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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> J Walter Thompson Group Ltd v. Williams [2003] UKEAT 0299_03_1911 (19 November 2003) URL: https://www.bailii.org/uk/cases/UKEAT/2003/0299_03_1911.html Cite as: [2003] UKEAT 299_3_1911, [2003] UKEAT 0299_03_1911

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APPEARANCES

 

For the Appellant	MR P MEAD (of Counsel) Instructed by: Messrs Hammond Suddards Edge Solicitors 7 Devonshire Square Cutlers Gardens London EC2M 4YH
For the Respondent	MS J SHEPHERD (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors Swinton House 324 Gray's Inn Road London WC1X 8DH


 


HIS HONOUR JUDGE D SEROTA QC

Introduction

1. This is an appeal by the employer J Walter Thompson Group Ltd ("JWT") from the Decision of the Employment Tribunal at London Central (Chairman L Bedeau Esq) entered on the Register on 12 February 2003. The Employment Tribunal determined that the Applicant's claim for disability on the grounds of discrimination was well founded. It found that JWT had failed to make reasonable adjustments within the meaning of section 6 of the Disability Discrimination Act ("the Act") and that the Applicant was constructively and unfairly dismissed.
2. The Applicant cross-appealed because the Employment Tribunal dismissed her claim that she had suffered unlawful discrimination within the meaning of section 4(2) of the Act by virtue of her constructive dismissal.

Factual background

3. The Applicant is aged 28 and blind. There is no dispute that she is disabled within the meaning of the Act. She has a BSc Business Information Systems from the University of Central Lancashire and a Postgraduate Diploma in Computer Science from Cambridge. JWT is a well-known and long established advertising agency which at the time of the Applicant's employment employed approximately 275 people. It is part of the WPP Group whose Chief Executive is Sir Martin Sorrell. WPP employs some 65,000 people worldwide.
4. Having completed her postgraduate diploma, the Applicant contacted Sir Martin Sorrell through the University's Industrial Supporters Club. He arranged for her interview by JWT and doubtless encouraged JWT to offer her employment.
5. She was interviewed in June 1999 and it was envisaged that she should do development work with Lotus Notes software. It is perhaps necessary at this point to explain something about the software with which the Applicant was expected to work. Terms do not seem to have been used consistently in the Decision of the Employment Tribunal and we hope that by referring to "Lotus Notes" and "Domino" we will achieve a level of consistency. Lotus Notes Client is a software application produced now by IBM and rebranded as part of the Domino range. It is a software application which runs on a personal computer but relies on a server to perform some of its functions. It is used by all JWT's employees. We shall refer to this software as "Lotus Notes". The server used by JWT was a Domino server.
6. Domino Designer ("Domino") is specialist client software that enables a programmer to write applications for the building and maintenance of databases which can then be uploaded to the Domino server and used by persons working with Lotus Notes.
7. It was envisaged that the Applicant would work on Lotus Notes and Domino and use Domino to prepare applications that were to be used by JWT employees working with their Lotus Notes.
8. Both Lotus Notes and Domino are programs that are visual and driven by a mouse. Not only did the Applicant need to learn how to use these programs but she needed appropriate software that would in effect translate the screen based programs for a blind person, whether by means of a voice synthesiser, a Braille writer or other means.
9. The Applicant was issued with a contract of employment dated 7 July 1999 which was varied by a letter of 13 July 1999.
10. It was obvious that the Applicant needed a package of hardware and software to enable her to carry out any work and she had contacted Access to Work, a Government Agency. It was agreed that she would need to have a screen reader, a Braille display and a speech synthesiser. She would also need assistance with the expenses of travelling to work. These were to be provided through Access to Work (no doubt by agreement with JWT). The Applicant was due to start work at JWT's office on 1 September 1999. When she came to the office she found that Access to Work had not carried out the assessment it should have carried out to determine what software and equipment she would require. She agreed with JWT that representatives of JWT would attend her home and install Lotus Notes on her computer. This was accomplished in September and October; she was also connected with the office network and e-mail. The Applicant was told she was not required to attend the office until her equipment had been installed. The Employment Tribunal found that the Applicant had made numerous telephone calls between July 1999 and January 2000 to Access to Work enquiring about her equipment. She also asked JWT to chase them. Access to Work's supplier appeared to have mislaid the order but the equipment that was necessary arrived at the end of January 2000. The Applicant had asked JWT to purchase the equipment and software directly and seek reimbursement from Access to Work as she believed that would achieve earlier delivery. JWT was unwilling (perhaps unsurprisingly) to do this and have the difficulties of extracting monies from Access to Work.
11. Access to Work instructed Cratgside Consultants to determine the software and hardware the Applicant would require and on 22 September 1999 Mr Jarvis of Cratgside Consultants met the Applicant and Messrs Kerr & Windwood of JWT. It was decided that the Applicant would need, inter alia, a Braille display and screen synthesiser. It was recommended that the best screen reader would be a system known as JAWS. As we understand it JAWS is a system designed to enable blind people to work with or access screen based and visually directed software. At that point in time Lotus Notes 4:6 had been installed on the Applicant's computer. It was recommended that she should work with Lotus Notes 5 which was said to work better with JAWS. This was then installed on her home computer.
12. The equipment arrived towards the end of January. There were repeated crashes. The Applicant attended JWT's office on 17 February 2000 (some five and a half months after she was to have started work). She attended JWT's offices two to three days per week for the next three months, but in May this was reduced to one day. She was given no work to do up until July, despite repeated requests. She also asked for training to be provided. The Employment Tribunal described her as being "totally bored frustrated and fed up". In July she was instructed to carry out work on JWT's holiday database.
13. The Applicant had made numerous enquiries about training on Lotus Notes. In August 2000 a quote was obtained from JWT's external training company. The proposed course consisted of two modules at a cost of some £4,500 each, together with an additional £300 for conversion of course material into Braille. Access to Work was prepared to make £3,500 from the Applicant's travelling expenses available for training. This did not, of course, cover the total costs. JWT's Director of Information Technology, Mr Hudson, was not prepared to approve the cost. The Applicant made enquiries as to an alternative trainer and provided details of a consultancy known as T & T Consultancy which specialised in software and equipment for people suffering from disabilities. Their charges were significantly less than those of JWT's usual supplier. Further Mr Terry Clasper of T & T Consultancy was himself blind.
14. JWT contacted Mr Clasper who reported to JWT on 12 October 2000. Mr Clasper explained that:

"JAWS obtained its behavioural intelligence from scripts, which are either pre-written with popular applications or can be designed if the application is unknown to JAWS. He further stated that in situations where scripts do not exist, JAWS' ability to accurately report and represent screen activity was sincerely impeded. He stated that the Applicant was working with a basic database, redesigning it within Lotus Notes 5. The design element of the Notes client did not have any JAWS scripts pre-written."

Mr Clasper made clear that:

" the Applicant was working very hard to attempt to access the software, however, she was severely restricted in that task as many functions and controls within the product were purely mouse-driven with no keyboard alternatives."

He also reported that:

" JAWS was somewhat erratic in its reporting of screen activity, especially in its speech output."

Mr Clasper also reported that there were no scripts available for what we have referred to as "Domino".

15. Mr Clasper accordingly proposed three options. Firstly that a JAWS scripting consultant be commissioned to produce the necessary scripts. He considered this option to be risky, expensive and time consuming. The risks lay in the fact that even after this work the scripts might not be sufficiently detailed to provide the Applicant with a sufficient level of access to Domino so that she could work effectively. Mr Clasper's second option was that a JAWS scripting consultant, an expert in Lotus Notes and the Applicant spend a controlled amount of time together working to achieve a set of specified goals addressing access difficulties as and when they occurred. The third option was that the Applicant should follow a completely different career path. Mr Clasper's preferred option was the second. He considered this required a three day time plan with two consecutive days followed by a single day approximately one week later. Mr Clasper regarded the Applicant as highly skilled and undoubtedly ready to rise to the challenge of working in an area not ideal for visually impaired people. The issue as he saw it was whether a sufficient level of access to the environment could be obtained to enable her to carry out her work to an effective and personally satisfying level. He believed that the second option would help ascertain some of the answers to those questions and provide both the Applicant and JWT with the necessary information to make an informed decision about the future career path of this "highly and talented and able individual".
16. It is also pertinent to note that the computer continued to crash and Mr Hudson wished to know why. Mr Clasper's view was that the JAWS scripting language was causing the crashing.
17. The Applicant took some leave in October and experienced difficulty in returning to work because of train problems. However on 10 November 2000 Mr Hudson e-mailed Mr Clasper and informed him that JWT wished to pursue option 2 and asked Mr Clasper to arrange for himself or another JAWS scripting consultant to attend at JWT's premises for the three day recommended period. Mr Clasper was extremely busy so he recommended that the training should be carried out by Blazie Engineering. Blazie Engineering arranged for scripting work to be carried out over three days in January by Ms Rebecca Ballard. Mr Hudson made the appropriate arrangements and on 11 January Ms Ballard attended together with a Lotus Notes developer, Mr Paul Martin who was an employee of JWT. Ms Ballard spent the first two days working on the holiday database on which the Applicant was working. It was also intended that the database and JAWS scripts would be assessed to determine whether it was worthwhile for the Applicant continuing to move on to more complicated databases. On the third day, Ms Ballard turned her attention to issues relating to the original scripts rather than spending time creating new ones. Mr Martin demonstrated to her what was involved in Domino and the kind of applications the Applicant would eventually be working on. (ET refer to this application in this part of their Decision as "Developer Client").

"(xxxxi) Ms Ballard had been relatively successful in creating scripts that enabled the Applicant to access the simple holiday database that she was working on. However, the scope of the developer client and the complexity of the databases which were being created by the Respondent, made her realise the enormity of the problem in writing scripts for the whole environment. It became apparent to her that the Developer Client was a huge application and that creating scripts for each element in it would be an enormous undertaking. It would require either someone familiar with Lotus Notes, such as a Lotus Notes trainer, to work with her and the Applicant to explain what the features were and how they worked, or Ms Ballard herself would have to obtain Lotus Notes qualification. There was the possibility that further work would have uncovered complete incompatibility between JAWS and parts of Lotus Notes and Designer Client which could not be rectified at all. Ms Ballard's further concern was that they were creating scripts which would work with Lotus Notes version 5 and that they may not work with subsequent versions or even with subsequent "debugging" releases of the software……

(xxxxii)Towards the end of the third day, the Applicant's PC crashed with the effect that all of the applications had to be reinstalled."

18. On 25 January 2001 Ms Ballard reported to JWT. She discussed her report in draft form with the Applicant. I think it is important to set out what she reported.

"I looked at JAWS getting access to a fairly simple form and the screens to modify it. Whilst the script side and the info-list are accessible some elements of the form are not yet accessible in a helpful way. I believe it may be possible to make them accessible but I anticipate this being quite a long drawn out process. Paul showed me the 'shell' database. Because this was on his laptop I was not able to check out [sic] JAWS would actually behave. However, I think there are certain assumptions I can make. On the positive side, I believe that JAWS would be able to read/speak the script elements without too much difficulty . Because the screens being designed are web pages the issue of the graphical form elements is not quite so important. JAWS is able to read standard web pages adequately although because there are many JAVA script elements I cannot be sure how well the shell pages would read. Importantly when reading web pages, JAWS reads the underlying HMTL. This means that work would be needed to give Sue feedback on the screen layout. Additionally, from what I have seen there are a number of complicated sub-systems. Subsequent training for Sue would be needed on the structure for these. In all, if Sue is to continue to use Notes Design Client, a considerable amount of work would be required to make all the systems accessible and time would be needed from someone knowledgeable in the Design Client to train Sue. Please contact myself or Tony Bergin if you need clarification."

19. Ms Ballard did not herself have a detailed knowledge of Lotus Notes. Her plan envisaged that she would:

"1 Get to learn Lotus Notes herself;

2. write scripts for JAWS access to Lotus Notes;

3. use the scripts in a live situation; and

4. for her to return to sort out any developmental problem issues."

When she gave evidence to the Employment Tribunal she stated she did not know how long it would have taken her to get to learn Lotus Notes. It would take approximately double the time taken by a sighted person for a visually impaired person to get to grips with using the scripts in a live situation..

"In her view it would have taken about 18 months to get through stages 1 to 4 above. Between 12 - 18 months did not require her being in attendance every day. She could not recall mentioning to anyone figures of £100, 000 or £180,000 being the estimated cost of training and what was required in relation to stages 1 to 4. In cross-examination she stated that would be difficult for anyone to assess costs and timeframe of the work involved without input from herself."

Mr Hudson's recollection was that Ms Ballard had told him that the cost would be something like £100,000 and that the timeframe would be some eighteen months.

20. The Applicant was to have received training on Lotus Notes for one day on 12 April 2001 but because of problems with JAWS scripts, the training day had to be rescheduled. Ms Ballard attended on 19 April 2001 to sort out the problem and the Applicant received her training on 8 May. A proportion of the costs came from the Access to Work travel budget.
21. The Employment Tribunal found that by the end of January or early February Mr Hudson considered, following from Ms Ballard's report, that the Respondent could not afford the costs having regard to the period of time involved in training the Applicant and that if there were no other openings for her, her employment would have to be terminated. In an e-mail he sent to JWT's office in New York he stated, having reviewed his position as he saw it:

"After the investment of time and money, there are no guarantees that the money will work for Sue, as it is unproven. …."

It is to be noted that when the Applicant had her training on 8 May on Lotus Notes, the training was unsuccessful. The trainer, Mr Mark Fitzgerald from ICT, identified problems using JAWS. These difficulties are set out in paragraph 8(l) of the Decision. Mr Hudson came to the conclusion that little else could be done for the Applicant, having regard to the cost and time of providing her with appropriate training and software, though he made enquiries as to whether there were any other vacancies in JWT or WPP. Nothing came of these enquiries. On 2 October 2001 he met with the Applicant and Mr Kilborn who was to succeed him. The Applicant was required to attend at JWT's office on a full time basis five days a week, but there would be no external training. She was given video conferencing work to do. The Applicant was obviously unhappy and wrote on 8 October 2001 to tender her resignation. She had now been employed for two years, had received one day's training, and very little work; there was no immediate prospect of her being able to do the work she had been employed to do, namely using Domino to write software for Lotus Notes. She resigned and in these proceedings maintained she had been constructively dismissed.

The Decision of the Employment Tribunal

22. The Employment Tribunal was satisfied as to the Applicant's credibility and considered her account truthful. The Employment Tribunal also considered JWT's witnesses to have been truthful.
23. The Employment Tribunal considered that the Respondent was ill prepared for the Applicant and were faced with the decision made by the Chief Executive of WPP, Sir Martin Sorrell. Management had not been trained in disability discrimination and had not embarked on a plan of action in preparation for the Applicant's employment. The Employment Tribunal drew attention to paragraph 3.4 on the Code of Practice for the elimination of discrimination in employment against disabled persons and to the fact that there had been no planning ahead.
24. The Employment Tribunal directed itself by reference to sections 4 and 5 of the Act and cited passages from the decision in Jones -v The Post Office [2001] IRLR 384 which we shall consider later. It also directed itself by reference to the decision in Morse -v- Wiltshire County Council [1998] IRLR 352 as to the sequential steps that an Employment Tribunal should take when considering allegations of discrimination under section 5(2). It also directed itself by reference to Callagan -v- Glasgow City Council [2001] IRLR 724. Lord Johnston had said that the test for justification in relation to both direct discrimination and failure to make reasonable adjustments was the same:

"There requires, obviously, to be a causal connection between the discriminatory act and the justifying circumstances which must be material, in the sense of relevant, while substantial means simply more than de minimis"

25. The Tribunal then considered the case of Commissioner of the Police for the Metropolis -v- Harley in which the EAT had held that the phrase "by dismissing" in section 4(2)(d) of the Act did not include a constructive dismissal. It noted that this area of law was by no means settled. The Employment Tribunal then went on to make the following findings, some of which we will consider in more detail later in this Decision. In relation to direct discrimination, the Employment Tribunal found the following to have been proved:

(a) JWT had failed to provide suitable work for the Applicant;

(b) JWT had failed to undertake sufficient appraisals of the Applicant;

(c) JWT failed to provide adequate training;

(d) The Applicant had been excluded from team building exercises (this allegation was found to be proved in part);

(e) exclusion of the Applicant from JWT's private health care cover was not discriminatory;

(f) the moving of the Applicant's desk in May 2001 was discriminatory;

(g) the requirement that the Applicant work full time in the office imposed upon her in October 2001 was discriminatory.

26. In relation to the duty to make an adjustment the Tribunal were satisfied that the Applicant made out her case in relation to the following:

(a) failure to provide training;

(b) failure to adapt software to her needs;

(c) failure to allow her to work from home in October 2001.

27. The Employment Tribunal considered that she had been constructively dismissed on the basis that the matters complained of were breaches of the fundamental term of trust and confidence such as to amount to a repudiatory breach of contract on the part of JWT. The Employment Tribunal, however, following Commissioner of the Police for the Metropolis -v- Harley concluded that the constructive dismissal was not a discriminatory dismissal within the meaning of section 4(2)(d) of the Act.
28. JWT in its appeal has concentrated on three of the findings of discrimination made by the Employment Tribunal:

(a) failure to provide suitable work;

(b) failure to provide adequate training;

(c) failure to acquire or adapt appropriate software.

We shall return to these submissions shortly but we would firstly set out the appropriate statutory provisions and the relevant authorities. JWT's submission was that if it succeeded on these issues then the appeal as a whole should succeed because these were the fundamental points of the decision. Ms Shepherd did not disagree. We accordingly did not hear submissions in relation to the other aspects of discriminatory conduct found by the Employment Tribunal

Relevant law on disability

29. Section 4(2) of the Act provides:

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

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

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

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

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

Section 5 of the Act defines discrimination:

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

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

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

(2) For the purposes of this Part, an employer also discriminates against 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."

Section 6 describes the duty of the employer to make adjustments:


"6. - (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."


30. The principal issue with which the Employment Tribunal had to concern itself in this case was the issue of justification. The Employment Tribunal directed itself by reference to Jones -v- The Post Office [2001] IRLR 384. the Court of Appeal, in this decision gives guidance as to the meaning of the phrase "material to the circumstances of the particular case and substantial". An employer can only justify less favourable treatment under section 5 or failure to comply with a section 6 duty by showing the reasons are both material to the circumstances of the case and substantial. The Court of Appeal also held that when an Employment Tribunal came to consider if an employer's reasons were material and substantial it should not apply its own appraisal but was to apply a similar test to that of the band of reasonable responses test in unfair dismissal. Pill LJ had this to say:

"25 …….In order to rely on section 5(3) it is not enough for the employer to assert that his conduct was reasonable in a general way; he has to establish that the reason given satisfies the statutory criteria. The respondent asserts in this case that the risk arising from the presence of diabetes is material to the circumstances of the particular case and is substantial. Where a properly conducted risk assessment provides a reason which is on its face both material and substantial, and is not irrational, the tribunal cannot substitute its own appraisal. The employment tribunal must consider whether the reason meets the statutory criteria; it does not have the more general power to make its own appraisal of the medical evidence and conclude that the evidence from admittedly competent medical witnesses was incorrect or make its own risk assessment.

26 The present problem will typically arise when a risk assessment is involved. I am not doubting that the employment tribunal is permitted to investigate facts, for example as to the time-keeping record of the disabled person or as to his rate of productivity, matters which would arise upon some of the illustrations given in the Code of Practice. Consideration of the statutory criteria may also involve an assessment of the employer's decision to the extent of considering whether there was evidence on the basis of which a decision could properly be taken. Thus if no risk assessment was made or a decision was taken otherwise than on the basis of appropriate medical evidence, or was an irrational decision as being beyond the range of responses open to a reasonable decision-maker (a test approved by Sir Thomas Bingham MR in a different context in R v Ministry of Defence ex parte Smith [1996] IRLR 100 at 102), the employment tribunal could hold the reason insufficient and the treatment unjustified.

27 The Tribunal cannot, however, in my judgment, conclude that the reason is not material or substantial because the suitably qualified and competently expressed medical opinion, on the basis of which the employer's decision was made, was thought by them to be inferior to a different medical opinion expressed to them. Moreover, a reason may be material and substantial within the meaning of the section even if the employment tribunal would have come to a different decision as to the extent of the risk. An investigation of the facts by the tribunal will often be required, but it cannot go to the extent of disagreeing with a risk assessment which is properly conducted, based on the properly formed opinion of suitably qualified doctors and produces an answer which is not irrational. This constraint limits the power of tribunals to provide relief to disabled employees, but in my view it follows from the wording of this section, which requires consideration of the reason given by the employer, and recognises the importance of the employer's responsibility for working practices.

28 The limited function of the employment tribunal may in some circumstances place them in a situation which is less than straightforward procedurally. However, it is not one with which they are unfamiliar. It is different but not very different from the task employment tribunals have to perform in cases of unfair dismissal. In Post Office v Foley [2000] IRLR 827, it was held in this court that, in applying the law of unfair dismissal in section 987 of the Employment Rights Act 1996, tribunals should continue to adopt the 'band or range of reasonable responses' approach to the issue of the reasonableness or unreasonableness of a dismissal as expounded in Iceland Frozen Food Ltd v Jones [1982] IRLR 439. Under that section, the tribunal's task is to consider the reasonableness of the employer's response and under the present section, it is to consider the materiality and substantiality of his reason. In both cases, the members of the tribunal might themselves have come to a different conclusion on the evidence, but they must respect the opinion of the employer, in the one case if it is within the range of reasonable responses and in the other if the reason given is material and substantial."

Lord Justice Kay stated at paragraph 32:

"In a case such as the present one where (medical or otherwise) which was not available to the employer is put before the tribunal, provided the employer has taken into account all the evidence reasonably available to it, including, if medical issues are raised, sufficiently well-qualified expert medical evidence, then the fact that other evidence is available by the time of the hearing cannot render the treatment unjustified."

31. We also draw attention to the judgment of Lady Justice Arden:

"36 Section 5(3) uses the words 'material' and 'substantial'. In my judgment, those words cover different subject matter. 'Material' denotes the quality of the connection which must exist between, on the one hand, the employer's reason for discriminating against the employee and, on the other hand, the circumstances of the particular case. The circumstances of the particular case may include those of both the employer and employee (Baynton v Saurus Ltd[1999] IRLR 604. Under section 5(3), this connection must be 'material'.

37 Mr Griffith-Jones submits that 'material' means 'relevant'. As to this, it is often said that there are degrees of relevance. In this context, I would add to Mr Griffith-Jones's submission the rider that it is not sufficient that the connection is an extenuated one. The use of the word 'material' rather than 'relevant' or 'applicable' indicates to me that there must be a reasonably strong connection between the employer's reason and the circumstances of the individual case. The strength of this connection involves largely a factual enquiry. It ought not to involve an enquiry into medical evidence since such an enquiry is relevant, if at all, only to the second limb of section 5(3). …

39 The second requirement in section 5(3) is that the reason should be 'substantial'. This means, in my judgment, that the reason which the employer adopted as his ground for discrimination must carry real weight and thus be of substance. However, the word 'substantial' does not mean that the employer must necessarily have reached the best conclusion that could be reached in the light of all known medical science. Employers are not obliged to search for the Holy Grail. It is sufficient if their conclusion is one which on a critical examination is found to have substance. Thus a reason which on analysis is meretricious would not be a 'substantial' reason. It would fail to meet the test in section 5(3).

….

41 The first three of those questions involve pure questions of fact. The fourth and fifth questions, however, involve questions of judgment. The latter questions may involve hearing expert evidence, but the employment tribunal should not conduct an enquiry into what is the best course of action to take in all the circumstances of the case. Nor are the tribunal required to be persuaded themselves. They are not entitled to find that the employer's reasons for the discrimination are not justified simply because they take the view that some conclusion, other than that to which the employer came, would have been preferable. Nor can they conclude that justification has not been shown simply because they entertain doubts as to the correctness of the employer's conclusion. If credible arguments exist to support the employer's decision, the employment tribunal may not hold that the reason for the discrimination is not 'substantial'. If, however, the employer's reason is outside the band of responses which a reasonable employer might have adopted, the reason would not be substantial. (This test was applied by the Court of Appeal in the different context of unfair dismissal in Post Office v Foley [2000] IRLR 827). In short, so far as the second limb of section 5(3) of the 1995 Act is concerned, justification is shown provided that the employer's reason is supportable.

43 The fact that the true construction of a particular statutory provision indicates that the protection given to an employee in one respect is not the maximum protection that could have been conferred or as great as the protection conferred in other areas of statute law is not of itself a reason for rejecting that construction. The right level is a matter for Parliament. It may be that in the case of disability discrimination Parliament had in mind that an employer has to balance the interests of the employee with a disability with those of fellow employees and indeed also of members of the public. Accordingly, I reject Miss Tether's submission that it would be surprising if the criteria for review under section 5(3) of the Disability Discrimination Act 1995 were less rigorous than, for instance, under the Race Relations Act 1976 or the Sex Discrimination Act 1975."

32. We have already referred to the relevant passage in Callagan -v- Glasgow City Council. Mr Mead (who appeared for JWT) drew our attention to the decision of the EAT in Surrey Police -v- Marshall [2002] IRLR 843 in which Lindsay J observed at paragraph 37:

"One does not prove that a reason for a person's treatment is not 'material to the circumstances of the particular case and substantial' merely by showing that it was not as material or as substantial as it could possibly have been."

We also note the observation of Lindsay J in H J Heinz Co Ltd -v- Kenrick [2000] ICR 491 to the effect that the threshold justification in section 5(3) is a "very low threshold".

33. Mr Mead also drew our attention to the judgment of Peter Gibson LJ in Beart -v- H M Prison Service [2003] IRLR 238 at paragraph 48:

"I am inclined to accept Mr Underwood's submission that, given that the justification must be viewed objectively by the tribunal, it is open to the tribunal to find justification, even if the employer has not given direct evidence on the reason for the failure to comply with the duty under section 6. True it is, as Mr Laddie had pointed out, that the court must find the reason to be material and substantial if it is to consider that the failure is justified; but that does not preclude the possibility that the tribunal might see in all the circumstances that objectively such justification can be found. As was pointed out by Keene J giving the judgment of the EAT in British Gas Services Ltd v McCaull [2001] IRLR 60 at paragraph 45, it will be very difficult for the employer to justify the failure to take reasonable steps if he has not considered what steps should be taken. However I would not rule out the possibility that in what would no doubt be an exceptional case that justification might be established; but the fact that the employer has not provided evidence of a reason justifying its failure to comply with a section 6 duty is likely to be highly significant. That is the more so in a case such as the present where the employer was twice asked at the time, but refused to answer, why the medical report was not implemented and led no evidence on it at the hearing."

Mr Mead relied upon this passage as showing that the test for justification was objective and because an employer might be able to justify its actions even if it provided no evidence of a reason justifying its failure to comply with the section 6 duty.

Specific findings of the Employment Tribunal

34. (a) Technical difficulties

We now set out certain specific findings of the Employment Tribunal which are highly material to the parties' submissions.

(i) The Applicant was employed to use Lotus Notes and Domino and needed special equipment and software including in particular JAWS; see Extended Reasons (8 (lxxix) - (lxxx) ).

(ii) The Applicant had a voice synthesiser and also a Braille display.

(iii) The Applicant worked on Lotus Notes which did work to some extent with JAWS.

(iv) The Applicant had no knowledge of Lotus Notes but was willing to give it a try. (8 (iv) )

(v) It was agreed that the Applicant should work with Lotus 5 as this worked best with JAWS (8 (xi)

(vi) When JAWS software was installed the Respondents had problems and had to call in an outside company, Sight and Sound, to assist (8(xvi).

(vii) Mr Clasper reported on the deficiencies in JAWS (8(xxxi) - (xxxii) ). Lotus Notes and Domino were applications that were mainly mouse driven and there were no keyboard alternatives and no scripts for Domino. Mr Clasper considered that JAWS was not compatible with Domino. We have referred earlier in this Decision to Mr Clasper's advice.

(viii) The problems with JAWS were not raised until Mr Clasper visited JWT at the instigation of the Applicant in early October 2000 (61(x)(b) ). Mr Clasper's recommendations referred to at 8(xxxi) did not recommend the hiring of a JAWS consultant but did recommend, by his option 2, working with a JAWS scripting consultant, a Lotus Notes expert and the Applicant.

(x) Domino was "highly visual and less friendly to the blind" (8(xxxi) - (xxxii) ). Mr Clasper's option 2 was intended to provide the Applicant and JWT with information to enable them to make an informed decision as to her future.

(xi) The crashes were caused by JAWS scripting language (8 (xxxiii).

(xii) There was delay while a JAWS consultant was found.

(xiii) It soon became apparent that creating scripts for Domino would be an enormous undertaking as it was an enormous application. There were two major risks:

(a) that the more one got into the system the more one was likely to find an incompatibility between JAWS and parts of both Lotus and Domino that could not be rectified;

(b) creating scripts that worked with Lotus Notes' current version 5 might not work with an upgraded version or a debugging release (see 8(xxxxi).

(xiv) Ms Ballard's e-mail of 21 January 2001 recognised that a considerable time would be needed to train the Applicant and make all systems accessible   8 (xxxxiii)).

(xv) Ms Ballard proposed a plan which entailed her learning Lotus Notes, writing scripts for JAWS, using them in a live situation and sorting out developmental or problem issues (8(xxxxiv) ). Ms Ballard confirmed that it would be eighteen months (albeit without a need for her attendance every day) (8 (xxxxv) ). The project would last for some eighteen months and she would need to be on hand.

(xvi) Training was postponed because of the JAWS scripts. When Mr Fitzgerald attended, there were substantial deficiencies noted with JAWS and Domino, causing Mr Hudson to express concern as to whether programming changes would work with Domino (8 (xxxxv) (xxxxvi) (xxxxviii) and (l).

(b) Cost

Questions as to cost are very much linked to the technical difficulties. The initial cost of training was estimated to be some £10,000, albeit Access to Work might offer part of the costs, see 8(xxiv) - (xxv). Mr Hudson having considered Ms Ballard's report concluded that JWT could not afford the cost, having regard to the period of time involved; see 8(xxxxvii). (It is to be noted that Mr Hudson reported in his e-mail that Ms Ballard and he both felt it would take over two years for the Applicant to become productive within JWT and that there were no guarantees of her effectiveness as newer versions of software became available). Mr Hudson informed the Applicant that Ms Ballard had said it would take eighteen months to get JAWS, Lotus and Domino, up and running (see 8(li). In her resignation e-mail the Applicant refers to having been told of the eighteen month period before becoming fully productive, see 8(lvii). The Applicant, however, could not say definitely that development was not possible.

The Employment Tribunal found (61(xi)(b)) that Mr Hudson and the Respondent relied upon an alleged statement of Ms Ballard that it would cost £100, 000 for the appropriate training and development of scripts, and take some eighteen months to carry out the work on the JAWS scripts, although Ms Ballard did not recall mentioning the figure of £100,000. At paragraph 61(xi)(c) the Employment Tribunal found that the cost would not have been in the region of £100,000.

(c) The failure to acquire and adapt software (61(xi) )

The material findings of the Tribunal are as follows:

(i) JWT acknowledged its obligation to provide suitable software as far as it was able.

(ii) JWT's case was that it had taken all steps that were reasonable in the circumstances to prevent substantial disadvantage to the Applicant in that it had procured training and expert advice as to what to do, but the results were disappointing and there was no realistic likelihood of short or medium term improvement and no guaranteed outcome in the long term future. There was also the prospect of having to spend significant sums of money.

(iii)

"We have concluded that the Respondent had relied upon the alleged statement made by Ms Ballard that it would have taken at the most 18 months and cost £100,000 to carry out the work on JAWS scripts." Ms Ballard did not agree with that statement. Acknowledging that she was one of the few experts nationally in the field, she could not recall telling Mr Hudson how long it would take before the Applicant became productive in the workplace. She did not recall mentioning the figure of £100,000".

(iv) JWT was aware that further investigations were needed but never sought further assistance from Ms Ballard.

(v) Ms Ballard's view that it might take between twelve to eighteen months to carry out all the work required on JAWS scripts and Lotus Notes, and that the Applicant would be using the system before the end of that period, including an extended time when Ms Ballard would not be present.

(vi) Mr Hudson made assumptions about costings without reference to Ms Ballard and did not ask her to investigate further.

(vii) JWT had not taken "all steps as were reasonable" in all the circumstances to prevent the arrangements in relation to the provision of software having a substantial disadvantage on the Applicant compared with her work colleagues, having regard to section 6(3) and 6(4).

(viii)

"The reasons for not continuing with the investment in software were not justified as they were neither material nor substantial. Until the Respondent had exhausted enquires into the possibilities of what was involved in carrying out the further work in relation to JAWS scripts and Lotus Notes from Ms Ballard, it was difficult to justify their decision on the basis of time and costs. Had they done that the position would have been much clearer ……"

35. (d) Failure to provide adequate training and failure to make adjustments

These matters are closely linked and are set out in the decision of the Employment Tribunal at paragraph 61(iii) in relation to direct discrimination and 61(x) in relation to the failure to make adjustments.

(i) Although the Applicant wanted and needed training in Lotus Notes (and we would add in Domino also) she only received one day's training. JWT was unwilling to invest money in training and was concerned about difficulties relating to JAWS.

(ii) The decision of JWT related to the Applicant's disability and she received less favourable treatment than sighted employees.

(iii) JWT's case was that there were difficulties with software and with the equipment, following advice given and the limited training budget.

(iv) The Tribunal accepted Ms Ballard's evidence that JAWS scripting and training went hand in hand.

(v) There was a budget of £3,500 from Access to Work to be spent on further training.

(vi) Ms Ballard did not give a figure to JWT on the probable cost of getting JAWS scripts up and running. However, because £3,500 was available and Ms Ballard considered it was possible to work with JAWS as the software was being developed., the decision to give her no further training was "irrational" as the contribution towards the cost of training was available.

"There was no proper assessment by Mr Hudson of the cost to the Respondent. He had not spoken to and obtained a report on costings from Ms Ballard. Further, a proper assessment of the Applicant's training needs and potential cost at the outset ought to have been carried out…….."

(vii) The Employment Tribunal rejected JWT's submission that it had taken advice, recruited an expert with specific knowledge of scripting for blind people and provided training in accordance with that advice, and that accordingly they had taken all steps that were reasonable in the circumstances to prevent the arrangements having a substantial disadvantage on the Applicant compared with other work colleagues. The Employment Tribunal considered that access problems regarding JAWS were never raised until Mr Clasper visited and Mr Clasper never asserted that training would be futile until access problems were sorted out.

"Access and training were integral. Ms Ballard stated that training could be of assistance even before the scripting issues were sorted out. "

The Tribunal accordingly concluded the Respondent did not take such steps as were reasonable to secure necessary training.

"They could reasonably have done so by providing ongoing training. They are part of a large concern and were only committed to providing 50% towards the Applicant's post; WPP contributed a further 50%."

The Employment Tribunal also refers to the funds (£3,500) available from Access to Work.

(viii) The Employment Tribunal rejected a submission by JWT that it did not provide more training because it was expensive with no immediate likelihood of achieving short or medium term capability on the part of the Applicant to use Lotus Notes in accordance with estimates provided by experts. The Employment Tribunal concluded that:

"the cost of further work on JAWS script was based on Mr Hudson's assessment without reference to Ms Ballard's expert opinion. Ms Ballard stated that training would have been of assistance even before the scripting issues were sorted out. The Respondent's actions, therefore, could not be justified."

36. (e) Failure to provide the Applicant with suitable work

This matter is dealt with by the Employment Tribunal at paragraph 61(i)(a). The Employment Tribunal found that the Applicant had been given two pieces of work only, the holiday database and video conferencing. The Employment Tribunal came to the conclusion that the technological difficulty was not a bar to her engaging in other work. The reason was material but not substantial because the problems could have been addressed by further training and work on JAWS. We would note that the members of this Tribunal individually, when they read this paragraph had asked themselves "what work?".

JWT's submissions

Mr Mead's overarching submission was that on each occasion when the Employment Tribunal had to consider the statutory test of justification, it substituted its own appraisal of facts and came to its own opinion of the reasonableness of JWT's conduct but failed to consider properly whether its reasons were substantial or material and failed to adjudicate upon JWT's reasons.

37. (a) General submissions relating to technology

Mr Crosby asked Mr Mead, whether when the Applicant was taken on JWT believed there was a job she could do and whether any problems caused by her lack of sight could be overcome. Mr Mead accepted that JWT could be criticised for not doing more before Ms Williams joined. There was a job to be done but it could not be done because of lack of access to the relevant programmes. JWT did not appreciate the problems. He pointed out the findings by the Employment Tribunal (which we have set out earlier in this Decision) as to the enormous difficulties that had not been anticipated in providing appropriate software and training that would enable the Applicant to work with Lotus Notes and Domino.

38. The thrust of his submissions was that there were real technological problems and that solving these problems so far as the Applicant was concerned was uncertain even though it was likely to cost substantial sums of money and would take a significant period of time.
39. (b) Submissions as to cost

Mr Mead submitted that the Employment Tribunal had accepted that Ms Ballard had indicated it would cost at least £100,000 and take some eighteen months for the necessary script writing and training. He submitted that Mr Hudson's evidence was consistent with contemporaneous documents and that there was a contradiction between what the Employment Tribunal found at paragraph 61 (xi)(b) that JWT:

"had relied upon the alleged statement made by Ms Ballard that it would have taken at the most 18 months and cost £100, 000 to carry out the work on JAWS scripts"

and the finding at paragraph 61(xi)(c) that:

"the costing was not in the region of £100,000"

He pointed out that the Employment Tribunal had found JWT's witnesses to be honest yet the Employment Tribunal gave no indication as to how it was that Mr Hudson and JWT had formed the view that work would have taken eighteen months and cost £100,000 or whether it was reasonable for them to hold that belief. In any event, and we consider this to be fundamental to his submissions, he submitted that Mr Hudson was an experienced businessman and the evidence that he had from Ms Ballard and Mr Clasper was quite clear. The process of writing the necessary scripts and training the Applicant was likely to be lengthy and expensive; there was no guarantee at the end of the day that it would be successful in enabling the Applicant to work with Lotus Notes and Domino.

40. Mr Hudson also knew what training cost and what was in the budget. He knew that the trainers usually employed by JWT charged £1000 a day and that Ms Ballard's costs were in excess of £400 per day. Even though he may have been mistaken as to the figure of £100,000 he was clearly in a position to form a view that the cost was likely to be substantial, having regard to the time that it would take Ms Ballard to familiarise herself with Lotus and Domino, to write the necessary scripts, to teach and supervise the Applicant and to correct any faults that subsequently appeared or developed.

As a further general submission Mr Mead submitted that in every case in which an employer raised a defence of justification, the Employment Tribunal is obliged to set out the employer's reason, and then apply the band of reasonable band of responses test to the questions of materiality and substantiality. The Employment Tribunal can only conclude that the defence is not made out if it is able to demonstrate that the employer's reasoning is irrational, that is to say outwith the range of reasonable responses

41. (c) Submissions on failure to acquire and adapt software

Mr Mead submitted that the Employment Tribunal did not address JWT's case, nor did it apply the "band of reasonable responses" test. He drew attention to the use of the word "all" at paragraph 61(xi)(b) and to the phrase "exhausted" in paragraph 61(xi)(c) as showing that the Employment Tribunal were in fact adopting a "Holy Grail" approach.

42. Mr Mead submitted that the finding by the Tribunal that costing was not a material reason was "miles wide of the mark". The question of cost clearly fell within section 6(4) of the Act. It is impossible to say that questions as to costing were neither material nor substantial.
43. The finding by the Employment Tribunal that the cost of training and adjustments was not £100,000 was an assertion rather than a finding of fact and in conflict with what Mr Mead described as the earlier finding that JWT relied upon "the alleged statement" that the cost would have been £100,000. Mr Singh asked Mr Mead whether the Employment Tribunal was saying that although the cost was substantial, WPP was a large company so it could afford to pay a lot of money. He submitted that it looked as though the Employment Tribunal was expressing its own opinion as to cost and were doing what Lady Justice Arden had said was inappropriate in Jones -v- The Post Office at paragraph 41, in that it was finding that JWT had acted in a way it would not have acted itself., rather than considering whether there were credible arguments to support JWT's decision.
44. Mr Mead submitted that the Decision did not demonstrate that the Employment Tribunal had followed the test set out in Jones -v- The Post Office. Mr Mead went on to submit that section 6 deals with the question of reasonable adjustments. An employer must take steps to ensure that an arrangement or feature does not have the effect of causing substantial disadvantage to a disabled employee. The issue that the Employment Tribunal had to consider was the failure to acquire or adapt software. The Employment Tribunal did not, however, deal with the acquisition or adaptation of software, but criticised the employer for not clarifying the position, in not making further enquiries. The Employment Tribunal went on to find that had further enquires been carried out, the Applicant would have been able to carry out work. That was not the issue required to be considered under section 6.
45. The Employment Tribunal appeared to accept on the one hand that the JWT believed Ms Ballard had advised that the likely cost of acquisition and adaptation of software was £100,000 and that the relevant timescale was eighteen months, then later found that that was not what Ms Ballard had said.
46. (d) Submissions on the failure to provide adequate training (by reference to direct discrimination and failure to make adjustments)

Mr Mead submitted that the Tribunal's reasoning was similar to that in relation to failure to provide software. There was no identification of the materiality test. All the Employment Tribunal said was that the decision by JWT was irrational.

47. Further, the Employment Tribunal approached the question of reasonableness from the viewpoint of the employee; for example it refers to the fact the Applicant "needed training", and that training would have enabled her "to understand what was going on".
48. He drew our attention to the judgment of Sedley LJ in Wilding -v- British Telecommunications PLC [2002] IRLR 524 in which Lord Justice Sedley said, in the context of mitigation of damages, that it was not enough for a wrongdoer:

"… to show that it would have been reasonable to take the steps he has proposed. He must show that it was unreasonable of the innocent party not to take them. This was a real distinction. It reflects the fact that if there is more than one reasonable response open to the wronged party, the wrongdoer has no right to determine his choice. It is only where the wrongdoer can show affirmatively that the other party acted unreasonably in relation to his duty to mitigate that the defence will succeed."

Mr Mead submitted that a similar test applies in consideration of what is reasonable for an employer to do. We are not certain that this is of assistance to us but Mr Mead went on to submit that the appropriate test under the Act is not what is reasonable and appropriate from the point of view of the Applicant and her needs, but whether she was treated in a manner which was justified. The question to be answered was whether JWT had a reason which was material and substantial and within the band of reasonable responses from its standpoint. What was unreasonable from the Applicant's point of view might not be equally unreasonable from JWT's point of view.

49. Training was contingent on the successful operation of the equipment and JAWS script being up and running. The Employment Tribunal had found that training and scripting went hand in hand, however they subsequently detached the issue of scripting and concluded that the Applicant should have received training in any event. As some money was available the Employment Tribunal concluded it was irrational not to spend it. The Employment Tribunal said that training should have been on Lotus Notes. However, if it was not appropriate to spend money on scripting JAWS then by parity of reasoning the same should apply to training. The Employment Tribunal should have addressed the extent to which JWT should have taken a particular step to comply with its obligation under section 6(1) to prevent any arrangements or features placing the Applicant at a substantial disadvantage in comparison with sighted persons. JWT's case was that there was no point in training someone if the training could not be put into effect by reason of technological problems; it would make no difference to her effectiveness. This was an argument not addressed by the Employment Tribunal.
50. Mr Mead submitted that all the Employment Tribunal was saying was that it was "desirable" for the Applicant to be trained but they had no regard to section 6(4) of the Act in determining whether the decision of JWT was reasonable. In particular, it had no regard to cost. Further, there was no finding whether the reasons advanced by JWT were material or substantial.
51. Mr Mead pointed out that training was appropriate on the advice of Mr Clasper. However, when Ms Ballard appeared she, in effect, subverted the question of training because of the serious scripting problems. Further, when Mr Fitzgerald did train the Applicant for a day Mr Fitzgerald drew attention to the serious problem areas in using JAWS with Domino, as set out in paragraph 8(l).
52. The Employment Tribunal criticised JWT for not spending £3,500 (which would have paid for less than one week's training) in circumstances where having had one day's training, JAWS had caused major problems. The Employment Tribunal appeared to find that as the money was available it should have been spent. It ignored the Respondent's submission that there was no point in spending money if it did not bring a material benefit and did not progress the Applicant's ability to work with Lotus Notes and Domino. Difficulties were caused by defects in the technology and £3,500 would have made no difference to this. Accordingly, JWT's reasons were both material and substantial both in relation to the technological difficulties and in relation to the finance. The fact that the Employment Tribunal considered that the money should have been spent contrary to the approach of Lady Justice Arden in Jones -v- Post Office in the passage at paragraph 61we have already quoted.
53. Generally speaking, Mr Mead submitted that the Employment Tribunal had taken a subjective view. It said that the decision of JWT was irrational but not why it was irrational and it had not set out what it considered to be the boundary of reasonableness.
54. He drew attention to the fact that the total training budget for the entire JWT department for the year 2001 was $12,000. He believed that there were some twelve persons in the department, although the Employment Tribunal made no findings in this regard.
55. So far as the Employment Tribunal found that Mr Hudson had made no proper assessment of the cost, he had clearly concluded, and there was material that justified his conclusion, that the cost would be unaffordable in any event. He may not have gone back to Ms Ballard but he had clearly the material set out in her report (set out at 8(xxxxvii).
56. Mr Mead drew attention to the evidence of Mr Kilborn (who replaced Mr Hudson after he went to the USA) to the effect that staff in the department received "on the job" training rather than formal training, so the Applicant was not treated differently to sighted persons. We say in passing that we are not satisfied that Mr Mead is correct in this regard in suggesting that the Applicant did not suffer a detriment.
57. Mr Mead repeated that training would not have solved any problems; the problems with JAWS and access, and with training and scripting were integral, as the Employment Tribunal considered, If the Applicant could not use JAWS there was no point in training her and she could not be trained.
58. The Employment Tribunal was wrong in finding that the Applicant should have received training because it was of assistance to her simply in familiarising herself with Lotus Notes. The Applicant was employed as a programmer to use Domino to enable her to write programmes for Lotus Notes. Mr Mead submitted that the Employment Tribunal should have addressed the extent that training would have overcome the Applicant's ability to work with Domino and should have considered JWT's submission that there was no point in training someone if that training could not be put into effect by reason of the technological problems. It would make no difference to her effectiveness.
59. (e) Submissions on failure to provide suitable work

Mr Mead made the obvious submission that the Employment Tribunal made no findings as to what she could have done. It would appear that no submissions were made or evidence led by the Applicant as to what suitable work she might have been able to do. There was no reasoning to support the Employment Tribunal's Decision that JWT's reasons were material but not substantial.

60. The Applicant was employed as a worldwide IT developer to programme and write software using Domino. It was JWT's case that until she could use Domino in conjunction with Lotus Notes, she could not do the job for which she was employed.
61. The Employment Tribunal's finding that technical difficulties were no bar to her being provided work is contrary to its earlier findings as to the nature and extent of the difficulties with JAWS and the absence of appropriate scripting. The Employment Tribunal, by accepting that some of the problems could be addressed by further training and work on JAWS appeared to accept that some of the problems could not be addressed in that manner.
62. There was no evidence before the Tribunal as to what work she could do nor when. The Employment Tribunal failed to give any reasons as to why JWT's decision lacked substantiality. There was no consideration or explanation as to why it fell outside the band of reasonable responses and Mr Mead submitted that the Employment Tribunal had again substituted its own view as to substantiality for that of JWT, and had relied on a mistaken contention that there was no technological bar in providing suitable work.
63. Finally, Mr Mead submitted that the Employment Tribunal appear to have found that the Applicant was not unable to do any work, and could have been provided with some other form of work that did not entail working with Lotus Notes and Domino. That was not the case that was put, which was that the Applicant had not been provided with suitable work. She did not herself identify any work that she could have done.

The Applicant's submissions

64. (a) Submissions on technical matters, costs and general points

Ms Shepherd pointed out that Ms Ballard's four step plan was not relied upon as such by JWT in its pleaded case but came from her evidence to the Employment Tribunal. JWT's pleaded case was that Mr Hudson believed the relevant timescale was eighteen months to two years, and was not qualified in any way by what Ms Ballard had told him. Ms Shepherd drew attention to the size of WPP which funded part of the Applicant's costs, and the fact that Mr Hudson had considered £4,800 by way of training to be excessive.

65. She submitted that Lord Justice Pill in Jones -v- Post Office at page 25 made clear that an Employment Tribunal could not substitute its views for the employer where there had been a proper risk assessment. The Applicant's case was that there had not been any sufficient risk assessment. The Employment Tribunal did not substitute its views for those of the employer, but accepted the evidence of Ms Ballard and rejected that of Mr Hudson. Ms Ballard did not say what the cost was and denied that the cost was £100,000. Ms Ballard had also said that further investigations needed to be made but that she had never been asked to make them.
66. Ms Shepherd drew our attention to paragraph 26 of Jones -v- Post Office where Lord Justice Pill accepted that an Employment Tribunal was permitted to investigate facts and that consideration of the statutory criteria might involve an assessment of the employer's decision to the extent of considering whether there was evidence on the basis of which a decision could properly be taken. She submitted that the Employment Tribunal was entitled to conclude that there had been no adequate assessment and the Employment Tribunal was entitled to find that the reasons given by way of justification were insufficient.
67. In this regard she also drew our attention to the judgment of Lord Justice Kay at paragraph 32 where he made clear that the employer's justification depended on its having taken into account all the evidence reasonably available to it. She drew our attention to the word "reasonably" and submitted that in the present case the Employment Tribunal was entitled to find that JWT did not have all the evidence reasonably available because it did not ask Ms Ballard for further information and to carry out further investigations.
68. Ms Shepherd went on to refer to the judgment of Lady Justice Arden at paragraphs 36 - 39 and submitted that in the present case the Employment Tribunal had made a factual enquiry and found that JWT had based its decision on a false premise. Accordingly, the reason given by JWT had not been regarded as material but should be regarded as "meretricious".
69. (b) Submissions on findings relevant to the failure to acquire or adapt software

Ms Shepherd accepted that questions of expense and delay or cost and time, and similar considerations were capable of being material; however, the Employment Tribunal on the facts had found the justification put forward in these regards by JWT to be "meretricious". It is not an error of law for the Employment Tribunal to conclude that reasons that are capable of being material are on the facts meretricious.

70. It was put by the EAT to Ms Shepherd that the Employment Tribunal had relied upon the failure to ask Ms Ballard to carry out further investigations as the basis of the finding that JWT had failed to take the necessary investigative steps. Ms Shepherd responded that the Employment Tribunal found that further investigations were required and that JWT needed to have a further investigation by Ms Ballard. It also relied upon inaccurate assumptions on the part of Mr Hudson. In answer to a question from Mr Singh as to why an employer should not make assumptions, Ms Shepherd conceded that there was no reason why an employer could not properly make assumptions, but on the facts of this present case, the Employment Tribunal found that there was a need for further investigation.
71. Ms Shepherd was unable to say what the actual cost of training was because Ms Ballard did not know.
72. (c) Submissions on training

Ms Shepherd pointed out that the Applicant had made repeated requests for work and training. That included training on both Lotus Notes and Domino. Mr Jarvis of Access to Work had confirmed that funds were available from the training budget. Mr Hudson, nevertheless, considered that training was too expensive.

73. She pointed out that it was the Applicant who had come across Mr Clasper and there had been no initiatives from JWT. The Tribunal expressly found at paragraph 58 that JWT had failed to make adequate preparation for the commencement of the Applicant's employment. The Applicant considered that learning Lotus Notes would enable her to work round the problems with JAWS. Ms Ballard's evidence was that training could be of value even before the scripting issues were solved. One day training was partly paid for from outside sources. There was no evidence as to whether WPP would or would not pay for training. The Employment Tribunal, at paragraph 61(iii) set out JWT's case. It gave consideration to the training budget and the needs of the parties and its findings satisfied the test propounded in Jones -v- Post Office. However, training was found to be of benefit; she refers to paragraph 61(x)(b) where the Employment Tribunal conclude that Ms Ballard stated that training "could be of assistance even before the scripting issues were sorted out". This was so, even though scripting and training went together.
74. (d) Failure to find other work

Ms Shepherd submitted that the Applicant's case was that other work was available even though she could not say what. The Applicant was entitled to say "I must be able to do other work, bearing in mind you have given me video conferencing and a holiday database, which I have worked on successfully".

75. She submitted it was not necessary for the Employment Tribunal to be as formulaic as Mr Mead submitted. If all the relevant components were set out in the Decision if there was a proper finding that the justification relied upon by JWT was not substantial.

Conclusions

76. (a) General

In our opinion the Employment Tribunal is not obliged to spell out its examination of questions of materiality and substance in as formulaic way as Mr Mead seemed to suggest. However in this particular case we are satisfied that the Employment Tribunal has not given a satisfactory explanation as to why JWT's justification in the particular cases we have examined is neither material nor substantial as the case may be nor why it is irrational. We were left with the strong feeling that the Employment Tribunal has in effect substituted its views for those of JWT rather than asking itself in each case whether JWT's investigations and its justification for more detrimental treatment, fell within the reasonable band of responses.

77. (b) Technical difficulties

The facts we set out above really speak for themselves. There is no doubt that there were significant unresolved problems with JAWS and that for the Applicant to be able to use Lotus Notes and Domino there was a need for scripts to be written, for her to be trained and for her trainer to learn about the software. In any event it was uncertain whether the difficulties could be overcome.

78. (c) Cost

We are unable to accept that the Employment Tribunal found that Ms Ballard had told Mr Hudson that the cost of the software preparation training would be approximately £100,000. However it did find Mr Hudson to be an honest witness and did find that he relied upon an "alleged" statement from Ms Ballard that the cost was likely to be £100,000 and the exercise would take eighteen months. The Employment Tribunal fails to explain how Mr Hudson came to these conclusions.

79. However three things were absolutely clear to Mr Hudson and to JWT from what Ms Ballard had found (see xxxxi) and from her report of 25 January 2001.

(a) The process was likely to take a considerable time both for the Applicant and her trainer.

(b) The cost was bound to be significant. Mr Hudson knew that Ms Ballard's costs were in excess of £400 per day; he had already rejected a course costing some £10,000 as too expensive and he knew that JWT's trainers charged £1000 per day.

(c) There was no guarantee of success in any event.

80. Mr Hudson was an experienced executive, one assumes used to making decisions. He was the Director of Information Technology with a substantial company. He would not necessarily need to have all details spelled out to him to recognise that the cost, whatever the precise figure was, taken with the time required, was outside the parameters of cost effectiveness that he regarded as reasonable.

Save in relation to the question of whether the Tribunal found that Ms Ballard had actually told Mr Hudson of the approximate cost of £100,000 and the timescale of eighteen months, we are minded to accept Mr Mead's submissions.

81. JWT had a total budget of some $12,000. There was no certainty that the new scripts would work. Preparation of the new scripts and the training of the Applicant would take significant time and effort. From an industrial point of view the cost was bound to exceed the total budget, so an employer might reasonably be justified in not spending the entire budget on one employee.
82. (d) Failure to acquire and adapt software

Our views are clearly influenced by the findings that we have made above in relation to technological difficulties and cost.

83. The Employment Tribunal does not appear to have considered at all the significance of the information available to Mr Hudson, assuming that he was in some way mistaken in relying upon the figure of £100,000 and the period of eighteen months. We have already noted that it is unclear how the Employment Tribunal concluded that he came to believe, as he clearly did, in these figures. The Employment Tribunal should have considered the other information available to Mr Hudson and JWT, including in particular the facts that it was obvious that the scripting and training programme would be expensive, long term and offered no guarantee of success at the end of the day. In those circumstances it is difficult to see how the Employment Tribunal came to consider that JWT's concerns in relation to finance, time and results were neither material nor substantial. If such a finding were properly to be made it would entail some analysis of the relevant facts by the Employment Tribunal and an explanation of why JWT's justifications for its conduct were neither material nor substantial.
84. In our opinion JWT has made out its case that the Employment Tribunal impermissibly substituted its views for those of the employer. It should, in our opinion, have considered on the basis of the material that was clearly available to JWT, whether a decision to seek no further information from Ms Ballard and whether its justification for not spending further sums in adapting or acquiring software were within the reasonable range of responses. We broadly accept Mr Mead's submissions, although as we have already said, we reject his case that the Employment Tribunal found as a fact that Ms Ballard had given a figure of £100,000 to Mr Hudson and a timescale of some eighteen months.
85. (e) Failure to provide adequate training by direct discrimination and failure to make reasonable adjustments

The submissions relating to this claim cover much of the same grounds as in relation to the acquisition and adaptation of software. We will not repeat our conclusions. We again accept that the Employment Tribunal, despite having properly directed itself as to the law, has again impermissibly substituted its views for those of JWT.

86. It is clear that (regardless of the precise nature of the advice given by Ms Ballard) that she had advised that what was required was going to be expensive, time consuming and uncertain. These matters needed to be addressed with care by the Employment Tribunal, having regard in particular to questions of expense and as to whether JWT's justifications were material and substantial, having regard to the relatively low threshold of the range of reasonable responses. The Employment Tribunal has not done this. It is impossible to tell why JWT's justifications were considered to be neither material nor substantial. Although we consider that it might be difficult for the Employment Tribunal to conclude that JWT's reasons were neither material nor substantial, in our opinion the Employment Tribunal must reconsider the question, having regard to the terms of this decision and to the matters that were clearly known to JWT and relied upon by it. The Employment Tribunal will have to address the issues as to justification raised by JWT.
87. The Employment Tribunal will have to consider questions of reasonableness from the point of view of the employer rather than the employee and whether JWT's decision not to engage in spending significant sums on training was reasonable, having regard to the fact that scripting and training went hand in hand, that no real training was available on Domino and that the Applicant could not work on Domino without scripts having been prepared. It will also be necessary to consider whether there was any purpose in spending sums on training the Applicant if it was not cost effective in the sense of achieving any worthwhile result and enabling her to carry out the task for which she had been employed. It seems to us that there is considerable force in the argument that there is no point in training someone if the training will not lead to the employee being able to put the training into use by reason of technological problems. It would make no difference at all to her effectiveness as an employee.
88. Further, the Employment Tribunal will have to address the question as to whether JWT's views were reasonable, having regard to cost considerations, the size of its budget, the value of what would be achieved and will have to consider whether JWT's views on whether it was worthwhile to spend monies on training in the circumstances we have described, was in the circumstances a reasonable response.
89. The Employment Tribunal found that JWT's justification was irrational; in our opinion if an employer reasonably considers that spending money is not cost effective why should that be neither material nor substantial? The question needs careful consideration and analysis but we find none. Again, we broadly accept Mr Mead's submissions.
90. (f) Provision of suitable work

Again, we broadly accept Mr Mead's submissions. It must be borne in mind that what is in issue is the provision of "suitable work". The Applicant was employed to carry out programming using Domino and Lotus Notes. This she was unable to do for the reasons we have outlined above. It may be that there was suitable work available for the Applicant, but there was no evidence before the Employment Tribunal as to what this work might be. In our opinion it is insufficient for the Employment Tribunal simply to assert that work was available on the basis of the two tasks (holiday database and video conferencing) undertaken by the Applicant. If work were to be given to the Applicant it had to be 'suitable work' that she was capable of doing. It is not easy to conceive what that work might have been. The reasoning of the Employment Tribunal in our opinion in this regard is quite insufficient.

91. We are unable to understand why the technological difficulty was regarded by the Employment Tribunal (in our opinion quite correctly as material) but was not regarded as substantial.
92. (g) Conclusions on appeal

We have found that the Decision of the Employment Tribunal is flawed in relation to the three specific issues we have looked at. We have considered with care what should be the appropriate course and have concluded that although it may be difficult for the Applicant to show, particularly in relation to the provision of software and training (and less so in relation to provision of work) that JWT's justification was neither material nor substantial, the questions need to be revisited by a differently constituted Employment Tribunal in the light of our decision. We accordingly remit this matter for consideration by the Employment Tribunal.

The cross appeal

93. The cross-appeal relates to the question of whether the phrase 'by dismissing him' in section 4(2)(d) of the Act includes constructive dismissals. In the light of the findings we have made [which the parties have seen in draft] it is agreed that any argument on the cross-appeal would be academic and would not assist the new Tribunal at any subsequent hearing.
94. JWT considers that in the light of our findings, any appeal to the Court of Appeal on this point would be academic. Accordingly both parties are agreed that we should dismiss the cross-appeal, which we do. The question can be raised at any rehearing before the new Tribunal, which will obviously have regard to recent cases on the subject.
95. Should Ms Williams appeal, the question of the cross-appeal can no doubt be considered by the Court of Appeal.
96. For reasons that we have given we allow JWT's appeal and remit the Applicant's application for rehearing by a differently constituted Employment Tribunal.

Conclusion

97. Before concluding, we repeat the observations we made when we first notified the parties of our decision at the close of the hearing on 29 August. We consider that the decision of Sir Martin Sorrell to take the initiative in employing Ms Williams was praiseworthy. However he has been let down by the managers at JWT. Even though we have allowed the appeal and even though Ms Williams may ultimately fail in her claim that she was the victim of discrimination on the grounds of her disability, she has been treated shabbily. She was, after all, employed for some two years and did relatively little work and received only a minimal amount of training. We would hope that JWT, a company which no doubt prides itself on its high reputation, might consider that its interests are best served by entering into negotiations with Ms Williams with a view to avoiding the expense that a further hearing will cause both parties and the added stress it is bound to cause Ms Williams.