United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ROBERT PALMER (of Counsel) Instructed by: Surrey County Council Legal and Committee Services County Penrhyn Road Kingston upon Thames
For the Respondent	MISS SYLIVA HAY (The Respondent in Person)


 


SUMMARY

Disability Discrimination: Reasonable Adjustments & Justification

In finding that the Respondent local authority did not make reasonable adjustments to accommodate the Claimant mobile library manager's disability, the Employment Tribunal reached a conclusion which was perverse and it failed to explain why the responses given by the Respondent to the suggestions of adjustments were inadequate. The Employment Tribunal wrongly dismissed the assessment of the risk to the Claimant of the working environment which came from two occupational health physicians and the Claimant's two orthopaedic surgeons. There is no requirement to carry out a "formal risk assessment" but an assessment must be made which meets the facts of the situation: Mid-Staffordshire v Cambridge applied.

HIS HONOUR JUDGE McMULLEN QC

1. This case is about the duty to make reasonable adjustments for a person who is disabled. It is also about the application of the test for unfair dismissal and reasonableness under the Employment Rights Act 1996. The judgment represents the views of all three members, particularly informed by the experience which Dr Mohanty, with his medical background, has brought to our decision making. We will refer to the parties as Claimant and Respondent.

Introduction

2. It is an appeal by the Respondent in those proceedings against a reserved judgment of an Employment Tribunal sitting over four days, followed by a day in chambers to consider written submissions at London (South), Chairman: Mr R D Salter, registered with reasons on 17 October 2005. That liability hearing was followed by a hearing on remedy, for the Claimant's case was upheld and the Tribunal went on to award the Claimant the sum of £45,998.67 for unfair dismissal and £1,000 for disability discrimination by way of injury to feelings.
3. As is plain, the Claimant had claimed unfair dismissal and disability discrimination. The Respondent denied both. The Claimant represented herself and the Respondent was represented by Mr Robert Palmer of Counsel, as today.

The issues

4. The potential issues, as defined by the Employment Tribunal, focused upon whether or not reasonable adjustments should have been made to the work being done by the Claimant. The case management directions set out the following:

"7.1 Was the Respondent under a duty under section 6 Disability Discrimination Act to make reasonable adjustments in the light of the disability?

7.2 If so, did the Respondent fail to comply with such a duty?

7.3 Was the Claimant dismissed (justifiably) for a reason relating to her disability?

7.4 Was the Claimant unfairly dismissed?"

The Tribunal decided that the Respondent breached the Disability Discrimination Act 1995 by failing to make reasonable adjustments for her admitted disability which was that she had recently had knee surgery, which involved arthroscopy and left her with a degenerative left knee condition. The dismissal was unfair for the purposes of the 1996 Act and was a detriment for the purposes of the 1995 Act. The Respondent appeals.

5. Directions sending this appeal to a full hearing were given at a preliminary hearing by HHJ Peter Clark and members. These included the agreement of the parties on a note of evidence which has been accepted by the Chairman, subject to one slight variation. We are grateful to the Chairman for providing his comments on those notes.

The legislation

6. The relevant provisions of the Disability Discrimination Act 1995 which were in force at the time of these events (that is before the changes on 1 October 2004) and the provisions on unfair dismissal are not in dispute, nor is the Employment Tribunal's concise statement of law given pursuant to Employment Tribunal Rules 2004, Rule 13. We will gratefully adopt them.

"13. (1) If a party does not comply with an order made under these rules, under rule 8 of Schedule 3, rule 7 of Schedule 4 or a practice direction, a chairman or tribunal  -

(a) may make an order in respect of costs or preparation time under rules 38 to 46; or

(b) may (subject to paragraph (2) and rule 19) at a pre-hearing review or a Hearing make an order to strike out the whole or part of the claim or, as the case may be, the response and, where appropriate, order that a respondent be debarred from responding to the claim altogether.

(2) An order may also provide that unless the order is complied with, the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice under rule 19 or hold a pre-hearing review or Hearing.

(3) Chairmen and tribunals shall comply with any practice directions issued under regulation 13".

The facts

7. The Tribunal set out the facts with considerable care and said this:

"12.1 The Claimant is a 43 year old woman who has worked for the Respondent since May 1990. She has no formal qualifications. She left school in 1978 at the age of 16. She had a variety of jobs before running a Sports arid Social Club in Gosport and later becoming an Accounts Clerk with a marketing company, the assistant Manager of a hotel manager of a flower shop and finally a picture framer/computer operator at a picture gallery. In her CV she describes herself as reliable, assertive, honest, discreet, diplomatic and capable. She is an intelligent and assertive woman with a strong ability to express herself both in words and in writing even though she is not interested in books and reading and indeed admitted that since an adult she had barely read a single book.

12.2 Her work for the Respondent was initially as a delivery van driver working for library services. Her employment started on 29 May 1990. She was employed on the terms of a statement that she signed on the 29 May 1990. In August 1996 she was offered the post of Mobile Library Manager - a post she accepted on the 1 August 1996. Mobile Libraries visit rural and suburban communities, housing developments for the elderly and residential and nursing homes. Her duties were set out in a job profile. She was described as Mobile Library Manager 5. Apart from managerial accountabi1ities, she drove the 7.5 ton vehicle on the prescribed route and was responsible for checking books in and out, replacing books on the shelves and exchanging and renewing the stock of books from time to time. Apart from the driving, the job entailed some physical work lifting and carrying books. She also worked at the relevant time on Saturdays.

12.3 The Respondent is a local authority. As such it operates a library service which consists of both static and mobile libraries. At the relevant time there were six vehicles equipped as mobile libraries. These vehicles had designated routes and stopping places or locations. One of the vehicles was larger and known as the urban mobile library. One was a smaller vehicle that visited residential' homes. The vehicle assigned to the Claimant at the relevant time had a manual gearbox (as did all the other vehicles). The Claimant had an assistant for 2 or 3 days a week".

8. The Claimant's work was described in a job profile which involved driving a lorry, carrying books on and off a vehicle, wheeling books in a trolley, getting in and out of the cab, standing at the desk to issue books to customers and replacing books on shelves that were 9" from the floor of the vehicle to a height of 6'. The Claimant also visited sheltered housing (when she had an assistant) on two or three days of the week but, for the rest of the time, she was on her own. The assistant was needed to operate the lift to enable elderly people to gain access to the vehicle. The Claimant's area manager was Mr Chris Phillips and the Head of Libraries for the County Council was Mr Chris Norris, both of whom gave evidence.
9. Over the course of time following the surgery in 2003, nine separate medical reports relating to the Claimant's condition and her ability to work at her job were obtained. They were from two consultant orthopaedic surgeons who had treated the Claimant (Mr Twyman and Mr Dabis) and two of the Respondent's occupational health practitioners (Dr Sperber and Dr Roddy). She attended a number of meetings with the Respondent's officers to discuss the outcome of these reports.
10. Although the reports initially warned her off driving, the position by the time of the events relevant to the discrimination and the dismissal claims was that the Claimant should not do physical manual work and should not work in a library. The issue of driving was never completely resolved. It was common ground that driving a vehicle with a heavy clutch would aggravate the joint and should not be done. The vehicle which she drove, on a scale of 1 to 10 for difficulty of management with the left leg, was placed at 5.5 to 6, where an ordinary car is 5. The Claimant was driving her own car to work and other places, so it was not in dispute that she was able to drive, notwithstanding the difficulty in her knee.
11. Once the Claimant presented post-operatively with the condition described, efforts were made to redeploy employer. She was sent to Redhill on another library project, but this turned out to be unconducive to her. She did not like it. Further steps were taken to see whether or not she could do other duties and this was the subject of a series of meetings at various levels within the Respondent council.
12. In particular, a meeting was convened where the Claimant was assisted by her union representative on 22 September 2003 and a further series of meetings followed at which opportunities, we hold, were available to her for her to raise and for management to respond to (and, indeed, for management to activate) any suggestions there might be. These included possibilities of redeployment and swapping duties with another mobile library employee, Mr Collingwood, whose vehicle was more amenable and who operated with an assistant. The outcome of these meetings depended, to some extent, on the Claimant's mercurial position as recorded by the Employment Tribunal which said this:

"15.8 The Respondent was not helped by the Claimant who instructed lawyers to make a personal injury claim against the Respondent that she did not in the event pursue. She also claimed that she should retire on medical grounds. She also complained about the failure of the Respondent to find her a suitable alternative job. She then stated that she could do her old job. Her conduct throughout is demonstrably opportunistic and, as such, unattractive. But the obligation was upon the Respondent to handle what was clearly a difficult situation with a somewhat uncooperative employee. As such it was the duty of the Respondent to manage the situation".

13. That indicates to us that the Respondent was under a certain amount of difficulty in responding to what precisely was the Claimant's problem as she perceived it to be for, as the Tribunal has noted, it changed in her eyes. The Tribunal came to the conclusion that adjustments could be made to the work of the Claimant and that it was not right that she should be faced with an ultimatum of an offer of alternative work which, when she refused, caused her dismissal. It said this:

"15.3 The Respondent was under a duty to consider making adjustments to take account of her condition. The Respondent was under an existing duty to ensure that the vehicle was well maintained and that the clutch pedal was operating normally and in a manner consistent with a clutch pedal of a private motor car. But the Respondent was under a duty to ensure that the work undertaken by the Claimant in her capacity as mobile librarian (as opposed to her work as the driver of the vehicle) did not cause or exacerbate the condition of her knee - a condition that placed restrictions upon the extent that she could undertake manual work particularly crouching and squatting. Library duties involved handling books -lifting, carrying as well as placing and recovering them from shelving units. There were potentially activities that she could not undertake -for example, recovering or placing a book on the bottom shelf, or picking up books from the floor or removing books from the vehicle and in respect of which adjustments had to be considered.

15.4 Given the reports from Occupational Health and from her Consultants It was incumbent upon the Respondent to carry out a formal risk assessment in order to determine what adjustments might be appropriate and reasonable. The Consultants did not have the necessary, information before them to determine whether the Claimant was able to undertake all her duties as a mobile librarian. The purpose of a formal risk assessment was to establish, in consultation with the Claimant, precisely what her job entailed (including reviewing the working environment and the work duties) and to assess the extent of the risk to the Claimant in relation to such duties and how that risk might be obviated. The risk assessment had to be carried out with the involvement of the Claimant because she and she alone was in a position to provide the necessary information about her daily activities and to comment upon what activities she considered she could do without risk. Informed medical opinion could then be given -even though the opinion might not necessarily accord with that of the Claimant".

14. As can be seen from paragraph 15.4, the Tribunal is relying upon a failure by the Respondent to carry out "a formal risk assessment". That phrase is repeated on two other occasions (see paragraph 15.4 again and 15.6). The outcome depended upon the Tribunal's view of what adjustments can possibly be made, for it said this:

"15.5 The Tribunal was unanimous in its view that, ignoring the question of whether the mobile library vehicle's clutch was in good working order, a risk assessment would have recommended adjustments to her work and/or her working environment. The adjustments would be designed to eliminate the risk of further Injury to her knee as a consequence of handling books in and around the mobile library. There are three likely proposed adjustments: first to engage an assistant to work every day (in effect extending the hours of the part time assistant from the 2/3 days he or she was working with the Claimant); secondly to make adaptations to the vehicle and the Claimant's pattern of work to ensure that she did not place any strain on her knee when handling books nor undertake any manual work that might be a risk to her condition (for example by redesigning the shelving); or thirdly by swapping her duties with Mr Collingwood (who had a full time assistant) or in some way merging the two jobs so that the Claimant always had an assistant – either her own in the mobile library vehicle - or Mr Collingwood's when doing his job. While it is not possible to say which of the three alternatives would have been recommended by the risk assessment the Tribunal is unanimous in its view that one or more would have been proposed. Indeed there might have been others, such as counterpoising the lower shelving".

15. In assessing the effectiveness of any of those measures, the Tribunal considered the money involved, since this seems to be a requirement of the DRC code:

"15.6 The Tribunal is unanimous in its view that it was reasonable that the Respondent make adjustments in order to enable the Claimant to carry on her work as a mobile librarian. The Respondent was not justified in failing or refusing to make adjustments. In the course of a risk assessment exercise the Respondent would be expected to consider the proposed adjustments and carry out a cost analysis and a cost effectiveness exercise -both of which it failed to do on a forma! basis. The absence of a risk assessment exercise is fundamental to this case. But the Tribunal is bound in any event to consider the adjustments referred to above In relation to cost 2nd cost effectiveness. The Tribunal is of the view that the annual cost of a part time assistant (£10000) is, in the context of the turnover of the Respondent, a relatively small cost for which there might have been sources of external funding. The Tribunal does not know if reallocating duties between Mr Collingwood and the Claimant could have been undertaken but it is likely that Mr Collingwood's contract would not prevent his being transferred to another vehicle. Such a change would have had no or no significant financial consequences. Making minor changes to the inside of the mobile library vehicle to avoid books being kept on low shelves and similar adaptations would have involved a relatively small expenditure".

16. Thus, having concluded that the Respondent was under a duty to make reasonable adjustments (and there were adjustments which could be made) it came to the conclusion that the Respondent had breached the statute by failing to make then.
17. It then considered whether the dismissal was unfair for the purposes of unfair dismissal, holding that the reason for dismissal was refusal to take up the new job. It went on to say this:

"While her refusal could in certain circumstances amount to some other substantial reason for her dismissal, it is essential that it is considered reasonable that she accepts the offer of the new job. The Tribunal has taken the view that it was not reasonable in the light of the manner in which the Respondent had handled the situation that she take the new job and it follows that her dismissal for not taking up the new job is unfair. As it was the failure of the Respondent, she cannot be said to have contributed to her dismissal".

18. It is important to see that last passage in its context, which is that it is dependent upon the view taken of whether or not reasonable adjustments could be made. Thus, the Tribunal found in favour of the Claimant on both her claims.

The Respondent's case

19. The principal ground advanced by Mr Palmer on behalf of the Respondent is that the Tribunal erred in demanding that the Respondent, as a matter of law, conduct a formal risk assessment and in condemning it when it failed to do so. The law is set out in Mid-Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566 from which Mr Palmer accepts there is a duty to carry out a proper assessment. We will return to this case.
20. The simple contention is that the record reveals a substantial number of meetings and a substantial number of medical opinions, not only by those with detailed knowledge of the surgery, but also those with detailed knowledge of occupational risks in this workplace. On this basis, an assessment was carried out. It did not need to be categorised as a formal risk assessment and the Tribunal has raised the bar too high against the Respondent in its approach to its assessment. As the Tribunal said, it was fundamental in this case (see paragraph 15.6).
21. Secondly, the Tribunal erred when it found that should a formal risk assessment be undertaken, the likely result would have been three alternative solutions. The first is that an assistant should work with the Claimant every day and that that would have been reasonable. It is contended, however, on a detailed analysis of the evidence which we have been shown, that such an option was considered and discounted as against the cost of it. Further, it was contended that the suggestion that there were external sources of funding was never put to the Council's witness or indeed that such funding was available. On this and the other two succeeding grounds of appeal, the major contention by the Respondent is that the Tribunal judgment was perverse, the answer lacked proper reasons, the Tribunal failed to consider the evidence which was before it and failed to give reasons why it did not accept such evidence.
22. The second hypothesis upon which the Tribunal based its finding was that the vehicle could have been adapted and the pattern of work of the Claimant could have been adapted by, for example, the introduction of cantilevered shelving in the vehicle.
23. Thirdly, it was contended that the proposition that Mr Collingwood should change or merge jobs was one upon which the evidence was all one way. Mr Collingwood was engaged in an entirely different form of mobile library service for which he did have an assistant and it was necessary so to do.
24. Finally, and this relates to unfair dismissal, the Tribunal had erred in holding that a formal risk assessment was required and that, in any event, the circumstances covered the same territory as the findings of unfair dismissal. Essentially, the absence of an identified reasonable adjustment was one which the Tribunal could not have made.

The Claimant's case

25. The Claimant presented a formidable argument to us in writing, and orally, and we accept the depiction of the Tribunal below of her as being intelligent and assertive. That means that she has done justice to the arguments which she put in writing before us with great care identifying the legal authorities. It cannot have been easy for her to do that and we are very grateful to her for the measured way in which she has put these points over to us.
26. The central characteristic of the argument is that it was not incumbent upon her to suggest adaptations of the work, but it was for the Respondent to be proactive and to look for and make adjustments. The supply of an assistant was feasible, the money could have been available, not all of the vehicles were assessed so as to see whether they all suffered from the same sticky clutch, and in as much as the Tribunal had cast an aspersion on her by mentioning the personal injury claim made by her solicitors, this was anachronistic as it was not available at the time. Finally, she recalled that the job which she was offered, and which she refused, and which was the basis upon which the dismissal occurred was, itself, library work which had been warned off.

The legal principles

27. The legal principles in this case emerge from Mid-Staffordshire above where Keith J on behalf of the EAT said this:

"… the duty of the Trust 'to take such steps as it [was] reasonable, in all the circumstances'. of the case, for [it] to have to take in order to prevent [those factors] having [the] effect' of placing Mrs Cambridge at such a disadvantage was triggered. It is here that it is contended by Mr Paul Dean for the Trust that the tribunal fell into error. The tribunal, in effect, construed the words 'to take such steps as ...is reasonable... to prevent' Mrs Cambridge from being at such a disadvantage as including taking such steps as would enable the Trust to decide what steps would be reasonable to prevent her from being at such a disadvantage. Those steps included obtaining a proper assessment of

(a) Mrs Cambridge's condition and prognosis;

(b) the effect of her disability on her;

(c) the effect of her disability on her ability to perform the duties of her post;

(d) the effect of the physical features of her workplace on her and her ability to perform the duties of her post; and

(e) the steps which might be taken to reduce or remove the disadvantages to which she was subjected.

Only then would the Trust be able to come to an informed view about what steps it would be reasonable for the Trust to take to prevent Mrs Cambridge from being substantially disadvantaged. The tribunal found that the Trust did not do that and the relevant finding of fact is in paragraph 38 of the tribunal's extended reasons which read:

'[The Trust] failed to seek, obtain or act on a full and proper assessment of [Mrs Cambridge's] position at any relevant time. The only "assessment" it sought was a prognosis from Dr Smith. Even he did not comply with the [Trust's] policies by seeking information from [Mrs Cambridge's] GP or consultant at the relevant time. By the time it did seek to obtain appropriate reports, midway through the disciplinary process ...the situation was effectively irretrievable: [Mrs Cambridge] was incapable of cooperating.'"

The conclusion of the EAT was this:

"We are not persuaded by this argument. If it were correct, it would deny s.6(1) practical application in very many cases. 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) practicably 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 treated 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".

28. The source of the words "risk assessment" is the EU Framework Directive on Health and Safety and it is implemented domestically in the Management of Health and Safety at Work Regulations 1999 where there is this at paragraph 3:

"3. Risk Assessment

(1) Every employer shall make a suitable and sufficient assessment of

(a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and

(b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking

for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions and by Part II of the Fire Precautions (Workplace) Regulations 1997.

(2) …

(3) Any assessment such as is referred to in paragraph (1) or (2) shall be reviewed by the employer or self-employed person who made it if-

(a) there is reason to suspect that it is no longer valid; or

(b) there has been a significant change in the matters to which it relates;

and where as a result of any such review changes to an assessment are required, the employer or self-employed person concerned shall make them".

There is also provision for separate risk assessment of a pregnant worker. Further, references to risk assessment occur in the Council Directive in respect of Equal Treatment: The General Framework – see Council Directive 2000/78/EC. Those are the principles which relate to there being a risk assessment.

29. We bear in mind that challenges to a judgment on the ground of perversity have to cross a high threshold: Yeboah v Crofton [2002] IRLR 634 CA. An an Employment Tribunal must give adequate reasons for its Judgment.

Conclusions

30. In our judgment, the Respondent is correct in its submissions. The Tribunal first elevated the concept of a risk assessment so as to provide a novel formula called a formal risk assessment. Just in case this may be seen as a matter of words, it is important that we examine the substance of it.
31. There is no obligation in law for there to be a formal risk assessment. What, however, must occur prior to the discharge of the duty under s6(1) of the DDA is an examination of the risks. It should include the kind of material which the EAT considered in the Mid-Staffordshire case; not every one of them, but those which are fact sensitive to the particular circumstances. It involves, of course, the combination of an examination of the medical condition and of the way in which the Claimant would work or could work in her job if suitably adapted and that invokes the intervention of, for example, an occupational health physician.
32. The difficulty which arises in the present case is that the Tribunal has elevated beyond what is required in the law to a formal risk assessment. In our judgment, nothing more could be done in this case to take the assessment of the risk onto another level requiring so that it might qualify as a formal risk assessment. As a matter of substance, the Respondent here conducted such an assessment of the risks as was necessary in order for it to discharge its duty under s6(1) and to consider the steps in s6(3). It is, of course, axiomatic that before making any decision about what steps it is reasonable to take to avoid the substantial adverse effect on a disabled person of a particular working environment, an assessment should be undertaken, but there is no formal model or prescription for that.
33. Thus, what the Tribunal regarded as fundamental to this case involves an error of law. We accept that the judgment of the Tribunal was perverse in holding that the steps taken here did not constitute a proper risk assessment and we use the term "proper" as it emerges from the Mid-Staffordshire case. The conclusion therefore is that there was a risk assessment.
34. What, then, of the three possibilities that this proper risk assessment did or would have thrown up. Again, we agree with Mr Palmer because we have been taken in detail to the extracts of the evidence.
35. First as to the employment of an assistant, we accept that there would be substantial additional costs and we have looked at how cost effectiveness is measured under the DRC Code at paragraphs 25 and 31. The Tribunal heard evidence from Mr Norris and Mr Phillips that the possibility of an assistant to help Ms Hay had been considered and so had the cost, but the sources of external funding for such costs had not been put to the Council's witnesses. In our judgment, the matter of considering whether there could be an assistant - what has been described as double staffing – was a matter considered and rejected by the Council and its reason was not shown to be unjustified.
36. Secondly, the adaptations which would be made to the vehicle were also considered. Vehicles were assessed, the Council noted that the Claimant could drive her own vehicle and was not formally precluded from driving a mobile library, but that the clutch should not be so severe. We have also been told today, although we have not seen the evidence of this, that the Council had considered a transfer from a manual to automatic transmission but the costs and delay ruled that possibility a non-starter. The Tribunal also made a judgment about whether the shelving could be adjusted but that appears to have emerged after the submissions were made for there is no evidence which we have been shown about this matter. The opportunity for doing light duties simply did not exist since the evidence before the Tribunal was that carrying of the books and other manual physical work constituted 50% of the tasks. We know from what the Claimant told us today that that was disputed but, nevertheless, the description of the tasks we have given above for the Tribunal's reasons is consistent with the account given to it by Mr Phillips and Mr Cross where that figure of 50% was forthcoming.
37. Thirdly, we have considered whether or not the Tribunal's conclusion as to the possibility of swapping with Mr Collingwood was a reasonable adjustment. It has to be said that Mr Collingwood, from the evidence we have seen, had a very substantially different job, albeit to the outside world, he was engaged in the supply of reading material to charge payers in Surrey. Beyond that, however, his job and therefore his requirement to be accompanied by an assistant was very different. In simple terms, he was not operating a public library. He was going to individual care homes in Surrey; and a number of issues plainly arose including the willingness of Mr Collingwood, if at all, to switch duties. In any event, it seems to us that some aspects of the work remained the same, such as the carrying of books in and out of homes.
38. For those reasons, therefore, we respectfully hold that the Tribunal erred in its depiction of the legal requirement to carry out a risk assessment and in its assessment of what would have been forthcoming. A serious criticism of the Respondent by the Tribunal remains, which is that in a risk assessment there is a need for the involvement of the employee and we have to say at the outset of this case that we were of that view most strongly. However, having been pointed by Mr Palmer to the evidence relating to the various meetings and to the dilation of the relevant officers upon the medical reports, we hold that the Claimant was involved in a period of eight months in discussing and in writing about what difficulties she perceived in her existing job and in what could be done about it.
39. We then turn to the unfair dismissal appeal. This is, as Mr Palmer says, parasitic upon the disability material. Since we have held that there was no breach of the obligation to conduct a risk assessment and that the Respondent was not in breach of its duty to make reasonable adjustments, there is very little upon which the unfair dismissal claim can be built. Since we have held that there was a degree of involvement with the Claimant about her assessment, the essential finding by the Employment Tribunal cannot now stand. Indeed, the Tribunal recognises that the only unfairness in this case was, as it put it, a failure by the Respondent to work through the steps that should show that there was no reasonable alternative. In our judgment, the offer made by the Respondent was fully consistent with what a reasonable employer would do and what its reaction could properly be within the band of responses when the Claimant refused to accept that option. We do not accept that the fact that it was to be working in a library is conclusive since the job was radically different. In our judgment, this case stands or falls with the disability discrimination case and therefore it must fail.
40. Once again, we would like to thank both Mr Palmer and Ms Hay for the way in which they have presented this case. Subject to any further steps in this case, the appeal succeeds and therefore this judgment is set aside and with it the remedy judgment which was dependent upon it. The appeal is allowed.