United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Miss K Newton (of Counsel) Instructed by: Messrs Beachcroft LLP Solicitors 100 Fetter Lane London EC4A 1BN
For the Respondent	Ms U Burnham (of Counsel) Instructed by: Messrs Bindman & Partners Solicitors 275 Grays Inn Road London WC1X 8QB


 


SUMMARY

Unfair dismissal - Reinstatement/re-engagement

Practice and Procedure - Adequacy of Reasons

Claimant was a radiographer who became unable to do clinical work as a result of illness and was made redundant - Tribunal held that she was unfairly dismissed because of lack of consultation about alternatives and that she had suffered disability discrimination because it would have been a reasonable adjustment for the Trust to retain her on non-clinical duties - At the remedy hearing over a year later it ordered reinstatement - Case remitted to fresh Tribunal because of inadequate reasons and because the Tribunal appeared to have relied on its earlier finding about reasonable adjustment as at the date of dismissal without considering the practicability of reinstatement at the current date and in the light of fresh evidence called - Observations on relevance of duty under s. 4A of Disability Discrimination Act 1995 to exercise of discretion to order reinstatement.


 


THE HONOURABLE MR JUSTICE UNDERHILL

INTRODUCTION

1. Ms Patel, the Claimant in these proceedings, is an ultrasound radiographer. From 1997 to 2005 she was employed by the Appellant (to which we will refer as "the Trust") at the Great Ormond Street Hospital for Children. In April 2005 she was given three months' notice of dismissal for redundancy. She brought proceedings in the Employment Tribunal alleging unfair dismissal and disability discrimination; and in April 2006 an Employment Tribunal at London Central found in her favour on both claims. Following a remedy hearing on 16 October 2006, the Tribunal on 4 December 2006 made an order pursuant to s. 114 of the Employment Rights Act 1996 requiring the Trust to reinstate the Claimant in the job which she had been performing at the time of her dismissal. It also made an order for the payment of £3,500 to the Claimant as compensation for disability discrimination. It should be noted that one of the lay members of the Tribunal which decided the liability issue became unavailable at the last minute to sit at the remedy hearing; with the consent of the parties, a replacement member sat at that hearing.
2. This is an appeal against the reinstatement order. The Trust has been represented before us by Miss Katharine Newton of counsel and the Claimant by Ms Ulele Burnham of counsel: Miss Newton appeared below (though only at the remedy stage) but Miss Burnham did not. We are grateful to both of them for their well-reasoned submissions.

THE FACTS

3. Having regard to the nature of the issues which arise on this appeal we need not recite the facts in great detail. So far as relevant they can be summarised as follows:

(1) After some years working at Great Ormond Street, the Claimant developed Kienbock's disease, a serious condition affecting the bones of the wrist. By 2003 it was plain that she was unable to continue for the time being with any clinical work – that is to say with using ultrasound equipment in the care of patients. She underwent operations in February and July 2003 and remained off work from February 2003 until April 2004.

(2) At a meeting with the Trust on 19 August 2003, while the Claimant was still off work, a revised job description was agreed with her, to apply on her return, under which she would continue with certain existing duties in the management of the ultrasound department and would take on responsibility for the training of a post-graduate radiographer. The Tribunal found that that revision "was intended to cover the Claimant's role until she was able to return to her role as a practising sonographer". The advice from the Occupational Health Department was this would be "several months at least", though the consultant radiographer responsible for the ultrasound section, Dr. De Bruyn, thought that it might be as long as two to three years. (See paras. 4.2-4.3 of the Tribunal's liability Judgment).

(3) The Claimant in fact returned to work, part-time, on 2 April 2004. It soon became clear that there was no prospect of her being able to resume clinical work for the foreseeable future, and there was some discussion at that stage of the options open to her. She did indeed apply to the NHS Pensions Agency for ill-health retirement; but this was refused. She eventually returned to full-time work in December 2004, but she continued to perform entirely non-clinical duties.

(4) In the meantime a Mr Everard had assumed line management responsibility for the Claimant. He decided that the Department should not undertake the training of a post-graduate radiographer. This meant that part of the role envisaged for the Claimant in the August 2003 revision would not be required. However, the Tribunal in its liability Judgment found that in substitution for that role the Claimant following her return to full-time work in December 2004, expanded her work in training paediatric registrars in the use of ultrasound (albeit without any formal agreement that she should do so) and that she also had to supervise a recently qualified ultrasonographer, Ms. Todd.

(5) In the light of a substantial projected overspend in the Radiography Department for the financial year 2004/5 Mr. Everard did not feel that the Department could continue to maintain the Claimant in a purely non-clinical role. There was a period of consultation – initially bedevilled by the fact that Mr Everard was unfortunately unaware of the agreement of her revised job description in August 2003 – but eventually, on 14 April 2005, the Claimant was notified that she was being dismissed for redundancy on the basis that there was no longer a job in the Department for a radiographer with purely management and training responsibilities.

(6) The Claimant appealed against the decision to make her redundant but her appeal was unsuccessful.

THE LIABILITY HEARING AND DECISION

4. The Tribunal heard evidence on the issue of liability over eight days. Its reasons are fairly full. Its conclusions can for present purposes be summarised as follows:

(1) The Tribunal found that the decision (see para. 3 (4) above) not to provide training for a post-graduate radiographer, which was part of the revised role agreed in August 2003, technically created a redundancy situation because the requirements of the "business" to carry out training work had diminished.

(2) However, it also found that the requirement to train registrars and to supervise Ms. Todd (or others in her position) meant that "there was sufficient work available for the Claimant in training and management of the ultrasound department to occupy her time fully without the additional training of a post-graduate radiographer" (Reasons, para. 6.3). That finding appears to have been based partly on a comment by an HR manager, Ms. Roberts, to the effect that it was indisputable that the Claimant had "increasingly been able to support the clinical training of registrars … and freed up consultant time that would otherwise have been spent on training" (para. 4.20); and partly on the Claimant's own evidence, which the Tribunal said had not been challenged, that "without the work of training a post-graduate radiographer, there was still sufficient work available for her from December 2004 onwards" (para. 6.6). The Tribunal was not apparently intending by this finding to go back on its previous conclusion that there was a redundancy situation. Rather, the finding was directed at the issue of fairness, in order to demonstrate that if the Trust had properly considered alternatives to the Claimant's agreed role there was an alternative role ready-made and indeed already de facto in place which had not been properly considered (para. 6.13).

(3) The Tribunal found that Mr. Everard had before commencing on the consultation process made up his mind that the Claimant should be dismissed and that in consequence he was "merely going through the motions" of consultation rather than making a proper effort to find alternative work for the Claimant (para. 6.7). It also found that Mr. Everard did not consider other possible candidates for redundancy and that there were no established selection criteria (paras. 6.8-6.10). We do not fully understand this part of the Reasons, but it is not necessary for us to do so for present purposes.

(4) The Tribunal was critical of the Trust, and of Mr. Everard in particular, for taking the decision to abandon post-graduate training without prior consultation with the Claimant (para. 6.11).

5. The Tribunal did not explicitly analyse its decision by reference to s. 98 of the 1996 Act. But it is reasonably clear that it decided that the Trust had shown an "admissible" reason for the Claimant's dismissal, namely redundancy, but that the dismissal was procedurally unfair because of its failure properly to consult and to consider alternatives to dismissal.
6. We should also record, though it arises in the context of the decision on the claim under the Disability Discrimination Act 1995, which is not directly in issue on this appeal, that the Tribunal found (Reasons, para. 6.18) that:

"There was a complete lack of evidence either from Mr. Everard or any of the consultants in the Radiology Department as to why the Claimant could not have continued in the way she had been working from December 2004. In the absence of any such evidence, we find that this was a reasonable adjustment which the Respondents ought to have made … ."

On that basis the Trust was found liable for breach of the duty imposed by s. 4A of the Act. It is very important to note that that finding was explicitly based on the absence of any contrary evidence from the Trust. We were told by Ms. Newton that the reason why this issue was not addressed in the Trust's evidence was that such an adjustment was only proposed by the Claimant after the Trust's witnesses had given evidence (presumably therefore in closing submissions); and she made the same point in her written submissions in the remedy hearing (as to which see para. 11 below), which also record that counsel for the Trust had objected at the time to a new case being put at the last minute. However, it is clear from the Claimant's submissions in response that she did not accept that she was putting the reasonable adjustment case in any way that should not have been foreseen; and although the Tribunal did not expressly address the question it must be assumed that it took the same view. Fortunately, for reasons which will appear we do not have to resolve the rights and wrongs of this question; but the episode emphasises the importance of a clear understanding being reached in advance of a hearing raising issues under s. 4A of the 1995 Act as to precisely what adjustments it is being said that the employer failed to make.

7. The Trust did not appeal against the liability decision.

THE REMEDY CLAIM AND HEARING

8. A feature of the case which may lie behind some of the difficulties which have arisen on this appeal is that the Claimant did not until a very late stage advance any claim for reinstatement under s. 114 of the 1996 Act. The relevant box was not ticked on the Claim Form; and although she did tick the box for re-engagement under s. 115, together with the box for compensation, her schedule of loss concentrated on compensation, and the re-engagement claim seems to have received very little attention from either party in the evidence prepared for the remedy hearing. The Claimant served witness statements from herself and two other radiographers. These were concerned almost exclusively with her compensation claim, and in particular with the question whether there was any prospect of her obtaining employment as a radiographer elsewhere. The only evidence addressed to the claim for re-engagement came in the final paragraph of the Claimant's witness statement, where, under the heading "Re-engagement with the Trust", she said:

"I would be willing to consider any position in the Trust where I had relevant experience and/or skills and where I could do the work without using my hands."

Likewise, the Trust's witness statements concentrated very largely on the assessment of the Claimant's financial loss. The principal statement served by the Trust was from Dr. De Bruyn, who (as noted above) was the consultant paediatric radiologist who had particular responsibility for the ultrasound section. Her evidence on re-engagement was confined to the final paragraph of her statement, where she said:

"I understand that Ms Patel has suggested re-engagement with the Trust. To the extent that Ms Patel is suggesting she could be engaged back into the ad hoc role, in my view this would not be practicable for the reasons I have set out in this statement."

However, in the course of the hearing the Tribunal pointed out that if the Claimant was indeed contending that an order should be made requiring the Trust to put her back in the job she had been doing at the time of her dismissal, that was, on analysis, a claim for reinstatement within the meaning of s. 114 rather than a claim for re-engagement under s. 115; and the Trust does not appear to have objected to the Claimant being treated as having made such a claim.

9. It was a main plank of the Trust's case that even if there had been better consultation a decision to dismiss the Claimant was inevitable because the "ad hoc role" being performed by her following her return had ceased to be viable. Dr. De Bruyn's witness statement developed that point at length. It analysed the Claimant's role in the Radiology Department between December 2004 and July 2005, dealing separately with (a) administrative duties, (b) managerial duties and (c) the extent of her role in assisting and training (i) registrars and (ii) other sonographers in the ultrasound section. The analysis is detailed and covers several pages. Her conclusion was that:

"I do not consider that there was enough managerial, administrative and training work for Ms. Patel in the period following the termination of her employment. The three duties did not require full time hours and did not justify the payment of a Superintendent III Radiographer's salary. Not only this but a new Radiographer Helper was appointed in January 2005, which meant that Ms Patel was no longer carrying out the administrative duties I have referred to above. I consider that Ms. Patel in performing the two remaining duties (managerial and training) that I have outlined above would have been required to work considerably less than 50% of the full time hours."

As the passage quoted in para. 8 above shows, those conclusions were relied on by her as equally applicable to a claim for reinstatement.

10. In addition to that evidence, both parties relied on expert evidence. A consultant orthopaedic surgeon, Mr. Peter Baird, had provided a report to the Trust and the Claimant jointly. He described a variety of symptoms affecting any work involving her hands and expressed the view that the Claimant's impairment was "likely to last indefinitely". Though a purist might treat "indefinite" as meaning something different from "permanent", it is clear that Mr. Baird used the two terms synonymously (see para. 28 of his report). The Claimant also referred to a much shorter report, from another orthopaedic surgeon, Mr. Perez, which stated that she could not only not use ultrasound equipment but that her ability to write, type and use a computer mouse were impeded and that she "would only be suitable to carry out employment of a verbal nature with no physical input". The hearing appears to have proceeded on the basis that there was no realistic prospect of the Claimant ever returning to clinical work.
11. The entirety of the day set aside for the remedy hearing was taken up with evidence, and it was accordingly agreed that the parties would make their closing submissions in writing. Each party lodged written closing submissions on the issue of remedy and supplementary submissions commenting on the other's submissions. We are bound to say that dispensing with oral submissions altogether is generally an undesirable course to take. Although there are situations where it may be the lesser of two evils, it is inherently unsatisfactory: however good the written submissions, an oral hearing is likely to be valuable as a forum in which the advocates can ensure that the Tribunal appreciates their essential points and where queries of the kind which are likely to arise in any complex case can be addressed.
12. The written submissions addressed the questions of reinstatement and re-engagement in considerable detail. The Trust's submissions on this issue, which cover some ten pages, focused on the fact that the evidence of Dr. De Bruyn (summarised above) established unequivocally that there was simply no proper role for an ultrasonographer who could not do any clinical work. The Trust relied on the authorities that emphasise that an assessment of practicability must be based on economic reality and that the Tribunal's power under ss. 114 and 115 should not be used to "enforce overmanning" or to create a job which has not existed previously (see in particular Tayside Regional Council v. McIntosh [1982] IRLR 272, Freemans plc v. Flynn [1984] IRLR 486 and Cold Drawn Tubes Ltd. v. Middleton [1992] IRLR 160). It acknowledged that that contention might appear to be contrary to the Tribunal's finding on the reasonable adjustment issue; but it pointed out that that finding had been based on the Trust's failure to call evidence (see para. 6 above) and that that omission had now been remedied by the evidence of Dr. De Bruyn. In any event, it pointed out that the question of what might have been a reasonable adjustment in early 2005 was not determinative of what was practicable in late 2006. The Trust had in fact now been operating for well over a year without anyone performing the role into which the Claimant wished to be reinstated: that was a clear illustration that the role was simply not required and its re-creation was not "practicable". The Claimant in response pointed out that Dr. De Bruyn's evidence could in fact have been adduced at the liability hearing; but she did not submit that it was inadmissible for that reason. Instead she criticised the substance of the evidence and contended that on the evidence overall, and having regard to the Trust's duty under s. 4A of the 1995 Act, it was practicable for the Claimant to be reinstated into the job which she had been doing prior to her dismissal.

THE JUDGMENT

13. The Tribunal promulgated its decision in a Judgment and supporting Reasons sent to the parties on 4 December 2006. As already noted, it ordered reinstatement pursuant to s. 114 with effect from 8 January 2007, with the relevant consequential orders, and made an order for the payment of £3,500 to the Claimant as compensation for the injury to feelings which she had suffered as a result of the disability discrimination. An order for reinstatement is an order "that the employer shall treat the complainant in all respects as if he had not been dismissed" (see s. 114 (1) of the 1996 Act). What the Tribunal intended by its order was thus, as it made clear, that she should return to work from the specified date on the selfsame duties that she had been doing immediately prior to her dismissal – i.e. the non-clinical duties discussed above.
14. The Reasons for the Tribunal's decision are very short, and it is convenient to set them out in full so far as they relate to the issue of remedy for unfair dismissal. They are as follows:

"1. Having heard evidence from the Claimant and, on her behalf, having read the statements of Ms R Fernandez (Teaching Fellow) and Ms J Shah (Superintendent Ultrasound Radiographer) and having heard evidence on behalf of the Respondents from Dr R De Bruyn (Consultant) and Mr R Conley (Assistant Director Personnel) and having received written submissions from the parties representatives, the Tribunal reached the following conclusions:-

1.1 The Claimant's wish is for reinstatement to her former position as a superintendent radiographer, specialising in ultrasound scanning. Having regard to her medical condition, she accepts that she will never be able to carry out actual work of ultrasound scanning, but she wishes to be reinstated to the role which she performed successfully after 19 August 2003 following the revision of her job description so as to avoid the need for her to undertake ultrasound scanning. In these proceedings we have found that, following her return to full-time work in December 2004 with an expansion of the training of specialist registrars in paediatric ultrasound and the other management and administrative work which she was carrying out, she was fully occupied in her role until her dismissal on 7 July 2005.

1.2 Having taken account of the respective arguments put forward by the representatives on the issue of practicability of reinstatement, we consider that there is scope for the Claimant to carry out her former role provided that the Respondents fulfil the duty which we found existed to make reasonable adjustments to prevent the Claimant as a disabled person from being at a substantial disadvantage as compared with persons who are not disabled.

1.3 Whilst we were told by Dr De Bruyn that she did not agree that the Claimant was involved in the work of training registrars, she had no explanation for this training work having been emphasised by Ms Roberts in the consultation paper on the Claimant's role (page 58). She dismissed Ms Roberts' statement as having been made by a member of Human Resources department and, therefore, incorrect. However, she gave no explanation for not challenging this statement at the time. We were not persuaded by Dr De Bruyn's evidence on this issue. We found that some training of registrars in paediatric ultrasound was delegated to the Claimant, even though Dr De Bruyn was not happy to concede this in her evidence to the Tribunal.

1.4 The Claimant wishes to be reinstated and we are satisfied that the majority of the Claimant's duties in her revised job description will be available to her and that, with reasonable adjustments consistent with the Respondent's duty under the Disability Discrimination Act 1995 and with the commitments that they have assumed as a Two Ticks Disability Symbol employer, the Claimant will be able to carry out fully her former complement of management, administrative and training duties.

1.5 Accordingly, we order that the Claimant must be reinstated."

THE ISSUES

15. S. 116 (1) of the 1996 Act provides that in exercising its discretion whether to make an order for reinstatement a Tribunal must "take into account … (b)  whether it is practicable for the employer to comply with an order for reinstatement". It is clear from the authorities that the effect of that provision is that a Tribunal may only make such an order when it believes that it would indeed be practicable for the employer to reinstate the employee. The Tribunal did of course make such a finding (see para. 1.2 of the Reasons) but the Trust submits that it erred in law in doing so. The grounds for that submission pleaded in the Notice of Appeal are organised under four main heads, with a number of sub-heads. However, there is a degree of overlap, and without disrespect to Ms. Newton we think it possible to identify her essential submissions as follows:

(a) that the Tribunal erred by assessing the question of practicability as at the date of the dismissal rather than the date that the reinstatement order would take effect;

(b) that it erred by taking into account its finding that by refusing to permit the Claimant to continue in her non-clinical role the Trust had failed to make reasonable adjustments required by s. 4A of the 1995 Act;

(c) most fundamentally, that it was wrong in principle, alternatively perverse on the evidence which it heard, for the Tribunal to hold that it was practicable for the Claimant to be reinstated.

16. The Trust also contends that, irrespective of those substantive errors, the Tribunal in any event erred by failing to give adequate reasons for its decision. That submission has more plausibility than is often the case, since the actual reasoning is confined, in effect, to a few sentences in paras. 1.3 and 1.4 of the Reasons. Succinctness in Employment Tribunal Judgments is in principle to be applauded, and in the present case the Tribunal was entitled to treat the background facts found in the liability decision as incorporated in its remedy decision. Nevertheless, the Reasons here are strikingly short having regard to the detailed submissions raised by the Trust. We need not however deal with this as a separate ground but will consider it in the context of the specific substantive errors alleged.

DECISION

17. We consider in turn the three grounds of challenge identified above.

(a) Date at which Practicability is to be Assessed

18. It was common ground between Ms. Newton and Ms. Burnham – and we agree - that in principle the Tribunal was obliged to assess practicability as at the date that any order would take effect. The question is whether it did so. This is not straightforward. The Trust cannot point to any unequivocal sign that the Tribunal failed to focus on the correct date. It is true that it relied on its previous finding on reasonable adjustment, which necessarily related to the position in April 2005 rather than in January 2007. But that by itself was not necessarily irrelevant: a finding that the Claimant was performing the role in question prior to her dismissal was capable of being a proper basis for an inference that it remained practicable for the Trust to employ her in the same role eighteen months later, subject always to the effect of any evidence to the contrary. What Ms. Newton submits is that, having regard to the evidence which was in fact called, if the Tribunal had in truth been considering the correct date it could not have reached the conclusion that it did. That being so, it is better to consider the point in connection with the perversity case (see paras. 22-23 below).

(b) The Relevance of the Finding of Failure to Make Reasonable Adjustments

19. The Tribunal made it clear (see para. 1.4 of the Reasons) that in deciding whether it was practicable for the Claimant to be reinstated in the job that she had been doing immediately prior to her dismissal it took into account its previous finding that the Trust was required by s. 4A of the 1995 Act to permit – or, more accurately, to continue to permit – her to continue working in a non-clinical role. Ms. Newton submitted that it was wrong in law to do so, for two distinct reasons – (i) that the duty on an employer pursuant to s. 4A is irrelevant to the consideration of practicability under s. 116; and (ii) that, even if it was potentially relevant, a finding made for the purpose of the liability decision should not have been taken into account for the purpose of the remedy decision. We consider those submissions in turn.
20. As to (i), we do not accept Ms. Newton's submission. In some circumstances, we agree, reference to the s. 4A duty would add little of substance. Take the case of an employee who is confined to a wheelchair and whose employer moves, shortly after his (unfair) dismissal, to a new building which does not have wheelchair access. The Tribunal would plainly be obliged by s. 116 to consider whether it would be practicable for the employer to adapt the premises accordingly. Nothing is achieved except additional complication by asking instead, or as well, whether, if the employee were reinstated, the employer would be under a duty to make the equivalent adjustment under s. 4A. But there are – as was established by the decision of the House of Lords in Archibald v. Fife Council [2004] ICR 954 – cases where the duty under s. 4A may require an employer to implement changes in the content of the employee's work or indeed offer him or her a wholly new job. Although it is often loosely said that reinstatement means giving the employee back "the same job", that is not in fact what s. 114 (1) says: a reinstatement order is an order that the employer shall "treat the complainant in all respects as if he had not been dismissed". If, had the employee not been dismissed, he or she would have been entitled to be offered different work by reason of s. 4A, we cannot see why the Tribunal should not have to take that factor into account in considering practicability: if it would be impracticable to offer the employee the selfsame job that they had previously had, it might nevertheless be practicable to offer them the modified job which they would have been entitled to be offered if the employment had continued.
21. As to (ii), the extent to which findings made by a Tribunal at the liability hearing will be relevant to the question whether it is practicable for an unfairly dismissed employee to be reinstated will depend on the nature of the issues in the particular case. Sometimes there will be very little overlap; sometimes, as the Claimant would say was the case here, the issues will be very close (though they will never be identical – even if they were identical in every other respect, the Tribunal will, as discussed above, be concerned with different dates). Where such previous findings are indeed relevant, we have no doubt that the Tribunal at the remedy hearing is obliged to take them into account. Indeed in principle we cannot see why the ordinary principles of issue estoppel should not apply, so that the parties on the remedy hearing cannot go behind a relevant finding of fact made in the liability decision. However, the rules about issue estoppel allow for a degree of flexibility, and there will be circumstances where the way in which a particular decision was reached at the first hearing renders it unjust for a party to be definitively bound by it. That appears to have been the approach taken by the Tribunal in the present case. Although there appears to have been no very focused argument on the question, the admission of Dr. De Bruyn's evidence necessarily means that the Tribunal did not treat itself as bound by its previous findings on the reasonable practicability issue. That was probably the fair course to take, in view of the dispute about why the Trust had called no evidence on the point (see para. 6 above); in any event the Claimant does not submit that it was wrong in law. But once that course was taken it logically followed that the earlier findings had no real weight. They had been reached in the absence of evidence from the party on whom the evidential, if not the legal, burden lay. Once such evidence was available, it was necessary to start again from scratch. It is not clear that the Tribunal appreciated this; but this point also is best discussed in the context of the Trust's submissions under head (c) – see below.

(c) Decision Wrong in Principle/Perverse

22. This was the heart of the Trust's case. Ms. Newton pointed out that the Claimant's basic job was as a clinical radiographer. The non-clinical job that she had been doing in the year prior to her dismissal (for most of the period on a part-time basis only) had only ever been intended as a temporary arrangement with a view to giving her a role until she was able to resume clinical work. That this was so was demonstrated by the fact that no-one had taken over the role in the eighteen months since she had left. She repeated the submissions made to the Tribunal which we have summarised in para. 12 above. A permanent non-clinical job was never contemplated and was unsustainable: quite apart from Dr. De Bruyn's statement, the evidence which the Claimant had herself adduced in support of the compensation limb of her claim emphasised that the role in question was unique and that no other hospital employed a qualified ultrasonographer in a purely non-clinical capacity. Since it was clear from the medical evidence that the Claimant would never be fit for clinical work, no reasonable Tribunal could have held that it was practicable for the Trust to reinstate her in that role. That was not necessarily inconsistent with the Tribunal's liability finding on the s. 4A issue because the relevant dates were different; but even if it was, the previous finding carried no weight because it had been reached in the absence of evidence from the Trust.
23. On the face of it that submission seems cogent. No doubt, in view of our conclusion above that in the case of a disabled employee the s. 4A duty must be brought into account, it was not sufficient for the Trust to rely on the authorities referred to in para. 12: nevertheless, there is a big difference between requiring an the Trust to make a temporary adjustment in order to accommodate a valued employee who it is hoped will eventually be fit to resume duty and requiring it to create what on all the evidence was an anomalous role on a permanent basis. However, the fact has to be faced that those were the very points made to the Tribunal based on the evidence of Dr. De Bruyn and that it appears to have rejected them. We have considered carefully whether its reasons for doing so can be sustained. We do not believe that they can. The Tribunal's reasoning seems to us deficient in the following respects:

(1) There was explicit and detailed evidence from Dr. De Bruyn, adopted by Ms. Newton in her closing submissions, that there was no full-time non-clinical job which the Claimant could do: as we have set out in para. 9 above, Dr. De Bruyn gave a full analysis of the Claimant's role and why it did not amount to more than 50% of a full-time job. The Tribunal does not engage with that analysis at all, save for its very brief reference to, and rejection of, her evidence on the extent of the Claimant's involvement in the training of registrars. We deal with that below; but there is no attempt by the Tribunal to engage with the other points made on behalf of the Trust.

(2) So far as the training of registrars is concerned, the Tribunal says that Dr. De Bruyn "did not agree that the Claimant was involved in the work of training registrars". On our reading of her witness statement, that rather overstates her position, but we accept that we do not know what she said in her oral evidence. In any event there was clearly a difference between the evidence of Dr. De Bruyn and the impression given by Ms. Roberts in the comments quoted at para. 4 (2) above. Ms. Roberts was an HR manager whereas Dr. De Bruyn was the consultant in charge of the section, and Dr. De Bruyn's evidence was that Ms. Roberts had simply got it wrong. The Tribunal nevertheless preferred Ms. Roberts' account. It was in principle entitled to do so, but we are bound to say that we would have expected fuller reasons for rejecting the evidence of a witness who on the face of it was in the best position to know what the training requirements of registrars were. The only reason given – that Dr. De Bruyn had not challenged Ms. Roberts' comment at the time – is unconvincing. Ms. Roberts did not give evidence at the remedy hearing although she had done so at the liability hearing (when, however, the Tribunal was differently constituted). We are very conscious of the perils of an appellate Tribunal trying to assess the credibility of a witness whose evidence it has not heard (and indeed of which it does not even have a full note). It may well be that there were powerful reasons for rejecting Dr. De Bruyn's evidence. We say no more than that if that was so those reasons do not appear from the Judgment.

(3) The Tribunal nowhere addresses the medical evidence. The effect of that evidence was that the Claimant would never be able to resume clinical work. That was not the position in April 2005, when the dismissal decision was taken: there was then still thought to be a realistic prospect of a full recovery, though it was appreciated that it would take a long time. It was incumbent on the Tribunal to consider the linked issues of practicability and reasonable adjustment in the light of that fact. It does not appear to have done so.

The impression which we get from those points is that the Tribunal did indeed approach its task on the basis that the question of practicability was largely already decided as a result of its decision on the reasonable adjustment point, and that that is why it felt able to deal with the issues so summarily. We say "largely" because the fact that it admitted Dr. De Bruyn's evidence at all involved at least a tacit recognition that some reconsideration was required. But there is no sign of the full reconsideration – on the basis of the position as it stood at the end of 2006 - that was in fact necessary: see para. 21 above.

24. Taking these points together, we do not believe that the Tribunal's decision can be sustained. We are not in a position to say, and do not say, that on the evidence which it heard (taken with its previous findings) the Tribunal could not properly have found that reinstatement was practicable as at January 2007. But we do say that the approach which it appears to have taken in reaching that conclusion, and the reasons that it gave for doing so, were unsound and inadequate.

CONCLUSION

25. It follows that the Tribunal's decision cannot stand. The issue of remedy must be remitted for re-consideration. Following the hearing before us the Claimant sought to lodge further submissions to the effect that any deficiencies in the reasoning of the Tribunal could be addressed by a request to it to amplify those reasons. It would be wholly exceptional to make such an order at the full hearing of an appeal (as opposed to as part of the sift process), and we are sure that it would not be a fair way of dealing with the present appeal.
26. We have considered whether the remedy issue should be remitted to the same Tribunal. We do not think that that would be the right course. Part of the problem in this case is that the Tribunal at the remedy hearing had to consider, on the basis of fresh evidence, an issue closely related to an issue on which it had already reached a firm conclusion at the first hearing. Although that is something which Courts and Tribunals do sometimes have to do, it is never particularly easy; and in circumstances where the Tribunal has already approached the task unsatisfactorily once it seems to us that the Trust would be justified in feeling a lack of confidence that it could do so properly on a remission. The exercise is the more complicated because two of the members of the Tribunal at the remedy hearing had direct knowledge of the evidence given at the liability hearing but one did not (see para. 1 above). Although that situation was, we understand, assented to by the parties (no doubt to avoid the adjournment which would otherwise have been necessitated), it must have been inherently awkward for all concerned. A further advantage of a fresh start with a differently constituted Tribunal will be that all the members of the Tribunal will start from the same place. Inevitably, remission to a different Tribunal will mean that the parties will have to call rather fuller evidence than would have been necessary in front of the Tribunal which had heard the liability issue; but that cannot now be avoided.
27. It may be worth spelling out, for the guidance of the Tribunal conducting the fresh hearing, what its task will be. We do so as follows:

(1) On the assumption that the Claimant still seeks reinstatement (or indeed re-engagement), the Tribunal will have to consider whether this is practicable. Practicability will have to be judged as at the date that any such reinstatement would take effect: although any such date would necessarily postdate the hearing, in practice - absent any very unusual circumstances - that will mean judging the position as at the hearing date.

(2) In considering that question, the Tribunal must take into account the duties on the Trust under s. 4A of the 1995 Act, as discussed at para. 20 above.

(3) The Tribunal will have to consider whatever evidence the parties call, which may well go beyond that called last time round. Since (for the reasons given in para. 21 above) it will not be bound by the findings made by the Tribunal at the liability hearing so far as these relate to the practicability of reinstatement or the Trust's duty under s. 4A, the cleanest course for it is likely to be simply to put those findings to one side. The parties will of course remain bound by the findings on other issues, in so far as they are relevant (which does not however seem very likely).

(4) The parties will of course need, as they did last time round, to address compensation issues in case reinstatement is not ordered. If the experience of arguing these issues on the last occasion enables the parties to agree at least some aspects of the compensation issues, that would be highly desirable.

(5) It seems to us that since the Tribunal's comparatively modest award on the 1995 Act claim was made on the basis that the Claimant was to get her job back it should be open to the new Tribunal to revisit that award if in the event they do not order reinstatement, since there could conceivably be advantages to her in claiming compensation for her dismissal under the 1995 Act rather than the 1996 Act. On that basis, we propose to remit that element in the remedy decision as well, though we should make it clear that if the eventual order is again for reinstatement there would be no ground for making any different award than was made by the first Tribunal. However, this is not an issue on which we heard any submissions; and we give the parties liberty to lodge supplementary submissions on this issue only within 14 days of the seal date of the order of this Tribunal.

While this must be a matter for the Tribunal, it seems to us that a case management discussion is likely to be needed in order to ensure that proper directions are in place for defining the precise issues now in play and the scope of the evidence.

28. It should go without saying that it is only with great reluctance that we remit this case for re-hearing, particularly since even if the Tribunal eventually orders reinstatement that will not necessarily be the end of the road because of the Trust's right to require a further hearing under s. 116 (6). If there is any prospect of the parties even now resolving their differences by compromise we would urge them to try. In this connection, it may perhaps be helpful for us to observe that we were somewhat surprised, on the evidence that we have heard, to be told that the NHS Pensions Agency had twice rejected claims from the Claimant on the basis that she is not permanently disabled. Whether it is open to the parties to pursue this avenue again we must leave to them to consider.