United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Ayoade Elesinnla (of Counsel) Instructed by: Messrs J R Jones Solicitors 58 Uxbridge Road Ealing London W5 2ST
For the Respondent	Mr Paul Greatorex (of Counsel) Instructed by: London Borough of Waltham Forest Legal and Democratic Services Town Hall Forest Road London E17 4JA


 


Summary

Disability discrimination – Less favourable treatment

The Claimant (who was disabled within the meaning of the Disability Discrimination Act 1995) had been absent from work by reason of disability related illness for some 4 years and there was no likelihood of his returning to work in the immediate future. The EAT upheld the decision of the ET that payment of wages and sick pay beyond that provided for in the Respondent's sick pay policy did not constitute a reasonable adjustment within the meaning of S6 of the Act.

The EAT held that save in exceptional circumstances payment of wages or sick pay to a disabled person absent from work could not constitute on its own a reasonable adjustment because it could not be said to facilitate a return to work. Further, in most cases it would be reasonable for an employer to decide that it was appropriate to pay those employees who attended work and not to pay those who did not. Any difference in treatment therefore between disabled employees and those who were not would be justified.


 


HIS HONOUR JUDGE SEROTA QC

Introduction

1. This is an appeal from a decision of the Employment Tribunal at Stratford (Ms J M Jones Chairman). The decision was promulgated on 29 November 2005 after a hearing that lasted some six days including one day in chambers. The Employment Tribunal dismissed a number of claims of direct discrimination and failure to make reasonable adjustments because they were presented out of time and it was not just and equitable to extend the Claimant's time. The Employment Tribunal dismissed on the merits, a claim in relation to the alleged failure of the Respondent to enquire about the Claimant's medical condition after 26 February 2002.
2. The Employment Tribunal went on to find that the failure of the Respondent to pay the Claimant sick pay or wages throughout his sickness absence did not amount to less favourable treatment for a reason related to his disability; the claim under section 5(1) of the Disability Discrimination Act 1995 failed. It found there was no requirement for the Claimant to return to work prior to taking his annual leave entitlement for 2003/2004. It found that the arrangements made by the Respondent in relation to the payment of wages to staff on long term sickness absence did put the Claimant at a substantial disadvantage in comparison with persons who were not disabled, but in compliance with section 6(1) of the Disability Discrimination Act 1995 the Respondent took such steps as were reasonable to prevent those arrangements having that affect, so accordingly claims of discrimination under section 5(2) of the Act failed.
3. On 7 February 2006 HHJ Reid QC referred the appeal to a preliminary hearing which came before the Tribunal presided over by HHJ Burke QC on 14 March 2006. On that occasion certain grounds only were permitted to go forward to a full hearing. One of those grounds has not been pursued and we are today concerned only with grounds 5:3 to 5:5 and ground 5:6(iv). These grounds principally raise issues as to whether the application of the Respondent's sickness policy to the Claimant and failure to pay wages or sickness pay in lieu while he was on sickness leave was discriminatory within the meaning of the Act.

Factual background

4. In May 1991 the Claimant joined the Respondent as an outdoor facilities operative at the Coronation Gardens Extension. We believe his position was that once commonly known as a park keeper. In February 2001 he was diagnosed as suffering from post traumatic stress disorder. He has not returned to work since. He received sick pay for some six months. It is clear that he was exposed to deeply unpleasant experiences. His accommodation was unsatisfactory; the area where he worked was frequented by drug addicts who would leave needles and other drug paraphernalia. There was criminal activity in the park including muggings, drug dealing and on occasions rape. The Claimant was threatened by drug dealers.
5. The Respondent had a sickness policy whereby employees were entitled to full pay for the first six months of any absence from work due to ill health. This was reduced to half pay for a maximum period of six months for any further period of sickness. An employee whose ill-health continued beyond twelve months would not receive any further pay from the Respondent. The Employment Tribunal at paragraph 17 noted that it had not been shown any documentary evidence of the policy but it appears to have been accepted by the Claimant.
6. On 31 July 2001 an extension to the Claimant's sick pay was approved but it was not actioned until a further six months had elapsed. In August 2001 the Claimant's sick pay ceased and he applied for an extension to his sick pay. At the same time he was referred to the Respondent's Occupational Health Physician.
7. On 17 October 2001 the Occupational Health Physician, Dr Portia Mutshekwane, produced a report in which she advised, inter alia that the Claimant's condition could be addressed by counselling.
8. On 25 October 2001 the Claimant was seen by another Occupational Health Physician, Dr Lazarus. He was less certain of the Claimant's prognosis but considered he was unfit to return to work and was unable to say when he could be expected to return to work. Following receipt of Dr Lazarus' report the Respondent began to deal with the Claimant under its sickness procedure.
9. On 22 November 2001 a stage 2 meeting took place under the sickness procedure. The Claimant said that he could not return to work in Coronation Park and doubted if he could work in other parks where there were violent surroundings. He had received counselling and was on medication and most days had serious panic attacks. He did not sleep most nights and continued to have nightmares and informed the meeting that he had considered suicide.
10. The Claimant did not want to take a desk job. The Respondent agreed to explore the possibilities of finding an alternative post for the Claimant depending on advice from the Occupational Health Physician and the availability of vacancies. He was told that the next stage in the process was stage 3 and that all options would be considered including dismissal.
11. In January 2002 the Claimant's application for an extension to his sick pay was granted to the extent that he received a further 3 months full pay and thereafter 6 months half pay. He made no further applications for sick pay. He was offered psychotherapy at this time.
12. On 10 January 2002 he was seen again by Dr Lazarus. He confirmed that the Claimant was still unfit to work and should be considered suitable for work in an environment not involving direct contact with the public, that is to say some form of office work. Dr Lazarus believed it was possible for the Claimant to be moved on a temporary redeployment until his health improved.
13. On 15 January 2002 the Respondent enquired of the Claimant if he was interested in voluntary redundancy severance and the Claimant expressed some interest in this.
14. On 20 January 2002 the Claimant's entitlement to half-pay under the sickness scheme expired. He received a further 3 months half-pay. It would appear that the Respondent did not tell him of his entitlement to statutory sick pay after the expiry of his right to receive sick pay from the Respondent.
15. On 18 February 2002 a further meeting took place. The Claimant stated he had no IT skills and was concerned as to how he might react to working in an office environment and the pressure of working in an office. He was asked if he was interested in working as a street sweeper but he did not wish to do this. He was again told that the next stage in the procedure was a stage 3 hearing which would take place in approximately 1 month's time.
16. On 26 February 2002 the Claimant was seen by another Occupational Health Physician, Dr Giagoundis. In his opinion the Claimant continued to suffer from post traumatic stress disorder. Dr Giagoundis asked if it was possible to redeploy the Claimant and advised against his returning to work in a park or in any position where he was exposed to difficult encounters with the public. There was no reason, however, why he could not work in an office environment after retraining. Dr Giagoundis advised the Claimant should be handled sympathetically because he was vulnerable over the next year or so. However, ill health retirement was not appropriate because there was no evidence that the Claimant's condition was permanent and would last until normal retirement age. The Claimant's condition would fall under the Disability Discrimination Act. He asked that the Claimant be referred back to him for review once suitable redeployment had been identified. The Claimant informed the Respondent that the treatment could take some 2 years. According to the Claimant Dr Giagoundis said he was not medically fit even to sweep the roads. The Employment Tribunal (see paragraph 40) was not satisfied that this was an accurate reflection of Dr Giagoundis advice. However discussions took place as to possible redeployment of the Claimant but these proved inconclusive and it was made clear to the Claimant that retirement on the grounds of ill-health was not feasible in the absence of a recommendation from the occupational health services that the Claimant was permanently unfit to work.
17. After further discussions between the Respondent and Dr Giagoundis the Claimant was placed on the redeployment register and in April 2002 he was sent lists of job vacancies.
18. On 5 March 2002 the Respondent appreciated that the Claimant had not been sent form SSP1 to enable him to seek statutory sick pay; a form was sent to him which was sent on to the department of social security.
19. On 19 April 2002 the Claimant again saw Dr Giagoundis. His condition had deteriorated. Dr Giagoundis was disappointed because he had not expected this deterioration. He advised against redeploying the Claimant to a job where he would work on his own and where he might be exposed to difficult encounters with the public. This ruled out posts such as that of security attendant. However, Dr Giagoundis considered that despite the Claimant's setback ill-health retirement was not appropriate; there was no evidence that his condition was permanent and would last until normal retirement age. Dr Giagoundis again asked to be consulted if a post to which the Claimant could be redeployed were identified. He also again drew the Respondent's attention to the provisions of the Disability Discrimination Act and to the need to make reasonable adjustments.
20. The stage 3 hearing was scheduled for 23 April 2002. The Claimant was unable to attend by reason of ill-health and sent a medical certificate.
21. On 1 May 2002 the Respondent sent the Claimant figures in relation to entitlement under a voluntary severance scheme. The Claimant accepted the draft figures on 7 May 2002 and stated he wished to proceed. The Employment Tribunal were satisfied that he received a verbal assurance that voluntary severance would go ahead and the Claimant relied on this assurance to his detriment by not putting himself forward for any job in the lists of vacancies sent to him. He was, however, unenthusiastic about taking up office work despite having had previous experience.
22. On 8 May 2002 the Claimant wrote to the Respondent's Human Resources Advisor, Mr Proctor, to enquire as to the Respondent's policy in relation to holiday pay for staff on long term sickness. He was told that he had 15 days left over from 2001/2002 before his illness. He also asked if he was entitled to holiday pay from 1 February 2001.
23. On 20 May 2002 the Claimant was told that he would not be granted early retirement. He was also told he was not entitled to outstanding holiday pay because he had been off sick. The Claimant did not raise this issue again until some time in 2004 when he raised enquiries within these proceedings.
24. The reconvened stage 3 meeting took place on 30 May 2002. The Claimant was told that without a recommendation from the Occupational Health Physician he was permanently unable to work. He would not be considered for ill-health retirement and he was dismissed. On 4 June 2002 the Claimant appealed against his dismissal. A letter was sent on 5 June 2002 by the Respondent confirming his dismissal on 5 weeks notice for which he was paid.
25. The Claimant's appeal was heard on 20 December 2002. His appeal was allowed and he was reinstated. So far as we are aware he continues to be employed by the Respondent.
26. On 5 February 2003 he was seen by the Occupational Health Physician, Dr Kurzer, who again found him unfit to return to work. The Claimant was assessed by the Department of Health and Social Security and certificated for a further 6 months with post traumatic stress disorder and severe depression.
27. As we understand the position, and as we have mentioned, the Claimant continues to be employed by the Respondent but he has neither worked nor received payment, since his reinstatement.

The statute

28. Before we turn to consider the decision of the Employment Tribunal it is helpful to set out the relevant statutory background. We need to refer to sections 4, 5 and 6 of the Disability Discrimination Act 1995 as well as to section 17A(1C). Since the commencement of these proceedings the Act has been reworked. For the sake of convenience we shall continue to refer to the provisions by reference to the original numeration. However, it is to be noted that section 5 is now section 3A, section 6 is now section 4A, and section 17A(1C) remains.

Section 4 provides as follows:-

"4. Discrimination against applicants and employees.

(2) It is unlawful for an employer to discriminate against a disabled person whom he employs-

(a) in the terms of employment which he affords him;

(b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit;

(c) by refusing to afford him, or deliberately not affording him, any such opportunity; or

(d) by dismissing him, or subjecting him to any other detriment."

Section 5 is as follows:-

"5 Meaning of "discrimination"

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

(a) for a reason which relates to the disabled person 's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and

(b) he cannot show that the treatment in question is justified.

(2) For the purposes of this Part, an employer also discriminates against disabled person if-

(a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and

(b) he cannot show that his failure to comply with that duty is justified.

(3) Subject to subsection (5), for the purposes of subsection (1) treatment is justified if, but only if the reason for it is both material to the circumstances of the particular case and substantial."

Section 6 provides as follows:-

"6. Duty of employer to make adjustments

(1) Where-

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

(b) any physical feature of premises occupied by the employer,

place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect.

(2) Subsection (1)(a) applies only in relation to-

(a) arrangements for determining to whom employment should be offered;

(b) any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded.

(3) The following are examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1)-

(a) making adjustments to premises;

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

(c) transferring him to fill an existing vacancy;

(d) altering his working hours;

(e) assigning him to a different place of work;

(f) allowing him to be absent during working hours for rehabilitation, assessment or treatment;

(g) giving him, or arranging for him to be given, training;

(h) acquiring or modifying equipment;

(i) modifying instructions or reference manuals;

(j) modifying procedures for testing or assessment;

(k) providing a reader or interpreter;

(1) providing supervision.

(4) In determining whether it is reasonable for an employer to have to take a particular step in order to comply with subsection (1), regard shall be had, in particular, to-

(a) the extent to which taking the step would prevent the effect in question;

(b) the extent to which it is practicable for the employer to take the step;

(c) the financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his activities;

(d) the extent of the employer's financial and other resources;

(e) the availability to the employer of financial or other assistance with respect to the taking the step."

Section 17A(1C) which provides for a reversal of the burden of proof is in the following terms:-

"17A Enforcement, remedies and procedure

(1C) Where, on the hearing of a complaint under subsection (1), the complainant proves facts from which the tribunal could, apart from this subsection, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent provides that he did not so act."

The decision of the Employment Tribunal

29. We have given the briefest summary of the factual background taken from the decision of the Employment Tribunal. We do not need to repeat those findings nor do we need to deal with findings in relation to matters that are not before us.
30. The Employment Tribunal directed itself by reference to the statutory provisions to which we have referred and also to a number of all authorities we shall have to consider later in more detail. In relation to section 5(1) the Employment Tribunal considered the cases of Clark v Novacold [1999] IRLR 318, London Club Management v Hood [2001] IRLR 719 and Nottinghamshire County Council v Meikle [2004] IRLR 703. In relation to section 5(2), (failure to comply with a section 6 duty) the Employment Tribunal referred to Clark v Novacold (supra) Cosgrove v Caesar & Howie [2001] IRLR 653 Morse v Wiltshire County Council [1998] IRLR 352 and Home Office v Collins. Again we shall refer to these authorities later in this judgment.
31. We need to set out paragraph 3:2:9 of the decision of the Employment Tribunal.

"3.2.9 The duty under Section 6 arises where the Claimant can identify arrangements made by the Respondents which place him at a substantial disadvantage in comparison with persons who are not disabled The question of a suitable comparator arises again. Applying the test in Clark v. TDG t/a Novacold, the correct comparator would be a colleague who was not disabled, was at work and continuing to receive their salary The comparator could also, as the Respondent argues, be a colleague who was also ill but still not disabled and who would also exhaust his entitlement to 'sick pay after a year. If the latter is the correct comparator then the duty would not arise as the Claimant Would be in exactly the same position as his comparator and therefore not at a substantial disadvantage in comparison thereto. If the correct comparator is the former then a substantial disadvantage does arise as the Claimant has been without his salary for a considerable period of time. The Tribunal then has to consider whether there were any reasonable adjustments that could prevent that arrangement from having that effect."

32. The Employment Tribunal considered the Claimant's claims under section 5(1) of the Act in relation to the Respondent's failure or refusal to pay him full sick pay throughout his period of illness and pay his wages throughout his sickness absence. The Employment Tribunal regarded this as being essentially the same claim. The Employment Tribunal concluded:-

"63.2 The Tribunal's judgment is that the comparator for this claim would be a colleague who was not disabled and was therefore at work and receiving their wages. The Claimant is treated less favourably in comparison to such a person as he has not received any wages since January 2002 and this is because he is absent from work for over a year.

63.3 In the Tribunal's judgment, the reason for the Respondent's failure to pay the Claimant his wages was not because of a reason related to his disability. It was instead, because of the operation of the Respondent's sick pay policy. Any member of staff on sick leave would get 6 months full pay and then 6 months half pay. If they were away from work due to ill health for a period of time beyond 1 year, they would receive no pay from the Respondent; whether or not they were disabled. Although the Claimant was treated less favourably than a relevant comparator, it is not for a reason related to his disability and so this claim fails."

33. The Employment Tribunal then went on to consider claims under section 5(2) relating to reasonable adjustments. The Employment Tribunal helped with these matters in particular at paragraph 64:2 to 64:4:-

"64.2 The Tribunal found that the Respondent's sick pay policy was an arrangement that was causing the Claimant substantial disadvantage as he has been without pay since January 2002. At the time of his dismissal in May 2002, the Claimant was paid notice pay in accordance with his entitlement but apart from that, he has received nothing from the Respondent. The Respondent would therefore be under a duty to make reasonable adjustments to stop those arrangements from having that effect on the Claimant.

64.3 If the correct comparator is someone who is at work and receiving pay then there were at least three possible adjustments that could have been made by the Respondent which would have had the effect of alleviating the substantial disadvantage in which the Claimant was put by the Respondent's sick pay arrangement. The Respondent could decide to pay his full pay while he remained off sick, they could successfully redeploy him whilst maintaining his terms and conditions or they could accept him for voluntary severance/early retirement.

64.4 It is the Tribunal's judgment that the Respondent took such steps as were reasonable, in all the circumstances of the case, for them to have to take in order to prevent the relevant arrangements having the effect of placing the Claimant at a substantial disadvantage.

34. The Employment Tribunal (see paragraph 64:5) was satisfied that on the findings we have mentioned the Respondent had considered redeployment as a reasonable adjustment but that neither the Claimant nor the Respondent's Occupational Health Department could identify a suitable post and the Employment Tribunal concluded:-

"that the Respondent did all that was reasonable to follow the recommendations of all the doctors including Dr Giagoundis, that the Claimant be redeployed."

35. The Employment Tribunal did not consider it was reasonable for the Claimant to be paid his full pay/full sick pay from February 2002 to the date of the presentation of his application (see paragraph 64:6). This was never suggested by the Claimant at the time; he was granted a 3 month extension and the Respondent reasonably expected him to return to work within a short time and the available medical opinion supported this expectation. There was no expectation he would continue to be unable to work some years later. The Employment Tribunal also considered that the Claimant could have renewed his application for his sick pay to be extended when it became clear he was going to be absent from work for some time. He never did so. Further, the Respondent had no date by which the Claimant intended to return to work.

"In those circumstances it would not be reasonable for the Respondent to pay the Claimant full pay for an indefinite period. Applying the law as set out in Home Office v Collins without a possible back to work date, it was reasonable for the Respondent to maintain their sick pay policy."

The Employment Tribunal took note of the fact that as at the date of the hearing the Claimant was still unable to work reason of ill health and had been unable to work for some 3 years prior to the presentation of his application.

36. The Employment Tribunal then had this to say at paragraph 64:8:-

"64.8 The Claimant's submission is that the purpose of the adjustment is not to enable the Claimant to return to work but to remove the substantial disadvantage. Section 6(1) does state that the point of the adjustment is to prevent the arrangement having that effect. However, since section (6) contemplates adjustments required to manage disability while at work (Pill LJ in Home Office v Collins), any adjustment which the Respondent should carry out should also bring the Claimant closer to being able to perform his duties. The substantial disadvantage which it is supposed to remove must relate to the Claimant's ability to do his job. The Tribunal was presented with no evidence that receipt of his full salary/full sick pay, apart from alleviating the Claimant's financial pressures, would have made any difference to his mental state, his health or ultimately, his ability to return to work."

The Employment Tribunal considered it was not practicable in the circumstances for the Respondent to pay the Claimant's wages in full as the financial burden would be too great as it would entail not only paying the Claimant his salary but also that of his replacement.

37. At paragraph 64:10 the Employment Tribunal went on. The Employment Tribunal rejected the suggestion the Claimant should have been permitted to take early retirement or voluntary severance as a reasonable adjustment. There was no evidence upon which the Employment Tribunal could find that a non-disabled colleague unable to work in similar circumstances would have definitely been considered for voluntary severance or early retirement.
38. In the circumstances the Employment Tribunal concluded that there had been no breach of any section 6 duty and no discrimination under either section 5:1 or 5:2 of the Act.

Notice of Appeal and submissions and support

39. Ground 5:3 the Claimant submits that the Employment Tribunal is wrong in law or perverse in finding that the reason for the Claimant's less favourable treatment was the Respondent's sick pay policy. It was submitted that the Employment Tribunal had correctly identified as a comparator a colleague who was not disabled and was at work. It followed, having regard to the decisions of the Court of Appeal in Clark v Novacold and Nottinghamshire County Council v Meikle that the reason non-payment of sick pay was the claimant's absence and this was related to his disability. There was accordingly a breach of section 5:1 of the Act.
40. In ground 5:4 it was submitted that the Employment Tribunal was wrong in law or perverse in relation to non-payment of wages for the same reason its decision in relation to non-payment of sick pay was wrong in law or perverse. This complaint was not contingent on the Respondent's sick pay policy. The Employment Tribunal, it was said, was either wrong in law or perverse in conflating a complaint of non-payment of sick pay with non-payment of wages. The two topics should have been dealt with separately.
41. In ground 5:5 the Claimant attacks the finding of the Employment Tribunal that the Respondent was justified in not paying sick pay under section 5:2 of the Act. It was submitted that the Employment Tribunal was wrong in law or perverse in concluding that the Respondent took such steps as were reasonable in all the circumstances of the case to prevent the relevant arrangements placing the Claimant at a substantial disadvantage. It is said that the Respondent (i) failed to have regard to the reverse burden of proof provided for in section 17A(1C) of the act (ii) failed to recognise that the onus of proving justification lay on the Respondent (iii) failed to have regard to the principles set out in Cosgrove v Caesar & Howie when it held at paragraph 64:5 of its decision that neither the Claimant nor his advisors have ever identified a post he was able to be redeployed to (iv) the Employment Tribunal failed to give the parties the opportunity to make submissions in relation to the decision in Home Office v Collins especially as the Employment Appeal Tribunal placed substantial reliance upon it; in this regard Mr Elesinnla placed reliance upon the decision of the Court of Appeal in Stanley Cole (Wainfleet) Ltd v Sheridan [2003] IRLR 52. (v) the Employment Tribunal placed the onus of proving that reasonable adjustments would have led the Claimant to return to work on the Claimant (paragraph 64:8 of the decision). It had in any event been submitted to the Employment Tribunal that it was a combination of sick pay/wages and allowing the Claimant to be absent for rehabilitation assessment or treatment that would have amounted to a reasonable adjustment. It is said the Employment Tribunal failed to deal with this submission or with the consultant's report. The Employment Tribunal failed to have regard to the fact the Respondent did not plead or give evidence that it had considered paying wages but evidence from the Claimant's line manager was that the Claimant was not paid while absent from work through sickness because he did not ask (vi) the Employment Tribunal reached the conclusion at paragraph 64:9 of the decision in relation to the practicability of paying the Claimant full pay when the Respondent did not give evidence it had considered the financial costs of the adjustment at all. It was not clear what evidence the Employment Tribunal relied upon to conclude that "such an adjustment would have placed a substantial financial burden on the Respondent".
42. The final ground of appeal (5:6(iv)) attacked the conclusion of the Employment Tribunal that the Claimant's disability would not have prevented him making a request every year in relation to his sickness absence to be allowed to take holiday pay but he had failed to so. It is submitted that the Employment Tribunal failed to give any adequate reasons as to how it reached that conclusion as to whether or not the Claimant's sickness prevented him from applying for holiday pay. Further, no reasons were given why the application for holiday pay for 2003/2004 was not granted and why it was not a reasonable adjustment to grant such holiday entitlement for 2003/2004.
43. After we had reserved our decision the reserved judgment of Elias J was handed down in the case of O'Hanlon v Commissioners HM Revenue and Customs (UKEAT/0109/06). This decision seemed to us have an important bearing on the present case in relation to a number of matters but principally in relation to (a) the identity of the proper comparator (b) whether the Employment Tribunal was correct to follow the decision in London Clubs v Hood.
44. We, therefore, sought further submissions from both parties. Both parties presented additional written submissions.

Discussion of authorities

45. Although the point is perhaps now not an issue, because the Respondent appears to accept that we should follow the decision on Elias J in O'Hanlon we should state that we consider we are bound to do so. We say this by reason of the principle set out in Colchester Estates (Cardiff) v Carlton Industries PLC [1984] 601. In that case Nourse J (as he then was) held that where a High Court Judge has fully considered an earlier decision of another High Court Judge that second decision should normally be accepted as having settled the issue at first instance unless in a rare case a third judge is convinced that the second judge was wrong not to follow the first. That is not the case here because we are satisfied that the decision of Elias J in O'Hanlon was correct.
46. It is helpful to set out the principle in Clark v Novacold. It is of paramount importance to understand that the identity of any comparator in cases involving discrimination on the ground of disability raises quite different issues to identity of comparators in other areas of the law, such as discrimination on the grounds of sex and race. Mummery LJ noted that two questions were posed by section 5(1); firstly whether Mr Clark was dismissed for a reason which related to his disability and secondly if so whether Novacold treated him less favourably than they would treat others to whom that reason would not apply. The first question was essentially one of fact but in order to answer the second question Mummery LJ held that it was necessary to compare Novacold's treatment of Mr Clark with the treatment of others to whom "that reason" would not apply. Mummery LJ rejected Novacold's submission that the reason must be one relating to the disabled person's disability.

"On this approach, the person to whom "that reason" would not apply would be one who, like the disabled person, is incapable of performing the main functions of his job, but for a reason which does not relate to disability".

Then went on to consider the contrary interpretation submitted on behalf of Mr Clark.

"[1] His argument is that "that reason" refers only to the first three words of the paragraph - "for a reason". The causal link between the reason for the treatment and the disability is not the reason for the treatment. It is not included in the reason for the treatment. The expression "which relates to the disability" are words added not to identify or amplify the reason, but to specify a link between the reason for the treatment and his disability which enables the disabled person (as opposed to an able-bodied person) to complain of his treatment. That link is irrelevant to the question whether the treatment of the disabled person is for a reason which does not or would not apply to others. On this interpretation the others to whom "that reason" would not apply are persons who would be capable of carrying out the main functions of their job. Those are the "others" proposed as the proper comparators. This comparison leads to the conclusion that Mr Clark has been treated less favourably: he was dismissed for the reason that he could not perform the main functions of his job, whereas a person capable of performing the main functions of his job would not be dismissed.

Linguistically section 5(1)(a) is ambiguous. The expression "that reason" is, as a matter of ordinary language, capable of bearing either of the suggested meanings. The ambiguity must be resolved by recourse to the context of the ambiguous language and to the aim of the legislation. …………….'"

47. He later continued:-

"[2] the 1995 Act adopts a significantly different approach to the protection of disabled persons against less favourable treatment in employment. The definition of discrimination in the 1995 Act does not contain an express provision requiring a comparison of the cases of different persons in the same, or not materially different, circumstances. The statutory focus is narrower: it is on the "reason" for the treatment of the disabled employee and the comparison to be made is with the treatment of "others to whom that reason does not or would not apply." The "others" with whom comparison is to be made are not specifically required to be in the same, or not materially different, circumstances: they only have to be persons "to whom that reason does not or would not apply".

This is to be contrasted not only with the different approach in the 1975 and the 1976 Acts, but also with the express requirement of comparison of with the treatment of other persons "whose circumstances are the same" stipulated in victimisation cases by section 55(1) (a) of the 1995 Act.

The result of this approach is that the reason would not apply to others even if their circumstances are different from those of the disabled person. The persons who are performing the main functions of their jobs are "others" to whom the reason for dismissal of the disabled person (i.e. inability to perform those functions) would not apply.

In the context of the special sense in which "discrimination" is defined in section 5 of the 1995 Act it is more probable that Parliament meant "that reason" to refer only to the facts constituting the reason for the treatment, and not to include within that reason the added requirement of a causal link with disability: that is more properly regarded as the cause of the reason for the treatment than as in itself a reason for the treatment. This interpretation avoids the difficulties which would be encountered in many cases in seeking to identify what the Appeal Tribunal referred to as "the characteristics of the hypothetical comparator". It would avoid the kind of problems which the English (and Scottish) courts and the tribunals encountered in their futile attempts to find and identify the characteristics of a hypothetical non-pregnant male comparator for a pregnant woman in sex discrimination cases before the decision of the European Court of Justice in Webb v Emo Air Cargo (UK) Ltd : see Webb (No 2) [1995] 1 WLR 1454.

This interpretation is also consistent with the emphasis on whether the less favourable treatment of the disabled person is shown to be justified. That defence is not available in cases of direct discrimination under the other discrimination Acts.

It is also more consistent with the scheme of the 1995 Act as a whole. As Roch LJ pointed out in the course of argument, the language of section 5(1) is replicated in other Parts of the Act relating to the definition of discrimination in other areas: goods, facilities and services in section 20(1)"

48. Mummery LJ went on to consider the statement made by the Minister for Social Security and Disabled People during the second reading of the bill. The Minister suggested the bill was drafted in such a way that, for example, if a café refused to admit dogs with the effect that blind people would be unable to enter it, that would be a prima facie case of indirect discrimination against blind people. Mummery LJ considered sections 19 and 20 of the Act and noted that if Novacold's submissions were correct in their interpretation of section 5(1) it would follow that section 20(1) which is in the same terms would have to bear a meaning inconsistent with the specific statement of the Minister on the intended effect of those provisions. He continued:-

"[3] Consider his example. If no dogs are admitted to a cafe, the reason for denying access to refreshment in it by a blind person with his guide dog would be the fact that no dogs are admitted. That reason "relates to" his disability. His guide dog is with him because of his disability.

On the Novacold interpretation of the comparison to be made, the blind person with his guide dog would not be treated less favourably than the relevant comparator i.e." others", to whom that reason would not apply, would be sighted persons who had their dogs with them. There could not therefore be any, let alone prima facie, discrimination.

But the Minister specifically stated that this would be a prima facie case of disability discrimination i.e. less favourable treatment, unless justified. It could only be a case of less favourable treatment and therefore a prima facie case of discrimination, if the comparators are "others" without dogs: "that reason" for refusing access to refreshment in the cafe would not apply to "others" without dogs. "

We also refer to Nottinghamshire County Council v Meikle [2004] IRLR 703. This case raises the important issue as to whether payment of salary or sick pay while a disabled employee is off sick could amount to a reasonable adjustment under section 6 which the employer is bound to comply with unless he can justify the failure. The Court of Appeal, in that case held that on the facts of that case the failure of employer to pay wages amounted to discrimination because it was both an unjustified failure to comply with the duty to make reasonable adjustments and because it amounted to unjustified less favourable treatment for a reason related to the Claimant's disability. This case has been subjected to detailed analysis by Elias J in the O'Hanlon case to which we shall shortly refer. We note, however, that it was never suggested in Nottinghamshire County Council v Meikle that payment of sick pay was a reasonable adjustment independent of other specific adjustments which ought to have been made to enable the Claimant to return to work and which would have facilitated the Claimant's return to work without further lengthy absences. As Elias J pointed out the failure of the Respondent to address other reasonable adjustments to get Ms Meikle back into the classroom had a "knock on effect".

49. Elias J referred to the judgment of Keene LJ at paragraph 55:-

"In the present case Ms Meikle claimed that the reduction of sickness benefit to half-pay because of her absence from work amounted to both forms of disability discrimination. The cause of her absence from work was NCC's failure to make reasonable adjustments and the placing of her on half-pay put her at a substantial disadvantage. A reasonable adjustment then would have been to retain her on full pay, by way of sickness benefit, but the NCC failed to comply with its section 6 duty and made no such adjustments. That was unjustified and so there was section 5(2) type discrimination in addition there was "direct" section 5(1) discrimination, in that putting her on half-pay was less favourable treatment for a disability related reason, and this was unjustified."

50. The Employment Tribunal, as we have seen, relied on the decision of the Employment Appeal Tribunal presided over by Mrs Elisabeth Slade QC in London Clubs Management Ltd v Hood [2001] IRLR 719. This case was relied upon both before the Employment Tribunal and initially before us by the Respondent. The case appeared to be authority for the proposition that a comparison in cases of alleged discriminatory failure to pay sick pay could properly be made between the disabled employee absent by reason of sickness related to disability and another employee absent through sickness but not disabled. As appears shortly, in O'Hanlon Elias J demonstrated that the decision was fact sensitive to the particular facts of the case and could not be regarded as an authority for some broader principle that was in conflict with Clark v Novacold.
51. Home Office v Collins was a decision relied upon by the Employment Tribunal, and one that had not been cited by the parties. The Employment Tribunal did not draw their attention to the authority before giving its decision. The Court of Appeal was concerned with the Respondent's policy not to offer return to work part-time until a date could be identified when the Claimant could start part-time working. The Employment Tribunal had held that such a policy was not capable of being sustained under section 6 of the act. Pill LJ had this to say:-

"31. It was necessary for the appellants to consider their duty under Section 6 of the 1995 Act. The requirement was triggered but in a situation where the proposed arrangement or adjustment suggested was a phased return to work and nothing else. Such a proposal does not fit easily into a section which contemplates adjustments to manage disability while at work but I assume, for present purposes, that it comes within the definition. That being so, and if, following the decision to grant a further medical assessment, the evidence in September 2002 had been that the respondent was fit to commence a phased return to work, different considerations would have arisen. That was not the evidence, however, and given the length of the absence and other circumstances, Section 6 did not require the appellants to delay their decision further. Since the respondent could not return to work at all, consideration of part-time working did not arise. Nor, on the present facts, was it incumbent on the appellant to provide, or the employment tribunal to require them to provide, further financial or operational reasons why they should, by virtue of Section 6, again have extended the period before which a decision to dismiss would be taken. The absence was of very considerable length.

32. In my judgment, the employment tribunal were entitled to find that the employer had taken such steps as were reasonable, in all the circumstances of the case. That is the s 6 issue to which submissions have correctly been directed. If that is established, justification under s 5(1)(b) is also established. The factors which establish that there is no breach of the s 6 duty also establish justification under s 5(3) by providing a reason for dismissal which is material to the circumstances of the case and substantial, (Post Office v Jones [2001] EWCA Civ 558, [2001] ICR 805)"

52. We now turn to consider the decision of Elias J in O'Hanlon v Commissioners for HM Revenue and Customs. We need to set out this case in some detail. Mrs O'Hanlon had the misfortune to suffer from clinical depression. She was accepted to be suffering from a disability within the meaning of the Disability Discrimination Act. She had taken long periods of absence from work. The Respondent paid her in accordance with its sick pay rules which meant that for absences in excess of 26 weeks in any four year period she would receive one half or less of her full salary. She claimed she should have been given full pay for her absences, that failure to make such payments constituted disability related discrimination, and also involved a failure to make reasonable adjustments. The Employment Tribunal had found that the sick pay rules did subject her to a substantial disadvantage but that the adjustment sought was not a reasonable one. It found there was no disability related discrimination, but even if there was it was justified. The employee appealed and the Respondent cross appealed.
53. Elias J considered it helpful to refer to the relevant sections of the statute of their current numeration. For the sake of consistency in our citation from this case we have reverted to the original numbering.
54. Elias J drew attention to the three kinds of disability discrimination. Firstly, direct discrimination which we are not concerned and secondly discrimination under sections 5(1) and 5(2). Elias J had this to say:-

"21. Second, there is disability related discrimination: section 5(1). This is in some respects similar to indirect discrimination found in other discriminatory legislation, but there is no requirement here that the discrimination should have a disparate impact on the disabled as a body. It is enough that the employee is treated less favourably for a reason related to his or her particular disability. This form of discrimination can be justified. However, justification can only be established if the employer shows that the reason for the treatment is both material to the circumstance of the particular case and substantial: section 5(3).

22. Third, there is the failure to make reasonable adjustments form of discrimination in sub-section (2). Here, the employer can be liable for failing to take positive steps to help to overcome the disadvantages resulting from the disability. However, this in only once he has a duty to make such adjustments. That duty arises where the employee is placed at a substantial disadvantage when compared with those who are not disabled.

23. There is a close relationship between these two latter forms of discrimination. Section 5(3) provides that treatment can only be justified under sub-section (1) if it would have been justified even if the employer had complied with any duty to make reasonable adjustments. It follows that logically it makes sense to consider the question of reasonable adjustment disability discrimination first. That was made clear by Lord Rodger of Earlsferry in the case of Archibald v Fife Council [2004] ICR 954 para.32, a case which we consider below.

55. Elias J having considered the decision of the House of Lords in Archibald v Fife Council [2004] ICR 954 went on to say this:-

26. In Smith v Churchills Stairlifts PLC [2006] IRLR 41, Maurice Kay LJ considered all the judgments in Archibald and concluded that "the comparator is readily identified by the disadvantage caused by the relevant arrangements" (para. 40). On that basis, in this case the comparators are those who are not disabled and do not as a consequence have illnesses of a length which denies them the right to have full pay. (This may be because they are not ill, or not for periods which lead to a reduction in pay. The fact that comparison can be made with both indicates that it is of no great significance in this case whether it is alleged that the entitlement is to pay or sick pay, the latter referring to the pay awarded to someone still within the first twenty six weeks of absence.)

56. Elias J noted that the question whether the employer has made reasonable adjustments, as substantial disadvantage had been identified, has to be determined objectively. Elias J cited from the judgment of Maurice Kay LJ in Smiths v Churchill Stairlifts PLC (supra) at paragraphs 44 and 45.
57. Elias J considered there might be cases where treatment could be justified under section 5(1) yet still constitute a breach of the duty to make reasonable adjustments under section 5(2). He continued:-

"In practice, however, if a Tribunal concludes that no reasonable adjustments are required, we think it will be a relatively rare case for any disability related discrimination not to be justified."

Elias J then went on to analyse at some length the judgment of Mummery LJ in Clark v Novacold (supra).

58. The Employment Appeal Tribunal accepted that there would be cases where a disabled person would be disadvantaged by a general rule or policy ostensibly applicable to all employees. Unlike other forms of discrimination, in cases of disability discrimination the employer may be obliged to take positive steps which involve treating the disabled employee more favourable then others are treated to remove or alleviate the consequences of the disability.
59. The Employment Appeal Tribunal went on to consider whether the claim for wages or enhanced sick pay could ever be sustainable.
60. Elias J said this:-

67. In our view, it will be a very rare case indeed where the adjustment said to be applicable here, that is merely giving higher sick pay than would be payable to a non-disabled person who in general does not suffer the same disability related absences, would be considered necessary as a reasonable adjustment. We do not believe that the legislation has perceived this as an appropriate adjustment, although we do not rule out the possibility that it could be in exceptional circumstances. We say this for two reasons in particular.

68. First, the implications of this argument are that Tribunals would have to usurp the management function of the employer, deciding whether employers were financially able to meet the costs of modifying their policies by making these enhanced payments. Of course we recognise that Tribunals will often have to have regard to financial factors and the financial standing of the employer, and indeed section 18B(1) requires that they should. But there is a very significant difference between doing that with regard to a single claim, turning on its own facts, where the cost is perforce relatively limited, and a claim which if successful will inevitably apply to many others and will have very significant financial as well as policy implications for the employer. On what basis can the Tribunal decide whether the claims of the disabled to receive more generous sick pay should override other demands on the business which are difficult to compare and which perforce the Tribunal will know precious little about? The Tribunals would be entering into a form of wage fixing for the disabled sick.

69. Second, as the Tribunal pointed out, the purpose of this legislation is to assist the disabled to obtain employment and to integrate them into the workforce. All the examples given in section 18B(3) are of this nature. True, they are stated to be examples of reasonable adjustments only and are not to be taken as exhaustive of what might be reasonable in any particular case, but none of them suggests that it will ever be necessary simply to put more money into the wage packet of the disabled. The Act is designed to recognise the dignity of the disabled and to require modifications which will enable them to play a full part in the world of work, important and laudable aims. It is not to treat them as objects of charity which, as the Tribunal pointed out, may in fact sometimes and for some people tend to act as a positive disincentive to return to work.

61. The Employment Appeal Tribunal then went on to consider the decision of the Court of Appeal in Nottinghamshire County Council v Meikle. We have already referred to Elias J's analysis of this case as being fact sensitive and that it was not authority for the proposition that payment of full pay was a reasonable adjustment independent of the other specific adjustments which ought to have been made in that case
62. Elias J then went on to consider the decision of Mrs Recorder Slade in London Clubs Management Ltd v Hood (supra). As we have already noted, Elias J considered:-

"If the claim is for sick pay but no such pay is awarded to anyone, then the employee is not at a financial disadvantage as a result of being sick at all. The reason for the refusal to pay sick pay is not then the fact that the employee is absent sick; indeed, that would be a condition precedent to obtaining sick pay. Rather the reason is that the employer pays no-one sick pay when absent sick."

However, that analysis could not run when the claim was for ordinary pay or sick pay where full pay is given for a period of sickness. In such a case the decision of the Court of Appeal in Clark v Novacold requires a comparison with someone who has not had the disability related sickness absence.

63. The Employment Appeal Tribunal then went on to consider the issue of justification:-

89. The challenge to the Tribunal's finding on justification was effectively doomed to fail once the Tribunal found that increasing sick pay was not in the circumstances an adjustment a reasonable employer would be required to make. If the objective test for imposing the duty did not bite, then there was never any real possibility that the more subjective test of justification would not be satisfied. That is not inevitably so in all cases, but in our view it is here where the same failure to make full pay lies directly behind both discrimination claims.

90. We have found that the Tribunal was right to find that there was no reasonable adjustment which could be made to the level of sick pay and therefore the question of justification has to be assessed on that basis. As we have noted, the Tribunal found that there were powerful economic reasons for the rule adopted. It would cost a very significant sum to pay full pay to all disabled employees absent sick in circumstances where their pay would otherwise be reduced. That must be a basis for a reasonable employer taking the view that, in line with the Jones case, there was a material and substantial reason for the discrimination. We do not accept that this reason is not material to the particular case, essentially for reasons we have given. Here the particular case was essentially representative of many, and therefore the impact on those other cases was a highly material consideration.

91. We would only add that in any event we think that the justification could simply be the fact that the employer considered it appropriate to pay those who attend work and contribute to the operation more than those whose absence prevents that. It would not be possible in our judgment to say that an employer could not properly consider this to be a substantial reason justifying the difference in treatment. The Tribunal seems to us to be saying as much in para 71 of its judgment, reproduced in para. 47 above.

The Claimant's submissions

64. In relation to ground 5:3 and the non-payment of sick pay Mr Elesinnla was critical of the Employment Tribunal's failure to follow the decision of the Court of Appeal in Clark v Novacold (supra) and then purporting to follow the decision in London Clubs v Hood. The Employment Tribunal should have found that the correct comparator was someone who was not disabled and was able to work. It would follow from that that the Claimant had suffered detriment by reason of his disability. The reason the Respondent was not paid sick pay related to his disability because he was off sick by reason of his disability. In the light of our decision that we are bound by the decision in O'Hanlon Mr Elesinnla's submissions in this regard are correct. It follows that the Respondent would be required to justify the failure to pay sick pay. This was not a point specifically considered by the Employment Tribunal under this head. We will deal with submissions in relation to justification when we deal with submissions in relation to reasonable adjustments.
65. In relation to ground 5:4, non-payment of wages, the Claimant submitted that the Employment Tribunal fell into the same errors as it did in relation to sick pay, this complaint was not contingent upon the sick pay policy. The Employment Tribunal was wrong in law in conflating the complaints for non-payment of sick pay with non-payment of wages and should have dealt with the two matters separately.
66. We now turn to the Claimant's submissions under ground 5.5 in relation to failure to make reasonable adjustments by non-payment of sick pay under section 5:2 of the Act. Mr Elesinnla had a number of points. He firstly complains that the Employment Tribunal ignored the affect of section 17A(1)(c) of the Act which places a reverse burden of proof upon an employer where the Claimant has proved facts from which an Employment Tribunal could conclude in the absence of an adequate explanation that the employer has acted unlawfully. It is said that the Employment Tribunal failed to have regard to the fact that the onus of proving justification lay on the Respondent and should have followed the decision Court of Appeal in Igen v Wong [2005] IRLR 258.
67. Mr Elesinnla submitted that the Employment Tribunal was wrong to place the onus of proving what reasonable adjustments there might have been on the Claimant, when it should have recognised it was the responsibility of the Respondent to consider and implement reasonable adjustments. In this regard he relied upon the decision of the Employment Appeal Tribunal in Cosgrove v Ceasar & Howie [2001] IRLR 653. The Employment Tribunal, it was said, failed to deal with the Claimant's submission that it was a combination of the failure to make payments of sick pay and wages as well as not permitting the Claimant to be absent for assessment for rehabilitation or treatment that constituted a failure to make a reasonable adjustment. The evidence before the Employment Tribunal was that the Claimant was not paid wages while absent because he had not asked.
68. The Claimant also criticised the decision of the Employment Tribunal to rely upon the decision in Home Office v Collins ([2005] EWCA Civ 598 CA (Civ Div)). The Employment Tribunal was said to have placed substantial reliance upon this decision without having given the opportunity to the parties to consider it. Reference was made to the decision of the Court of Appeal in Stanley Cole (Wainfleet) Ltd v Sheridan [2003] IRLR 585 in which the Court of Appeal held that it would be a breach of natural justice for a court or tribunal to have regard to an authority, without giving the parties the opportunity to comment upon it, if that authority was central to the decision and a material injustice had resulted. The Claimants would have wished to submit that Collins was wrongly decided in so far as it suggested that section 6 of the Act only contemplated adjustments to manage disability at work and in any event it should be confined to its own facts and is not of general applicability.
69. Submissions were also made as to the inadequacy of the Respondent's evidence in relation to the financial costs of making payments of wages and sick pay to those on long term absence from work by reason of disability. The Claimant maintained that the Respondent had not given evidence of having considered the financial costs of making those payments at all and it was quite unclear upon what the Employment Tribunal relied so as to conclude that,

"Such an adjustment would have placed substantial financial burden on the Respondent"

:see paragraph 64:9 of the decision.

70. Mr Elesinnla had addressed himself to the decision in O'Hanlon and submitted that in some rare cases payment of sick pay or ordinary pay while a disabled employee was unable to work through illness could be a reasonable adjustment. He drew attention to the decision of the House of Lords in Archibald v Fife Council [2004] ICR 954 in support of the proposition that an employer's duties under the Act may require more favourable treatment of a disabled employee than other employees who are not disabled. This decision should be preferred to that of O'Hanlon. In Archibald v Fife Council the House of Lords had remitted a case to the Employment Tribunal to determine if it was reasonable for an employer to have appointed an employee to a sedentary post, even one of higher grade, without competitive interviews. Mr Elesinnla suggested that this was a form of positive discrimination that would put more money into an employee's pocket and thus was contrary to what Elias J had suggested was the case in O'Hanlon.
71. Finally, Mr Elesinnla turned to consider ground 5.6 in relation to holiday pay. Mr Elesinnla submitted that the Employment Tribunal was wrong in law or was perverse in concluding that the Claimant's disability would not have prevented him from making a request during every year of his sickness absence to be allowed to take his holiday and that he had nevertheless failed to do so. It is said that the Employment Tribunal failed to give any or any sufficient explanation as to how it reached that conclusion, failed to explain why the application for leave in the year 2003/2004 was not granted and why it would not have been a reasonable adjustment to grant the Claimant his leave for that year. Ms Drake asked Mr Elesinnla where the contractual right to carry over holiday pay came from and Mr Elesinnla conceded that there was no such right.

The Respondent's submissions

72. Mr Greatorex who appeared on behalf of the Respondent accepted in the light of the decision in O'Hanlon that the decision of the Employment Tribunal in relation to non-payment of sick pay and wages under section 5.1 (grounds 5.3 and 5.4 of the Notice of Appeal) could not be justified. He had initially sought to uphold the decision of the Employment Tribunal in so far as it was based on the decision in London Clubs Management Ltd v Hood (supra) in relation to the selection of the comparator and absence of detriment. However, he submitted that the decision of the Employment Tribunal could be upheld on the basis that the Employment Tribunal was satisfied that the Respondent had justified its failure to pay sick pay and wages for the period when the Claimant was unable to work.
73. It is convenient, therefore, to consider his submission under ground 5.5 in answer to the appeal based on the argument that it was a reasonable adjustment under section 5.2 of the Act for the Respondent to pay wages and sick pay. Mr Greatorex drew assistance from O'Hanlon and also from Collins v Home Office. The factors which established that there had been no duty under section 6 of the Act to make adjustments would also establish justification under section 5(3) for not paying wages or sick pay. The Employment Tribunal found that the Respondent was not in breach of its duty to make adjustments under section 6 and also had rejected the suggested adjustments propounded by the Claimant. Further, on the facts the Employment Tribunal was entitled to find that there was no duty to pay sick pay and wages because they were not directed towards facilitating the return to work of the Claimant. It was also entitled to have regard, as it did, to the financial costs of making such payments.
74. Mr. Greatorex drew our attention to paragraph 64(4) of the decision in which the Employment Tribunal found that the Respondent had taken such steps as were reasonable in the circumstances of the case to prevent the relevant arrangements having the effect of placing the Claimant at a substantial disadvantage. It went onto explain what those steps were; see paragraph 64(5).
75. The decision in Igen v Wong (supra) applies to cases of direct discrimination only rather than the kind of discrimination alleged in this case: see paragraph 1 of the decision.
76. In relation to the suggestion that the Employment Tribunal had failed to recognise that the onus was on the Respondent to prove justification, the Employment Tribunal had found there was no breach of duty on the part of the Respondent. The Employment Tribunal asked if the Respondent did what was reasonable in the circumstances and found that it had done what was reasonable.
77. So far as the Claimant's complaint is concerned about reliance by the Employment Tribunal on the decision in Home Office v Collins the reference to that case was relatively short in the course of a lengthy judgment and did no more than confirm earlier decisions rather than raising a new point.
78. In any event, reference to Collins did not disclose an error of law as the Employment Tribunal had made findings that nothing the Claimant could have done would have made any difference in respect any possible return to work on the part of the Claimant. The Employment Tribunal was perfectly entitled to find that even if a duty had arisen, it was not reasonable for the Respondent to make payments to the Claimant because they would not assist in his getting back to work. The Employment Tribunal was also entitled to have regard to the cost.
79. In any event, submitted Mr Greatorex, the points that the Claimant would have made as to the decision in Home Office v Collins were unpersuasive. In so far as the decision in Nottinghamshire County Council v Meikle (supra) was concerned this was not a case where payment of wages or sick pay was regarded as an independent right.
80. Mr Greatorex went on to submit that the Employment Tribunal had not in fact placed any onus on the Claimant to identify reasonable adjustments. It was correct that the Claimant had submitted that a reasonable adjustment was a combination of payment of sick pay/wages and allowing the Claimant to be absent for rehabilitation, assessment and/or treatment. The Employment Tribunal had simply recorded accurately that this submission was neither part of the Claimant's pleaded case, nor of any of his evidence nor was it supported by any other evidence before the Employment Tribunal. The evidence in fact showed there was nothing the Respondent could have done. The Respondent had been absent from work for 4 years so there had been ample opportunity for rehabilitation, assessment and treatment. Further as the Employment Tribunal made clear at paragraph 18 of its decision the Claimant did receive an extension to his sick pay in January 2002. He enjoyed 9 months' full pay instead of the usual 6 together with 6 months' half pay.
81. In answer to the submission that there was no evidence of the cost to the Respondent, Mr Greatorex drew our attention to the evidence of Mr Proctor the Respondent's Human Resources Advisor who had given evidence in his witness statement that it would not have been financially viable to continue paying the Claimant his full pay throughout his sickness absence. If the Respondent were to pay all employees on long term sick leave their full pay the annual cost to the street services division alone would be approximately £740,000, a figure the Respondent could not possibly justify.
82. In relation to the issue of justification, once the Employment Tribunal had determined there was no duty on the part of the Respondent to pay additional sick pay or wages by way of reasonable adjustment it was inevitable that the lower threshold of justification be met. The Claimant's evidence itself established his total unavailability for work for some 4 years and there was no immediate prospect of his being able to return to work. The Employment Tribunal did not find that the employer's duty had been satisfied simply without more because it considered possible adjustments before considering those propounded by the Claimant; these were rejected by the Employment Tribunal as being reasonable adjustments.
83. In relation to ground 5:6 as concerned holiday pay, the Claimant had asserted that he had been required to return to work prior to taking his annual leave entitlement for 2001/2002, 2002/2003, 2003/2004. This was rejected by the Employment Tribunal at paragraph 65 of its decision. Although the Claimant relied upon the allegation that he should have been permitted to use his annual leave in circumstances where he had not been paid, the Employment Tribunal at paragraph 65 found that the factual basis for the claim did not exist. Neither is it an unusual conclusion to say that the Claimant could have asked.
84. In any event, however, payment of holiday pay would not amount to a reasonable adjustment.

Conclusions

85. We shall deal with the issue of failure to pay wages and sick pay together. We cannot see any sensible distinction between the Respondent's failure to pay wages and to pay sick pay for the same reason that Elias J could see no sensible distinction in O'Hanlon. In any event any entitlement on the part of the Claimant either to payment of wages while absent sick or for sick pay was governed by the Respondent's sick pay policy.
86. As we have already explained, in the light of O'Hanlon we are bound to hold that the Employment Tribunal fell into error in relation to the comparison required to be made under section 5(1) of the Act. It should have directed itself that in accordance with Clark v Novacold the Claimant had suffered a detriment by reason of his disability in not receiving wages or sick pay while not working, while colleagues who were not disabled and were able to work did receive their wages.
87. Nonetheless, as Elias J observed in O'Hanlon in the passage at paragraph 89 which we have quoted, any challenge to the Tribunal's finding on justification is effectively doomed to fail in the light of the finding that increasing wages or sick pay was not in the circumstances an adjustment a reasonable employer would be required to make.

"If the objective test for imposing the duty did not bite, then there was never any real possibility that the more subjective test of justification would not be satisfied…"

(O'Hanlon at paragraph 89)

Just as in O'Hanlon, the Claimant's case in this appeal was that it was the same failure by the Respondent to make full payment of wages or sick pay that lay directly behind the discrimination claims under section 5(1) and 5(2).

88. The cost of making payments of the kind contended for by the Claimant was found by the Employment Tribunal to be substantial. We again respectfully agree with what Elias J had to say at paragraph 90:-

"That must be a basis for a reasonable employer taking the view that in line with the Jones case (Jones v Post Office 2001 ICR 814) there was a material and substantial reason for the discrimination."

89. We also respectfully adopt Elias J's view:-

"That the justification could simply be the fact that the employer considered it appropriate to pay those who attend work and contribute to the operation more from those whose absence prevents that. It would not be possible in our judgment to say that an employer could not properly consider this to be a substantial reason justifying the difference in treatment."

90. In O'Hanlon Elias J said that:-

"The conclusion that any such discrimination was justified was in our view manifestly open to the Tribunal. Indeed, the contrary view might well have been perverse.

We consider that that conclusion was equally open to the Employment Tribunal in the present case, and indeed we would suggest that the Employment Tribunal was bound to come to that conclusion."

The same applies, in our opinion, in the present appeal.

91. We, therefore, turn to consider the issues as to whether the Respondent was bound by way of a reasonable adjustment under section 5(2) to make the payments of sickness pay or wages beyond those it made, during the periods of absence. In our opinion the Employment Tribunal correctly directed itself and made findings of fact that were justified on the evidence. Further, the Respondent's case is now stronger than it was when before the Employment Tribunal by reason of the decision in O'Hanlon.
92. We would accept the submissions of the Respondent in relation to the Claimant's criticisms of the Employment Tribunal in relation to the burden of proof. However, whoever bore the burden of proof, the Employment Tribunal made findings, justified on the evidence that the Respondent had considered reasonable adjustments and that there were none that could be made. Payment of wages simpliciter was not a reasonable adjustment. In our opinion the decision of the Employment Tribunal in this regard is on all fours with the reasoning, which we would adopt, of Elias J in O'Hanlon. We also accept that the decision Nottinghamshire County Council v Meikle (supra) is of little assistance to the Claimant. That is because Ms Meikle's absence from work was caused by the breach of the Respondent's duties to make reasonable adjustments. There is nothing in the decision of the Court of Appeal to suggest that payment of full pay was to be regarded as a reasonable adjustment independently of the other specific adjustments the Court of Appeal considered should have been made and which if implemented would have resulted in Ms Meikle returning to work without having to take such lengthy absences.
93. We reject the suggestion that there was insufficient evidence as to the financial cost before the Employment Tribunal: we have referred to the evidence before the Employment Tribunal which it was entitled to accept. That is a finding of fact by the Employment Tribunal and is not one with which we can interfere.
94. The fact that the Claimant and his advisors never identified a post to which the Claimant might be able to be redeployed to, did not, in our opinion, suggest that the Employment Tribunal switched the burden of proof to the Claimant. The Employment Tribunal clearly had in mind the very long period when the Claimant was absent from work (some four years) and unable to work and was regarded as being unable to work for the foreseeable future. The Employment Tribunal was satisfied that the Respondent "did all that was reasonable to follow the recommendations of all the doctors including Dr Giagoundis that the Claimant be redeployed." The findings in paragraph 64(4) and 64(5) of the decision in our opinion demonstrate that the Employment Tribunal properly considered the Respondent's approach to reasonable adjustments, and there was ample material before it upon which it found that the Respondent did take such steps as were reasonable in all of the circumstances of the case.
95. In relation to the reliance by the Employment Tribunal on the decision of Home Office v Collins without reference to the parties, we do not consider reference to this case either caused substantial prejudice to the Claimant or led to any material injustice. We do not consider that reference to Home Office v Collins was central to the decision of the Employment Tribunal. The Employment Tribunal, as Mr Greatorex submitted, applied the facts it found to the statute as is apparent from paragraph 64:7 of its decision. We agree with Mr Greatorex that the Claimant had no persuasive points to make in relation to that decision.
96. We now turn to consider the final ground of appeal relating to holiday pay. We again agree with the submissions of Mr Greatorex. The factual basis for the claim was found by the Employment Tribunal not to exist. Again we are quite unable to see how a payment of holiday pay for a period when the Claimant was unable to work could have been regarded as discriminatory either under section 5:1 or section 5:2 of the Act. It was certainly not, in our opinion from the facts found by the Employment Tribunal a reasonable adjustment the Respondent was required to make.
97. In conclusion we would express our gratitude to both Mr Elesinnla and Mr Greatorex for their helpful submissions.