United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS TERESA KELLY (of Counsel) Instructed by: Law For All PO Box 230 Brentford Middx TW8 9FL
For the Respondent	MISS SUSAN BELGRAVE (of Counsel) Instructed by: London Borough of Hammersmith & Fulham Legal Services Division & Administration Department Town Hall King Street Hammersmith London W6 9JU

SUMMARY

Disability Discrimination / Unfair Dismissal

ET failed to consider extent of disability upon Appellant's capacity to work and the question of a reasonable adjustment of working shorter hours.


 


HIS HONOUR JUDGE BIRTLES

1. This is an appeal from the decision of an Employment Tribunal sitting at London (Central) on 9 and 11 July 2003 and 11 August 2003. The Extended Reasons were sent to the parties and entered in the Register on 29 September 2003. The Chairman was Mr S Bedeau. The members were Mr R Lucking and Miss P A Lethbridge-Carr.
2. The Employment Tribunal unanimously decided that:

(i) the Applicant's unfair dismissal claim failed and that he was fairly dismissed;

(ii) the Applicant's disability discrimination claim failed and was dismissed; and

(iii) the Applicant's disability discrimination on the basis of failure to make reasonable adjustments failed and was dismissed.

3. The material facts are set out in paragraph 7 of the Employment Tribunal decision:

"7. Save for Mr Rae, whose evidence was taken as read, the other witnesses read from their typed witness statements and were questioned. In addition, to the oral evidence the Tribunal considered the documentary evidence in the agreed bundle referred to us by the parties. Having considered all the evidence we made the following findings of fact.

(i) The Applicant commenced employment with the Respondent in March 1985. She was employed, up to the time of her dismissal, as a Customer Service Officer. She was based at the Respondent's Hammersmith Central Area Office, on 6th floor at Hammersmith Town Hall. Her immediate line manager was Ms Arleen Brown who left her employment in June 2001. She was employed as Senior Customer Service Officer. After Ms Brown left her employment with the Respondent, Mr Robin Lawrence, Manager, became the Applicant's immediate line manager.

(ii) The Applicant's duties as Customer Service Officer were:

the handling of all initial enquiries from residents, either over the telephone or personally at the office;

inputting data into the computer; processing requests for repairs; monitoring progress of repairs;

dealing with general queries from the public.

(iii) The Applicant worked in an open plan office. She had her own desk with her own computer. When on reception duties, which was on average twice or three times a week, she would carry out her work at the reception desk. To assist in carrying out her duties she would push her chair six metres from her own desk to the reception desk.

(iv) The Respondent had its own procedure for managing sickness absence. In summary, it stated that it would be triggered when an employee was absent, due to sickness, for nine days or when the pattern of sickness absence gave rise to managerial concern. The nine working days sickness absence could either be continuous or cumulative in a 12 months rolling period or pro rata equivalent for part-time employees. At stage 1, a meeting would be arranged with the employee within a month of being notified. A trade union representation was allowed. Five days notice of the meeting would be given. The purpose of the meeting was for the employee's line manager to review the sickness record; consider any relevant medical information available or to obtained medical information; identify the impact on the service and on work colleagues; discuss the reasons for absence and any information the employee had to offer and consider the employee's explanation. If the manager decided that it was not necessary to set targets for improvements this would be confirmed in writing to the employee. However, if the manager decided that the level of sickness absence was unsatisfactory he or she would advise the employee: of the need for improvement; a timescale would be set during which absence levels must be reduced; the consequences of failure to reduce the level of sickness absence, such as invoking stage 2 of the procedure; and the name of the manager to whom an appeal would be lodged. No more than 5 days sickness absence within the three months monitoring period would be allowed.

(v) At the end of the timescale for improvement, the manager would then review the level of sickness absence. If satisfactory the employee would be advised accordingly and reminded of the need to sustain the level of improvement. If, during 12 months following the monitoring period the employee had a further nine days sickness absence, then he or she would automatically be reviewed at stage 2 of the procedure.

(vi) Stage 2 of the procedure is reached if sickness absence has exceeded the target set or at the end of the stage 1 monitoring period or the initial improvement achieved at the end of the monitoring period had not been sustained over the following 12 months. A further meeting would then be arranged by the manager giving five days notice of review of the sickness record. Again trade union representation was allowed. If the manager considered that the level of sickness absence to be unacceptable then a further monitoring period would be set, normally, for three months. Targets for improvement would be given and the employee would be warned that failure to reduce the level of sickness absence would result in them moving to stage 3 of the procedure where the decision to dismiss would be made. There was a right of appeal against the decision taken at stage 2.

(vii) Stage 3 would be reached where the employee's sickness absence level failed to meet the targets set during the monitoring period at stage 2 or during the 12 months following the monitoring period at stage 2 the employee had a further nine days sickness absence. In these circumstances the employee would be referred to the Occupational Health Physician for a report to be provided to the manager. In the light of the medical report a decision would be made as to how to proceed. Possible outcomes included:

(i) consideration of any recommendations by the Occupational Health Physician being made in relation to redeployment or ill-health retirement;

(ii) extending the timescale for monitoring an improvement in attendance;

(iii) referral for director level considerations as to whether an employee should be dismissed;

(iv) no further action at the time.

(viii) There was a specific provision regarding long term absence. It required that such absence should be treated by management in a sensitive and practical way. At an appropriate stage but certainly within three months, a manager should, in normal circumstances, make an assessment of the position based on the following:

(i) the nature of the illness and any medical information available;

(ii) the likely length of the continuing absence;

(iii) the need to have the work done which the employee was engaged to do;

(iv) any other relevant circumstances;

(v) could the department continue to cope with the employee's absence and if so for how much longer.

(ix) The manager, in need medical information regarding prognosis, would require the employee's case being referred for an assessment by the Occupational Health Physician. On receipt of the medical assessment the case would then be reviewed in the light of the medical information; the on-going impact on service delivery; and other factors already referred to above. The employee would be invited to meet with their manager to discuss the situation and options which might be available, for example, a recommendation from the Occupational Health Physician in relation to redeployment or any adjustments to the duties, hours and the like or provide other support on return to work.

(x) Paragraph 5.5 of the procedure stated .the following:

"If the manager decides, in the light of all information before him/her, that is not possible to wait any longer for the employee to return a letter will be sent advising the employee that termination of service is being considered. The employee will be advised that further representations by them can either be made at a formal meeting with the department's director, (delegated as appropriate) or that they can make representations in writing which will be considered by the director.

The right of trade union representations available at the formal meeting. At the meeting the director may consider alternatives to dismissal. The structure of the meeting will be that of a presentation by management followed by that of the employee. Questions can be asked of the director of both parties." Pages 177 -182.

(xi) Guidance notes were given to management in assisting them in following the absence procedure. The notes provided that the decision to dismiss was not a medical one but a managerial one based, amongst other things, on medical opinion. The absence of a medical diagnosis or prognosis did not preclude a manager from taking action. However, it cautioned management in dismissing an employee without medical referral. Further, managers should not make any medical judgements and should not ignore medical opinion or draw conclusions that were at odds with medical advice. In the case of conflicting medical opinions between the Occupational Health Physician and the employee's own doctor, a medical opinion should be sought from a specialist.

(xii) The conduct of the meeting to consider dismissal on absence grounds is fully documented in the Respondent's procedure at pages 189-190. In summary they required the director to ensure that he or she conduct a fair hearing giving the employee the opportunity to be represented; to know the evidence against him or her; to be given time to put forward his or her case; and to make representations.

(xiii) The Applicant, in early 2000, was diagnosed as suffering from chronic arthritis. She felt pain in her joints and limbs. She was absent from work, due to sickness, from 25 November 1999 to 4 December 2000: a period of 271 working days. During that time her absence was certificated. It was essentially for arthritis.

(xiv) As the Applicant had been absent since November 1999 she was called to a meeting on 23 August 2000 with Ms Arleen Brown at which her current state of health was discussed. She stated that there were problems with her hands, wrists and finger joints. She felt that her condition had improved, was more optimistic and looked forward to her return to work. Her knees, however, were still a problem. She was informed that the Respondent was still waiting for a report from her specialist regarding her earlier appointment on 15 May 2000. It was suggested that she could return to work on reduced hours. Ms Brown explained to the Applicant that before she was able to return to work there would have to be a work station assessment to make any amendments or changes to her work environment. The Applicant was asked whether she had any requirements and she advised that her chair and probably her desk as well were not suitable. At that meeting the Applicant was represented by Mr John Hextall of UNISON. Notes of the meeting are at pages 38 to 41.

(xv) On 9 November 2000, the Respondent's Occupational Health Physician, Dr Yvonne Cooper, saw the Applicant for a review. She had received the report from the Applicant's hospital doctor, dated 5 October 2000. It stated that the Applicant should be able to return to work and that her condition was beginning to improve. On the basis of the medical evidence available, the Occupational Health Physician, saw no medical reason why the Applicant should not return to work. She advised that it would assist the Applicant's return if commenced on a part-time basis gradually building up her hours to full time by January 2001. She further advised that her work station assessment should be carried out as soon as the Applicant returned to work. Her report is at page 43.

(xvi) On 28 November 2000, the work station assessment was carried out by Ms Cathy Walsh, Occupational Health Nurse, pages 48-49. The assessment recommended:

(i) the use of a wrist rest to encourage the Applicant to Keep her hands at the correct position and support the wrist while typing;

(ii) the visual display unit screen be raised by two to three inches to reduce stooping and to retain a more upright position for head and upper body;

(iii) the Applicant to be provided with her own chair and an adjustable backrest to offer more lumber support and an adequate elbow support. The chair was to be used at her desk and whilst on reception duties.

(iv) the work station assessment stated that as the Applicant was 5ft 7ins she was not tall enough to require a footrest.

All the recommendations were carried out by Mr Lawrence. He had adjusted the height of the visual display screen by placing ream of paper to increase the height to the recommended level.

(xvii) The Applicant returned to work on 4 December 2000 and was granted her request to work from 9 am to either 3 pm or 3.30 pm. The reduced hours did not commence until on or around the 6 December. These hours were to be reviewed after the meeting with the Occupational Health Physician in January 2001. By working reduced hours, with the approval of management, she was to be paid her full weekly salary.

(xviii) On 15 January 2001 a chair was provided for the Applicant's use. She had not complained at any time during her employment that the chair had been broken.

(xix) She had a meeting with Ms Brown on 6 March 2001 to discuss her long term sickness and her recent short term absence from 30 January 2201.

On 11 January 2001, she had met with Dr Cooper, Occupational Health Physician. She felt that she would be able to work full time and not part-time on a permanent basis as suggested by Dr Cooper. She stated that the chair had been a great help and that she would like Ms Brown to order one for her permanent use. Ms Brown agreed to sort that matter out and agreed to order a set of headphones for the Applicant's use to prevent neck strain whilst on the telephone and using the computer.

(xx) In or around April 2001, the Applicant returned to work full-time following on from her annual leave in March. Her attendance was good and on 7 June 2001 Ms Brown informed her that her attendance record had improved. In addition, she advised the Applicant that her attendance record had to be maintained for the next 12 months in accordance with the Respondent's procedure, page 61.

(xxi) Since the date of the letter of 7 June 2001 to the 9 September 2001, the Applicant had been off work for a total of 12 days. Her period of absence, therefore, triggered stage 2 of the Respondent's procedure. She was written to by Mr Martin Glover, Area Housing Manager, on 28 September 2001. He informed her that he would be arranging a stage 2 interview. He stated that her level of sickness did not reach the standard of attendance required by the Respondent and it was, therefore, his responsibility to arrange to discuss the matter with her. He suggested that the Applicant should meet with the Respondent's medical adviser with a view to preparing an up to date medical report on her illness.

(xxii) There was some delay in obtaining from the Occupational Health Physician a report on the Applicant who wanted a report from the Applicant's own hospital doctor. Mr Glover took the decision not to interview the Applicant until the report from the hospital was obtained. Between 29 October 2001 to 13 December 2001 the Applicant had been off work due to sickness for a further 16 ½ days. On 20 December 2001, Mr Glover wrote to the Applicant informing her that he required her to attend a formal meeting under stage 2 to be held on 8 January 2002. She was advised of her right to be accompanied by a representative. It was eventually held on 16 January 2002, page 70-71.

(xxii) At that meeting the Applicant accepted that her sickness absence had triggered stage 2. She confirmed that she had been provided with items in accordance with the recommendations in the assessment. She said, in relation to the chair, that she felt that it was to be used on a trial basis and that another one would provided. It was agreed that a further assessment would be undertaken. She described how her arthritis affected her movements and some normal day to day activities. Mr Glover accepted her point that her illness might come within the Disability discrimination Act and that further adjustments including redeployment might have to be considered. The Applicant, in evidence, stated that the meeting was constructive and fair. It was agreed that Mr Glover would not set a target at that stage but would wait for the following information:

(i) the report from the Occupational Health Physician following on from an appointment arranged for 31 January 2002;

(ii) a further workstation report to be arranged by Mr Lawrence;

(iii) and the Applicant would give Mr Lawrence times and dates of physiotherapy treatment, such days off work were not to be counted as sick leave.

(xxiii) On 31 January 2002, Ms Ann Donovan, Occupational Health Assistant, reported that the Applicant seemed to be coping well with the duties of her job and advised that she was due to be reviewed by the hospital in early March after which time, on receipt of an updated report from the hospital, the Applicant could then be reviewed by the Occupational Health Physician.

(xxiv) On 10 June 2002, Dr Marilyn Burling, Occupational Health Physician, reported that the Applicant was making progress. She was managing to keep her absences down. She advised that she needed a work station assessment to be implemented and a headset to be supplied or she may incur unnecessary joint damage. She stated that the Applicant had a condition which came under the Disability Discrimination Act 1995, page 76.

(xxv) the Applicant was off work due to sickness, from 14 June 2002 continuously up to the date of her dismissal. As the Occupational Health Physician advised a further workstation assessment, this was not possible owing to her absence. On 6 August 2002, Dr Pearl Chin, Occupational Health Physician, reported that:

"Ms Francis has had a recent exacerbation of her chronic arthritic condition. Having clinically assessed her today, I find that she is unfit to return to work. I am unable to advise on when she could return as this condition is very variable. However she is receiving physiotherapy which is helping and will be returning to her hospital specialist in two weeks.

There does not appear to be any further workplace adjustments required following the assessment, although Ms Francis says that the chair and computer stand recommended have never been delivered.

As to the long term prognosis, her condition is chronic, variable and progressive. As she presently has problems in performing her activities of daily living, her activities would impact on the way she performs the duties of her post. By the nature of the disease it will still cause an above average sickness absence.

I would like to review her in four weeks, following her hospital appointment." Page 84.

(xxvi) Mr Glover had written to the Applicant on 10 July 2002 inviting her to meet him on 1 August 2002 under the provisions of the long term absence procedure. The Applicant was unable to attend that meeting. It was, however, re-scheduled for 13 August. She again was unable to attend and was written to by Mr Glover on 15 August 2002. He advised her that due to her long term sickness absence, a formal meeting had been arranged on Tuesday 10 September 2002 at 2 pm with Mr Billy Rae, Assistant Director of Housing and Advice Service, under paragraph 5.5 Appendix 1 of the Managing Sickness Absence Procedure. The relevant paragraphs of Mr Glover's letter reads as follows:

"... On this occasion you have been off sick since 14 June 2002 and have taken 41½ days sickness in the year immediately preceding this period of sickness. You have provided another certificate only recently which takes your absence to at least 13 September. Added to this you have not attended either of the meetings with myself which would have given you a chance to discuss your current situation.

The formal meeting will be chaired by Billy Rae. It will take place in his office on Tuesday 10 September 2002 at 2 pm on 2^nd Floor, Riverview House, Beaver Lane, London W6N 9AR. You should report to reception on 1^st floor of the building in plenty of time. I would present the management case and you are instructed to respond to the points made in the management case. You are entitled to be accompanied by a trade union or other employee representative and we ask witnesses to attend should you wish to do so. I will send you the management case papers at least five days before the meeting. I enclose a copy of the Managing Sickness Absence Procedure for your use. You should note paragraph. 5 "long term absence" and particularly 5.4 which explains the reason why I have tried to set the meeting between you and me. You might also wish to consider the Appendix to the procedure which describes the hearing. If you are unable to attend you may submit written representations; and if you wished to check any detail of this letter you should contact me.

I must advise you that a possible outcome of this meeting is your dismissal from the council service for reasons of long term sickness absence. Because this letter has reached such a critical stage I am prepared to offer you one more chance to discuss the matter with me before 10 September, I have therefore set aside time on the afternoon of Wednesday 28 August, 2 pm when you may come to the office to with me. Please contact me if you wish to come to this meeting." Pages 85 to 86.

(xxvii) The Applicant, together with Mr Tom Broderick, UNISON convenor, met with Mr Glover on 3 September 2002. This was not part of the Respondent's disciplinary procedure. She stated that her condition had not improved and there was no indication as to a likely return to work date. She said that the workplace assessment had not been carried out. Mr Glover disagreed. He stated that the computer screen had been raised and that the chair had been provided. The Applicant retorted that she herself had to obtain a chair for her use. It was emphasised that if the Applicant was considered fit to return to work then all necessary steps would be taken to facilitate a return as soon as possible. The Applicant acknowledged that she was due to meet with Mr Rae on 10 September 2002.

(xxviii) The informal meeting on 10 September 2002 was adjourned pending further referral to the specialist Occupational Health Physician's for advice. On the 9 September 02, Dr Cheng, the OHP, advised that there was no improvement in the Applicant's medical condition and that she remained unfit to return to work.

"As re-deployment does not appear to be an option, we discussed the option of ill-health retirement.

I suggest that Ms Francis is referred to the specialist Occupational Health Doctor for a review and opinion regarding ill-health retirement. Subject to your approval, this can be organised through our department." Page 92.

(xxix) The Applicant saw Dr William Cheng, on 23 September 2002. She stated that it was cursory consultation by the doctor that lasted some 10 minutes. She further stated that he neither carried out any medical examination of her nor did he ask detailed questions about her condition or looked at her notes.

(xxx) In Cheng's report, dated 23 September 2002, he stated the following:

"…She has an established underlying medical condition that is currently not well controlled on her existing medications. She is seeing her hospital specialist in November 2002 to start on a new medication. I have urged her to contact the hospital to bring the appointment forward if at all possible.

Having reviewed her job content and clinically assessed her, I concluded that she is currently unfit for her contracted duties. She needs reviewing after one month on the new treatment to assess her progress and fitness to return to work.

Workplace adjustment would be impracticable. Possibility of ill-health re-deployment was considered by seemed unrealistic on detailed questioning.

I explained that the Council is not obliged to create a job. She is aware of the need to provide a regular and efficient service. I advised her that she is at risk of dismissal on capability ground with her continual sickness absence.

lll-health retirement is not an option." Page 93.

(xxxi) The reconvened meeting took place on 11 October 2002. We have found that it was held under the long term sickness absence procedure and do not, as the Respondent's witnesses said in evidence, under stage 3. In fact the meeting earlier held by Mr Glover purportedly under stage 2 did not fully comply with the stage 2 procedure in the Respondent's managing sickness absence document. No monitoring period or targets was set at that time on 16 January 2002.

(xxxii) The Applicant was represented by Mr Tom Broderick. In advance of the hearing, the documentary evidence to be relied upon by management was posted to her home. The management's was presented by Mr Glover. Mr Rae chaired the meeting. In attendance was Mr Jerry Trill, Personnel Adviser whose role was to advise Mr Trill on personnel procedures.

(xxxiii) The management's case was that since November 1999 the Applicant had had 410 days off sick and 99½ in the last twelve months. It was argued that the service could not sustain such a level of absence as there was a serious effect on service provision and the matter now needed to be resolved as it had gone on too long.

(xxxiv) The Applicant's case was that she was unable to work and she should be allowed ill-health retirement. It was argued that this view was supported by the Applicant's hospital consultant although, at the hearing, no evidence was produced supporting that contention. We have found that the Applicant's case was presented by Mr Broderick on the basis that she should be entitled to the benefit of ill-health retirement and not, as the Applicant had contended before us, that she was seeking to put forward a return to work date. She also submitted that ill-health retirement was pursued by Mr Broderick at the hearing because the alternative would have been dismissal and she did not want a dismissal on her record.

(xxxv) Mr Broderick argued that the Applicant's consultation with Dr Cheng had been unsatisfactory in a number of respects and that he had made an inappropriate recommendation to the Housing Department. As a result of what was said Mr Rae agreed that Dr Cheng be written to and that specific questions be asked of him in the light of Mr Broderick's submissions. Accordingly a letter was sent to Dr Cheng by Mr Trill, dated 11 October 2002. The question asked related to the conduct of that consultation with the Applicant

(ix) Dr Cheng responded by letter dated, 18 October 2002. He challenged the account given by the Applicant regarding the conduct of the consultation with him. He stated that his recommendation in his letter of 23 September 2002, remained unchanged. Further, that information from a hospital specialist would be useful after commencement of her new treatment in November 2002, page 97.

(xi) Mr Rae having considered the arguments and all medical reports available to him sympathised, with the Applicant's condition, however, he found that the level of absence had been very high for too long and that the department could not sustain it. He therefore made the decision to dismiss the Applicant with immediate effect on 4 November 2002. She was entitled to 12 weeks pay in lieu of notice and was advised of her right of appeal. The letter sent to the Applicant is dated 4 November 2002 and summarised the submissions put to him. He confirmed what the Applicant had said that she was not fit to return to work. The Occupational Health Physician had not concluded that there was sufficient medical evidence to justify ill-health retirement. The doctor had also ruled out redeployment as being unrealistic. Accordingly, Mr Rae had no option but to dismiss the Applicant on the basis of her inability to undertake her duties by virtue of prolonged and repeated absences from work.

(xii) On the 3 December 2002, the Applicant appealed against the decision to dismiss her. The grounds of appeal referred to alleged failure to follow the Respondent's procedure; failure to take into account personal and medical information as well as a failure to follow the provisions of the Disability Discrimination Act.

(xiii) The appeal was suspended pending the results of the Applicant's appointment with an independent specialist In relation to the issue of ill-health retirement. The Respondent was prepared to consider such a possibility. Mr Trill was requested to arrange the referral. He wrote to the Applicant on 23 January 2003 to advise that an appointment had been made with Dr D'Auria, Director of Occupational Health Services at St Bathmolew's Hospital for the 30 January 2003. Mr Trill was later advised that the Applicant was unable to attend that appointment. He next received the letter from the Applicant's legal advisers, dated 7 February 2003, questioning the need for the Applicant to be seen by a specialist. The letter went on to state that the Applicant had been dismissed notwithstanding her efforts at trying to return to work particularly on a reduced hours basis. They alleged that the Applicant's dismissal was by reason of her disability.

(xiv) No further appointment was arranged for the Applicant to see the specialist and the matter was not pursued by her legal advisers. On 13 June 2003, her appeal was deemed to have been withdrawn as she had failed to respond to repeated requests regarding whether she wished to pursue her appeal. Pages 117-118.

(xv) The Applicant stated that the Respondent had failed to carry out reasonable adjustments to her working environment. She said that the office where she worked was cold. Some workers would wear their fleece jackets. No such clothing was provided either to her or to her colleagues. We found that the fleece jackets were provided for those who worked outside of the offices. Some of the field workers might have used their fleece jackets when they returned to their office. The building had the benefit of air conditioning which meant that the windows were permanently closed. The temperature could be regulated. Some members of staff, including the Applicant, shared an electric heater.

(xvi) The Applicant stated it was difficult for her to access the toilets easily. The toilets were on the fifth floor whereas she worked on the sixth floor. We have found that lifts were provided for her use and she was in the habit of using them and, on occasions, used the stairs. Indeed at the appraisal meeting on 25 May 2002, Mr Lawrence specifically pointed out to her that it was preferable for her to use the lift because she was putting her joints under unnecessary strain when she used the stairs, pages 74-75.

(xvii) The Applicant stated that she found it difficult to get from office to office as there were security locks on the doors. The numbers for which had to be inputted and this caused her a great deal of frustration as she was unable to manipulate the buttons on each door. This had not been drawn to the Respondent's attention. Likewise the Applicant's concerns about the suitability of fire escapes for disabled people were never mentioned during her employment. The Respondent had it's own evacuation procedure in the event of fire. Mr Lawrence was the Fire Officer for the 6^th floor. There was a wheel-chair bound employee on the 5^th floor who was required to remain at the fire refuge point on the 5th floor. There was a similar point on the 6^th floor. A member of security would then alert the Fire Marshall who would inform the Fire Officer. It was standard practice that lifts would not be used in the event of a fire. The Applicant had not raised any concerns about exiting the building in case of fire. There was the opportunity to do so at her appraisal meeting, on the 29 May 2002, with Mr Lawrence, pages 74- 75.

(xviii) As regards the chair for the Applicant's use, one was provided as a result of the action taken by the Applicant on or around 15 January 2001. It was a chair that was on loan from a different department. We are, satisfied that it had not been broken as she had claimed. She had not raised it with her immediate line manager, Mr Lawrence, prior to her going on sick leave on 14 June 2002. She referred to the condition of the chair at the meeting on 3 September 2002. This was one week before she was due to meet Mr Rae as part of the long term sickness absence procedure. As regards supplying a headset to avoid unnecessary neck strain whilst on the telephone and using the computer, the Applicant had raised this at the meeting on 6 March 2001, with Ms Brown who promised to provide one, page 56. It was again mentioned by the Applicant to Dr Burling on, 10 June 2002, who recommended that one be provided to avoid unnecessary joint damage, page 76. Shortly after raising this matter with Dr Burling the Applicant went on long term sickness absence on 14 June 2002.

(xix) The Applicant said that Mr Lawrence had been particularly zealous in scrutinising her medical appointments documents by holding them up to the light to see whether they were genuine and he required photocopies. We have found that Mr Lawrence would also ask other members of staff to provide information regarding their absence from work, for example, in an entry in the diary for 6 September 2001, there is reference to another member of staff's hospital appointment document being viewed by Mr Lawrence, page 161.

(xx) Those are the Tribunal's findings of fact."

4. Essentially Ms Francis was employed by the London Borough of Hammersmith & Fulham and in early 2000 she was diagnosed as having chronic arthritis. Over the subsequent years she was off work for a substantial period of time. She was at the same time receiving treatment from one at least specialist hospital doctors. In due course the Respondent local authority triggered its absence procedure. There were a series of meetings which crystallised with a meeting on 10 September 2002.
5. The Employment Tribunal's findings of fact are set out in paragraph 7 (xxviii) on page 10 of the EAT bundle, through to what has become (ix) on page 11 of the EAT bundle. In summary, Ms Francis saw a Dr Cheng, a Specialist Occupational Health Physician, employed by the Respondent, on 9 September 2002. He advised that there was no improvement in the Applicant's medical condition and that she remained unfit to work. I quote in his report:

"As re-deployment does not appear to be an option, we discussed the option of ill-health retirement.

I suggest that Ms Francis is referred to the specialist Occupational Health Doctor for a review and opinion regarding ill-health retirement. Subject to your approval, this can be organised through our department."

6. On 23 September 2002 the Applicant saw a Dr William Cheng. She said that this was an examination that lasted for some 10 minutes only and Dr Cheng's report dated the same date said this:

"…She has an established underlying medical condition that is currently not well controlled on her existing medications. She is seeing her hospital specialist in November 2002 to start on a new medication. I have urged her to contact the hospital to bring the appointment forward if at all possible.

Having reviewed her job content and clinically assessed her, I concluded that she is currently unfit for her contracted duties. She needs reviewing after one month on the new treatment to assess her progress and fitness to return to work.

Workplace adjustment would be impracticable. Possibility of ill-health re-deployment was considered [but] seemed unrealistic on detailed questioning.

I explained that the Council is not obliged to create a job. She is aware of the need to provide a regular and efficient service. I advised her that she is at risk of dismissal on capability ground with her continual sickness absence.

Ill-health retirement is not an option."

7. The reconvened meeting took place on 11 October and the Tribunal found that was held under the Long Term Sickness Absence procedure. At that meeting Ms Francis was represented by Mr Tom Broderick. He criticised the meeting with Dr Cheng and his report. As a result of those criticisms Mr Rae, who was conducting this hearing, adjourned the matter for a further report from Dr Cheng. Dr Cheng responded by letter dated 18 October 2002. He challenged the account given by the Applicant regarding the conduct of the consultation with him. He stated that his recommendation in his letter of 23 September 2002 remained unchanged. Further, that information from a hospital specialist would be useful after commencement of her new treatment in November 2002.
8. The matter then came again before Mr Rae who did not reconvene the meeting with the Applicant and her representative, but made a decision based on the material then available to him. That appears to have been done on or about 4 November 2002. Mr Rae decided to dismiss Ms Francis under the Long Term Sickness Absence provisions and his letter of dismissal is at pages 38-40 of the EAT bundle. The critical paragraph is at page 40 where he says this:

"You have stated you are not fit to return to work. The Occupational Health Physician has not concluded that there is sufficient medical evidence to justify ill-health retirement. The doctor has also ruled out redeployment as being unrealistic. I am afraid that I have no other option than to dismiss you from the Council's service on the basis of your inability to undertake the duties of your post by virtue of prolonged and repeated absence from work."

9. There was an appeal but it need not concern us here.
10. The Employment Tribunal's conclusions are set out at paragraphs 28 to 35 of its decision:

"28. We consider first the disability discrimination claim in respect of the failure to make reasonable adjustments. The Respondent acknowledged that she was, at the material times, suffering from a disability.

29. During the period of absence from November 1999 to December 2000, the Respondent had provided the Applicant with the opportunity of seeking medical advice by arranging consultations with the occupational health physician. In addition, she was seen by Ms Brown on 23 August 2000 and her position discussed. Her work station assessment, she was informed by Ms Brown, had to be conducted before her return to work. The assessment of her work station was on 28 November 2000 and it lists a number of recommendations. Her monitor was raised albeit by a ream of paper. It might not have been very attractive to the eye but it had served it's purpose. A wrist rest was provided as well as a chair. We accept that the provision of a suitable chair was at her instigation. A chair was, however, provided. On 6 March 2001, at the meeting with Ms Brown, she stated that it had been of great help to her and would like one to be ordered permanently. Mr Glover, at his meeting with her, did not record that she had stated that the chair had been broken but that she wanted a new chair because the one she had she believed had been given to her on a trial basis. The chair was not pursued by the Applicant because after having mentioned it to Dr Burling on 10 June 2002, she then went on sick leave on 14 June 2002. She was able to work reduced hours when she returned to work on 4 December 2000. This was implemented without objection on the 6 December 2000. By working reduced hours she received full pay for a limited period. The effect of these measures was to ensure that her work environment did not place her at a substantial disadvantage.

30. Matters such as the fire evacuation procedures and entry codes were not raised by the Applicant with her immediate line manager and these had not placed her at a substantial disadvantage. Her immediate line manager was, however, concerned about her use of the stairs when she was able to use the lifts for both ascending and descending the various floors of the building. We do not consider that those matters referred to the Tribunal by the Applicant amounted to any failure on the part of the Respondent to comply with its obligations under section 6(1) DDA 1995. Even if there were such failures, which we do not accept, the Applicant had not articulated the way in which they placed her at a substantial disadvantage. She referred to [not] having been considered for a job-share. In her many discussions with her managers this was not put forward by her and was not in the assessment. We accept that she was not under a duty to do so. What she had hoped for, however, was an eventual return to full-time work in 2001 and not to job-share. She did work full-time after the period of her reduced hours and come to an end. The failure to consider job-share had not placed the Applicant, in the light of her expressed wish to return to full-time work, at a substantial disadvantage.

31. On less favourable treatment we accept that the Applicant was dismissed at a time when she was suffering from a disability. The reason was her absences which were connected to her arthritis. It was, therefore, a reason connected to her disability. Accordingly, she had been treated less favourably than others for whom that reason does not or would not apply. We, however, have to consider whether her treatment can be justified. The Respondent had a procedure for dealing with long term sickness absence. It required that absences to be monitored and warnings given with set targets to be met. It required the obtaining of medical reports which should cover the effect of the absence on the ability to carry out the service required; any likely return to work date; amongst other matters. Such a procedure was material to the Applicant's circumstances as it covered absences including long-term sickness absence. Adjustments were made to her work environment but by October 2002 the Applicant's condition had worsened with no indication of a likely return to work date. Regrettably the decision was taken to terminate her employment. The Respondent had followed it's procedure and had assessed the Applicant's absences on the ability to carry out it's service. There was no return to work date given by either the Applicant or the Respondent's Occupational Health Physician. More to the point, the Applicant's condition was described as chronic. Her treatment was also substantial and, therefore, justified.

32. As regards the Applicant's allegation that she had been treated less favourably by Mr Lawrence who had scrutinised her medical appointments, we do not accept that contention. The evidence suggested that the Applicant was not treated any differently from any of Mr Lawrence's subordinate members of staff. This is exemplified in the diary entry in respect of Natalie whose appointment card was viewed by Mr Lawrence, page 161.

33. As regards unfair dismissal, the Respondent has shown that the reason for the Applicant's dismissal was capability. That was a potentially fair reason. The Tribunal, however, has to consider section 98(4) Employment Rights Act 1996, the fairness of the decision to dismiss her. The Respondent had followed stage one of the procedure and was not prepared to embark on full stage 2. The Applicant acknowledged that the meeting with Mr Glover in connection with the potential stage 2 procedure was very constructive. However, by her absences she invoked the long term sickness absence procedure. She was given the opportunity of being represented. She had advanced notification of the management's case against her. She decided to pursue the matter by arguing for ill-health retirement thereby she acknowledged that she was unfit to return to work. Ill-health retirement was considered by the Respondent. Dr Cheng prepared his reports and the decision was that ill-health retirement was not available to her. She could not be re-deployed given her condition nor could she work reduced hours. Without a return to work date the length of her absence was such that it affected service delivery and would continue to do so in the future. Any further referral for medical information was of little benefit given the fact that the Applicant wanted ill- health retirement and that Mr Rae had all the relevant medical reports. In the final analysis he took the decision to terminate her employment having regard to the above matters and the Respondent's procedure.

34. The Applicant was given the opportunity to appeal against the decision to dismiss her and she took advantage of it. Neither she nor her legal advisers pursued her appeal and it was deemed to have been withdrawn by 13 June 2003.

35. Having considered the above matters, the Tribunal came to the unanimous conclusion that the Applicant was not unfairly dismissed. Further, that her disability discrimination claims fails and also are dismissed. The provisional remedy hearing listed for, Friday 10 October 2003, will be vacated."

11. They found, as I have indicated, that the dismissal was a fair one under section 98 (4) of the Employment Rights Act 1996 and that the Applicant's claims under section 5 (1), (2) and (6) of the Disability Discrimination Act 1995 were unfounded. Against those decisions Ms Francis has appealed to this Tribunal.
12. There are 5 grounds of appeal. They have been supplemented by the Skeleton Argument of Ms Teresa Kelly who has appeared for the Appellant today and we are grateful to her for that Skeleton Argument and her oral submissions, as we are also to Ms Susan Belgrave who appeared for the Respondent. We will take each of the grounds of appeal in the order in which they were argued before us.

Ground 1

13. Ms Kelly submits that in considering the Appellant's claim under sections 5 (2) and 6 (1) of the Disability Discrimination Act 1995 the Employment Tribunal was in error in failing to look at the provisions of section 6 (3). It may be useful if I just read, first of all, section 5 DDA:

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

(a) for a reason which relates to the disabled person's disability, he treats them 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) …

(5) If, in a case falling within section (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."

14. Section 6 provides for the duty of the 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."

Section 6 (3) gives a list of examples which an employer may have to take in relation to a disabled person in order to comply with subsection (1). The list is substantial. It is not necessary to read it or repeat it here. Suffice it to say that attention in this case focused on paragraph (d) "altering his working hours" and (e) "assigning him to a different place of work". There are further provisions in section 6 involved in deciding whether or not it is reasonable for an employer to take a particular step in order to comply with subsection (1): see section 6 (4).

15. Ms Kelly submits, as I say, that the employer in this case failed to look at section 6 (1), 6 (3) and especially 6 (3) (d), "the alteration of working hours". There was also a failure to look at section 6 (4) and in particular whether taking the step would prevent the effective discrimination in question and whether it was practicable for the employer to take that step.
16. The Tribunal deal with this at paragraph 30 of its decision. A careful reading of paragraph 30 makes it clear that the employer did not consider in 2002 the question of whether or not the Respondent could return to work on a shorter hours basis. Neither did the Tribunal address that duty. The duty is on the employer, not on the employee. The test is objective: see British Gas Services Ltd v McCaull [2001] IRLR 60 and Morse v Wiltshire County Council [1998] IRLR 352 at paragraphs 41 though to 47.
17. We agree with Ms Francis. There is an error of law here in the failure of the Employment Tribunal to address the critical question of whether or not this employer should have considered the question of reduced hours working for Ms Francis at the date it took its decision to dismiss; that date is late October / early November 2002. There was also a failure to look at section 6 (3), especially 6 (3) (d) and 6 (4).

Ground 2

18. Ground 2 raises the issue of justification under section 5 (2) (b) of the Act. Both Counsel in effect agree that grounds 1 and 2 run together. Quite clearly there cannot be consideration by the Employment Tribunal of the issue of justification for a failure to offer part-time working because the employer did not consider that issue in late October / early November 2002.

Ground 3

19. Ground 3 is a separate ground of appeal and alleges a failure by the Employment Tribunal to consider whether or not there was discrimination under section 5 (1). In particular, Ms Kelly submits that when one looks carefully at the reasoning of the Employment Tribunal and in particular pages 10 and 11 (which are also pages 10 and 11 of the EAT bundle), Tribunal decision paragraph 5 (xxviii) through to 5, second (xi) and particularly paragraph 5 (xxx) and 5, second (ix), Mr Rae should have (having been told by Dr Cheng that Ms Francis was to start a new course of treatment under the supervision of her hospital specialist in November 2002 and having himself recommended that it would be useful after commencement of that new treatment to have a further report from the hospital specialist about the effect of the new course of treatment) waited for that course of treatment to start and obtained a specialist report, whether in the form of a report as such or whether by asking the specialist a series of questions. In practical terms, that would not take very long. On the face of it, there would appear to be no reason why a report could not have been obtained either in late December 2002 or early January 2003.
20. Ms Kelly submits that there is therefore a failure to follow the reasoning of this Appeal Tribunal in Edwards v Mid Suffolk District Council [2001] IRLR 190, and in particular at paragraph 42 where His Honour Judge Levy QC says this:

"42 Where dismissal under the provisions of the DDA is a ground of complaint, in our judgment it is jejune of the Tribunal to state, without more, why conduct and disability are unconnected and why the possibility of adjustment being made to benefit a person under a DDA disability is not to be considered. In our judgment it is essential in a case such as this for a Tribunal, first to make findings of the nature and extent of an Applicant's disability and then to consider its impact in terms of his ability to carry out his allotted work. We think Mr Carr is right in submitting that in order to consider whether an employer fails to make reasonable adjustments to a disabled employee's work, it is essential to consider the nature and extent of disability in the context of his work. We cannot find such analysis here and this fatally flaws the Tribunal's decision. The Employment Tribunal does not appear to have taken sufficient account of the fact that the test of unfair dismissal, under the Employment Rights Act (ERA) 1996, and the test of a non-discriminatory dismissal under the Disability Discrimination Act (DDA) 1995 are different and that the latter is a higher test than the former. It may be that an applicant is fairly dismissed under the ERA but it does not necessarily follow that the dismissal is non-discriminatory under the DDA."

21. This Tribunal made no findings of fact of the extent of Ms Francis' disability and how that affected her work. They therefore fell into error. We also accept under ground 3 Ms Kelly's submission that discrimination here cannot be justified because of the effect of section 5 (3).

Ground 4

22. Ground 4 is a submission that the Employment Tribunal misconstrued or misapplied the law in relation to section 98 (4) of the Employment Rights Act 1996 and therefore the fairness of the decision to dismiss the Respondent, in that they did not consider the particular circumstances of the case, in terms the need for the Respondent to be adequately informed in relation to the Applicant's capacity.
23. This in fact is a reliance upon the failure by Mr Rae in late October / early November 2002 to consider or wait for a further report from the Respondent's hospital specialist following the commencement of her new treatment in November 2002. The Employment Tribunal deal with this at paragraph 33 of its decision set out above.
24. We can see no error of law here. It is quite clear from the facts found by the Employment Tribunal that this Applicant had been ill with chronic arthritis from some time in early 2000. She had received hospital specialist treatment. She had seen several occupational health physicians and at least one occupational health assistant. By the time she saw Mr Rae she had been off work since November 1999 for 410 days off sick, of which 99½ had been in the preceding 12 months. It seems to us that there was more than adequate information before Mr Rae which justified him in dismissing Ms Francis and indeed in the Tribunal finding that that was a fair dismissal. We of course are not concerned with the rightness and wrongness of Mr Rae's decision but with whether or not the Employment Tribunal made an error of law.
25. In support of her submission, Ms Kelly referred to the decision of this Tribunal in East Lindsey District Council v G E Daubney [1977] IRLR 181. In that case the Employment Appeal Tribunal dismissed an appeal from the decision of an Industrial Tribunal (as they then were) which held that Mr Daubney's dismissal on grounds of ill health was unfair because the District Council had never obtained a full medical report before deciding to dismiss him. Ms Francis relies in particular on the remarks by Phillips J at paragraph 18. It seems to us that that decision is a very long way from the present one. This employer, the Respondent, had been well aware of the Appellant's medical condition, had received medical evidence, had referred her on a number of occasions to occupational health physicians and had a full history of the case. Daubney is quite clearly distinguishable on the facts. There is no error of law here.

Ground 5

26. Finally Ms Kelly makes a submission that the Employment Tribunal erred in law in failing to make specific findings of fact. She relies on the well-known case of Meek v City of Birmingham District Council [1987] IRLR 250 and in particular paragraph 8. That case of course has been supplemented by subsequent decisions of the Court of Appeal in Tran v Greenwich Vietnam Community [2002] IRLR 735 and English v Emery Reimbold and Strick [2002] EWCA Civ 605. It is not necessary to do other than refer to those cases which set out the well-known principles that an Employment Tribunal must give sufficient reasons so as to enable the parties to know why they won or lost.
27. In her Skeleton Argument Ms Kelly sets out the deficiencies in the Tribunal's decision. Suffice it to say for the purposes of this ground of appeal we have carefully read them and listened to what Ms Kelly has to say. However, in our judgment this Tribunal decision more than satisfies the Meek test and it is quite clear why the parties won or lost. There is no error of law here.

Conclusion

28. We allow the appeal on grounds 1, 2 and 3 and dismiss the appeal on grounds 4 and 5. It seems to us that the only sensible solution as far as disposal is concerned is to remit this case to a fresh Employment Tribunal to consider the issue of disability discrimination afresh. That Tribunal of course will have the benefit of a transcript of this Employment Appeal Tribunal.