United Kingdom Employment Appeal Tribunal

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URL: http://www.bailii.org/uk/cases/UKEAT/2012/0243_11_2711.html
Cite as: [2012] UKEAT 0243_11_2711, [2012] UKEAT 243_11_2711

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Appeal No. UKEAT/0243/11/LA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 15 June 2012

Judgment handed down on 27 November 2012

Before

HIS HONOUR JUDGE SEROTA QC

BARONESS DRAKE OF SHENE

MR P GAMMON MBE

MS M RIDER APPELLANT

LEEDS CITY COUNCIL RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant

No appearance or representation by or on behalf of the Appellant

For the Respondent

MS LOUISE QUIGLEY

(of Counsel)

Instructed by:

Forbes Solicitors

Rutherford House

4 Wellington Street (St John’s)

Blackburn

BB1 8DD

SUMMARY

DISABILITY DISCRIMINATION

The Claimant worked for the Respondent as a Nursery Officer at Armley Moor Children Centre. She raised grievances against colleagues and she was seconded to another post away from Armley Hall at Red Hall. She also suffered from disability and was unable by reason of her disability to return to her post at Armley Hall. She had been able to work without problems at Red Hall. When the Claimant’s period of secondment at Red Hall ended the Respondent made it clear to her on a number of occasions over several months that she was required to return to her former post at Armley Moor. The Claimant maintained that the requirement that she return to that post placed her at substantial disadvantage as compared to other employees without her disabilities. She never returned to Armley Moor and was eventually dismissed on the grounds of capability [by reason of her disability]. At no stage did the Respondent offer her an alternative post or consider what reasonable adjustments might be made to enable her to return to work. The Employment Tribunal was in error to hold that as she never returned to Armley Hall the PCP of requiring her to return there had not been applied to her. The repeated requirement that she return to her post there, without consideration of alternative posts or there reasonable adjustments amounted to the application of the PCP.

The making of an assessment as to what reasonable adjustments might be made in respect of a disabled employee was not itself capable of amounting to a reasonable adjustment within the meaning of Sections 3(A) and 4(A) of the Disability Discrimination Act 1996. Tarbuck v Sainsbury’s Supermarkets [2006] IRLR 664 followed; Tarbuck is to be preferred to Mid-Staffordshire General Hospital NHS Trust v Cambridge [2003] IRLR 566; HM Prison Service v Johnson [2007] IRLR 951; Environment Agency v Rowan [2008] ICR 218, Smith v Salford NHS Primary Care Trust UKEAT/0507/10 applied.

HIS HONOUR JUDGE SEROTA QC

Introduction

1. This is an appeal by the Claimant from the decision of the Employment Tribunal at Leeds (Employment Judge Elgot who sat with lay members) which was sent to the parties on 1March 2011. The Employment Tribunal dismissed the Claimant’s claims for unfair dismissal and disability discrimination.

2. The Notice of Appeal was referred to a preliminary hearing by HHJ David Richardson on 6 June 2011. The preliminary hearing was heard by Silber J and lay members on 31 January 2012 and referred to a full hearing.

Factual background

3. The Claimant commenced work for the Respondent in 1989 and was latterly a Nursery Officer at Armley Moor Children Centre. She was dismissed on the grounds of ill health capability on 25 August 2009. At the relevant time, the Claimant was disabled; she suffers from severe asthma and a spinal condition which causes pain, debility and mobility problems. Her asthma was said to have been diagnosed in 1995 and has been known to the Respondent since approximately the middle of 2005 if not earlier.

4. The Respondent is a local authority that employs some 30,000 persons.

5. At this point in time it is helpful to say something about the Respondent’s management attendance policy (MAP). A copy of that policy is in our bundle at page 98. The MAP was described in this way by the Employment Tribunal:

“7. The MAP is, we are certain, applied to all staff of the Respondent including disabled people as is stated at page 157 of the bundle. It defines long term absence with reference to a “continuous period of four weeks”. The Claimant began her sickness absence complaining of asthma and stress on 12 January 2009. Thus by 9 February 2009 she fell within that definition.

The purpose of the policy and its attendant Guidance is to help reduce sickness absence and, in the case of long term absence, the Policy states:-

‘It is not possible to be specific about management responses to long term sickness. The objective is to support employees during what is frequently a difficult experience and facilitate their recovery and return to work, whilst taking into consideration the need to maintain service delivery.’

‘If an employee’s condition does not meet with the permanent incapacity requirement for ill health retirement, but they are still unable to return to the Council’s employment for the foreseeable future, then consideration should be given to ending their employment using stage 3 of the Procedure.’

8. We are thus satisfied that the primary purpose of each stage of the MAP for long term sickness absence is to first consider whether and when the relevant employee will be able to return to work, that is, when will he or she be ‘fit for work’. The relevant timeframe, to be adjusted in the individual circumstances of each employee, is a manager’s assessment of whether that employee will be fit to return in the ‘foreseeable future’.

It is only once fitness to work is established that the Policy requires the relevant manager to consider the second bullet point at page 46 which is whether the said employee will be able to return to the same job. By logical implication if he or she cannot return to the substantive post then consideration will be given to alternative working conditions or roles.

In summary, the Respondent, faced with the long-term sickness absence of the Claimant, was required to and indeed consistently sought to establish when she would be fit to return to work in any capacity. That was the initial question to be answered.”

6. It is to be noted that the MAP applies only in case of sickness absence, not to absence for other reasons.

7. In 2005 the Claimant applied for a number of posts in the Early Years sector. Although there are complaints about this in her submissions, any complaints about this were not raised at the Employment Tribunal and form no part of the Notice of Appeal. The Claimant clearly had difficulty in her relations with fellow employees and at Armley Moor. She presented the first of a number of grievances on or about 29 November 2005, complaining of treatment by her colleagues and what she claimed was bullying. The grievance procedures concluded in November 2008. By reason of the bullying and for that reason alone, she was unwilling to return to work at Armley Moor. Further, Armley Moor is said to be in a polluted area of Leeds and the medical evidence suggests that she also should not be exposed to work with young children; her severe asthma also is likely to be affected by working in a polluted atmosphere.

8. From 19 December 2005, the Claimant had a number of sickness absences by reason of her asthma, stress and thoracic pain and was indeed off work for some 20 weeks up until June 2006.

9. In 2006 the Claimant agreed with the Respondent that pending the final determination of her grievances, she should be transferred to the Parks and Countryside Department based at Red Hall. So far as we can see, the reason, at least initially, for seconding her to Red Hall was not her disability but because of her complaints of bullying by fellow employees. The agreement is dated 6 June 2006 (which may well be an error for 6 July2006) and is to be found at page 128 in our bundle.

10. The Respondent agreed to use its best endeavours to redeploy the Claimant into a position outside of the Early Years service and would undertake with her co-operation a skills assessment with a view to finding suitable alternative employment at the same grade and under the same terms and conditions:

“Pending successful redeployment [the Claimant] reserves the right to reinstate the grievance appeal which it is sought to adjourn generally…” Both [the Respondent and the Claimant] agreed that it is the intention to settle the grievances by such successful redeployment and both sides will use best endeavours to cooperate to that end.”

11. On that basis the Claimant’s outstanding grievance appeal was adjourned.

12. In her submissions, the Claimant has maintained that between 2006 and 2008, although she had been promised assessment for other posts, personal help and support, this was never in fact offered to her. She was however able to work notwithstanding her respiratory illness and mobility problems at Red Hall for a considerable period of time.

13. The Respondent’s Personnel panel gave its decision on 5 December 2008. The grievance was not upheld and the panel expressed its concern that the grievance had not been responded to formally and that the Claimant had not been provided with an explanation as to why a recruitment progress would not be suspended. The panel recommended that the Respondent provided an apology in relation to that aspect of her grievance and a letter was sent to the Claimant. The letter, to the Claimant was dated 10 December 2008 concluded:

“The affect of your grievance being determined by the Personnel Panel means that the agreement reached on 7 July 2006 is now at an end… No further steps will be taken by the Department to redeploy you. Your current placement at Red Hall Nursery will now cease and you will be required to return to Armley Children’s Centre in the Early Years service in your position as Nursery Officer.”

14. We note that the agreement of 6 July 2006 does not provide that the redeployment of the Claimant to a position outside of the Early Years service is only to be effective until the final determination of her grievance.

15. The Claimant was asked to attend a meeting to discuss her return on 18 December 2008. However, the letter was delivered late so the Claimant did not attend. It seems to us that the requirement set out in the letter of 10 December 2008 that the Claimant return to Armley Moor, was the first application of a PCP (Provision, Criterion or Practice) applied by the Respondent to the effect that the Claimant should return to Armley Moor. The Claimant expressed reluctance to do so by reason of the bullying that she experienced there, but also subsequently for health reasons connected to her disability.

16. On 19 December 2008 the Claimant wrote to Mrs Marchant, the head of Human Resources in the Respondent’s Children’s Service. The letter covers a number of areas, not relevant to this appeal, including unsuccessful attempts to find alternative posts within the Respondent, making the point that she did not wish to be placed back in the environment which had led to her raising her grievance. The letter is lengthy but there is a manuscript note at the end written by the Claimant:

“Please note, under no circumstances am I refusing to work for Leeds City Council.”

17. The letter does not make any reference to disability on the grounds of discrimination. On 22 December 2008, the Claimant was called to a meeting of 5 January 2009 where she was told that her return to Armley Moor would be discussed. The Claimant wished to be legally represented at the meeting; the Respondent was unwilling to allow this. She considered that grievance procedure had not yet terminated and she wanted her placement at Red Hall to be continued.

18. On 5 January 2009 the Claimant, accompanied by her father, had a meeting with Mrs Marchant. The Claimant maintains she was told she had to return to her substantive post at Armley Moor as that was the only post available. Mrs Marchant wrote a letter after the meeting dated 9 January, in which she asserted that the Claimant’s grievance had now been exhausted:

“Given the above fact, the temporary placement at Parks & Countryside, funded by the Early Years Service, was now at an end and you were required to return to your substantive post at Armley Children’s Centre.”

19. Mrs Marchant states that the Claimant informed her she would not return to Armley and at her request for clarification, stated that this would apply to any other post within Early Years and that the Claimant was aware of the implications of that decision. The Claimant’s father offered two potential options; (a) pursuance of ill health retirement, (b) early retirement options. Mrs Marchant explained that ill health retirement would be a matter for a decision of a medical practitioner and was not in her gift to agree, and that early retirement was not an option due to her age, but that voluntary early severance could be considered. She made an appointment with the Respondent’s occupational health provider, Connaught, and Mrs Marchant delayed her start date at Armley until 2 February 2009 to enable the work associated with each proposal put forward to be carried out. Therefore she should continue to report to Red Hall until this time.

“As I stated at the meeting, if either of the options do not proceed, the Council’s position remains that you return to your substantive post at Armley Children’s Centre on 2^nd February 2009.”

20. The Employment Tribunal have interpreted this letter as meaning that proposals were made by the Respondent to place the Claimant in a post away from Armley Moor. We say at once that we do not consider a letter is capable of bearing any construction other than that the Respondent would consider voluntary severance and ill health retirement but if those options did not proceed she would be returned to Armley Moor. This is borne out by a further letter of 13 January 2009 by Mr Harris, the Deputy Head of Children’s Services HR which includes the following:

“If the options of either ill health retirement of early severance cannot progress then you will be required to return to your substantive post at Armley Children’s Centre on 2^nd February.”

21. It is quite clear the Claimant must have referred to there being health reasons why she did not wish to return to Armley Moor. This is apparent because on 19 January 2009 she presented with a management referral to occupational health. The referral contains the following:

“From the Directorate perspective Ms Rider now needs to return to her substantive role. The Directorate is clear she will need some support to return to her workplace and will be happy to review how she is reintroduced into the work place.

From Ms Rider’s perspective she is clearly unhappy with the way she has been dealt with and for her the issues are unresolved. She has refused to return to her substantive role and post citing health and safety grounds relating to her well being.” (our underlining)

22. The referral continues:

“The Directorate has made it clear that it expects Ms Rider to return to work. This has clearly caused her some concerns. The Directorate feels however obliged to do this because it wants Ms Rider to be clear that there is no route left internally to pursue her grievances and she must return to her substantive post.

The Directorate will happily consider any arrangements which facilitates Ms Rider’s return to her substantive role and workplace.”

23. It is clear, therefore, that on 9 January Mrs Marchant was made aware by the Claimant that her refusal to return to her substantive role was for health and safety grounds relating to her wellbeing. It is difficult to see the documentation to which we have referred as anything other than a requirement that the Claimant return to Armley Moor. There is no suggestion of any offer or consideration for alternative posts or for a prolongation of her placement at Red Hall beyond 2 February. The Claimant wished that correspondence from the Respondent should be addressed to her solicitor or barrister, but the Respondent demurred. The Employment Tribunal recorded the Claimant’s case at paragraph 13:

“13. It is said by the Claimant that the substantial disadvantage she would suffer as a person disabled by asthma, in comparison with non-disabled persons, if she were forced to return to Armley Moor and given no other option would be that, not only would she be returned to the workplace which was the source of her original grievances and the concomitant stress involved, but also that her health would be compromised. She would be exposed to upper respiratory tract infections transmitted to her by young children and this would exacerbate her asthma. In addition, she has stated that the welfare of the children themselves might be at risk as a result of the effect upon her of her drug therapy regime although this argument has not been robustly pursued in any detail before us.”

24. The Employment Tribunal went on however to find that the PCP was not applied by the employee, see paragraph 14:

“14. However, as we have said, that substantial disadvantage cannot be demonstrated unless the first hurdle in establishing her case can be surmounted by the Claimant. The PCP, as identified clearly by her, was not, in fact, applied by this employer.”

25. The Employment Tribunal went on to note what happened at the meeting between Mrs Marchant and the Claimant and that Mrs Marchant had agreed to investigate, “each proposal put forward”. The Employment Tribunal said, and I quote:

“We do not accept that the return to Armley Moor was as stated in paragraph 10 of the Claimant’s witness statement, “the only post being made available for me”, nor that there was an insistence that the Claimant return to Armley without any alternative.”

26. We pause to observe that it is quite clear that the Respondent did not offer any alternative post. The reference to Mrs Marchant considering each proposal put forward was a reference solely to the possibility of either severance by agreement or ill health retirement. The only reference to posts outside Armley Moor was by the Claimant who stated she did not wish to return either to Armley Moor or elsewhere in Early Years. That is not the same as an offer having been made to her and, indeed, there were objections on health grounds on her part (supported by medical evidence in due course) that she should not return to Early Years. The Employment Tribunal noted that the Respondent then continued to pursue two parallel lines of enquiry in accordance with its severance policies and the option of ill health retirement was explored utilising the Respondent’s occupational health service. It then, however, simultaneously implemented the subsequent stages of its MAP. There is no suggestion, however, that the Respondent investigated the possibility of alternative posts not involving working with children.

27. Immediately after 12 January 2009, the Claimant commenced a period of sick leave suffering from chronic asthma and stress and never returned to work. She maintained that the requirement she return to Armley Moor precipitated her sickness absence.

28. On 13 January came the letter we have referred to from Mr Harris informing her that if the options of ill health retirement or early severance could not progress, she would be required to return to her substantive post at Armley Children’s Centre on 2 February 2009. On 19 January 2009, comes to the referral to occupational health to which we have already referred; there is no suggestion in the referral that the Respondent had considered any reasonable adjustments.

29. On 21 January 2009 the occupational health physician, Dr Cross of Connaught, reported; his report was not sent to the Claimant at that time and was sent some four weeks later on 19 February. Dr Cross reported that the Claimant was particularly concerned that returning to nursery work would expose her to infection causing her to have further respiratory tract infections and exacerbation of her asthma. He stated that:

“In my experience this is a valid concern. Given that she already has a 30% reduction of her lung capacity, further infection should be avoided at all costs.”

He opined that she was not fit to return to her substantive duties because of her underlying medical condition of asthma:

“This physical impairment gives a reduction in walking ability and therefore in my opinion the Disability Discrimination Act would apply.

Any measures that reduce the risk of infection would be appropriate.”

He then concludes:

“If alternative work was not available then as her asthma is a permanent problem, she would meet the criteria for the tiered ill health retirement.”

30. The Respondent therefore did not look at any alternative roles and adjustments because of Dr Cross’s report and suggested she was not fit to return to work because of her asthma and would meet the criteria for tiered ill health retirement if alternative work was not available (see page 228 of the report of Maggie Smith, the hearing officer at the Claimant’s eventual appeal dated 28 August 2009). The Respondent therefore, did not pursue investigation of alternative posts or reasonable adjustments and there is nothing to suggest that any alternative post was considered whether outside Early Years or not.

31. The Respondent was clearly unhappy with Dr Cross’ report and Mr Harris on 28 January 2009 wrote to raise a number of matters with Dr Cross and asked him to reconsider and amend his report. We asked whether there was any response from Dr Cross, that if there was we have not been shown that response.

32. On about 27 February 2009, the Respondent initiated its MAP procedure stage 1; this is to be found at page 159. The Claimant considered that the minutes were inaccurate and as she did not agree with the contents she declined to sign the minutes. The meeting held on 11 March 2009 was attended by the Claimant and her father, together with Ms O’Neill and Miss Burniston of the Respondent’s Human Resources department.

33. The minutes record that the Claimant said that a return to her substantive post as nursery officer at Armley Moor was not possible even with adjustments because she was not able to lift or breathe. Ms O’Neill is said to have asked whether a return to an alternative post with adjustments would assist and the Claimant said that it would not. She asked the Claimant when she might envisage a return to work and the Claimant responded that she could not envisage a return to work in any capacity over the next three to four months. The Claimant stated her preferred outcome would be ill health retirement. Ms O’Neill suggested that if ill health retirement was to be pursued, she would need to attend an occupational health appointment. It was pointed out by Mr Rider that she had already attended an occupational health appointment and referred to Dr Cross’ report of January 2009 which suggested that if alternative work was not available, she would meet the criteria for ill health retirement. Ms O’Neill said another referral would be required as the situation had changed since January. No alternative post was offered on that occasion, nor were any reasonable adjustments suggested so far as one can tell from the reference made by Ms O’Neill to occupational health on 16 March (page 163) which contains the following:

“Miss Rider says that she continues to suffer from stress … Her stress is due to ongoing dispute with her employer … The Directorate’s position is that she has a substantive role, Nursery Officer, which she would be supported to return to.”

34. During a subsequent appeal hearing, Ms Burniston admitted that it was suggested to the Claimant that she should return to work with children and no alternative suggestions for other employment were put, partly because Miss Burniston did not feel she knew the Claimant well enough to explore such possibilities. The Claimant was reluctant to work with young people by reason of her asthma and inability to safely lift older children. The Claimant complained that Ms O’Neill said at the meeting she would see what could be done for the Claimant, but instead she went to occupational health without reference to the Claimant. We have already referred to the reference.

35. On 18 March 2009 in a letter from the Respondent’s occupational health services, the Claimant was informed that while Dr Cross’s report and opinion was still valid, as part of the process for ill health retirement, a second specialist opinion was required, further information was sought which would be reviewed by an independent occupational physician (IOP) Dr Khan. On 19 March 2009, (page 170) the Claimant’s solicitors wrote to Mr Harris. The solicitors made the point that the Claimant was suffering from stress:

“…arising from the ongoing issues between herself and her employer… [and that she had been] told and this has been confirmed to ourselves that, as far as the Council is concerned, the only place Ms Rider can return to is her substantive post in Early Years. Ms Rider continues to remain absent through ill health at the present time but if we anticipate that her sick note should expire and she would then present herself for work, we would seek confirmation at this stage, that should she present herself for work at Early Years in Armley, then the Council would recognise that Ms Rider is disabled for the purpose of DDA and would have a duty to make reasonable adjustments which would not require her to return to Early Years. We would then invite you to indicate what would be proposed if the above conceded.”

36. There was further correspondence between the Respondent and the Claimant’s solicitors and in a letter of 3 April 2009 (page 176) Mr Harris stated that the Respondent would consider the advice offered by its occupational health service for considering the best options available to the Claimant. That advice would be the basis of determining whether she fell within the definition of disability set out in the DDA, and the prognosis of her likely return to work. He continued:

“Even if she does not fall within the definition under the DDA, the authority will consider any reasonable adjustments to facilitate her return to work. The occupational health report will also clarify whether Ms Rider is eligible ill health retirement. If Ms Rider meets the criteria for ill health retirement, then the authority will pursue this option but this cannot be assessed without a further visit to occupational health. Based on our considerable experience of dealing with employees with illness or disabilities, our focus is to ensure that an employee can continue to work with appropriate adjustment. If the medical evidence is that Ms Rider is fit for work, we believe she can be accommodated within the Early Years service, in either her substantive role with adjustments or in an alternative role away from the nursery environment. If other options are recommended then these will be given serious consideration.”

The reference to occupational health was revised with additional information in the report which may have been dated 21 April 2009, the Respondent’s point of view was that the Claimant should return to her substantive role, albeit with support but:

“Equally the Directorate will consider occupational health advice on suitable alternative employment.”

37. In a reference to Dr Cross’ report, occupational health was asked whether:

“As an adjustment is would (sic) be possible to investigate suitable alternative employment with the Early Years service.”

This rather confirms that the Respondent still considered that the Claimant should return to the Early Years service.

38. On 30 April 2009, Dr Paul Beirne, a Consultant Respiratory Physician at St James’ University Hospital in Leeds provided a report commissioned by the Claimant. It concluded:

“It was clear from speaking to Ms Rider and her mother that Margaret is clearly highly susceptible to viral upper respiratory tract infections and that these frequently precipitate symptoms which are entirely compatible with asthma. When they occur, these asthma symptoms are severe enough to require her absence from work and they induce considerable stress which further exacerbates her health problems.

It is self-evident from a review of her medical history that working with small children and being exposed to continuous viral infections and cold air is damaging to her health and wellbeing. I would fully support her assertion that she should not be moved back into that environment.”

39. He agrees with Dr Cross. This report was made available to the Respondent. On 29 June 2009, Dr Khan, the occupational health physician reported to Ms O’Neill. He reported that the Claimant was not currently fit for work. As a result of her asthma it was her specialist’s opinion that she should not return to work as a nursery officer as she would be working in an environment that is likely to precipitate recurrent asthma attacks and, therefore, compromise her ability to give regular and effective service. At the current time she was unfit for all work because of her quite significant mobility problems. Dr Khan added that the Claimant did not feel she would be able to return to work in her normal substantive role and wished to be assessed for ill health retirement:

“She has supporting evidence in the form of a report from her specialist which states that as a result of her asthma she is unlikely to be able to give regular and effective service in her current working environment. The long term implications of this is that permanent redeployment may need to be considered and that as a result of her current health she is not fit to work in any capacity.”

40. He further advised that the Disability Discrimination Act was likely to apply but at this time there were no aids or adjustments that could facilitate a return to work. On 30 June 2009 the Claimant was invited to a meeting on 8 July because the Respondent wished to revert to stage 1 of the MAP; the Claimant still sought ill health retirement. The meeting was adjourned until 22 July and the meeting fixed for 22 July was then adjourned until 26 August because the Claimant had an appointment with Dr Forman of occupational health and the Respondent wished to obtain a report from him. Dr Forman reported on 10 August 2009. He was an occupational health physician. His report is at page 95. It is apparent that Dr Forman did not agree with the previous diagnosis to which we have referred. While he agreed with the Dr Beirne that cold air and chest infections would aggravate her underlying condition, he did not:

“Feel that these would be reasons to prevent her from working in a childcare environment if her condition was under control. Her asthma condition does not appear to be well controlled currently and I feel there is significant scope for optimisation of her treatment and improvement in her symptoms. Should this take place, I see no reason why she would not be able to return to a childcare environment from the perspective of her asthma condition. I note that her symptoms have been deteriorating despite not being exposed to children in a nursery environment. Therefore in other words, this deterioration has taken place regardless of her environment. As such I would not consider her asthma to be incompatible with working in a nursery environment. I would therefore be of the view that her asthma condition does not render her permanently incapable of performing her nursery officer role.”

41. He went on to consider her spinal condition and stated:

“Given all the available information with respect to her spinal condition, I would therefore not consider this to be permanently incapacitating as further treatment options are available. In summary, taking into account all the conditions and evidence available in this case, I would not currently consider Ms Rider to be permanently incapable of discharging efficiently the duties of her employment by reason of ill health or infirmity of body and mind …”

42. We were surprised that on receipt of this report which differed so significantly from that of the Consultant Respiratory Physician, Dr Beirne, the Respondent did not seek further advice; it is surprising that the Respondent appears to have preferred the view of an occupational health physician to those of a specialist consultant in the field of respiratory disorders. Indeed, the Claimant’s solicitor wanted clarifications; see the letter of 18 August 2009 (page 222). The clarifications, however, related to what further treatment could be offered which might result in an improvement of the Claimant’s treatment and symptoms and in relation to pain relief treatment in relation to her spine. The letter noted that Dr Forman had indicated that all treatment options needed to be explored and assumed that the Respondent would concede that the Claimant was disabled and that a reasonable adjustment within the context of the disability would be to allow appropriate time for further exploration to take place. Therefore an adjournment was sought of the meeting of 26 August. The meeting was conducted by Maggie Smith, Deputy Youth Offending Services Manager of the Leeds Youth Offending Service. She declined to adjourn the meeting on the basis that she had sufficient information. During the meeting the Claimant’s father had informed her that it was possible the Claimant could return to work but was unable to provide a possible date and said he knew it would take some time. The letter continues:

“I believe that the Directorate has been, and continues to be willing to discuss with you options to support and facilitate a return to work. On the basis of the evidence I heard and read you have not cooperated with the Directorate to date and I am not assured that you would do so in the future.

Regardless of this, taking into account evidence from Occupational Health and your father, I was not persuaded that additional time would secure an improvement in your condition and ability to attend work in any capacity. As Ill Health retirement has not been advised by the Occupational Health Physician I believe that all options have been exhausted.

The three options available to me were: 1) to direct a further period of review and hold another hearing after that review date, 2) Adjourn the hearing for more information that may help me to reach a decision, 3) Dismiss the employee.

I did not feel from the evidence presented and the testimony of your father that you would be in a position to return to work in the near future to either your current post with adjustments or be redeployed to an alternative post within the wider council.”

43. The letter confirms that the option seeking alternative work was not pursued:

“As you and the Directorate have not looked at the alternate roles and adjustments.”

If the Claimant was not fit to return to work by reason of her asthma and if alternative work was not available, she would meet the criteria for tiered ill health retirement. Ms Smith therefore decided to terminate the Claimant’s contract of employment with immediate effect on the ground that she was unable to fulfil her contractual obligation to attend work.

44. The Claimant appealed but her appeal was dismissed on 12 November 2009.

The acts of discrimination relied upon

45. Before the Employment Tribunal, the Claimant relied upon the following as being acts of discrimination; (1) on 5 January 2009 she was informed that she had to return to her substantive post at Armley Moor as that was the only post available, (2) the Claimant asserted that failure to offer her alternative posts constituted a failure to make reasonable adjustments. The PCP applied was said to be the insistence that she should return to Armley Moor, (3) the Respondent failed to make reasonable adjustments in the operation of its MAP by applying stage 3 in such a way as to amount to a failure to make reasonable adjustments by refusing to postpone the hearing fixed for 26 August 2009, or to consider the options of a further review period or to seek further information. In relation to the MAP the Employment Tribunal stated that nowhere in the Claimant’s pleadings or submissions was it said what was the PCP said to have caused the Claimant a substantial disadvantage as compared to non-disabled persons. The Employment Tribunal assumed it was the operation of the MAP that ultimately led to the Claimant’s dismissal that constituted to the PCP. It noted that the MAP applied to all employees.

The decision of the Employment Tribunal

46. The Employment Tribunal directed itself by reference to section 3A(2) of the 1995 DDA and to section 4A. The Tribunal directed itself that it had been concerned to examine whether any PCP applied by the Respondent substantially disadvantaged the Claimant as compared with non-disabled persons. It was only if there was cogent evidence of such comparative disadvantage that the duty to make adjustments arose and therefore fell upon the employer to consider or implement the same. The Employment Tribunal considered the terms of the MAP, to which we have referred, and then directed itself by reference to the Royal Bank of Scotland v Ashton UKEAT/0542/09 and Environment Agency v Rowan [2008] ICR 218. The Employment Tribunal reminded itself of the need both to identify the PCP and substantial disadvantage.

47. In relation to the meeting with Mrs Marchant on 5 January 2009, the Employment Tribunal found that the PCP alleged by the Claimant to have been applied by the Respondent on that date was not in fact imposed; we shall return to this matter in due course. The Employment Tribunal found that the Claimant had rejected any other post within Early Years and, as we have noted already, Mrs Marchant agreed to investigate, “each proposal put forward”. The Employment Tribunal did not accept that the return to her post at Armley Moor was the only post being made available, nor that there was an insistence that the Claimant return to Armley without any alternative.

48. The Employment Tribunal seems to have taken a rather narrow view of whether the PCP had been, “applied”. There is no suggestion at this point in time that the Claimant was in fact offered any alternative post or indeed whether any consideration was given by the Respondent to seeking another post.

49. So far as the operation of the MAP was concerned at paragraph 15 the Employment Tribunal stated that it was, “Stymied by the Claimant’s failure to identify a PCP” consequently the comparative disadvantage suffered by her was difficult to isolate. The Employment Tribunal continued:

“We conclude, however, that the treatment of the Claimant is to be hypothetically compared to that of a non-disabled person who has been the subject of the Respondent’s attempts in accordance with the MAP to ensure that its employees:-

‘are fit to attend work, fulfil their duties and improve their general quality of life … [whilst] … the council [also] has a duty to maintain service delivery and minimise the disruption absences my cause.’ (page 37, MAP page 3)

The identity of the non-disabled comparator is thus discernible as those employees of the Respondent who are also long term absent by reason of sickness, yet not disabled, and to whom the MAP was applied. More particularly, we have also found it evidentially relevant to consider that the comparator would have had the same personal characteristics, verbal and written responses to the Respondent’s actions, and similar medical assessments in terms of the likelihood of fitness to return to work in the “foreseeable future”.

50. The Employment Tribunal at paragraph 17.1, find that the Claimant’s pattern of blank refusal to communicate with the Respondent about her potential return to work, except through her solicitors, was:

“Characteristic of the Claimant’s contact with her employer during this period. What the Respondent’s witnesses described as “lack of cooperation” was a factor which the Respondent’s decision makers took into account throughout.”

51. The Employment Tribunal then returned to the meeting of 11 March and concluded that the Claimant was asked about and refused to contemplate a return to work in any capacity even with adjustments for three to four months. The Employment Tribunal did not accept the Claimant’s argument that a failure to explore detailed options for alternative roles on that meeting on 11 March constituted discrimination under the 1995 Act, nor did it accept it was a factor of some significance in determining the fairness or otherwise of her dismissal; this was because the Claimant clearly told Ms O’Neill and Ms Burniston she was not fit to work at all for three to four months. The Employment Tribunal did not find credible the Claimant’s evidence and her father’s evidence that no such discussion occurred, the contemporaneous minutes were detailed and precise. We note, however, by reference to those minutes (which the Claimant had declined to sign) that there is no suggestion of any reasonable adjustment or alternative post being offered that might be available when the Claimant was available to return to work.

52. The Employment Tribunal considered that the Claimant’s correspondence at this time was phrased in intemperate terms. However, in the correspondence there was no clear assertion that an alternative post was considered and it also appears that no possible adjustments were discussed:

“The Respondent could understandably see no evidence of progress at stage 1 of the MAP in returning the Claimant to work in the short or medium for the foreseeable future.”

53. The Employment Tribunal then considered the medical reports to which we have already referred of Dr Cross, Dr Khan, Dr Beirne and Dr Forman.

54. The Employment Tribunal considered that on 26 August the question to be addressed by Ms Smith was the question of the Claimant’s fitness to return to work at all in the near future. It was the pension fund rather than the Respondent which would make the decision as to whether an employee qualified for ill health retirement. Ms Smith was entitled to have regard to Dr Forman’s report as being the most recent medical evidence and consider it together with the other medical opinion available to her. Indeed, because it was a most recent report, she gave significant weight to Dr Forman’s conclusions.

55. The Employment Tribunal then went on to consider the failure to adjourn and noted that the Claimant’s solicitors when seeking an adjournment because they required certain clarifications of Dr Forman’s opinion made no reference to the need to seek further information as to the timescale of the Claimant’s eventual return to work, the question the Respondent had to decide at the stage 3 hearing. At paragraph 19 the Employment Tribunal concluded that the failure to adjourn was not discriminatory; it was unable to say what the relevant PCP was. The Employment Tribunal could not say that a non-disabled person would have been treated differently. It noted that there was an inherent and unresolvable tension between the Claimant’s wish to prove her permanent incapacity and obtain ill health retirement and the necessity for her to provide helpful and coherent information as to when she might be able to return to work in the foreseeable future as required by the MAP. The Employment Tribunal noted that:

“Disadvantage is necessarily relative. The Respondent’s decision to operate its MAP did not place the Claimant at a substantial disadvantage as compared with her non-disabled comparator. As a result the duty to make reasonable adjustments did not arise; the duty is not as clarified the Appellant authorities in itself unless substantial disadvantage is in evidence.”

56. The Employment Tribunal then went on to consider the question of unfair dismissal. It noted that there was a potentially fair reason, namely capability. It concluded that the Respondent had acted reasonably in dismissing the Claimant on that ground.

Notice of Appeal, submissions and support

57. We would note at the outset and before we consider the Notice of Appeal that the Claimant has provided us with four lengthy skeleton arguments or written submissions. The Notice of Appeal and also the written submissions raise matters that were not raised before the Employment Tribunal, were not contained in the ET1, or amount to attempts to appeal against findings of fact. The Employment Tribunal only has jurisdiction to entertain appeals on grounds of law; it has no jurisdiction to entertain appeals on grounds of fact. Further, it is not the practice of the Employment Appeal Tribunal, save in exceptional circumstances, to permit a party to raise matters by way of appeal that were not raised before the Employment Tribunal. Also, the Employment Tribunal has no jurisdiction to entertain matters not raised in the ET1.

58. Ground 1

It is said that Employment Judge Elgot did not recognise that the Claimant had been disabled to the Respondent’s knowledge for five years.

Ground 2

Employment Judge Elgot “broke the law” as expressed in Archibald v Fyffe Council in failing to find that the Respondent had not given her sufficient assistance during an earlier redeployment process and for treating any application through that process as being a promotion without considering her disability.

Ground 3

The two-year placement at the Parks and Countryside department ceased after her health had improved but she was forced back to her position at Armley Moor which had contributed and triggered her disability and additional difficulties.

Ground 4

This relates to the decision of the House of Lords in London Borough of Lewisham v Malcolm. It is said that the Employment Judge solely concentrated on the Respondent’s procedures rather taking into account the Claimant’s interests; we are not sure we fully understand this ground.

Ground 5

The dismissing officer, Ms O’Neill, should have given full reasons as to why she dismissed the Claimant prior to any disciplinary or proposed action.

Ground 6

It was unreasonable to force the Claimant back to Armley Moor in the light of the medical evidence and where the Claimant had had difficulties with fellow employees. Armley was, “The most polluted area in Leeds” and the environment was harmful to the Claimant’s health.

Ground 7

The Respondent refused to negotiate with the Claimant and this was ignored by the Employment Tribunal.

Ground 8

Dr Forman’s report was prepared for the purpose of early retirement only and was not a medical assessment for the purposes of determining whether there were reasonable adjustments that could be made. His recommendation that she was able to return to her substantive post was contrary to the other medical evidence and as an occupational consultant Dr Forman,

“Will have known of the Child Acts in my post and cited none and if he didn’t he did not state that he had taken advice upon them and there was not in a position to state that I could continue in my post.”

Ground 9

Reasonable adjustments included assessments by the employer as determined by Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 567, and the Employment Tribunal should have so held.

Ground 10

“Also at no time did the council enforce me back to Armley in any appeal structure prior to 2009. However, it was the principal management of the representatives of the Leeds Council that did during and just prior and knowing of my ill health at the time of their actions, which having been informed earlier in 2005 prior to and during my grievances, as well as during and just prior my notice to go back to Armley in December 2008 and knowing of my ill health at the time of their actions without having been informed five years earlier was to me a from (sic) a victimisation.” It is to be observed at this point we do not fully understand this ground of appeal.

59. We have already observed that the appeal raises issues going to the factual merits; we cannot investigate allegations contained in submissions such that the Respondent, “Did knowingly alter all the medical certifications by statement and coerced a decision from Dr Forman who is employed by the authority”. See paragraph 4(d) of the Claimant’s skeleton argument document. It is not helpful for the Claimant to assert that Employment Judge Elgot was a “disgrace” nor it is helpful to make allegations of dishonesty against the Respondent.

The Respondent’s submissions

60. Ground 1

This issue was conceded at the CMD on 22 March. The trial proceeded on that basis and was correctly recorded by the Employment Judge at paragraph 2 of the decision. There is no error of law alleged.

Ground 2

This was not an issue raised before the Employment Tribunal, neither was it an issue identified by the Employment Tribunal; see paragraphs 4.1 and 4.2 of the decision. In those circumstances, the matter should not be dealt with by the Employment Appeal Tribunal, particularly as it would require remission to the Employment Tribunal for further evidence; see Jones v Governing Body of Coutts Burdett School and Kumchyk v Derby City Council [1978] ICR 116.

Ground 3

This is an attempt to reargue the finding that the PCP requiring the Claimant to return to Armley Moor was not applied. Accordingly the Employment Tribunal was not required to consider the issue of substantial disadvantage.

Ground 4

No claim was made for disability related discrimination under section 3A(1). The Respondent did not understand the nature of the challenge to the reasoning of the Employment Judge.

Ground 5

This is a point not raised before the Employment Tribunal. In any event, there was an appropriate Step 2 meeting and the Claimant was notified of her right of appeal.

Ground 6

The Employment Tribunal expressly found that the PCP was not applied to the Claimant.

Ground 7

This is a new point that was not argued before the Employment Tribunal.

Ground 8

This ground does not raise any issue of law and the weight of the evidence is a matter for the Employment Tribunal.

Ground 9

The making of an assessment is not a reasonable adjustment. The decision in Mid Staffordshire General Hospitals NHS Trust v Cambridge [2008] IRLR 567 is no longer to be relied upon. Reference was made to Tarbuck v Sainsbury’s Supermarkets Limited [2006] IRLR 664.

Ground 10

No discernible ground of appeal is identifiable here.

The law

61. Section 3A of the Disability Discrimination Act 1995 provides:

“[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, ………………

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

62. The duty of employers to make adjustments is set out at section 4A:

“[4A Employers: duty to make adjustments]

[(1) Where --

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

63. The question whether matters such as assessments could be regarded as reasonable adjustments is not free from authority. It was decided in Mid-Staffordshire General Hospital NHS Trust v Cambridge [2003] IRLR 566 that they could be. However, subsequent cases have held to the contrary. In Tarbuck v Sainsbury’s Supermarkets [2006] IRLR 664, the Employment Appeal Tribunal presided over by Elias J considered earlier authorities and held that the duty to make adjustments did not extend to consultations or assessments and declined to follow the Cambridge case. Underhill J in HM Prison Service v Johnson [2007] IRLR 951 followed Tarbuck and although the EAT was free to choose between contrary decisions of Cambridge and Tarbuck he was satisfied that Tarbuck was the correct statement of the law.

64. Tarbuck was followed in Environment Agency v Rowan [2008] ICR 218 in which I said:

“61. We do not decide the question as to whether the trial period of home‑working was capable of constituting a reasonable adjustment because for some reason the matter was not fully argued. However, we have considerable difficulty in seeing how an investigation or trial period as such can be regarded as a reasonable adjustment; we do not need to decide the point but express our doubts. A trial period is a procedure that an employer should sensibly adopt in an appropriate case but does not appear to be an adjustment as such. It is not a procedure specifically referred to in S4A or S18B(2). As has been observed in other cases what S4A and S18D(2) envisage 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 what steps should be taken; it is prudent for employers to adopt a trial period in an appropriate case to see whether home‑working for example is a reasonable adjustment. An employer who has failed to investigate the possibility of home‑working by a trial period may find it difficult to establish that home‑working was not a reasonable adjustment. We consider that a trial period is akin to a consultation, or the obtaining of medical and other specialist reports; these do not themselves mitigate or prevent or shield the employee from anything. They serve to better inform the employer as to what steps, if any, will have that effect, but of themselves they achieve nothing. In circumstances such as the present case, where there is an issue as to whether home‑working would be a reasonable adjustment a trial period of home‑working is a tool which may enable the parties to determine whether home‑working is in fact capable of being a reasonable adjustment that would, in this case, prevent or mitigate the difficulties said to be faced by the claimant when working in the Respondent’s office.”

65. And again in Smith v Salford NHS Primary Care Trust UKEAT/0507/10 the Employment Appeal Tribunal held that:

“Adjustments that do not have the effect of alleviating the disabled person’s substantial disadvantage…… within the meaning of the Act. Matters such as consultations and trials, exploratory investigations and the like do not qualify”

Discussion and conclusions

66. Ground 1

It is accepted that the Respondent had knowledge from 2005 of the Claimant’s disability. There is, therefore, nothing in this ground of appeal.

Ground 2

This point was not raised below and we agree that the Claimant cannot rely upon it for the purposes of this appeal.

Ground 3

This raises an issue relating to the PCP and we shall return shortly.

Ground 4

This also raises a point relating to the PCP and we shall return to it shortly.

Ground 5

This point again was not raised below. In any event there was no obligation on Mrs Marchant to provide written reasons at all and those supplied in the letter of 28 August 2009 are detailed; see page 226.

Ground 6

This ground again raises the issue of the PCP which we will deal with the shortly.

Ground 7

This point was not argued below and cannot be entertained by the Employment Appeal Tribunal.

Ground 8

This ground of appeal does not seem to raise any point that might affect the determination of the case. We have already observed that the Respondent might have been well advised, having received Dr Forman’s report, to go back to Dr Beirne, after all he was a consultant in the field of respiratory problems, whereas Dr Forman simply examined the Claimant for the purposes of determining whether she was eligible for ill health retirement. However, it does not seem to have any bearing on the question of whether or not the Respondent made reasonable adjustments.

Ground 9

For the reasons that we have given earlier, the Mid-Staffordshire General Hospitals NHS Trust case should not be followed and making of an assessment in itself is not capable of amounting to a reasonable adjustment.

Ground 10

This ground of appeal is not understood.

Application of the PCP

67. There are two grounds relating to the application of a PCP. Firstly the alleged requirement that the Claimant should return to Armley Moor and secondly concerning the application of the MAP.

68. It will be recalled that the Employment Tribunal identified the PCP as being a requirement that the Claimant should return to work at Armley Moor; the Employment Tribunal appears to have accepted at paragraph 13 of its decision that the Claimant was at a substantial disadvantage as a person disabled by asthma in comparison with persons who did not suffer from asthma and were forced to return to Armley Moor. The Claimant, however, on the findings of the Employment Tribunal could not demonstrate a substantial disadvantage because the PCP was not in fact applied by the Respondent.

69. The Employment Tribunal appears to have taken a very restricted view as to whether the PCP had been applied.

70. Having regard to the factual background, which we have set out, it is difficult to see how it can be said that certainly until March, and possible thereafter, the Respondent was not requiring the Claimant to return to Armley Moor, it was clearly reluctant to accept ill health retirement as it declined to accept the recommendations of Dr Cross and at no stage did the Respondent ever look at alternative roles or other adjustments as accepted in the letter of 28 August 2009 at page 227. It is clear that the Respondent persisted in requiring the Claimant to return to Armley Moor and Early Years without considering any alternatives. We draw attention to the letters we have referred to of 10 December 2008, 22 December 2008, 9 January 2009, 13 January 2009, the stance taken at the meeting on 5 January 2009 and the terms of the reference to Occupational Health on 19 January 2009.

71. The Employment Tribunal’s position appears to be based on its interpretation of a letter of 9 January 2009 and is referenced to the meeting of 5 January 2009 when the Claimant said she was unwilling to consider a post in Early Years. She maintained that there was a risk to her health in working with young children by reason of the risk of infection and difficulty in lifting older children; views supported by the subsequent medical evidence. The offer of another post at Armley Moor working with young children would not in the circumstances have been a reasonable adjustment.

72. The post at Red Hall was a temporary post by special arrangement pending resolution of her grievance into recruitment issues. Return to Armley Moor was, of course, not only potentially injurious to her health by reason of her asthma and spinal complaints, but also because of the stress laid upon her by an environment of working with people she had accused of bullying her. We have noted that while working at Red Hall the Claimant appears to have been able to work without any difficulty, despite the problems with her health.

73. We also note that the Employment Tribunal did, however, find that there had been some discussion in relation to the possibility of alternative posts in Early Years at the meeting on 11 March.

74. The fact, however, that the Claimant was not immediately able to return to work after she went on sick leave by reason of disability related sickness did not relieve the Respondent of the obligation to make reasonable adjustments; the fact that the Claimant was absent from the working environment does not necessarily rule out the possibility of continuing discrimination against her; see Mummery LJ in Commissioner of Police for The Metropolis v Hendricks [2003] ICR 530 at paragraph 48. The duty is cast on the employer to explore and make adjustments not for the Claimant to suggest them; see for example Cosgrove v Caesar & Howie [2001] IRLR 653.

75. The fact that the Claimant was not immediately able to return to work by reason of a disability related sickness did not, as we have said, relieve the Respondent of its obligation to make reasonable adjustments.