United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR LACHLAN BAYARD WILSON (of Counsel) Instructed by: Messrs Palmers Solicitors 19 Town Square BASILDON Essex SS14 1BD
For the Respondent	MR NEIL MARTIN ASHLEY (of Counsel) Instructed by: British Printing Industrial Federation Legal Services Lindsey House Oaklands Business Park Yate BRISTOL BS37 5NA

SUMMARY

The appellant who was disabled was dismissed after a long absence from work. He made various claims under the Disability Discrimination Act 1995, all of which were rejected. He contended that the failure to make an assessment of a disabled employee was a failure to make a reasonable adjustment and that Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664 was wrongly decided, alternatively ought to be distinguished on the facts. The EAT followed Tarbuck and held that it could not be distinguished.

The employers cross appealed on the grounds that the Employment Tribunal had erred in law in the way that it determined whether or not the employee was disabled. The EAT held that the Tribunal's approach did betray an error but that their findings of fact led to the inevitable conclusion that the employee was disabled within the meaning of the Disability Discrimination Act at the material time, which in the context of the appeal was the date of dismissal.


 


THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1. Mr Spence, the appellant in this appeal, was the claimant below. We shall hereafter refer to him as the claimant and his employer as the respondent.
2. He was employed by the respondent at a digital printing business from 6 October 1999 until he was dismissed on grounds of capability with effect from 22 August 2005. He brought proceedings alleging unfair dismissal and breach of the Disability Discrimination Act 1995.
3. The Employment Tribunal found that he had been automatically unfairly dismissed because of the failure by the employers to comply with the statutory dismissal procedure. However, his various claims that there had been a breach of the Disability Discrimination Act failed. He now seeks to appeal the Tribunal's findings in connection with those claims, and the respondent cross-appeals the Tribunal's finding that Mr Spence was disabled within the meaning of the 1995 Act.
4. There is no challenge to the unfair dismissal finding.

The legislation

5. The following provisions of the 1995 Act are relevant to this appeal.

1 Meaning of "disability" and "disabled person"

(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

(2) In this Act "disabled person" means a person who has a disability.

3A Meaning of "discrimination"

(1) For the purposes of this Part a person 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, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.

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

(4) But treatment of a disabled person cannot be justified under subsection (3) if it amounts to direct discrimination falling within subsection (5).

(5) A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability materially different from, those of the disabled person.

(6) If, in a case falling within subsection (1), a person is under a duty to make reasonable adjustments in relation to a disabled person but fails to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he complied with that duty.

4 Employers: discrimination and harassment

(1) …

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

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

(b) in the opportunities which he affords him for promotion, 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.

4A Employers: duty to make adjustments

(1) Where –

(a) a provision, criterion or practice applied by or on behalf of an employer, or

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

places 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 provision, criterion or practice, or feature, having that effect.

(2) …

(3) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know –

(a) …

(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1)

18B: Reasonable adjustments: supplementary

(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular to:

(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

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

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

(d) the extent of his financial and other resources

(e) the availability to him of financial or other assistance with respect to taking the step;

(f) the nature of his activities and the size of his undertaking.

(2) The following are examples of steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments –

(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 hours of working or training;

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

(f) allowing him to be absent during working or training hours

for rehabilitation assessment or treatment;

(g) giving, or arranging for, training or mentoring (whether for

the disabled person or any other person);

(h) acquiring or modifying equipment;

(i) modifying instructions or reference manuals;

(j) modifying procedures for testing or assessment;

(k) providing a reader or interpreter;

(l) providing supervision or other support.

Schedule 1

Long term effects

2

(1) The effect of an impairment is a long-term effect if –

(a) it has lasted at least 12 months;

(b) the period for which it lasts is likely to be at least 12 months; or

(c) it is likely to last for the rest of the life of the person affected.

The background

6. The claimant was a manager responsible for the IT in the respondent's computerised system. Some of the work he could do from home but the majority had to be carried out on site, which was in Wimbledon. He was a much valued employee.
7. Unfortunately around 16/17 August 2004 he suffered severe arm pain. At one stage it was thought he might have suffered from a heart attack, but in fact he had probably suffered from a "vascular event" in the left arm. That is something affecting the blood vessels. He went to hospital and was discharged after a week and was signed off work with chest/arm pains. In fact, he continued thereafter to be signed off work until his dismissal in August 2005. In that period he did some very occasional pieces of work from home, but did not attend work on site. At various stages it appeared as though the claimant might be fit to return to work within a relatively short period but in each case he proved unable to do so when the time arrived.
8. There were many extensive discussions between the claimant and, in particular, Mr Chapman, the managing director of the Company, concerning Mr Spence's possible return to work and in what capacity. There were various proposals and counter-proposals raising, for example, the possibility of his working partly at work and partly from home, or operating as a self-employed IT consultant with an annual retainer. For the purposes of this appeal, it is not necessary to set out the detail. Suffice it to say that there was no resolution emerged as a result of any of them.
9. There were a number of alleged breaches of the 1995 Act. These were:

(1) that the dismissal constituted disability related discrimination which could not be justified; and that the employer failed to adopt a solution which would have kept Mr Spence in work and thereby failed to make a reasonable adjustment;

(2) that the employers had harassed and intimidated the claimant in various ways;

(3) that the employers had failed to make a separate reasonable adjustment by failing to obtain and consult upon an up to date medical report.

10. The Tribunal rejected all of these grounds. By the time it came to dismiss him, the employers had made considerable efforts to accommodate his needs and the Tribunal concluded that in their dealings with him, the employers had gone beyond what could reasonably have been expected of them.
11. A detailed reading of this impressive Tribunal decision bears out that analysis. For example, it was noted that the employers, although only contractually obliged to give two weeks' wages, had in fact paid this employee over £20,000. Accordingly, although the tribunal found that there was disability related discrimination (because his absences were caused by his disability) nonetheless the dismissal was justified. Nor were there any other reasonable adjustments which the employers should have made which could have secured his continuing employment. The complaints of harassment were also given fairly short shrift.
12. These findings are not now the subject of any direct appeal (although the first is appealed as part of the challenge to the third issue, as we indicate below.) The conclusion of the Tribunal which is, however, under attack is its rejection of Mr Spence's argument that the employers had failed to make a reasonable adjustment by not obtaining and consulting on a further medical report before dismissing him.
13. The Tribunal accepted that there had been no such up to date report obtained but concluded that in the light of the decision of the EAT (Elias P presiding) in Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664, that failure did not of itself amount to a

failure to make any reasonable adjustments. The Tribunal felt bound by that decision and considered they should follow it in preference to a contrary decision of the Scottish EAT (Lady Smith presiding) which was relied upon by the claimant, namely Rothwell v Pelican Hard Copy (Scotland) Ltd [2006] IRLR 24. The claimant submits that Tarbuck was wrongly decided, alternatively that it is distinguishable.

14. The appellant also submits that if his primary ground of appeal succeeds and the failure to obtain a medical report does amount to a failure to make a reasonable adjustment, then the Tribunal's conclusion that the decision to dismiss was justified can no longer stand. Section 3A(1) of the Act read with s3A(6) requires that the issue of justification must be assessed on the premise that the employer has made all reasonable adjustments. If he did not, then the issue must be reconsidered having regard to that failure. It is common ground that this particular element of the appeal does not add anything to the primary argument that the failure to obtain medical advice was a failure to make a reasonable adjustment; it is simply the logical outcome of that ground succeeding. If we uphold that ground of appeal, both counsel accept that the case would have to be remitted to the tribunal to consider the issue of justification afresh.
15. The employers cross appeal on the grounds that the Tribunal had erred in concluding as it did that the claimant suffered from a disability within the meaning of the legislation. The contention here is that the Tribunal made that assessment with hindsight, having regard to matters which had occurred after the dismissal had taken place. Logically, that cross-appeal ought to be considered before we turn to the issue of reasonable adjustment since if it is sustained, the appeal becomes irrelevant.

Was the employee disabled?

16. The Tribunal made certain findings with respect to the nature of the claimant's disability. They observed that they had all the GP's electronic notes concerning the claimant from the period from August 2004 up to March 2006. This included correspondence with other specialists who had at various times seen the claimant. They noted that they were able to form a "good picture of his health difficulties and the course that they took over the relevant period, and the impact that this had in relation to his work". They considered that there were two distinct periods which it was helpful to distinguish.
17. The first was from the occasion when the vascular event occurred in August of 2004 until the claimant had an operation on 31 May 2005. Following that operation the claimant was very ill and suffered two collapsed lungs. Indeed, he was in Intensive Care for a time but went home on 10 June.
18. With regard to this first period, the Tribunal considered, by a majority, that Mr Spence was suffering from an adverse impact which impinged upon his ability to carry out normal day to day activities, but they all concluded that it was not clear at that stage that the effects were likely to last more than a year. Accordingly, Mr Spence did not satisfy the condition that the adverse condition should be long term as specified in Schedule 1 para 2(1)(b). However, the Tribunal concluded that following the operation on 31 May 2005 the likelihood was at all relevant times thereafter that the effect on day to day activities would last more than a year. They put the matter as follows (para 81):

"All the Tribunal members agreed that the picture painted by the evidence after the Claimant's operation on 31 May 2005 was a different one. As we have described, that operation went badly wrong, and left the Claimant initially very seriously ill and then badly incapacitated, a condition from which he only made a slow and hesitant recovery, over a period of some months. In addition to his ongoing shoulder and arm problems, the aftermath of the operation left him hampered by "haemothorax" (blood in the pleural cavity) and great tenderness around the scar area. Both arms seem, during this period, to have been affected. On 2 August 2005 he "can't lift any weight"; on 31 October he "needs assistance to take his shirt off" and "just to pull the bed clothes up is agony"; and on 31 January 2006 he was getting pain when "climbing the loft ladder, folding his arm, picking objects up off the floor, putting a seat belt on or turning the car steering wheel sharply." Even at the time of the Hearing he told us he was not yet fully recovered. All the members of the Tribunal were satisfied that during that second period it could be said that there was an impact on the Claimant's normal day-to-day activities that was likely to last more than a year."

(It is not entirely clear whether they considered that it would be likely to last for a year from the onset of the condition in August 2004, or from 31 May 2005. The latter date would only seem to be material if they had taken the view that the impairment after 31 May was different to the impairment earlier.)

19. The respondent contends that the reasoning in para 81 demonstrates an error of law. They submit that the question of whether somebody is disabled has to be determined at the time when the alleged unlawful act occurred. The Tribunal, it is said, erred in focusing on events that occurred after 31 May 2005 for the purpose of establishing whether there was a likelihood that the disability would continue for twelve months at that stage.
20. Both parties accept that the time at which the disability has to be assessed is when the alleged discriminatory act occurred. In our view this is plainly correct and accords with the decision of the EAT (Judge Altman presiding) in Cruickshank v Motorcast [2002] IRLR 24. In this case the material time at which to assess the disability is, therefore, when the dismissal occurred on the 22 August 2005. Before the Tribunal, however, the claimant had alleged that there were various acts of disability discrimination which occurred prior to his dismissal. Hence the reason why the Tribunal had to focus on the earliest date when Mr Spence became disabled within the meaning of the legislation. They held that this was the 31 May, when the disastrous operation was carried out. These other complaints are no longer being pursued; it is only the failure to obtain a medical report before the decision to dismiss. Therefore the date we need to focus on is the date of dismissal itself.
21. We think that it is plain that even if the Tribunal did err in the way it analysed whether the employee had been disabled by 31 May, the only conclusion consistent with the Tribunal's findings was that Mr Spence was disabled by the date of dismissal. By then he had actually suffered an impairment which had lasted at least twelve months- from 17 August 2004 when the problem first arose to the 22 August 2005 when he was dismissed - and therefore the impairment was long term within the meaning of Schedule 1 para 2(1)(a).
22. Our reasons for so concluding were, briefly, these: the majority had concluded, in terms, that the events had demonstrated a "sporadic substantial adverse impact on normal day to day activities" from the date of the original onset of the disability on August 17, 2004; they noted in para 81 that following the operation, his shoulder and arm problems continued; and they observed that in early August 2005 he could not lift any weights It is inevitable, given these findings, that the Tribunal would be compelled to conclude that he was disabled within the meaning of the Act on the 22 August.
23. Mr. Ashley, counsel for the respondent, submitted that the impairment after the operation was different to the earlier impairment, or at least arguably so. If so, then he submitted - and we accept - that no reliance could be placed on the earlier period. However, we do not accept the premise. Para 81, which we have set out, shows that the original impairment continued and was simply exacerbated by additional problems.
24. Strictly therefore, it is not necessary to consider whether the Tribunal did err in placing emphasis on events that occurred after the relevant date when the issue had to be determined. But we have heard argument on it and briefly express our views.
25. There is conflicting authority in the EAT about this. In Greenwood v British Airways plc [1999] IRLR 600 the EAT had regard to the Guidance to be taken into account in determining questions relating to the definition of disability, para B8:

"In assessing the likelihood of an effect lasting for any period, account should be taken of the total period for which the effect exists. This includes any time before the point when the discriminatory behaviour occurred as well as time afterwards. Account should also be taken of both the typical length of any such an effect on the individual, and any relevant factors specific to the individual (for example, general state of health or age.)"

26. The EAT held that the Tribunal had fallen into error in failing to apply that guidance and thereby failing to have regard to the adverse effects of the applicant's condition even after the point when the discriminatory behaviour occurred and up to the date of the tribunal hearing.
27. A contrary view was taken by the EAT (the then President Lindsay J presiding) in Latchman v Reed Business Information EAT 1303/00. He held that it was necessary for the tribunal to assess the disability without regard to the evidence relating to events occurring after the relevant date. He referred to the passage in the guidance referred to in Greenwood and observed:

"Although the latter part of the first sentence of B8 is unhelpful as guidance, it is not, in our view, intended to displace the otherwise proper construction of paragraph 2 (1) (b), which the present tense "is likely" assists towards, namely that the likelihood falls to be judged as it currently was or would have seemed to have been at the point when the discriminatory behaviour occurred. The latter part of B8 (taking account of the typical length rather than the actual length of an effect as it has transpired to be) emphasises that it is not what has actually later occurred but what could earlier have been expected to occur which is to be judged."

28. We respectfully agree; the guidance was wrong in this respect. Whilst there is a duty to take it into account, as s3 of the Act makes clear, it must not be followed where it is inconsistent with the Act itself. We note that the guidance has been altered in a new version of the Guidance which took effect as from 2006 (which was therefore not in force at the date of this dismissal); the crucial words "as well as time afterwards" found in the original B8 have been omitted: see para C3. No doubt this was intended to reflect the decision in the Latchman case.
29. We recognise that in practice it may be difficult for a tribunal to disregard evidence which shows how the medical position did in fact progress. But it is important that they should do so. Logically, subsequent events cannot be material. If an employer dismisses someone who has a disability likely to last 12 months it cannot alter the position if the employee shortly thereafter makes an unexpected recovery before the 12 months has elapsed; similarly, an employee who was not disabled when the alleged unlawful conduct occurred cannot retrospectively be found to have been disabled at that time because he takes an unexpected turn for the worse. If, contrary to our view, subsequent evidence has any materiality at all, it can only be to confirm or reinforce a conclusion about disability which the tribunal has already reached by relying on the evidence which would have been available at the relevant date.
30. In our judgment para 81 indicates that in reaching that conclusion that the employee was disabled as from the end of May 2005, the Tribunal did rely on matters occurring well after that date. That was an error of law. Had it been necessary to do so, we would have remitted the case on this ground for reconsideration. However, for reasons we have given, there can be no doubt that on the findings of fact which the Tribunal has made and which it could properly take into account, the employee was disabled within the meaning of the Act at the date of dismissal.

Reasonable adjustments

31. The contention here is that the respondent breached its duty of reasonable adjustment by failing to obtain and consult upon a further medical report. The Employment Tribunal rejected this argument on the grounds that it ought to follow the decision of the EAT in Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664 which it considered to be inconsistent with this submission.
32. Tarbuck had considered a contention that the failure by the employers to consult with an employee about the effects of her disability, and the reasonable adjustments which might be made to ameliorate them, was itself a separate and distinct failure to make a reasonable adjustment.
33. That was the view of the Employment Appeal Tribunal in the earlier case of Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566. In that case the EAT had concluded that the duty to make reasonable adjustments would in many cases be incapable of practical application unless there was a proper assessment of the employee's disability by the employer. The Court concluded that a "proper assessment of what is required to eliminate the disabled person's disadvantage is therefore a necessary part of the duty imposed by [s4A(1)] since that duty cannot be complied with unless the employer makes a proper assessment of what needs to be done" (para 17).
34. In Tarbuck the EAT accepted an argument that the premise of the analysis in Mid Staffordshire was incorrect: the premise appears to have been that an employer would be entitled to contend as defence to an allegation that he had failed to make reasonable adjustments the fact that he did not know what steps he ought to take because he does not have relevant information. In Tarbuck the EAT accepted that this premise was incorrect because ignorance would not assist the employer.
35. The EAT also considered that the approach in Mid Staffordshire was inconsistent with another decision of the EAT (Keene J presiding) in British Gas Services Ltd v McCaull [2001] IRLR 60. In that case the EAT concluded that an employment tribunal had erred in law in saying that if an employer was unaware of the existence of a duty to make reasonable adjustments then he must be in breach of the statutory duty. At para 42 the EAT said this:

"There is no automatic breach of the s.6 duty because an employer is unaware of that duty: the question is not one of such awareness but of what steps the employer took or did not take. A benevolent and conscientious employer with a disabled employee might well take all the reasonable steps as contemplated by s18(B) while remaining entirely ignorant of that statutory provision itself."

36. Tarbuck agreed with that analysis and noted that if there were this obligation to make an assessment as a separate stand alone duty then one would have expected it to be expressly mentioned in s18(B). It is true, as was noted in Mid Staffordshire, that the list there is not exhaustive but given that this requirement will arise so frequently, if Parliament had intended it to be a potentially relevant adjustment, then it is very surprising that it is omitted from the examples given in that section.
37. Mr Wilson, counsel for Mr Spence, did suggest that the duty was in fact to be found in s18B(2)(j) which identifies "modifying procedures for testing or assessment." We do not accept that this covers the making of an assessment at all, and if that was the intention it is achieved in an extraordinarily obtuse way. In our view, as the DRC Code of Practice on Employment and Occupation (2004) para 5.18 suggests, that sub paragraph is envisaging such changes as allowing someone who lacks manual dexterity to take a test orally rather than on paper.
38. Mr Wilson contends that the analysis in Tarbuck was wrong. Alternatively, he says that this case is different because the failure here is not merely failure to consult, but rather to obtain up to date medical information. As to the latter point, we consider that there is no basis for making a distinction between consulting and obtaining such information. An appropriate assessment of the employee's condition may involve obtaining information from the employee, consulting with him, and obtaining medical reports. These are all part of the procedures which an employer will sensibly adopt when determining what adjustments, if any, are reasonable. However, if a failure to consult cannot constitute a breach of the duty then neither can a failure to obtain a medical report. The issue, as McCaull makes clear, is whether the necessary reasonable adjustment has been made; whether it is by luck or judgment is immaterial.
39. For these reasons, therefore, we remain unconvinced by the reasoning in the Mid Staffordshire case. We would accept that if the effect of construing the scope of reasonable adjustments in this way were significantly to undermine the protection which the legislation was designed to achieve, then there would be some basis for implying this additional obligation. But for the reasons we have given, we do not believe that that is the case.
40. A tribunal will be fully entitled in the light of all the evidence before it to conclude that an employer has failed to make a reasonable adjustment, and his ignorance of the employee's requirements, whether the result of indifference or ignorance, will not avail the employer one iota. He may carry out an assessment and fail to make reasonable adjustments; equally, he may fail to carry out the adjustment but make all necessary reasonable adjustments. Mr Spence's contention is that even if he takes such steps as are reasonable to mitigate or eliminate the harm, he will be potentially liable for any failure to carry out an assessment. We do not think that conclusion is compatible with the language of the legislation.
41. However, apart from relying on the particular analysis in Mid Staffordshire, Mr Wilson seeks to support his argument on further grounds. First, he contends that the House of Lords in Archibald v Fife Council [2004] UKHL32; [2004] ICR 954 has adopted a broad construction of what might constitute a reasonable adjustment, citing in particular the following passages of Lord Hope and Lord Rodger. Lord Hope said this (para 15):

"The duty which rested on the council under section [4A] is described in the side note to section [4A] as a duty to make adjustments. But it is not simply a duty to make adjustments. The making of adjustments is not an end in itself. The end is reached when the disabled person is no longer at a substantial disadvantage, in comparison with persons who are not disabled, by reason of any arrangements made by or on behalf of the employer or any physical features of premises which the employer occupies."

Lord Rodger observed (para 33):

"The critical questions therefore relate to the duty of an employer under section [4A] to take reasonable steps to prevent any arrangements made by him placing the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled. If the employer fails to carry out that duty, he discriminates against the disabled person under section [3A(2)] unless he can show that his failure to comply with the duty is justified by a reason that relates to the circumstances of the particular case and is substantial. In broad terms, the idea is that, if an employer leaves a disabled person at a substantial disadvantage from his arrangements when he should have taken steps to shield her from that disadvantage, he discriminates against her."

42. Mr Wilson submits that there is therefore in principle no difficulty in treating the making of an assessment, including obtaining a medical report, as falling within that broad construction.
43. We accept that the concept of reasonable adjustment is a broad one, but we do not consider that this assists the argument. The nature of the reasonable steps envisaged in s4(A) is that they will mitigate or prevent the disadvantages which a disabled person would otherwise suffer as a consequence of the application of some provision, criterion or practice. That is in fact precisely what Lords Hope and Rodger say in the paragraphs relied upon; the duty is not an end in itself but is intended to shield the employee from the substantial disadvantage that would otherwise arise. The carrying out of an assessment or the obtaining of a medical report does not of itself mitigate or prevent or shield the employee from anything. It will make the employer better informed as to what steps, if any, will have that effect, but of itself it achieves nothing.
44. Mr Wilson also placed some reliance upon the decision of the Scottish EAT (Lady Smith presiding) in Rothwell v Pelican Hard Copy Ltd [2006] IRLR 24, but accepted that, in truth, it does not really advance his argument. In Rothwell the employer was found to have failed to make a reasonable adjustment because he did not properly consult with the employee.
45. However, it is plain from the decision (see para 24) that the assumption in that case, no doubt based upon the Mid Staffordshire approach, was that a failure to consult would involve a failure to make a reasonable adjustment. The only issue was whether on the facts there had been consultation or not. Accordingly, since the point in issue was assumed rather than determined following argument, it takes matters no further. We would note that that is equally so of another EAT decision which, prior to Tarbuck, simply followed Mid Staffordshire, namely Southampton City College v Randall EATUK/0372/05.
46. Finally Mr Wilson advanced an argument along the following lines: he contended that if an employer has a policy of not obtaining medical reports before dismissing, then a disabled person is always going to be at a disadvantage. The obtaining of a medical report is a method of mitigating or preventing that disadvantage. This is an imaginative argument but in our judgment it fails on three grounds.
47. First, there was in any event no evidence at all that the employers as a matter of practice failed to get medical reports before dismissing anyone on capability grounds; the only evidence was that he did not get an up to date report in this case. Second, even if there were such a practice, there is no evidence to suppose it would necessarily place the disabled at a considerable disadvantage compared with the non-disabled. Third - and this is a related point - any disadvantage would not in any event be the failure to get the medical report. It would be the act of dismissal, taken without obtaining a medical report. But the medical report would not necessarily prevent the dismissal or even make it less likely. In some cases where the employer is considering future options, the medical report might support a decision to dismiss in circumstances where the employer would not have been minded to dismiss without one.
48. In short, what s4(A) envisages is that steps will be taken which will have some practical consequence of preventing or mitigating the difficulties faced by a disabled person at work. It is not concerned with the process of determining which steps should be taken.
49. It is important to emphasise precisely what are the implications of this analysis. As was made plain in paras 69 and 72 of the Tarbuck case, it will always be good practice for the employer to carry out an assessment of the disabled person's situation, whether by consultation, obtaining a medical report, or in any other way. The 2004 Code of Practice contains much valuable advice about how employers can best organise themselves to comply with their duties.
50. The desirability of carrying out an assessment is not in issue and nothing in this decision is intended to state or indicate otherwise. Indeed, in many circumstances the failure to consult will have a consequence of rendering an otherwise potentially fair dismissal unfair. Accordingly, in order to avoid liability under unfair dismissal law, if for no other reason, it will generally be prudent and desirable to consult.
51. The value and significance of an employer carrying out an assessment is obvious. The only issue is whether the failure to do so can so far as the 1995 Act is concerned, constitute a breach of a duty imposed by that Act. We consider that it cannot and that it would distort the language of the relevant provisions to hold otherwise.

Conclusion

52. For these reasons therefore, both the appeal and the cross-appeal fail. We are, however, conscious that there are conflicting decisions of the EAT on a point of some importance in the field of disability discrimination and in the circumstances we give leave to Mr Spence to appeal to the Court of Appeal. The issue did in fact arise in Hay v Surrey County Council [2007] IRLR, but both counsel in that case considered that Tarbuck properly stated the law and since the Court was not hearing adversarial argument, it refused to confirm or otherwise the correctness of the decision.