Appeal No. EAT/13/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 March 2001
                                                                                       Judgment delivered on 10 April 2001

Before
MR JUSTICE HOOPER 
MISS A MACKIE OBE
MRS T A MARSLAND

MR ANDREW MORGAN	APPELLANT

LONDON BOROUGH OF ISLINGTON	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS J EADY
(of Counsel)
Instructed by:
David Levene 
Solicitors
235 - 239 High Road
Wood Green
London N22 8HF	
For the Respondent	MR T BRENNAN
(of Counsel) 
Instructed by:
Legal Services
London Borough Islington
Town Hall
Upper Street
London N1 2VD

MR JUSTICE HOOPER

1	The Appellant, an architect in his late 30s, appeals against the unanimous decision of the London North Employment Tribunal (Chairman, Mr D H Roose) rejecting his complaints under section 5 of  the Disability Discrimination Act 1995 (“the Act”).  The hearing took place on 19 October and the decision with extended reasons was sent to the parties on 8 November 1999.  

2	The Appellant “suffered a particularly severe injury to his back while lifting.”  Although that injury had adversely affected his ability to work, the Tribunal found that from 1996 onwards the Appellant had taken “what steps he could to effect what he hoped would be an early return to professional work.” (paragraph 1 of the reasons)  On 5 June 1998 he applied to the Respondent for a position as an architectural assistant/surveyor.  He indicated on his application form that he was disabled and that he needed special assistance.  Following a successful interview the Appellant was made a provisional offer for a fixed term of 12 months.  The offer was provisional on, amongst other things, the Respondent receiving “medical clearance”.  On 19 September 1998 the Appellant accepted the conditional offer. (paragraph 3 of the reasons)  

3	He was subsequently examined by a Dr Susan Smith, Senior Clinical Medical Officer of the Occupational Health Department of Camden and Islington Community Health Services NHS Trust.  In the words of the Tribunal (paragraph 4): 
“He advised Dr Smith that he had to lie down for 23 out of 24 hours a day to prevent himself from getting pain and requested that the Respondent provided a massage couch for his office so that he could lie down to do his work.”  

4	Both Dr Smith and a Consultant  Orthopaedic and Spinal Surgeon consulted by the Respondent, Mr Wilson, concluded that lying down to do his work could be detrimental to the Appellant’s health.  By letter dated 3 March 1999 the Respondent wrote to the Appellant advising him that in the light of the advice received and in the light of the need to meet its employer obligations under the Health and Safety at Work Act it was at present unable to proceed with an appointment.  The letter held out the possibility that a meeting might identify the means by which the Appellant could be able to undertake the duties of his post without seeming to endanger his health further.  In the words of the Tribunal (paragraph 7): 
“The applicant was asked to come up with a proposal for working in a manner other than the one that he had proposed but he was unable to do so because trial and error over a number of years had led him to believe that this was the only manner in which he could comfortably carry out his work.”  

5	By an originating application dated 21 May the Appellant presented his complaints under the Act, alleging that by not proceeding with the appointment the Respondent had discriminated against him.  

6	The Respondent submitted firstly that the Appellant was not a disabled person within the meaning of the Act.  In holding that he was disabled, the Tribunal said that the Appellant was inhibited in getting around and his impairment caused pain or fatigue in the performance of his day to day activities.  The Tribunal noted that he had received considerable medical treatment which had failed to provide a cure.  In the words of the Tribunal: 
“By trial and error the applicant has found what it is that aggravates his condition and that is why he has chosen to persist in the way of life that he now follows.” (paragraph 9)

7	In using the expression “the way of life” the Tribunal was apparently referring to what he had told Dr Smith, namely that he had to lie down for 23 out of 24 hours a day to prevent himself from getting pain and that he needed a massage couch for his office so that he could lie down to do his work.

8	We turn now to the issue which is the subject matter of this appeal.  The Respondent in its IT3 summarised the medical evidence that to work lying down would be detrimental to the Appellant’s health in the medium and longer term and contended that the refusal to offer employment was therefore justified.  During the course of the proceedings the Respondent also relied upon the legal consequences for the Respondent if the Appellant was permitted to work in an unsafe manner. 

9	The Tribunal held that the Respondent was justified within the meaning of section 5 of the Act in not proceeding with the appointment.  The reasons advanced for this conclusion are to be found in about half a page (see page 6 of the bundle).  Mr Brennan’s description of the reasons as “a bit sketchy” is an understatement.  This is an important case and it is unfortunate that lengthier reasons were not given.

10	We are told that there were a number of medical reports before the Tribunal, that the Appellant, Mr Geoghegan (the Appellant’s prospective line manager) and Dr Smith gave evidence.  There is no record of this in the reasons.  

11	It is important to note that the Respondent was not seeking to justify its decision not to proceed with the appointment by reference to any practical difficulties that the Respondent might encounter with the Appellant carrying out his duties lying down on a couch.  Although the Tribunal stated (paragraph 9) that “he would be able to use a computer and his movements would be restricted to use of a mouse”, he could in fact also write and draw.  The mere fact that he would work in this way from a couch was not the reason for declining to employ the Appellant. The reason for declining to employ the Appellant was the Respondent’s belief that “by lying on his side on a couch to work with a twisted position to his back to use the keyboard or do his paperwork” (to use Dr Smith’s words in a letter dated 27 August) would cause medium and longer term adverse consequences to his health and that “if the Applicant were to develop further medical problems as a result of his chosen method of work that it as his employer would be legally liable” (paragraph 9 of the reasons, page 6).  It was not prepared to permit the Appellant to carry out his work in what it saw as an unsafe manner.   

The Law
12	Section 4 of the Act provides that it is unlawful to discriminate against a disabled person by, amongst other things, refusing to offer him employment.  Under section 53 of the Act (now repealed and replaced by section 53(A)), sub-section (6):
“If any provision of a code appears to a tribunal or court to be relevant to any question arising in any proceedings under this Act, it shall be taken into account in determining that question.”

“Code” means a code issued by the Secretary of State under this section (section 53(7)).

13	Section 5 of the Act states:

“(1)	For the purposes of this Part, an employer discriminates against a disabled person if-
(a)  for a reason which relates to the disabled person’s disability, he treats him less favourably that he treats or would treat others to whom that reason does not or would not apply; and
(b)  he cannot show that the treatment in question is justified.
(2)    For the purposes of this Part, an employer also discriminates against a disabled person if-
(a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and
(b) he cannot show that his failure to comply with that duty is justified.
(3)	Subject to subsection (5), for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.
(4)	For the purposes of subsection (2), failure to comply with a section 6 duty is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial.
(5)	If, in a case falling within subsection (1), the employer is under a section 6 duty in relation to the disabled person but fails without justification 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 had complied with the section 6 duty.”

14	Section 6 of the Act states:
“(1)	Where-
(a) any arrangements made by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer, place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect.
(2)	Subsection (1)(a) applies only in relation to-
(a)  arrangements for determining to whom employment should be offered;
(b)  any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded.
(3)	The following are examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1)-
(a)  making adjustments to premises;
(b)  allocating some of the disabled person’s duties to another person;
(c)  transferring him to fill an existing vacancy;
(d)  altering his working hours;
(e)  assigning him to a different place of work;
(f)  allowing him to be absent during working hours for rehabilitation, assessment or treatment;
(g)  giving him, or arranging for him to be given, training;
(h)  acquiring or modifying equipment;
(i)  modifying instructions or reference manuals;
(j)  modifying procedures for testing or assessment;
(k)  providing a reader or interpreter;
(l)  providing supervision.
(4)	In determining whether it is reasonable for an employer to have to take a particular step in order to comply with subsection (1), regard shall be had, in particular, to-
(a)  the extent to which taking the step would prevent the effect in question;
(b)  the extent to which it is practicable for the employer to take the step;
(c)  the financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his activities;
(d)  the extent of the employer’s financial and other resources;
(e)  the availability to the employer of financial or other assistance with respect to taking the step.”

15	The Tribunal found that the Respondent had treated the Appellant “less favourably” for the purposes of section 5(1)(a).  Having done so, the Tribunal had then to find that the Respondent had discriminated against Mr Morgan under section 5(1) unless the Respondent could show that the treatment in question was justified.  The treatment in question was not proceeding with the appointment.  By virtue of section 5(3) the decision not to proceed with appointment could only be justified if “the reason for it is both material to the circumstances to the particular case and substantial.”  Even if the reason for not proceeding with the appointment was justified under section 5(1), that did not conclude the matter because of section 5(2), (4) and (5) and section 6. Given that the ordinary working arrangements (say, working at a desk) would place the Appellant at a substantial disadvantage in comparison with persons who are not disabled, it was the duty of the Respondent “to take such steps as it is reasonable, in all the circumstances of the case” (section 6(1)) for it to take in order to prevent those arrangements having that effect.  The provision of a massage couch was, on the facts of this case, a reasonable step for the employer to take.  The much more difficult question was whether or not it was a reasonable step to take to permit the Appellant to carry out his work lying on the couch having regard to (and indeed only to):
“the alleged effect upon his medium and longer term health of working on the computer and on paperwork whilst in that position,
and to the consequential alleged legal responsibility.”
  
16	Even if the Tribunal found that the Respondent was in breach of the section 6 duty by not permitting the Appellant to work in this manner, it would still have to consider whether “the reason for the failure” to comply with the duty under section 6 was justified.  It would be justified under section 5(4) “if, and only if, the reason for the failure [to comply with the duty] is both material to the circumstances of the particular case and substantial.”  As Mr Brennan accepted in argument, if it is found that the employer is in breach of its duty under section 6(1), then it is likely that the failure to comply with that duty would not be justified.  By virtue of section 5(2)(b) it would be for the employer to show that the failure to comply is justified.

17	To summarise, it seems to us that, given the considerable degree of overlap between section 5(1) and (2), the issue before the Tribunal may (but not necessarily) be adequately summarised in the following way:  
“Was it reasonable in all the circumstances of the case, for the employer not to employ the Appellant (for 12 months or less) on the basis of an effect (if there was one) upon his medium and longer term health of permitting him to work in his chosen manner and to any consequential legal responsibility flowing therefrom?”

If the Respondent had not acted reasonably then, as Mr Brennan conceded, the reason for the failure was likely to be both material and substantial.  The issue could be put in other ways but we doubt that the result would be any different. 

18	We had thought when reading the Appellant’s skeleton argument for the purposes of this hearing, that Miss Eady was going to argue that a potential employer of a disabled person could not take into account the potential risks of harm to a disabled person if he or she voluntarily chose to assume those risks. She sensibly did not argue that.

The Decision
19	Having summarised the facts found by the Tribunal in the first part of this judgment, we turn now to the reasons given for the conclusion reached. The Tribunal stated:
“It [the Respondent] says that the treatment in question is justified because medical advice has indicated that if it allows the Applicant to carry out office work lying on his side that will only lead to further medical problems in the medium and short term.  Those problems have been identified as affecting the Applicant’s circulation, respiration, skin and nerve roots.  The doctors believe that it would be preferable if the Applicant was prepared to sit in a special chair but he is not prepared to consider changing his way of working.  The Respondent believes that if the Applicant were to develop further medical problems as a result of his chosen method of work that it as his employer would be legally liable.
Section 5(2)
The Applicant suggested that the Respondent provided a massage couch for him to lie on to do his work.  From that couch he would be able to use a computer and his movements would be restricted to use of a mouse.  In determining whether it is reasonable for the Respondent to have to take this step we have to take into account the extent to which it is practicable for the Respondent to take this step.  The same considerations arise under this subsection as they do under the previous one.

Generally
We find that the treatment under both these headings is justified, as the reason for it is both material in the circumstances of this particular case and substantial.  In this respect we have considered the circumstances of the Applicant and the Respondent.  The Respondent has taken medical advice and sees no reason why that advice should be rejected.  It will not countenance a situation where an employee is submitted to an unsafe system at work, which is likely to lead to further medical problems for which it alone will be responsible.  We accept the reasons put forward by the Respondent and accordingly dismiss this application.”

20	Criticism was made by Miss Eady of the reference to “further medical problems in the medium and short term”.  We agree with Mr Brennan that this was a typographical error, caused perhaps by relying on the letter referred to below in paragraph 42.  It has no other significance.  

The Respondent’s fears as to its potential legal liability
21	In so far as the alleged legal responsibility is concerned, the Tribunal described the Respondent’s belief that “it as his employer would be legally liable”.  It repeated that belief in the penultimate sentence of the last paragraph (see below).  It is not clear that a finding was being made in that sentence.  If it was (and we do not think that it was), it was not a reasoned finding.  Mr Brennan included in his skeleton argument before us  a number of provisions about health and safety.  Assuming those were before the Tribunal, the Tribunal made no findings about them in its reasons, an omission rightly criticised by Miss Eady.  One might think that there may well be additional risks to the personal safety of an employed disabled person.  For example, a fire may put a disabled person (and those who help him or her) at greater risk. Working from a wheel chair may not be as ergonomically sound as working from a modern office chair. The application of the health and safety provisions to the employment of a disabled person needs much thought.  It cannot be dismissed, as in this case, without any consideration.  Miss Eady submitted that: “The primary criticism of the ET’s decision relates to its ready acceptance of the Respondent’s expressed fears as to its potential legal liability”. We agree. The defect cannot be remedied by this Tribunal.  This alone provides a sufficient reason for allowing the appeal and ordering  the claim to be heard by a differently constituted Tribunal. 

The Respondent’s concerns about the medical consequences
22	Given the nature of the extended reasons, we took the tentative view that we might have been helped by seeing the Chairman’s notes of evidence and of the submissions made to the Tribunal.  In a case such as this where the Appellant is arguing that the Tribunal failed to resolve issues of fact and failed to deal with submissions, this Tribunal needs to be assured that the issues now raised were outstanding, live and relevant issues at the conclusion of the hearing.  We therefore asked Mr Brennan and Miss Eady whether there should be an adjournment to permit us to obtain that material.  Mr Brennan was adamant that we should not adjourn to obtain those notes and other relevant material, a stance supported by Miss Eady.  In the light of their joint opposition we decided not to adjourn the appeal but resolve it on the material that was available before us.  It is, as we have said, unfortunate that the extended reasons were so brief. 

23	To repeat, this Tribunal needs to be assured that the issues now raised were outstanding, live and relevant issues at the conclusion of the hearing. How can we be so assured in the absence of full reasons and in the absence of the material referred to in the previous paragraph?  We shall have to rely on the documentary material before the Tribunal, on what we are told happened (if there is no disagreement), the skeleton argument used by Ms Owens at the hearing before the Tribunal, as well as anything said in the extended reasons.  

24	For example, we are told that it was the Appellant’s case (although no mention of this can be found in the extended reasons) that a reasonable step, which could have been taken, was to offer the Appellant a shorter term contract, say one of 3 months.  There is support for the proposition that this was his case in the Appellant’s skeleton argument prepared for the Tribunal by his solicitor Ms J Owens.  We were told that there is nothing to suggest a  departure from that case.  Depending on the evidence, there might have been a good answer to that submission.   We are unable to say that there was an obvious answer conclusive against the Appellant. 

25	Approaching the case in this way and to be fair to the Appellant, we must make various assumptions about how the Appellant’s case was conducted. These are assumptions made for the purposes of the appeal.  We believe that they are realistic assumptions.  We stress that it does not follow that we would necessarily have found merit, for example, in the assumed submissions to which we shall refer.  Unless such submissions obviously have no merit, it is not the task of this Tribunal to ignore them when considering the merits of the appeal.    

26	We stress further that by approaching the case in this way we are not expressing any views about what conclusions a Tribunal should reach following any re-hearing.  Nothing in the judgment should be taken to mean that this Tribunal has formed any conclusion as to what the right answer is to the difficult question with which the Tribunal had to grapple.  Should the matter be reconsidered, then it will have to be looked at completely afresh. 

27	In his statement, which we are told the Appellant adopted in evidence, he described how some 3 years before he had begun to take a more positive view of his life having learnt to manage his impairment.  He became actively involved in a voluntary capacity with various organisations.  He is the trustee of “Disability Action” in Islington and of a theatre company.  He became an advisory member for Islington Council on the Development Control Committee which involves public meetings in the Town Hall during which he lies down.  He is a board member for the United Kingdom Institute of Integrated Design and has lectured on the Environmental Access Course at the Architectural Association.  He presents his lectures from a massage couch which has been provided for him by that Association.  In paragraph 11 of his statement he states:
“I learnt to use a computer keyboard, a mouse, draw, write and use the telephone from the prone position.  This has enabled me to get back to using my professional skills as a architect.  From 1996 onwards I started doing occasional pieces of work and undertaking projects for Benedict Wallbank, my previous partner.  I was not paid for this work but it enabled me to keep my architectural skills fresh and gave me the chance to work out the most comfortable and ergonomically sound way of working.  Once I had sufficient practice to be certain that I could undertake the tasks required of an architect without exacerbating my condition or any other ill effects I started to look for paid work in my profession.”

28	When he saw the advertisement for the job of architectural assistant in the Housing Department of the Respondent Council he decided to apply for it.  “I knew that I was easily qualified to do this job and felt that I was ready to work full time again.”  It is not clear to us whether he explained in his interview how he wished to work.  He described in his statement his meeting with Dr Smith on 7 October 1998.  He said in his evidence that he briefly indicated to Dr Smith how he worked lying down but he claimed that he did not actually demonstrate the position and it was not discussed in detail.  This became an issue in the case, so we were told by Miss Eady, but neither the issue or its resolution can be found mentioned in the extended reasons.  The Appellant was particularly concerned at the failure on the part of Dr Smith, as he saw it, to see how he could work in the lying down position.

29	We have no record of his cross-examination and thus no record of whether the Appellant’s credibility was in issue or whether any concessions were or were not made by him. Given the absence of any findings about the Appellant’s credibility in the reasons, we must assume that the Tribunal found to be credible on the material matters. 

30	We can say nothing about the evidence of Mr Geoghegan because we do not know what he said. 

31	We turn to the medical evidence.  We start with the written evidence of Dr Smith.  On 23 October 1998 she wrote to Mr Morgan:
“I do have concerns that lying down for so many hours each day is not good for your health as it generates so many other potentially serious problems.  There are also the quite serious implications for working when lying on one’s side with either the computer or paper work.”

32	On 16 December 1998 Dr Smith wrote to Mr Geoghegan.  She refers to a report from Mr Wilson to which we refer below and goes on to state:
“He shares my reservations about the advisability of lying down on his side, and in particular for working on a VDU, for prolonged periods.  It is my opinion that this would be detrimental to [the Appellant’s] health both in the medium and longer term.  I cannot therefore recommend the use of a couch for office work.”
She went on to say that she did not believe him to be, in law, disabled, a conclusion with which the Tribunal did not agree.  

33	On 27 August 1999 Dr Smith wrote to the Legal Services Department of the Respondent.  She notes that Mr Morgan is suffering from a condition of the spine which: 
“usually develops during adolescence.  It can be a painful condition and although residual changes are often seen on X Ray for years afterwards, the active, painful stage of the condition usually eases.”  
She points out that in reports from his consultants, which were provided to her by Mr Morgan:
“it is clear he was extensively investigated as it was felt that this condition did not fully explain his pains as they did not fully fit the picture.  Various opinions on possible causes were given and there was never a clear explanation.” 
 
She notes that the pain was managed in the pain clinic and that the onset of pain, about 7 years before, was reported by Mr Morgan: 
“as following two separate incidents when one day he seemed to pull a muscle and this strain was made worse the next day when he was picking something up at home.”
She wrote that the report from the general practitioner confirmed that Mr Morgan was quite mobile and that by the Appellant’s own admission, he can walk briskly for 15 minutes to cover about a mile.  She noted that: 
“He had a really very good range of movements when I saw him.  He moved briskly with no indication of pain and indeed reported that he did not have pain now, if he took analgesics twice daily and if he lay down for these very long periods.  He was able to move briskly in and out of the chairs and could move his spine quite well.”  
He could dress himself, cook and clean. 
“There was no indication of body muscle wasting and I was not aware of any body sores from long periods of lying down.  This would normally be a result of lying in the way he describes for such long periods.
It does appear to be his choice to manage his pain in this way and not that recommended by any of the doctors responsible for his care.  There is simply no way of knowing that anyone has pain or how severe it is except by the history given, the observed limitation of movement and by any visible signs of suffering.  These have not been observed by myself or anyone else who has provided reports.
I am not questioning that he has had pain in the past and has found this his chosen way of managing the pain.”
She notes that a consultant in the pain clinic had recommended assessment by a Behavioural Therapist.  The Therapist recommended a course of treatment but the Appellant had not agreed with this and it was not pursued.  She concluded her letter in this way:
“It is my opinion that Mr Morgan has chosen to manage his pain in the past this way and whether or not he still has pain wishes to continue in this way.  I am not prepared to endorse his working lying on his side on a couch to work with a twisted position to his back in order to use the keyboard of his computer or do his paperwork.  This was the method he demonstrated to me when he attended for assessment. [This was the matter in dispute to which we have already referred]  This posture would be ergonomically very unsound and likely to result in other musculoskeletal problems.  Dr Shipley’s report supports the need for the manager to enable him to work [sic].  I had agreed he was fit to work.  To lie flat periodically if back pain is incapacitating might be considered reasonable.  However, to lie on his side, leaning over a keyboard or desk, with the consequent twist in the spine for long periods, is not, in my opinion, acceptable.
All seating for desk workers should now provide good back support, in keeping with the DSE at Work Regulations.  Tasks can be varied to ensure staff do not hold any position that might be uncomfortable for long.”

34	Dr Smith gave oral evidence.  Looking at the skeleton argument prepared by Ms Owens for the purpose of the hearing and bearing in mind how we must approach this case, we shall assume, in the absence of contrary indication, that she cross-examined Dr Smith about the following alleged facts:
the Appellant did not specifically demonstrate his working position to Dr Smith;
the working position was not discussed in any detail with Dr Smith;
the Appellant made it clear to her that he was sure that he could carry out the job without any difficulties;
the Appellant had suggested that Dr Smith contacted a disabled person with a similar impairment who also works lying down at the Royal Association of Disability and Rehabilitation;
the Appellant had made it clear to Mr Wilson that he had been carrying out his work in this way since 1996 with no detrimental affects;
the Appellant had consistently requested specific information about exactly why working lying down would be detrimental.  In the words of the skeleton argument: 
“The applicant wanted an explanation of the medical opinion.  Obviously it was important as far as this job was concerned and also he was worried because the only way which he can manage his impairment is to lie down for 23 hours a day.  This medical opinion has serious implications for him because he wanted to return to work but can only work if he is lying prone.  To date no such explanation has been given to the applicant, even though the Respondent has undertaken to provide it on several occasions ... .”
The fact that the Appellant was working for the Enfield Disablement Association as their Access Action Worker, that he carries out his job lying down and his employers are happy to employ him and very satisfied with his work.

35	It was submitted that there was no evidence to show that the reason for the less favourable treatment was material to the circumstances of the case.  “Despite the numerous requests there never was an explanation of WHY doing this job lying prone was considered detrimental to the medium and long term health.”

36	In her skeleton argument Ms Owens stressed the duty to consider, in conjunction with the applicant, reasonable adjustments:
“They were faced with a highly qualified, keen, suitable candidate for the job who articulated that his needs were to work lying prone, that he was capable of doing so, used to doing so and that neither he nor his medical advisers had detected any detrimental effects thus far.”  
Added in handwriting were the words “Reasonable adjustment wld [would] have been to have a 3 month check to see whether there were any medium term detrimental effects.” It was submitted that the reasons for the less favourable treatment were not substantial.  It was a job for a fixed term of 1 year and the employers were not faced with the prospect of employing him indefinitely.  If the employers were concerned they could have suggested a trial period to measure whether there were any adverse effects.

37	We must assume in the absence of contrary indication that these submissions were the subject of cross-examination and that Ms Owens asked whether it would have been possible to detect detrimental effects within the year, to ask why the detrimental effects had not so far emerged if the Appellant was remaining supine for 22-23 hours of the day, to seek an explanation as to why (if such be the case) the detrimental effects would be caused by working for say eight hours a day five days a week in the position and not by what the Appellant was doing for the rest of the day and as to whether the Appellant could, during the working day and outside working hours, do something to prevent the alleged detrimental effects from occurring. 

38	The skeleton argument then refers to the Code, paragraph 5.24.  Ms Owens referred to the fact that the code states that disability will not generally justify an adverse employment decision “if there is no effect on the person’s ability to do the work”.  The skeleton goes on to read as follows:
“The first example given in this paragraph of the code is applicable to this case ‘An applicant for a post on a short-term contract has a progressive condition which has some effects, but is likely to have substantial adverse effects only in the long term.  The likelihood of these long term effects would not in itself be a justifiable reason to reject him’.  The medical advice from the occupational health doctor in our case was that lying prone and working in the way in which the applicant intended was going to be detrimental to his medium and long term health.  The applicant has never been told what the detriment would be in physical terms nor what ‘medium’ and ‘long term’ meant in years.  However it is submitted that medium and long term were intended to mean some time longer than a few years away, by which time the applicant would have left the post.  Any worries that the Respondent may have had about future insurance claims are surely irrelevant in this case as it was the applicant himself who was insisting on working in the prone position.  He voluntarily undertook, as he has undertaken for a number of years, to work in this way.  In this hypothetical situation, how would the employers have been liable?
The applicant told the Respondent and their medical advisor that he had been lying prone for approximately 23 hours a day for a number of years without any ill effects.  His GP did not consider it to be a great problem and neither did Dr Shipley his own orthopaedic consultant.  The Respondent chose to ignore the applicant’s wishes and his GP’s advice and to take the advice of the occupational health doctor who did not ever explain what the potential detrimental effects might be, for a post which was only to last one year.  This was a disproportionate and unreasonable decision to take.”
It was submitted that the risks were theoretical rather than real and that the Appellant would be the first to notice any detrimental effects and the first to do something about it.  In so far as section 6 is concerned the following submission was made, according to the skeleton argument:
“It is submitted that a reasonable adjustment in this situation would be to balance the advice of the occupational health adviser against the opinion of the applicant’s GP and the applicant’s own confidence in his chosen method of working and allow him to commence the job.  Alternatively to allow him to commence the job and for the applicant’s GP or occupational health doctor to review the applicant’s health after 3 months.
The Respondent knew that the applicant lay prone for 23 hours a day and had been doing so for a number of years without any detrimental effect to his health.  The applicant was confident in his assertion that he chose to deal with the effects of his impairment by lying prone.  It is submitted that the Respondent’s DDA duty to make reasonable adjustments was not discharged in this respect.”

39	Again, these being the submissions, we must assume for the purposes of this Appeal that these points were put to Dr Smith.  

40	During the course of argument Mr Brennan submitted that there was a substantial difference between working full time in the position which the Appellant proposed to adopt and the position which he had adopted over the previous years.  There was however nothing to suggest that in that period he had remained “supine”, a fact which Mr Brennan accepted.  In any event, the merits of that argument are not a matter for this Tribunal. 

41	In the absence of a contrary indication and for the reasons which we have given we must assume that the points were put to Dr Smith in cross-examination. In the extended reasons there is no mention of the exploration of any of these topics.  Mr Brennan did not suggest that they had not been covered.  If we had been permitted or encouraged by Mr Brennan to look at the Chairman’s notes and of any other contemporaneous records, it may be that our concerns would have evaporated.  It may be that Ms Owens did not make or conceded a number of points but, in the absence of any findings by the Tribunal and in the absence of those notes or other contemporaneous documents, we must accept for the purposes of this Appeal that she made the points in her skeleton argument both in her cross-examination of Dr Smith and in her final submissions.  Unless they are hopeless points (and we cannot say that), their weight is a matter not for this Tribunal but for the Employment Tribunal. 

42	Before the Tribunal there was a letter dated 18 November 1998 to Dr Smith from the Appellant’s general practitioner, Dr Steven Aarons.  The GP gave a brief history of the Appellant’s condition.  He notes that a definitive diagnosis has never really been reached and in 
the penultimate paragraph wrote:
“As you know, as a result of his health problems he did give up a partnership in an architect practice, but now is wanting to return to work as an architectural assistant.  If he is able to do the job in the prone position with a suitable computer, I think it is possible that he could return to work with a willing employer.”

43	The Tribunal also had letters from Mr Wilson, the Consultant Orthopaedic and Spinal Surgeon.  Mr Wilson also thought that the Appellant did not have any disability.  He wrote that he was quite sure that the Appellant did not want any way of managing his back pain “other than the one which suits him which lying down and taking the occasional DF118”.  In his penultimate paragraph Mr Wilson wrote:

“I agree with all your reservations about the advisability of lying down and in particular for working on a VDU whilst working on his left hand side for prolonged periods.  He tells me he does this as he works using a mouse with his computer and he only needs to use one hand for drawing purposes.”

44	In a later letter, also addressed to Dr Smith, Mr Wilson wrote:

“I cannot but feel that this gentleman’s symptoms do not add up.  Even in 1995 Michael Shipley noted that he was remarkably well muscled considering the prolonged periods he was living lying down (20 hours a day at that stage).  He did at that stage have limited movements in his spine which he doesn’t have now.”

45	Also before the Tribunal was a letter dated 27 January 1999 from the Housing Services Personnel Department of the Respondent in which the author, Erica Young, wrote that both Dr Smith and Mr Wilson “are of the opinion that it will be detrimental to your medium and longer term health to provide you with one (a couch)”.  There was also a letter before the Tribunal written by the Personnel Manager to Mr Morgan dated 3 March 1999 apologising for the delay and then stating:
“We have now received advice from the Council’s Medical Advisor and an independent Orthopaedic Consultant in respect of your requirement to undertake the duties of the above post in a lying down position.  The advice received clearly indicates that this may prove detrimental to your health in both the medium and short term.  In light of this advice and the need to meet our employer obligations under the Health & Safety at Work Act, we are at present unable to proceed with your appointment.”

She offered a meeting to see whether or not there were means “in which you will be able to undertake the duties of the post without seeming to endanger your health further.”.  The reference to short term appears to be a slip in that all the medical reports, we have seen, referred to the medium and longer term.  We shall come back to that when we examine the reasons given by the Tribunal.  

46	The final letter to which we refer was written by Dr Shipley, a Consultant Rheumatologist at the University College London Hospitals.  He wrote:
“I write to confirm that Andrew Morgan is a patient under my care with chronic right sided thoraco-lumbar pain just to the outside of the spine.  This is associated with the radiological and MRI appearance of Scheurman’s disease affecting 5 adjacent discs at the thoraco-lumbar junction.  The pain came on acutely when he was bending and was for a while very severe.  We have been unable to find any other obvious cause for the pain which is clearly causing him considerable distress.  The only way which he has managed thus far to cope with it is to avoid sitting or standing for any length of time - this essentially means that he is lying for up to 23 hours a day.  This is an unusual mode of living undoubtedly and both he and I recognise it but he feels that he is unable to cope with more prolonged periods being vertical because they precipitate much more protracted and severe pain which can take several months to recover.
He wishes to continue to work and I believe that this is appropriate although this is not easy for him or for any employer.  With the use of modern technology it is entirely possible however that he can work lying down and I see this as an important means of him continuing to earn a living and to distract himself from what is otherwise a distressing problem.  He has tried many different means of coping differently and has agreed to enter the chronic pain management programme to see if this will improve matters but at present and in the short run I see little likelihood of this improving.”

47	The evidence of the general practitioner and Dr Shipley received no consideration from the Tribunal in its extended reasons.  Their evidence could, perhaps,  have been “distinguished” from the other medical evidence, as Mr Brennan argued.  That was, however, a matter for the Tribunal.

48	Underlying the comments of Mr Wilson and Dr Smith are some concerns about the credibility of the Appellant.  The finding of no muscular deterioration might be thought to cast doubt on the account which the Appellant was giving.  Nonetheless, in absence of any findings one way or the other, we must assume that the Tribunal concluded that the Appellant’s account of what he had been doing and what he needed to do one that was credible and to be relied on.  Whether that is a correct conclusion, is not a matter for this Tribunal. 

49	Although Mr Brennan sought to uphold the decision notwithstanding its brevity, we are unanimously of the view that it is not possible for us to do so.  This difficult case required detailed consideration of the evidence and the submissions.  Unfortunately the extended reasons do not reveal any such consideration.  It is not possible for this Tribunal to remedy the defects.  The result would not necessarily have been the same had such consideration been given.  The appeal succeeds and the matter will be remitted for further consideration by a differently constituted Tribunal.