United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS L McLYNN (Solicitor) Bates Wells & Braithwaite Solicitors Cheapside House 138 Cheapside London EC2V 6BB
For the Respondent	MR LESLIE SAMUELS (of Counsel) Instructed by: Messrs Trethowans Solicitors The Director General's House Rockstone Place Southampton Hants SO15 2EP

SUMMARY

Disability Discrimination: Reasonable Adjustments & Justification; Unfair Dismissal: Reasonableness of Dismissal

The Employment Tribunal is correct in finding that as employer did not regard the employee as disabled and took no steps to consider reasonable adjustments, it was entitled to find that the employer was in breach of sections 5(1) and 5(2) of the Disability Discrimination Act 1995. The Employment Tribunal was also entitled, on the evidence, to find unfair dismissal. Archibald v Fife County Council [2004] IRLR 651; Mid-Staffordshire General Hospitals NHS Trust v Campbell [2003] IRLR 566; Collins v Royal National Theatre Board Limited [2004] IRLR 395 considered.


 


HIS HONOUR JUDGE BIRTLES

Introduction

1. This is an appeal by Southampton City College from the judgment of an Employment Tribunal sitting at Southampton on 30 April 2004, 4 May 2004, 12-14 July 2004 and 10-11 August 2004. The Chairman was Mr S J W Scott and the members were Ms V A Hows and Mr R C Starck. The Tribunal found that the Appellant had discriminated against the Respondent contrary to Sections 5(1) and 5(2) of the Disability Discrimination Act 1995 and also had unfairly dismissed him. There is no appeal against the Tribunal's judgment on Section 5(1) of the 1995 Act.

The Material Facts

2. The Claimant was born on 27 May 1948. He was employed by the Appellant as a lecturer from 1 September 1976 until the effective date of termination of his employment on 31 May 2003. He specialised in computer aided design and was one of 17 lecturers in the Appellant's engineering department. Since about 1992, he had taught mainly mature students in classes of between 5 and 18 students. Almost all such teaching was done in a quiet classroom setting, but the Claimant was required to work for about two hours per week in the Machine Shop as a second tutor to other classes, for safety reasons. The Machine Shop is a large workshop containing benches and a variety of over 30 machines. It is designed to replicate a factory floor and had high levels of background noise, necessitating the lecturer having to shout.
3. The Claimant was successful at his work and his students had high success rates in examinations. He was the college expert on computer controlled machines and was responsible for the design and managing of all the Appellant's computer aided design courses. No criticisms were made of his work. In January 1999, the Claimant's role was Co-Ordinating Lecturer Programme Leader HNC Engineering. He was contracted to work 37 hours per week but, in fact, worked for about 50 hours per week, of which approximately 20-24 hours was spent in actual teaching.
4. From 1992 the Claimant experienced occasional problems with his voice. In the autumn term of 2000, these problems caused an absence from work of about three weeks and the Appellant referred him to its Occupational Health Adviser. An Occupational Health report was written on 16th November 2000 suggesting his lecture time be reduced. The Appellant did not implement this recommendation or disclose the report to the Respondent [Para 7]. In January 2002 the Respondent went on sick leave. In February 2002 he was diagnosed as suffering from functional dysphonia [Para 8]. In May 2002 he returned to work and adjustments were made to his duties by the Appellant. He continued to teach small groups and mature students [Para 9]. An Occupational Health Report dated 27th May 2002 recommended the adjustments to be made and that a review take place in September [Para 10]. The recommendation for a review was confirmed in a report dated 8th July 2002 [Para 11]. The Appellant refused all requests from the Respondent to see these Occupational Health Reports [para 12].
5. At the start of the new academic year in September 2002 no review took place. The Respondent's line manager, Mr Gaynor, told the Tribunal he had been unaware of the Occupational Health recommendations. The Human Resources Advisor, Miss Hamm, told the Tribunal that although she had planned how to carry out the review she did not in fact do so as it was a very busy time and she assumed that the Respondent's presence at work meant that no action needed to be taken [Paras 13 and 14].
6. The Respondent was given a full teaching timetable in September 2002 and was not consulted about any aspect of it. No allowance was made for the Respondent's condition in drawing up the timetable [Paras 14 and 15].
7. The Respondent found teaching 16 school children aged 14 in the noisy machine shop particularly difficult. The Tribunal found that he mentioned the problem in several routine conversations with his line manager Mr Gaynor, in a written note dated 15 October 2002 and that Mr Gaynor recognised for himself, on hearing the Respondent speak, that he was encountering difficulties. The Tribunal further found that Mr Gaynor was unsympathetic and took no action [Para 15].
8. On 22 October 2002, the Claimant's voice broke down. He went on sick leave, although he was otherwise fit, and never returned to work [Para 16].
9. A meeting took place between the Respondent, Mr Gaynor and Miss Hamm on 12 December 2002. The Respondent asked to return to work performing the same functions as he had in May. All present were aware that what he proposed was that he would not undertake classroom lecturing but could do student contact and individual tuition. Miss Hamm supported him returning to work on this basis but Mr Gaynor opposed it and his view prevailed [Para 20].
10. On 20 December 2002, the Appellant notified the Respondent in writing that it was to undertake a restructuring process. This process had been discussed with other employees at meetings in October 2002. The Respondent was not invited to attend these meetings as he was off sick nor was he sent a copy of the minutes [Paras 17 and 21].
11. The Respondent applied for the post of Co-Ordinating Lecturer in Manufacturing on 22 January 2003. The job description subsequently issued for that post was very similar to that issued to the Respondent in 1999. The Tribunal found that this job was substantially the same as that previously undertaken by the Respondent [Paras 22 and 61].
12. Prior to this, on 13 January 2003, the Respondent was finally allowed to see (but not take copies of) his previous Occupational Health Reports (an up to date report had not yet been received). Whilst in Miss Hamm's office the Tribunal found that she suggested that he complete a Teachers' Pensions application form to see if he would qualify for a "breakdown" pension and that the effect of him doing so was simply to make an enquiry to see whether such a pension would be paid and how much it would be. He was told that the application would simply be a "precautionary measure". The Tribunal specifically accepted the Respondent's evidence that when he returned the form of 20 January 2003 to Miss Hamm he did so to determine whether he was eligible for such a pension. The Tribunal further found that had Miss Hamm considered otherwise she would have pointed out to the Respondent the conflict between the pension form sent on 20 January 2003 and the job application form sent on 22 January 2003 [Paras 25, 26 and 27].
13. The Respondent was interviewed for the post of Co-Ordinating Lecturer in Manufacturing on 12 February 2003. He had previously been graded lowest of all applicants for all positions based on his application form. He had not been told that there was to be a greater emphasis than before on teaching 14 to 16 year olds. No account was taken by those grading the Respondent either before or during the interview of his teaching record or performance over 26 years or his range of experience during that period. He was not questioned about the teaching techniques required for the post. The Tribunal found that the Respondent had been successful at this work and his students had high success rates in examinations. No criticism had ever been made about the standard of his work. Those grading the Respondent had no personal knowledge of the standard of his work and his annual appraisal forms had not been retained by the Appellant. The issue of the Respondent's voice was not raised by any of the panel during the interview. The Respondent raised it but the panel declined to discuss it [Paras 5, 31 and 32].
14. No applicant obtained the job the Respondent had applied for. David Ames, another employee, was given the lesser post of Lecturer 'based on the experience of both candidates". The Co-Ordinating Lecturer's post was advertised externally but the Respondent was not informed of this. Mr Ames reapplied but the Respondent was not invited to do so. Mr Ames was appointed as his application was "significantly improved" . The Respondent was the only employee to be placed at risk of "redundancy" through the process undertaken [Paras 34 and 35].
15. The Tribunal found that the whole process was "grotesquely unfair" and that "looking at the evidence as a whole, that the method and procedure relating to this appointment was intended to be disadvantageous to the Claimant and that the reason for that policy was a pre-determined conclusion that the Claimant should not be treated as a lecturer because of his medical condition" [Para 64].
16. A meeting took place on 30 April 2003 between the Appellant and the Respondent. The Tribunal found that although redeployment was discussed at the meeting, the Appellant's approach was hypothetical, stating what it theoretically could do rather than what it was prepared to do [Para 39].
17. The critical evidence in the case relating to reasonable adjustments was given by the Respondent's line manager Mr Gaynor. It was Mr Gaynor that had instigated the restructuring process. As a result of that process he had a "blank sheet of paper" so far as the job specifications was concerned. It was the Appellant's own case that the failure to employ the Respondent following the process had nothing to do with his disability. The Appellant's case as accepted by the Tribunal was that "it was possible to devise a job which would take account of the effects of his disability (but harness the benefits of his long career and successful record), provided that the Claimant would fit in with the new 'ethos' which Mr Gaynor was pursuing".

The Employment Tribunal's Judgment

18. In the light of the extensive grounds of appeal and submissions made to us on behalf of the Appellant, it is necessary for us to set out in full the judgment of the Employment Tribunal on liability. The Tribunal said this:

"48. Although it was disputed by the Respondent throughout these proceedings until 4 December 2003 that the Claimant was a disabled person, that point is now conceded by the Respondent. Accordingly, and on the evidence, the Tribunal finds that the Claimant was a disabled person as defined in Section 1 and Schedule 1 of the 1995 Act.

Until it considered a medical report by Mr Michael Brockbank (A 119), the Respondent did not concede a diagnosis of Functional Dysphonia.

49. Neither party in its submissions has treated separately the issues which arise under the Section 5( 1) claim and those which arise under the Section 5(2) claim, but the Tribunal has considered them separately so far as practicable, although they are inter-linked. Although the dismissal of an employee is not in itself a breach of the duty to make adjustments under Section 6, pre-dismissal breaches of the duty can fall within the scope of Section 5(2). The list of examples in Section 6(3) of the sort of adjustments that an employer may need to make includes adjustments that might be made with a view to retaining a disabled employee in employment rather than dismissing-him. Paragraphs 6.19 and 6.20 of the Code of Practice provide that any employer is under a duty to consider making any reasonable adjustments to retain an employee who becomes disabled, i.e. to attempt to avoid a dismissal by reason of such disability.

.

50. In considering the claim under Section 5(2), the Tribunal has followed the steps prescribed in Morse v Wiltshire County Council [1998] IRLR 352.

51. The Tribunal is satisfied that, in the particular circumstances of the case, the provisions of Section 6(1) and Section 6(2) impose a Section 6(1) duty on the Respondent. The Tribunal has considered whether the Respondent could reasonably have taken any of the steps, following the examples in Section 6(3), in order to comply with its Section 6(1) duty, taking into account the provisions of Section 6(4).

52. In order to comply with its duty to consider what reasonable adjustments could be made, the Respondent should have sought the involvement of the Claimant. He, however, was put at a substantial disadvantage by the decision of the Respondent to persistently refuse to disclose to him the Occupational Health reports dealing with the effect of his condition on his work situation. Further, the Respondent should have followed, or at least given general consideration to following, the recommendations contained in the Occupational Health reports.

In breach of this duty, the Respondent failed to disclose to the Claimant, or follow the recommendations in, the Occupational Health reports prepared in November 2000, May 2002, July 2002 and December 2002. Only in January 2003 was the Claimant allowed to read, but not take away copies of, the reports.

These actions severely prejudiced the chances of there being any effective adjustments implemented by the Respondent to ameliorate or overcome the effect of the Claimant's disability.

53. Not least because it was recommended in two Occupational Health reports, the Respondent should have carried out appropriate enquiry and assessment to ascertain what adjustments could be made to the Claimant's working schedule on his return to work in September 2002. A continuation or adaptation of the successful arrangements which had been made the previous summer should have been considered. In fact, the Respondent failed to consult the Claimant as to his timetable or the hours, duration and type of lecturing which could be arranged to best accommodate his disability. Mr Gaynor failed to even consider making adjustments, even when the Claimant pointed out to him the difficulties he was encountering with his voice.

54. Especially since it had neither followed its own Occupational Health reports or consulted the Claimant about them, the Respondent had a duty to carry out an appropriate medical assessment of the Claimant's condition when he went on sick leave in October 2002 to enable it to assess and discuss with the Claimant what adjustments would be made to take account of the effects the Claimant's disability was then causing. Even without such a report, The Respondent should have considered what other duties, including student contact and individual tuition, the Claimant could perform as proposed by Miss Hamm but vetoed by Mr Gaynor.

55. The Respondent failed to consider providing amplification to reduce the effect of the Claimant's disability on his ability to lecture. The Respondent submits that no suggestions came from the Claimant notwithstanding that he had used amplification in performing his counsellor duties, and that there is no evidence before the Tribunal that such a system would have been effective. Neither factor removed from the Respondent the duty to make, or consider making, reasonable adjustments by way of amplification; such duty rests with the employer. Mr Gaynor admitted in evidence that he could have considered such an adjustment but that it did not occur to him.

56. At the meeting on 30 April 2003 the Respondent had a final opportunity to consider what reasonable adjustments could be made to enable the Claimant to perform the role of co-ordinating lecturer. Mr Gaynor conceded in evidence that at that stage he had "a blank sheet of paper" so far as the job specification was concerned. Thus, it was possible to devise a job which would take account of the effects of his disability (but harness the benefits of his long career and successful record), provided that the Claimant would fit 1n with the new "ethos" which Mr Gaynor was pursuing. The Respondent did not do so, nor did it make any attempt to apply to the Claimant the pledge in its restructuring plans to consider redeployment and re-training.

Almost the final evidence given in the case was that by Miss Burton, who said "I never saw him (the Claimant) as disabled and never considered making reasonable adjustments". The Tribunal has reason not to accept that evidence as true and as being a most damaging admission made on behalf of the Respondent.

57. For these reasons, the Tribunal finds that the Respondent failed to comply with its duties under Section 5(2) and Section 6 in the respects identified.

58. Further, the Tribunal finds that the Respondent has failed to show that its failure to comply with the duty is justified, pursuant to Section 5(2)(b). Even if the Respondent was ignorant .of the Claimant's disability, as Miss Burton claimed and as may be inferred from the Respondent's protracted denials in these proceedings as to the Claimant's diagnosis and disability as defined in the 1995 Act, this does not amount in law, in the circumstances of this case, to justification. The Tribunal concludes that the Respondent had no genuine intention of even attempting to make reasonable adjustments as required by Section 6. lt claimed to draw the inference that the Claimant wished to accept ill-health retirement when an objective view of all the circumstances clearly indicated the opposite, and then used such inference as purported justification for "not going down the redeployment route" (as Miss Hamm put it in evidence). Even if the Respondent had genuinely believed that the Claimant had concluded that his disability left him with no alternative but to retire from his lecturing post, the Respondent has failed to justify its failure to even consider the Claimant for a non-teaching role, as permitted by Teachers' Pensions on ill-health retirement.

The Respondent asked itself not "What can we do to retain the Claimant in employment?" but rather "What can we do to ensure that he leaves?".

59. For these reasons, the Tribunal finds that the Respondent has unlawfully discriminated against the Claimant contrary to Section 5(2) of the 1995 Act.

60. The Tribunal has then considered whether the Claimant was subjected by the Respondent to less favourable treatment for a reason related to his disability pursuant to Section 5(1) of the 1995 Act.

61. The Respondent has shown that it was engaged in a process of reorganisation of the Engineering Department which involved the adoption of Mr Gaynor's new 'ethos'. The Tribunal is not persuaded on the evidence, however, that the new post of Co-ordinating Lecturer was a substantially different job to that which the Claimant had been performing. The requirement for 'high quality teaching and learning' had always been an inherent part of the job. The Tribunal rejects Mr Gaynor's contention that the inclusion of such objectives in the heading of the new job description 'made the jobs fundamentally different'.

62. The Claimant was the only lecturer whose employment terminated in the course of the reorganisation. The Respondent has failed to show that there was a redundancy situation in relation to the Claimant within the meaning of Section 139(1)(b) Employment Rights Act 1996, since the Respondent has not shown that its requirements for employees to carry out work of a particular kind ceased or diminished or were expected to cease or diminish.

63. The Tribunal concludes, on the evidence, that in the following respects the Claimant was subjected to less favourable treatment compared with employees who were not disabled, for a reason related to his disability:

63.1 In consequence of being absent from work through his disability, the Claimant was not informed of the meetings held with employees in October 2002 and was prevented from having access to the minutes thereof.

"

63.2 Having uniquely disadvantaged the Claimant in this way, the Respondent compounded its omission by perversely excluding consideration of past performance as being 'not relevant' and failing to notify the Claimant of the requirement to teach younger students.

63.3 Whereas the interviewing panel were aware of the Claimant's disability, they prevented the Claimant from discussing the issues at interview, thereby preventing him from dealing with potential aspects of unsuitability for the post which did not apply to those who were not disabled, including Mr Ames.

63.4 The Claimant was passed over for the lower position of lecturer, without discussion, on the ground of a perceived lack of experience, notwithstanding the Respondent's failure to take into account on interview the Claimant's teaching record. He was treated less favourably than Mr Ames who, not being disabled, was not subjected to the disadvantages suffered by the Claimant.

63.5 The Claimant was not informed that the Co-ordinating Lecturer in Manufacturing post had been re-advertised and, due to his absence, was unaware of this fact. By comparison, Mr Ames, not being absent in consequence of disability, was aware of the advertisement, reapplied for the vacancy and was appointed to the post on parameters not applied to the Claimant.

63.6 As the only member of the department who was not redeployed and as the only candidate who was disabled, the Claimant was uniquely disadvantaged by the failure of the Respondent to apply its redundancy/redeployment policy (including provisions for re-training) to him.

64. The Claimant's case is that the Respondent's procedure was a 'sham'. The Tribunal rejects the contention that the whole of the reorganisation exercise was carried out for the sole purpose of terminating the Claimant's employment; there was a genuine perceived need to reorganise and refocus the workings of the department. Nevertheless, the Tribunal finds that 'the process to which the Claimant was subjected was grotesquely unfair. Following the disadvantages to which the Claimant was subjected prior to interview in consequence of his disability, he attended an interview for a post which was very similar to that which he had successfully discharged previously without being told the respects in which the new job would be different. Without being informed that he might have to teach 14 to 16 year olds and without being informed that neither his experience nor previous teaching record would be taken into account. The Respondent has failed to explain these features and has failed to justify the pre-interview matrix scoring producing a result whereby the Claimant, after an unblemished 26 year career, was scored lower than any of his peers. Although Mr Ames was ostensibly subjected to the same process, he was successful on a second interview, the opportunity for which was denied to the Claimant for reasons relating to his disability. The Tribunal is forced to the conclusion, looking at the evidence as a whole, that the method and procedure relating to this appointment was intended to be disadvantageous to the Claimant and that the reason for that policy was a pre-determined conclusion that the Claimant should not be retained as a lecturer because of his medical condition.

65. This finding as to the Respondent's mindset is relevant to the Claimant's application for ill-health retirement and eventual resignation. The wording of the application form, particularly the notes at the top of the first page (A82) suggest that, if the application is accepted, the applicant should 'arrange for active teaching to cease with immediate effect and for the employment to be terminated at the earliest possible retirement date'. For the reasons given, however, the Tribunal is satisfied that the Claimant's submission of the form did not indicate a concluded decision on his part to take ill-health retirement and nor could the Respondent reasonably have believed this to be the case. The application had been instigated by the Respondent based only on the fact that the Claimant had mentioned to the Occupational Health Consultant that ill-health retirement was one of the options which he would have to consider. Consideration of an option cannot be equated to a decision to elect. The Respondent was not entitled to reach such a conclusion, either on the facts known to it at the time or by the proper application of its own Management of Absence Policy, which provides at paragraph 95 (A154) that a retirement on the grounds of permanent ill-health is effected 'if there are no suitable redeployment opportunities'. The Claimant was still in the process of exploring such opportunities. Despite the representations made by the Claimant, and on his behalf by his solicitors, the reality of the situation at the meeting on 30 April 2003 was that the Respondent (having already informed the Claimant by letter dated 9 April 2003 that his employment was to end) was purporting to give the Claimant a choice between being dismissed on the ground of redundancy or proceeding with ill-health retirement. Rather than make genuine attempts to retain the Claimant in suitable employment, the Respondent pursued its determination to force the Claimant to go down the ill-health retirement route, under threat, repeated by implication in its letter of 19 May 2003, that in the alternative the Respondent would terminate the Claimant's employment on financial terms which would clearly be less favourable to him. The conduct of the Respondent, culminating in its insistence that the Claimant choose between redundancy or retirement through ill-health, amounted to a breach of the fundamental implied contractual term that neither party would conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties. The Claimant's resignation, for that reason, and under protest as explained in his solicitor's letter of 22 May 2003, amounted to a constructive dismissal.

66. The Tribunal concludes that the material reason for the Claimant's dismissal was his resignation in response to the Respondent's breach of contract culminating in its forcing the Claimant to choose between redundancy and ill-health retirement. The material reason for those breaches of contract was the Claimant's disability and the Tribunal is entirely satisfied that the Respondent would not have dismissed, and did not dismiss, others to whom that reason did not or would not apply.

67. The Respondent has failed to show that its treatment of the Claimant, either in respect of his dismissal or the other treatment identified by the Tribunal to be contrary to Section 5(1) (a), was justified. Consequently, the Tribunal finds that the Respondent has unlawfully discriminated against the Claimant pursuant to Section 5(1) of the 1995 Act.

68. The Respondent raised the issue as to whether the Claimant's disability claim is, in whole or in part, out of time although Mr Doughty frankly conceded, on behalf of the Respondent, at the outset of the hearing, that he was "aware of the difficulties in running that argument".

69. Paragraph 3 of Schedule 3, Part 1 of the 1995 Act provides that an Employment Tribunal shall not consider a complaint (of disability discrimination under the Act) unless it is presented before the end of the period of three months beginning when the act complained of was done.

Paragraph 3(3)(b) provides that for the purposes of sub-paragraph (1) any act extending over a period shall be treated as done at the end of that period.

70. The Originating Application was presented on 14 July 2003. The effective date of termination was 31 May 2003. So far as discrimination by dismissal is concerned, therefore, the application was presented in time.

71. With regard to the other acts of discrimination under Section 5(1) and (2) of the 1995 Act, the Tribunal finds that the incidents are interlinking and that the Respondent is responsible for the continuing state of affairs. Applying the principles in Hendricks v Metropolitan Police Commissioner [2003] IRLR 96, 96, the Tribunal concludes that all the acts of the Respondent found to be discriminatory extend over a period ending with the effective date of termination. Having been brought in time pursuant to paragraph 3(3)(b), the Tribunal has the jurisdiction to consider them.

72. The Respondent denies that the Claimant was dismissed (paragraph 38, Grounds of Resistance). It relies on Eunice Verner & Others v Derby City Council & Others [2003] EWHC 2708 in arguing that the Claimant accepted ill-health retirement and that this amounted to a voluntary resignation. The Tribunal does not accept that case as authority for the Respondent's proposition that the Claimant made an unequivocal acceptance of ill-health retirement and that, in consequence, he was bound to resign. Having belatedly accepted the Claimant's true position, the Respondent informed Teachers' Pensions that the ill-health retirement was 'on hold' (A101). The decision in the Verner case finds that a voluntary decision to retire on the grounds of ill-health amounts to a notice of resignation when it is communicated to the employer. 'In this case, as the Tribunal has found, neither the decision to accept ill-health retirement nor the Claimant's resignation were voluntary. Rather, they were the result of the Claimant being forced to choose between ill-health retirement and dismissal. For the reasons stated earlier, the Tribunal finds that the Respondent was in fundamental breach of contract and that the Claimant's resignation amounted to a constructive dismissal. It expressly rejects the Respondent's submission that 'this is not a Catherall v Michelin Tyres PLC [2003] IRLR 61 situation where the choice was between ill-health retirement or redundancy'.

73. The Tribunal also rejects the contention (Grounds of Resistance, paragraph 39) that the Claimant "waited too long before accepting the repudiation and accordingly affirmed the contract". It was not until the meeting on 30 April 2003 that the Claimant was finally forced to the conclusion that there was no prospect of the Respondent continuing to employ him in any capacity. His decision to resign and claim constructive dismissal was communicated in his and his solicitor's letters of 22 May 2003. In all the circumstances of the case, the taking of three weeks to consider and announce his decision did not amount to undue delay resulting in affirmation of the contract.

74. The Respondent's case does not include an alternative pleading of a reason for dismissal. If the reason for dismissal was the reason for the Respondent's breach of contract, the reason is the Respondent's wish to terminate the Claimant's employment for a reason related to his disability. In either case, the Respondent has failed to show a potentially fair reason for dismissal pursuant to Section 98(1) and (2) of the Employment Rights Act 1996. It follows as a matter of law that the dismissal is automatically unfair.

The Grounds of Appeal

19. The grounds of appeal are two-fold and related first to an alleged misapplication of the law in respect of reasonable adjustments and a failure properly to apply the justification defence; and second, to the Tribunal's finding that the Respondent was unfairly dismissed and that this was an act of disability discrimination. The second ground is based on perversity. The Notice of Appeal is amplified in a lengthy Skeleton Argument and by the oral submissions of Miss McLynn. The Respondent was represented by Mr Leslie Samuels. We are grateful to both of them for their written and oral submissions. We propose to treat the Appellant's submissions in the order in which they were argued.

Ground 1

20. Ground 1 is that the Tribunal misapplied the law in respect of reasonable adjustments. Ms McLyn submits that the Tribunal have incorrectly stated that the Appellant has a duty to create a new job for the Respondent and failed to take into account clear evidence as to the Respondent's inability to continue teaching on a full or part-time basis. Furthermore, the Tribunal has failed properly to apply the justification defence.
21. We hope we do not do injustice to Ms McLynn's careful submissions if we do not set them out in detail, as they are fully set out in the Notice of Appeal and the written and oral submissions. We break the submission down into five parts. First, Ms McLynn submits, the Tribunal concluded at paragraph 56 of its judgment that the Appellant had a duty "to devise a job which would take account of the effects of his disability" and in reaching this conclusion the Tribunal wrongly extended the duty to make reasonable adjustments beyond what is required by Section 6(3)(vi) of the Disability Discrimination Act 1995. In particular, she relies upon the fact that there is nothing in Archibald v Fife County Council [2004] IRLR 651 to support this proposition.
22. We are mindful that each case is fact specific. In this case, the Appellant did nothing and did not consider reasonable adjustments at all. Further, Section 6(3) does not, as a matter of law (our emphasis) preclude the creation of a new post in substitution for an existing post from being a reasonable adjustment. It must depend upon the facts of the case. Paragraphs 51-53 of the Tribunal's judgment show the background to the Tribunal's reasoning in paragraph 56. This case concerned a substantial reorganisation and, as the Tribunal found, Mr Gaynor conceded in evidence that at April 2003, he had "a blank sheet of paper" so far as the job specification was concerned. It followed "it was possible to devise a job which would take account of the effects of his disability (but harnessed the benefits of his long career and successful record), providing that the Claimant would fit in with the new 'ethos' which Mr Gaynor was pursuing". The Respondent did not do so, nor did it make any attempt to apply to the Claimant the pledge in its restructuring plans to consider redeployment and re-training: Judgment paragraph 56. On the facts of this particular case, this was the conclusion to which the Tribunal could come.
23. Second, Ms McLynn challenges that the Tribunal's finding that the Appellant should have considered redeploying/re-training the Appellant: Judgment paragraph 56. Ms McLynn accepts that redeployment/re-training can amount to a reasonable adjustment under Section 6(3)(c)(g) of the Disability Discrimination Act 1995. However, she says that the Tribunal did not consider the question of the "reasonableness" of making this adjustment in this case. She relies upon the medical evidence before the Employment Tribunal and, in any event, submits that the Tribunal does not explain how the Respondent could have been redeployed or how re-training would have assisted.
24. We do not agree. It is quite clear that the Tribunal carefully considered all of the medical evidence in front of it (which was substantial). That, and other factual evidence, supported the contention that the Respondent could have remained employed by the Appellant. Mr Gaynor's concession, referred to above, supports that finding. Furthermore, the failure of the Appellant to consider any reasonable adjustment negates this argument. The short factor of the matter is that the Appellant did not consider the question of reasonable adjustments at all.
25. Ms McLynn's third point is that the Appellant should have considered continuing or adapting the arrangements whereby the Respondent carried out some administrative functions and continued with one to one tuition. We do not agree for the reasons already given. It is difficult to see how the Tribunal could be said to have side-lined the question of reasonableness when the Appellant did not consider the question of adjustments at all.
26. The fourth point made by Ms McLynn is directed towards the finding of the Tribunal in respect of the failure of the Appellant to consider amplification: Judgment paragraph 55. In particular, Ms McLynn relies upon the fact that there was no evidence before the Tribunal to suggest that voice amplification would have been effective by way of an adjustment. In our view, properly read, paragraph 55 of the Tribunal's judgment provides one example of the sort of reasonable adjustment which the Tribunal found that a reasonable employer should have considered in the light of the history that Mr Randall was a local councillor and therefore used amplification when speaking at some Council meetings.
27. It seems to us that the answer to this point is found in the judgment of Keith J in Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566. There must be many cases in which the disabled person has been placed at a substantial disadvantage in the workplace but in which the employer does not know what it ought to do to ameliorate that disadvantage without making enquiries. To say that a failure to make those enquiries would not amount to a breach of the duty imposed on employers by s.6(1) would render s.6(1) practically unworkable in many cases. We do not believe that that could have been Parliament's intention. The fact that the preliminary steps which the Tribunal had in mind are not referred to in s.6(3) is not decisive since the list of steps in s.6(3) is not exhaustive, and although s.6(4)(a) is, in terms of language, difficult to link in with preliminary steps of the kind which the Tribunal had in mind, s.6(4)(a) was only a consideration which the Tribunal had to have regard to, and it was not one which was to be regarded as decisive. A proper assessment of what is required to eliminate the disabled person's disadvantage is therefore a necessary part of the duty imposed by s.6(1) since that duty cannot be complied with unless the employer makes a proper assessment of what needs to be done. As the Tribunal said, in paragraph 36 of its Extended Reasons:

"…in the absence of such an assessment, it will often be impossible for an employer to know what adjustments might be reasonable, possible or effective.

The making of that assessment cannot, in our judgment, be separated from the duty imposed by s.6(1) because it is a necessary pre-condition to the fulfilment of that duty and therefore a part of it".

28. Ms McLynn's final point on her first submission is that the Tribunal concluded in paragraph 58 of its judgment that the Appellant had not justified its failure to comply with the Section 6 duty pursuant to Section 5(2)(b) of the Disability Discrimination Act 1995. She submits that the Tribunal did not go on to consider whether the Appellant was justified in failing to make reasonable adjustments in respect of her previous points by reasons of the evidence and arguments presented by the Appellant. In particular, she relies upon the alleged failure to consider reasonableness.
29. We do not agree. The evidence presented on behalf of the Appellant was that it never considered making any adjustments for the Respondent as it never considered him to be disabled: Judgment paragraph 56. Second, Mr Gaynor's evidence was that he could have made suitable adjustments had the Respondent fitted in with his ethos: Judgment paragraph 56. The scope of the justification defence under Section 5(4) of the Disability Discrimination Act 1995 was narrowed in Collins v Royal National Theatre Board Limited [2004] IRLR 395. The Court of Appeal held that the only workable construction of Section 5(4) is that it does not permit justification of a breach of Section 6 to be established by reference to factors properly relevant to the establishment of a duty under Section 6. It seems to us that these three points are a complete answer to Ms McLynn's fifth point.

Ground 2

30. Ground 2 relates to the dismissal itself. Ms McLynn submits that this finding of unfair dismissal and disability discrimination is perverse in that it was contrary to the undisputed documentary evidence before the Tribunal which demonstrated that the Claimant wished to take ill-health retirement. Ms McLynn notes that the Tribunal recorded at paragraph 25 of its judgment that there was a conflict of the evidence of the Respondent and the Appellant about what the Respondent was told about completion of the application form for ill-health retirement on 17 January 2003. The Tribunal clearly preferred the evidence of the Respondent which was that he believed by completing the form he was doing no more than making an enquiry to see whether ill-health pension would be paid, and if so, how much. Ms McLynn seeks to challenge that finding in itself and by reference to the surrounding documents.
31. We begin by noting the high barrier which an appellant must cross to succeed on the ground of perversity: Yeboah v Crofton [2002] IRLR 634 at paragraphs 92-93. There was clear evidence here upon which the Employment Tribunal could make its findings of fact: Judgment paragraphs 83-85. We do not see how the decision of the Tribunal could possibly be classified as perverse. In the alternative, the Notice of Appeal talks of the finding of the Tribunal in paragraph 65 of its judgment as being "contrary to the undisputed documentary evidence before the Tribunal". However formulated, an appeal on this ground which is "contrary to the preponderance of the evidence" is not a point of law: British Telecommunications plc v Sheridan [1990] IRLR 27.

Conclusion

32. For these reasons, this appeal is dismissed.