to work within the time-scale indicated. There was no contrary medical evidence. The only "evidence" in relation to the Applicant's health was the observations by Professor Simpson at the meetings on 16 August 2000 and 8 September 2000.
37. The Applicant had put forward proposals for a return to work in her outline of 12 June 2000. The University's proposals were contained in the letter of 7 July 2000 (set out at paragraph 15 of this judgment) The Applicant had a legitimate query in relation to paragraph (iii) of that proposal. The fact that the amount of teaching put forward by Professor Enser was "rather out of date and misleading in several details" emerged from the University's own witnesses.
38. Furthermore, in paragraph (vii) of its proposals of 7 July 2000 the University committed itself to a formal investigation of the Applicant's concerns relating to her working environment and relationships. There was a specific commitment that the Dean would take responsibility for communicating the outcome of that investigation to the Applicant and for arranging any necessary further support for her. The Tribunal's finding that this investigation simply "died" is plainly correct.
39. We do not agree that the question of whether or not the Applicant had returned to work after 11 August 1999 is critical. The process upon which the parties were engaged during the early summer of 2000 was the negotiation of the Applicant's return to full time work, and in particular to University teaching for the first semester in September 2000. Whether or not she had been undertaking study at home – as was apparently part of her contract – seems to us, with respect, neither here nor there. The critical question was the terms upon which the Applicant should return. Those terms were set out in the letter of 7 July, and it is manifest that the University failed to implement material parts of them. In these circumstances, it seems to us that the Tribunal's criticisms of the University's administration are unassailable, as is its finding that the offer of the adjustment in the Applicant's working arrangements was based on a false premise and misleading. Equally unassailable, in our view, is the finding that there was a clear breach of the University's commitment in relation to paragraph (vii) of its proposals for the Applicant's return to work.
40. The University next seeks to argue that the Applicant's disability was CFS, and that while she suffered from recurrent migraines, it was the CFS alone which constituted the disability within the meaning of that term in section 1 of the Act of 1995. The Tribunal, the University argues, makes a specific finding that the Applicant was disabled in that she suffered from CFS. It was not the Applicant's case that her recurrent migraines constituted a disability within the meaning of the Act.
41. Accordingly, the University contends that it was incumbent on the Tribunal to make findings as to whether the proposed adjustments were related to or arose in response to the disability or the condition which did not amount to disability. Mr Cadney argued that it was the migraines which were at the forefront of Dr Nisbet's report, and that these did not constitute a "disability". Accordingly, the Tribunal's implicit finding that the adjustment was related to or caused by the Applicant's disability was perverse. Alternatively, in the absence of specific findings as to that link, he argues that there is no sufficient explanation of the Tribunal's findings or reasons to allow them to be understood by the University.
42. Once again, in our judgment, this submission demonstrates the dangers of taking the atomistic approach. We have set out the relevant passage from Dr Nisbet's report. He was plainly taking a holistic view of his patient, and in our judgment that was the right approach. In any event, even though Dr Nisbet may have given two separate diagnoses of the Applicant, the fact remains that the two were inextricably linked in relation to her capacity to work.
43. In relation to resolving the Applicant's outstanding work difficulties, Mr Cadney argued that the Tribunal's conclusion that "there is a clear breach of the University's commitment in this regard" was perverse. He argued that any such investigation was to post date the Applicant's return to work, and the Tribunal found as a fact that she did not return to work; secondly that in the light of the Tribunal's findings that it accepted Professor Simpson's evidence as to the Applicant's state of health in the two meetings in August and September 2000, coupled with the fact that the Applicant had not returned to work, the conclusion that the University was in breach of its commitment was perverse. Thirdly, he submitted that the Tribunal had made no finding as to the extent to which the University's failure to resolve outstanding work difficulties constituted any arrangements which placed the Applicant at a substantial disadvantage or how and in what way this related to the Applicant's disability so as to enable the University to understand the factual basis of or reasons for the Tribunal's conclusions.
44. We are also unable to accept this submission. In our judgment, the Tribunal's reasoning is perfectly logical. The medical evidence indicated that the Applicant could return to work if certain conditions were met. The University put forward proposals for her return to work, one of which was misleading, and another of which it did not fulfil. The Applicant plainly acted reasonably in questioning her teaching hours. The University failed to deal with the matter appropriately. Had it genuinely formed the view that the Applicant was not in a position to return to work, it should have discussed the matter with her and if need be sought further medical advice. In fact, it did nothing. In these circumstances, given the two critical parts of the proposals of 7 July which were not effective, the Tribunal was plainly entitled to find that there had been a breach of section 6.
45. Finally, Mr Cadney argued that the Tribunal was wrong to find that retrospectively placing the Applicant on sick pay constituted an act of discrimination which would not have constituted treatment applied to another who is not disabled. The University contended that the Tribunal had not made findings as to why the Applicant had not returned to work, and that such findings were fundamental to a claim under section 5 (1) of the Act.
46. Once again, we find ourselves unable to accept this submission. The Tribunal's finding was that the University had made it impossible for the Applicant to return to work by its failure to make reasonable adjustments. That in our view was a finding it was plainly entitled to make. Moreover, the University did not obtain any further medical evidence, and the only medical reports in our papers are those from Dr Nisbet dated 8 March 2000, and Dr McKee dated 6 April 2000. Neither supports the University's proposition.
47. In any event, we prefer the submission made by Mr David Reade on the Applicant's behalf that the critical issue in the case was the Applicant's teaching hours. The Applicant never returned to teaching duties, and he submitted that it was clear from the Tribunal's decision that it was in the context of teaching that the Tribunal found the Applicant did not return to work. It was in this respect that the Applicant was reasonably asking about adjustments. Thus, he argued, it can be seen that the finding about the non-return to work related to her teaching duties. Perceived in that context there was no perversity about the decision that the failure to make reasonable adjustments "made it impossible for the Applicant to return to work". The Tribunal found that the employer failed to make a reasonable adjustment to those teaching obligations. Mr Reade also pointed out that the impossibility of returning to work is specifically related by the Tribunal to the act of discrimination under section 5 (1) - namely by way of retrospective classification by the University that the Applicant was on sick leave with a consequent reduction in pay.
48. For all these reasons, we are quite satisfied that the Tribunal reached the correct decision and that the appeal should be dismissed. In these circumstances, the question of referring specific issues back to the Tribunal pursuant to the doctrine explained in Adebowale v Peninsula Business Services Ltd [20 January 2003] (EAT: Burton J (President); Mr C Edwards and Mr B V Fitzgerald) does not arise.