Appeal No. UKEAT/0136/06/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 May 2006
Judgment delivered on 8 June 2006

Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
DR B FITZGERALD MBE LLD

SIR WILLIAM MORRIS KBE OJ

DR L TARBUCK	APPELLANT

SAINSBURY SUPERMARKETS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR JOEL DONOVAN
(Of Counsel)
Instructed by:
Messrs Bindman & Partners
Solicitors
275 Gray's Inn Road
London
WC1X 8QB	
For the Respondent	MR SEÁN JONES
(Of Counsel)
Instructed by:
Messrs Addleshaw Goddard LLP
Solicitors
150 Aldersgrate Street
London
EC1A 4EJ

SUMMARY

The appellant was disabled. She was found to have been unfairly dismissed and the subject of three acts of disability discrimination.  One of these was an alleged failure to consult which was treated as a failure to make a reasonable adjustment, following the decision of the EAT in Mid-Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566.  She appealed on the grounds that the Tribunal ought to have identified further acts of disability discrimination.  The employers cross appealed on the grounds that the Tribunal erred in law in concluding that there had been an unfair dismissal; and that the Tribunal ought not to have applied the Mid-Staffordshire case, both because the failure to consult had never been identified as an issue in the case, and because in any event it was wrong and ought not to be followed.  The EAT held that the appeal succeeded in part, it being unclear whether the Tribunal had made a finding in connection with one of the alleged acts of discrimination; and that the cross appeal succeeded with respect to the disability discrimination issue, for  both of the reasons advanced; but that the cross appeal against the finding of unfair dismissal failed.

THE HONOURABLE MR JUSTICE ELIAS

1.   This is an appeal from the decision of the Employment Tribunal sitting at London Central when, after a three-week hearing, it found that the Appellant’s claim of disability discrimination succeeded in part; that a claim for unfair dismissal succeeded; but that claims of victimisation discrimination and detriment by reference to the making of a protected disclosure failed.

2.   Dr Tarbuck now appeals on the grounds that the Tribunal ought to have found that there were additional acts of the employer which constituted discrimination on grounds of disability. The Respondent to this appeal, Sainsbury’s Supermarkets Limited, cross-appeals and submits that one of the findings of disability discrimination cannot stand as a matter of law, and also contends that the finding of unfair dismissal was unsustainable in law.

The background

3.  The facts in this case are extremely detailed. We provide here a short summary of the principal material events in the history of this employment. 

4.  We will then where necessary focus in greater detail on particular factual matters in the context of the specific grounds of appeal and cross-appeal that have been advanced.

5.  The Appellant, an experienced business analyst and IT project manager, suffers from ulcerative colitis and depression. It is common ground that  she was at all relevant times disabled within the meaning of the Disability Discrimination Act 1995 (DDA).  She worked at the Respondent’s Business Centre in Holborn.

6.   In 2002 she brought claims of disability and sex discrimination against the Respondent. On 22nd October 2002 her claims was compromised on confidential terms (and whose confidentiality the Tribunal found was rigorously respected by the company). Those terms provided (amongst others) for a phased return to work  on a rehabilitation programme facilitated by David Smith, Human Resources Manager, with ongoing support from the Respondent’s Occupational Health department (OH), and psychological counselling. In the meantime, the Appellant remained off work with depression. The Respondent’s rehabilitation and adjustment policies were to be applied to her return to work.

7.  The Respondent was under considerable pressure because of its deteriorating market position. As a consequence it embarked on an efficiency review of the Business Centre’s operations, initially under Richard Durban as project director.  The compromise agreement identified a possible job in his team.

8.   In November 2002 Mr Durban was replaced by Claire Nicholson, who decided on a shorter and sharper cost-cutting programme.  This was described as the Business Centre Review programme (BCR).  The Appellant was assigned to Ms Nicholson’s own small team, but in a role primarily involving research. The BCR team was attached to the Respondent’s Trading division. 

9.   Ms Nicholson envisaged the BCR being implemented by September 2003, so the Appellant’s role in it was to be short-lived. The Appellant reluctantly accepted the role and eventually returned to work on reduced hours in March 2003. She made a whole series of allegations before the Tribunal; that the role was manifestly unreasonable, that it did not take advantage of her skills, and that it was not a role which OH should have supported. All these matters were rejected by the Tribunal and are not now pursued. She also complained of inadequate support from OH, both at this stage and later, but that complaint was rejected also.

10.  In May 2003, following review by Helen Arnold in OH, the Appellant increased her hours to three short days at Holborn and two short days at home. She found her equipment inadequate for her needs, both at home and at the office. The Respondent arranged home and workplace assessments by the Department of Work and Pensions’ Disability Employment Adviser (DEA) service. In July the DEA indicated that they would fund additional office equipment, including better voice recognition software, but not home equipment as the Appellant was not based at home. In September the Respondent agreed to fund the home equipment. In the event, neither the home nor office equipment was obtained until November 2003, by which time the Appellant was off work with depression.

11.    On 16 June 2003, the Appellant (along with many other staff in Trading) was placed formally ‘at risk’ of redundancy under the BCR. Employees placed ‘at risk’ were entitled to apply for three vacant posts within their own divisions, with priority over those not ‘at risk’. The Tribunal noted that this could be seen as beneficial, but could also be perceived to put Dr Tarbuck under stress if she had to look for jobs early in her rehabilitation period. Shortly thereafter the Appellant saw her psychologist, Noreen Tehrani. Ms Tehrani noted that the Appellant felt under-used in her current role, although her mental state was significantly improved. Ms Tehrani recommended different roles in project management. 

12.	   On 20 June 2003 the Appellant challenged her ‘at risk’ status under the BCR. She contended that being placed ‘at risk’ disadvantaged her unfairly, particularly given the lack of suitable roles within Trading, and prevented her completing her return to work post-rehabilitation. 

13.	   On 3 July 2003 Ms Nicholson confirmed (having asked David Smith) that the Appellant could apply for vacant roles in other divisions as well as within Trading (although this did not extend to closed pools, i.e where the position was restricted to employees in similar existing posts). The next day, however, her ‘at risk’ challenge was upheld by Colin Moffat (the employee relations manager) and Amanda Heffer.  The basis for this was that her assignment to Trading was coincidental and that her rehabilitation should continue without the pressure of being involved in the job hunt. This is what the Appellant wanted. The Tribunal found that in fact acceding to her request to be removed from the “at risk” status may not have been in her best interests, but it was a decision made in good faith by Mr Moffatt. 

14.	    However, the Appellant’s pattern of sickness absence worsened. On 22 July 2003 Ms Arnold (OH) relayed the Noreen Tehrani recommendations for a different role to Ms Nicholson and John Hubner, the HR manager who had by then largely taken over from Mr Smith. Ms Arnold observed that the next three to four months would be difficult for the Appellant. 

15.	On 31 July 2003, the Appellant applied for a job as a project manager in   Finance Systems.

16.	   On 19 August 2003 Mr Moffat observed in an email that any selection process she went through would require reasonable adjustment. 

17.	On 28 August 2003 the Appellant was interviewed for the Finance Systems Role.  She was not appointed. The Tribunal found that she would in all likelihood have been appointed had she had priority status under the Respondent’s Redeployment Policy. (This gave priority to those facing redundancy during their notice period.)

18.	  By 10th September 2003 the Appellant had finished her work in the BCR team. A period of garden leave was suggested. On 26 September 2003 her BCR duties came officially to an end. She still had no job to go to. She was at that time unwell with depression. On 8 October 2003, the Appellant met Ms Nicholson, Mr Hubner and Mr Smith. She told them that she felt disadvantaged by not having priority status, even although it was originally at her behest that she had been removed from the ‘at risk’ status. Mr Smith placed her formally ‘at risk’ again, thereby giving her the priority status she now sought.

19.	  Occupational Health expressed concern about the effect of the uncertainty of her situation on her health. In late October Mr Hubner arranged a three-month assignment for the Appellant in Trading Systems, an IT role. She met the Trading Systems team but, in circumstances of worsening depression, rejected the role. The Tribunal found she was unreasonable to reject it. She never returned to work thereafter. 

20.	   The Respondent funded a relatively costly external consultant’s report on the Appellant’s skills, and offered outplacement counselling. In the meantime, a range of other potential vacancies had arisen, including an EIS manager post which was first advertised in August 2003 (though there was a dispute as to whether this “vacancy” was ever available for appointment). The Appellant applied but was not interviewed; nor was anyone else. The post was not filled. It was re-advertised in November, by which time, as the Tribunal found, the Appellant was not in a fit state to pursue any posts. She did not apply, and again the Respondent decided not fill the post, on what the Tribunal found to be good and justified cost-cutting grounds. 

21.	   A table of other vacancies was identified in evidence. The Tribunal felt unable to conclude which jobs were filled and when.

22.	   On 10 November 2003 the Appellant was given formal notice of redundancy. She appealed alleging (amongst other complaints) disability discrimination. The appeal failed. She was dismissed with effect from 2 February 2004. 

Tribunal proceedings

23.	   Dr Tarbuck presented her claim to the Employment Tribunal on 30th April 2004, alleging disability discrimination and victimisation (the protected act being the 2002 claim), unfair dismissal and detriment by reason of protected disclosures.

24.	   In its liability decision the Tribunal upheld the claim of disability discrimination in part. It found three areas in particular where there had been a failure to make reasonable adjustments: first, in the failure to provide necessary equipment (and it allowed an extension of time to enable that part of the claim to be brought);  second, in the failure to provide proper and adequate  support for the Appellant’s job-seeking during the ‘at risk’ period, i.e. post 8 October 2003; and third, in the  failure to consult with the Appellant, following her successful ‘at risk’ challenge in early July 2003, in order to agree the particular steps to be taken to eliminate her disadvantage in the competition for jobs.  

25.	  In relation to this third finding, the Tribunal applied the decision of the EAT in Mid-Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566. The Tribunal held that what further adjustments might have occurred following such consultation, and when, would have been a matter for agreement. The Tribunal further held that a loss of chance analysis was required, at the remedy stage, as to whether (but for the Respondent’s discriminatory failures) the Appellant would have obtained a job.

26.	   The Tribunal also upheld the unfair dismissal claim, finding that the redundancy process was insufficiently clear to the Appellant, and that the appeal process failed to address her complaints (particularly as regards disability discrimination). 

27.	The appeal seeks to identify three further areas where it is alleged the tribunal ought to have made findings of disability discrimination; and in the cross appeal the Respondent challenges the third discrimination finding relating to the alleged failure to consult, and the finding of unfair dismissal. 

The relevant legislation

28.   The following provisions of the DDA are relevant to this case.  (These were the provisions in force at the material time.  They have since been repealed by the Disability Discrimination Act (Amendment) Regulations 2003 with effect from 1 October 2004 and replaced by substantially similar provisions).

4. Discrimination against applicants and employees.

 (2) It is unlawful for an employer to discriminate against a disabled person whom he employs –
(a)	in the terms of employment which he affords him;
(b)	in the opportunities which he affords him for promotion, a 
transfer, training or receiving any other benefit;
(c)	by refusing to afford him, or deliberately not affording him, any such opportunity; or
(d)	by dismissing him, or subjecting him to any other detriment.

5  Meaning of “discrimination”
(1)	For the purposes of this Part, an employer discriminates against a disabled person if –
(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and
	(b) he cannot show that the treatment in question is justified.

(2)	For the purposes of this Part, an employer also discriminates against 
disabled person if –
(a)	he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and
(b)	he cannot show that his failure to comply with that duty is justified.

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

6.  Duty of employer to make adjustments
(1) Where -
	(a) any arrangements made by or on behalf of an employer or,
	(b) any physical feature of premises occupied by the employer,
place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect.

(2) Subsection (1)(a) applies only in relation to
	(a) arrangements for determining to whom employment should be 
	     offered;
	(b) any term, condition or arrangements on which employment, 
	      promotion, a transfer, training or any other benefit is offered or 
                 afforded.

(3)	The following are examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1) –
(a)	making adjustments to premises;
(b)	allocating some of the disabled person’s duties to another person;
(c)	transferring him to fill an existing vacancy;
(d)	altering his working hours;
(e)	assigning him to a different place of work;
(f)	allowing him to be absent during working hours for rehabilitation, assessment or treatment;
(g)	giving him, or arranging for him to be given, training;
(h)	acquiring or modifying equipment;
(i)	modifying instructions or reference manuals;
(j)	modifying procedures for testing or assessment;
(k)	providing a reader or interpreter;
(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 the taking the step.

17A  Enforcement, remedies and procedure
(1C) Where, on the hearing of a complaint under subsection (1), the complainant proves facts from which the tribunal could, apart from this subsection, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent provides that he did not so act.

The approach which the courts must adopt to the burden of proof is the same here as in other areas of discrimination law.  The leading authority is now the well known case of Igen v Wong [2005] ICR 931.  That case was concerned with sex discrimination but a similar analysis applies to disability discrimination. The appendix to that decision describes how and when the burden shifts to the employer.  Paragraphs (9) to (13) are particularly relevant.  They are as follows (substituting disability for sex):

(9) Where the claimant has proved facts from which conclusions could be drawn that the employer has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the employer.

(10) It is not then for the employer to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.

(11) To discharge that burden it is necessary for the employer to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since “no discrimination whatsoever” is compatible with the Burden of Proof Directive.

(12) That requires a tribunal to assess not merely whether the employer has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.

Grounds of Appeal

29.   There are four grounds of appeal.

30.   First, it is contended the Employment Tribunal misunderstood the duty to make reasonable adjustments and, as a consequence, failed to conclude, as it ought to have done, that the employers should have given Dr Tarbuck priority status, and had they done so, she would have been appointed to the Finance Systems post.

31.   The other three grounds are all alleged to be cases where the Tribunal failed properly to apply the shifting burden of proof as required by section 17A.  First, it is said that the Tribunal did not apply the principle of the shifting burden appropriately in circumstances where they had found that the employers could have reasonably made an adjustment by giving the employee priority status. This inter-relates with the first ground identified above.

32.   Second, it was submitted that similarly, in relation to another job advertised in August 2003, referred to as the EIS Manager role, the Tribunal erred in not seeking an explanation from the employers as to why they had failed to interview her for that post.

33.   Third, a similar argument was advanced in relation to the failure to give Dr Tarbuck interviews in respect of other vacancies which had arisen or remained open after she was placed back on the ‘at risk’ register from 8th October 2003. It was contended that the Appellant had skills for some of these posts, but that the employers simply let matters drift and unreasonably failed to interview her for them. We shall consider these issues in turn.

Restoring priority: was this a reasonable adjustment?

34.   The background to this claim is as follows. The Appellant had challenged her ‘at risk’ status on 20 June 2003. She felt that it prevented her completing her return to work and post-rehabilitation. That was acceded to by the employers. The effect of this was that she did not then have priority status in relation to applying for other posts. That priority was removed with effect from 4 July 2003. She applied for a job in financial systems on 31 July 2003 and the Tribunal found as a fact that had she had priority status at that stage then she would in all likelihood have secured the post. 

35.   The Tribunal dealt with the decision to remove priority status and concluded that it was reasonable to have done so.   They were however critical of a lack of consultation and felt that had that occurred then priority status was one possible outcome.  At paragraph 109-110 they say this:
“109. The Tribunal do not make specific findings that the Claimant should have been given a guaranteed job, that she should have been included in closed pools, whether in the Trading Division or elsewhere, or that she should definitely have been given priority status with effect from a specific date. This was a complex individual case, against a backdrop of a very large and complex fragmented redundancy exercise. This was an individual who had said clearly, by challenging her at risk status, without prior reference to her manager, that she did not want to be in the BCR process. It was not logical or reasonable to expect the Respondent in those circumstances simply to give the Claimant priority status under the Redeployment Policy as an immediate reaction to her successful challenge. The Claimant had indicated by her challenge that she wanted to concentrate on her fixed term assignment until its conclusion; that she was not ready to focus her attention on full blown competition for jobs.

110. The Tribunal’s fundamental concern was that in these particular circumstances the issue of possible adjustments to policies was not addressed. Occupational Health did not address it when declaring the rehabilitation completed and identifying concerns about the effect of uncertainty on the Claimant. Human Resources made some adjustments, for example extending her job search period and giving additional support and offers of training, but did not tell the Claimant what they were doing on the key job search issue and did not discuss options with the Claimant after her successful challenge. They could have explored with her the very questions discussed above of whether she was to go back into the BCR loop at some point, how and when priority status was to be given, and for how long. The Tribunal had some impression that Helen Arnold would have benefited from more intervention from a more experienced, senior Occupational Health professional in such a complex case and was somewhat out of her depth, leading to her appearing weakly non-directional. Management were annoyed at the Claimant taking herself out of the BCR process. The overall demands of the BCR process and the disruptions of summer holidays for the key players in the Claimant’s case impacted. The net result was that matters were left to drift between the successful challenge and the end of her fixed term contract.”

They return to the matter at paragraph 309 in their conclusion section:
“309. In their findings of fact the Tribunal had concluded that there had been a failure to address the issue of an adjustment to their policies in the wake of the Claimant’s successful challenger to her “at risk” status, following the completion of the Claimant’s rehabilitation, by reference to her continuing disabilities in the job search process. The Tribunal had expressly not found that giving priority status was, on the complex facts, the one and obvious reasonable adjustment. This was an employee who had been given priority by being made “at risk” and had challenged it. Her fixed term role still had nearly three months to run. Her rehabilitation was not yet formally signed off but looked likely to be, very shortly. It was not an appropriate reasonable adjustment immediately to give her back the priority that she had just challenged. What the Respondent failed to do, in the difficult situation created by the successful challenge to “at risk”, in the light of the concerns then expressed by Occupational Health on sign-off of the rehabilitation, was to consult to agree with the Claimant on the particular steps to be taken to eliminate her disadvantage in the job competition, and the timescale for them. Priority might have been the answer, more specific training or shadowing might have been another answer, a different support structure might have been proposed, as the BCR role wound down. The Tribunal took into account that this was consistent with the principle that emerged from the Mid Staffordshire General Hospitals NHS Trust case. A proper assessment is a necessary part of the duty to make reasonable adjustments. The Respondent on the facts could not know what to do to ameliorate the Claimant’s disadvantage in the workplace without talking to her and seeking to reach agreement with her. What further adjustments might then have occurred, and when, would have been a matter for agreement between the Respondent and the Claimant.

36.   The Appellant submits that there are a number of errors in this analysis. First, she says that the Tribunal appears to have treated the question of reasonable adjustment as though it were simply a matter of negotiation. She contends that this was a fundamental error and that once the Tribunal had found that the result of any consultation might have resulted in her being given a priority status, then the Tribunal could only properly have concluded that this would have been a reasonable adjustment. Further, the Appellant submits that the Tribunal did not consider whether it would have been appropriate and reasonable to have reinstated priority status in time for the Appellant to have been considered for the job in finance systems. She accepts that the Tribunal did conclude that it was not reasonable to expect the Company to give her priority status “as an immediate reaction” to her successful challenge to the ‘at risk’ status, but Mr Donovan, Counsel for the Appellant, submits that this did not preclude a finding that it would have been reasonable to do so at some stage prior to the decision being taken as to who should be appointed to that post. The interviews were not conducted until the end of August, and it was plainly reasonable for Dr Tarbuck to have had priority status restored to her by then since the Tribunal found that this might have been the result of consultations.  Alternatively, he says that even if that is not so, the Tribunal failed to make any finding about this.

37.   Mr Jones, Counsel for the Respondent, contends that this argument is misconceived for a number of reasons. He says that it is plain from the Tribunal ‘s decision, and in particular paragraph 110 reproduced above, that the Tribunal was recognising that had there been consultation then further and different action might have been taken, and that could indeed have included giving Dr Tarbuck priority status. But he contends that it is plain from the conclusion in paragraph 109 that the Tribunal is not saying that this was what a reasonable employer should have done, merely that it was one of a number of possible outcomes of any consultation. Accordingly, even if priority status had been restored, it would have been something over and above the adjustments which the employer could reasonably be expected to make.

38.	   Mr Jones further argues that in any event it is plain that the Tribunal was making a finding that it was not reasonable to make the adjustment to give Dr Tarbuck priority status prior to her consideration for the finance systems post. He says that this was effectively the argument advanced by Mr Donovan before the Tribunal, and indeed that the only relevance of Dr Tarbuck being given priority status at that stage was in connection with that post. It is fanciful, he submits, to suggest that the Tribunal did not have it firmly in mind.

39.    We agree with Mr Jones that the Tribunal was not saying that what was or was not a reasonable adjustment was simply a matter for negotiation or agreement between the parties. That in our view is a misreading of their decision.  They were simply, in the light of the Mid Staffordshire case, holding that the damage flowing from such failure depended on the likely outcome of any consultations. They made a clear and unambiguous finding that it was not reasonable for the Respondent to have reinstated priority status, at least immediately after having justifiably accepted the challenge made by the Appellant herself to her ‘at risk’ status. 

40.	   The only issue is what the Tribunal meant when they held that priority status should not have been given under the redeployment policy “as an immediate reaction” to the successful challenge. We suspect that they did have in mind the particular post for which Dr Tarbuck later applied in Finance Systems, essentially for the reasons Mr Jones gives. It was only in that context that the question of having priority status restored was relevant. Moreover, it seems to us that the last sentence of paragraph 109 lends some support to that conclusion. It demonstrates that a reason for Dr Tarbuck not wanting priority status was so that she could concentrate on her fixed term assignment until its conclusion. 

41.	   However, the finding is not explicit and we are left with some doubt as to whether the Tribunal did indeed implicitly make the finding for which the Respondent contends.  In the circumstances, we think that the most appropriate step to take is to remit this point to the Tribunal for it to clarify whether it did conclude that it was not a reasonable adjustment in the circumstances for the employer to give Dr Tarbuck priority status in time for her to be considered for the Finance Systems post.  If they reached no conclusion on this issue, they should then be asked to do so, after hearing fresh evidence if they think it necessary.

Failure to apply the shifting burden of proof

42.  We now turn to the various grounds which rely upon the alleged failure by the Tribunal to apply the shifting burden of proof in the manner required by Igen v Wong. Initially, Mr Donovan was adopting the position that once the employee had made a demand for an adjustment then the burden would shift, however unreasonable or ill-considered that demand was. That plainly is setting the evidence necessary to establish a prima facie case far too low. Section 17(A)(1)(c) requires that the Tribunal could conclude, in the absence of an adequate explanation, that the employer had acted in an unlawful way. No Tribunal could properly so conclude if the adjustment suggested was obviously unreasonable. 

Refusing priority status.

43.  The first area where it is suggested that the Tribunal erred was in failing to conclude that since priority status was an adjustment that could reasonably have been made (albeit not immediately), then the burden fell to the employer to show why that adjustment had not been made.  But we accept the submission of Mr Jones that is precisely what the Tribunal did determine.  They concluded that the reason why it would not have been reasonable for Dr Tarbuck to have been given priority before it was conferred upon her was that she herself had challenged her ‘at risk’ status and thereby had indicated that she did not wish to be given priority.
  
44.	 This was the explanation put forward by the employers and it was accepted by the Tribunal.  There is the question whether the Tribunal made this finding with respect to the whole period leading up to the appointment to the Finance Systems post, but that merely reiterates and adds nothing to the first ground of appeal.  We will remit that issue for further consideration.  But even if the Tribunal did not make that finding, that would not have been because of a failure to apply properly the burden of proof.

45. Accordingly, we think there is nothing in this ground.

The EIS manager post.

46. The issue about not being interviewed for the EIS Manager role is considered by the Tribunal at paragraphs 114 – 117 (there is no para 116):
“114. In relation to the EIS manager post, John Hubner seemed to accept in evidence the Claimant’s suitability for the role. The issue was in relation to whether the role was and/or would have been appointed to. The evidence seemed to show that the post was not filled, either on the first advertisement in August or the second advertisement in November. When the job was re-advertised in November, the Claimant had priority status so that part of the Claimant’s issue appears to be unfounded.

115. On the first advertisement of the position, without priority status, the Claimant was not interviewed, the job was not appointed to, it did re-emerge in a modified form in the November advertisement but was again not filled and in due course aspects of the role were taken on by somebody else. The Tribunal’s perspective was that the Claimant might have been appointed to the job with priority. However, the Respondent, had persuaded the Tribunal that there was a significant chance, for non-discriminatory reasons, that the Respondent would not have proceeded with an appointment of the Claimant to the post, if she had applied for it with priority. The restructuring in Sainsbury’s was highly fluid and chaotic at this stage. The Tribunal saw a number of jobs which were advertised and then disappeared or were not filled. This was such an uncertain job in that it was not filled on first advertisement, was then modified, was again not filled and then was partly absorbed into somebody else’s role. The imponderable is whether, if the Claimant had applied for the job with priority, given her disability and the history of the case, the Respondent would have been more likely to appoint to the job than if someone else without such a history had applied with priority.

117. The likely answer appears to be yes. However the Respondent would have had good grounds for not doing so. Business imperatives demanded cost cutting. It was not cost cutting to appoint to a job where, but for the Claimant’s particular circumstances, the business decision would have been not to fill it. Occupational Health said that the Claimant needed a real job. Putting her in a job that would not otherwise have been appointed to would not have been giving her a real job as recommended by Occupational Health.”

47.  The Appellant’s case in relation to this ground can be simply stated.  It is submitted that here is a post for which Dr Tarbuck was suited.  It was advertised and was not filled.  Some adequate explanation was needed as to why she should not at least have been interviewed for that vacant role.

48.   The Respondent submits that this is based on an entirely false premise.  Mr Jones submitted and Mr Donovan accepted, that as a matter of fact nobody, at any stage, had been interviewed for this post.  We accept that had some potential candidates been interviewed but not Dr Tarbuck then there would be a strong case for saying that that was apparently less favourable treatment needing explanation. But that was not what happened; in fact in this highly fluid situation the company finally determined that this post should not be filled.   Other posts were dealt with in precisely the same way.

49.	  The Tribunal’s finding that there was a “significant chance” that the employer would not have proceeded with the appointment, even had Dr Tarbuck applied for it with priority, was referring to the question whether, had that been the position, the company would have retained the job solely in order to accommodate her. They were not saying, in our judgment, that a reasonable adjustment would have required the job to be kept open.   The Tribunal dealt with that at Paragraph 117 when they made the observation that it would not have been giving her a real job.  Her case has never been that she should have been given any particular post, nor has it been that she should have a post specially created for her.  Nor can there be an obligation on the employer to create a post specifically, which is not otherwise necessary, merely to create a job for a disabled person.  

50.	  In the circumstances we are satisfied that there is no less favourable treatment here and no failure to make any relevant adjustment.  The Tribunal recognises that the employers might have been willing artificially to create a job but they would have been acting wholly reasonably in not so doing.  It cannot therefore be an adjustment that they were required to make as part of their statutory obligation.  
Failing to interview.
51.	The third challenge here relates to the failure to interview the Appellant for other vacancies. This is dealt with at paragraphs 136 to 138, which are as follows:

    “136. In relation to the chances of jobs, the Tribunal had regard to the table 
prepared by the parties summarizing the evidence of the Claimant and John Hubner on each job which is annexed to this Judgment, at Appendix II. They decided to give the Claimant the benefit of the doubt in the sense of taking into account the version of the table that included comments which the Respondent contended were not in the Claimant’s evidence but were rather matters of submission.

137. This table, and the confused and vague oral evidence that the Tribunal heard by reference to it, did not enable them to reach specific conclusions about which jobs were actually filled, when and why. Certainly, during the period from, say, May 2003 until the Claimant became redundant in February 2004, and in the month immediately thereafter, a range of jobs did become available for which the Claimant had some appropriate skills. In her evidence, she overstated her skills and employability in the Tribunal’s perspective, for example in suggesting that she could have satisfied the minimum requirements for jobs that required an accountancy qualification or finance degree. That was unrealistic.

138. The Tribunal thought that it was unlikely that the Claimant would have contemplated a C5 job, i.e. demotion, until November 2003. The Claimant’s high opinion of her own skills meant that demotion was an unpalatable option for her, which she was only likely to contemplate when actually put under notice of dismissal. By November the Claimant was not in a fit state to pursue roles, as demonstrated by her withdrawal at that stage from the HR C5 job.”

52. The Tribunal returned to the matter later in its decision at paragraph 314 in their decision:

“The Respondent’s liability in respect of this period arises in the Tribunal’s view from a continuation of the failure to make reasonable adjustments identified in respect of the period after the successful challenge to “at risk” status and completion of rehabilitation. The Respondent did support the Claimant in her job search but there was a lack of focus to such efforts and the Claimant was not made to feel supported, something vital given her depressed state, because of the failure to liaise with the Claimant to agree what was to happen and how. That failure was not justified. The Tribunal recognised that the Respondent managers had other individuals facing redundancy who needed their attention at this time. They did not have unlimited resource. However the failure was in relation to the quality of focus on the Claimant’s case at this stage, rather than quantum. The overall impression was that, despite some job search activity, the Claimant’s employment drifted to an end during this period. The Claimant was not actively pursuing jobs and the Respondent had “run out of steam” for the continuation of intensive support of the Claimant. The Tribunal have made findings of fact as to the very substantial uncertainties as to whether the Claimant would have found another job during this period. The approach to be adopted on quantum, in the light of the uncertainties the Tribunal has identified on the outcome of the job search, is a matter for submission at the Remedy Hearing.”

53.   As that paragraph makes clear, this was one of the areas where Dr Tarbuck’s discrimination claim succeeded. It was held that there had been a failure to make reasonable adjustments, namely to give appropriate support to the Appellant during this process when her priority had been restored. In view of that, we had some difficulty in identifying what it was alleged was the additional failure here. As we understand it, Mr Donovan was submitting that there should, in addition, have been a finding that there was unlawful disability discrimination on the grounds that it was a failure to make a reasonable adjustment not to interview the Appellant with a view to appointing her to any of these vacant posts. He submitted that but for the failure to give her support, she might have been considered for these posts and might have been appointed to one.

54.   That may indeed be so, but it seems to us that that goes to the question of quantum for the failure to provide support, as the Tribunal said in paragraph 314.  We do not think it can possibly be said that there was any separate and independent breach of the duty to make reasonable adjustments by failing to interview Dr Tarbuck.  As Mr Jones pointed out, an offer was made to allow her to be interviewed for jobs, even after her employment had ceased, but she made no such applications. There was one vacancy where it was agreed to defer interview until after her return from sickness absence. She had initially applied for that job- indeed, it was the only one for which she did apply - but she then withdrew her application.

55.   It may indeed be that had she been supported more fully, she might have applied for these posts; but that does not logically require the Tribunal to conclude that there is an independent failure to make a reasonable adjustment by not interviewing her for posts for which she had not sought to be interviewed and did not appear to want.

The cross appeal

56.   The Respondent contends that the Tribunal erred in concluding, as it did in paragraph 309 of its decision, that they had failed to make a reasonable adjustment because they had not discussed with the Appellant what reasonable adjustments she might need to assist her in the process of finding alternative employment. 

57.    There are two bases on which they challenge this conclusion. The first is this: It is submitted that at no stage was this an issue which was ever raised by the Appellant as one of the potential areas where there had been a failure to make reasonable adjustment. It was not identified in the original claim.  More to the point, the Tribunal specifically asked the Appellant’s representative to produce a list of issues once all the evidence had been heard. This failure is not even identified in that list. The case of Mid-Staffordshire General Hospital NHS Trust [2003] IRLR 566 EAT on which the Tribunal relied, was not referred to by either party and there was no argument advanced in connection with it. 

58. Mr Jones referred us to the case of Chapman v Simon [1994] IRLR 124 where Lord Justice Peter Gibson said this (para 42):

“Under s.54 of the 1976 Act, the complainant is entitled to complain to the Tribunal that a person has committed an unlawful act of discrimination, but it is the act of which complaint is made and no other that the Tribunal must consider and rule upon. If it finds that the complaint is well founded, the remedies which it can give the complainant under s.56(1) of the 1976 Act are specifically directed to the act to which the complaint relates. If the act of which complaint is made is found to be not proven, it is not for the Tribunal to find another act of racial discrimination of which complaint has not been made to give a remedy in respect of that other act.”

59.   These observations were made in the context of the Race Relations Act but we have no doubt that the same principles apply here also.

60.  Mr Jones submits there was therefore a plain breach of that principle here. The Tribunal found a breach of the Disability Discrimination Act by focusing on a failure to provide a reasonable adjustment which had never been identified as an issue in the case. Mr Jones says that the Cross-appellants were plainly prejudiced as a result of not having the opportunity to make observations on that alleged breach.

61.  Mr Donovan contends that there can be no question, given the wide scope of the evidence adduced by each party, but that there could in reality be no further evidence which would impinge upon the Tribunal’s determination. He further submits that the Tribunal was not here so much identifying a fresh area where there had been a failure to make a reasonable adjustment, but rather was suggesting a compromise between the positions advanced by the parties.  The Appellant was submitting that it was reasonable to restore Dr Tarbuck to the priority list and the Respondent was contending that that was not an adjustment a reasonable employer should have to make. He says that the Tribunal was entitled to take a mid-way position and to conclude that it would at least have been reasonable for the employer to have discussed the matter with Dr Tarbuck. 

62.  We do not accept that analysis. It is plain that the Tribunal did identify a distinct head of discrimination by focusing on the failure to consult. We accept that it is highly unlikely that the employer would have adduced any further evidence in relation to this matter even had they had the opportunity to do so, although we cannot confidently say that they definitely would not have done so. But it is a fundamental principle of natural justice that a party should have the right to make submissions on any issue which is the subject of the dispute and in relation to which adverse findings may be made. That did not occur here.

63.  We fully recognise that in the relatively informal atmosphere of an employment tribunal amendments to a claim may properly be made even during the course of the hearing. That will sometimes arise where it is plain, for example, that they merely clarify a point already before the Tribunal. But amendments may be more substantial. Sometimes a new issue is raised, perhaps in response to the evidence.  The Tribunal has a discretion to admit such amendments where it is clear that there is no prejudice to the party seeking to resist the amendment and where the Tribunal considers that the justice of the case calls for it. 

64. We do not in any way wish to suggest that this is not a proper way for a tribunal to act, but here there was no indication that a finding of this nature was going to be made, and indeed, the list of issues suggested otherwise.  At that stage, after the hearing and the close of submissions, it was not legitimate for the Tribunal effectively to raise this point of its own motion, and to determine it  without reference to the parties.

Is the Mid-Staffordshire case correctly decided?
65. Strictly, that is enough to deal with this point, but Mr Jones advanced a more far-reaching argument. He submitted that the decision that the Mid-Staffordshire case was wrongly decided. He contends that it cannot be a breach of the duty to make reasonable adjustments to fail to consult the disabled worker. Either the employer has made the reasonable adjustment or he has not; if he does so without consulting then he is not liable for unlawful discrimination, but if he fails to do so, then he will be liable, even if there has been full consultation.

66.   In the Mid-Staffordshire case an employment tribunal found that there was a breach of the Disability Discrimination Act where the employers failed to consult with the employee about what reasonable adjustments might be made to ameliorate the effect of the employee’s disability. The Employment Tribunal’s conclusion was summarised as follows:-
‘[The Trust] failed to seek, obtain or act on a full and proper assessment of [Mrs Cambridge’s] position at any relevant time. The only “assessment” it sought was a prognosis from Dr Smith. Even he did not comply with the [Trust’s] policies by seeking information from [Mrs Cambridge’s] GP or consultant at the relevant time. By the time it did seek to obtain appropriate reports, mid-way through the disciplinary process … the situation was effectively irretrievable: [Mrs Cambridge] was incapable of cooperating.’.

67. The EAT then set out the criticisms of this approach and its response to them in the following terms (paras 16-18): 

16. The principal criticism of the tribunal at this stage of its reasoning is that the gloss which the tribunal put on s.6(1) is unjustified. It is not warranted by the statutory language, and the effect of the gloss is to impose on the employer an antecedent duty which, once it has been performed, may establish that there are no steps which can reasonably be taken to ameliorate the disabled person’s disadvantage. If the duty imposed by s.6(1) is to take such steps as are reasonable to ameliorate a disabled person’s disadvantage, how can there be, so it is said, an antecedent duty which once carried out may show that no duty has in fact arisen because there are no steps which can reasonably be taken to ameliorate the disabled person’s disadvantage? And if those antecedent enquiries reveal that there are no steps which can reasonably be taken to ameliorate the disabled person’s disadvantage, all that the disabled person will have lost by the employer’s breach of the antecedent duty (which the tribunal identified) would be the prospect that those enquiries might have produced a different result. Although the tribunal recognized that that was the logical consequence of its approach, the fact that the tribunal concluded that Mrs Cambridge’s loss had to be assessed by reference to the loss of that prospect, shows, so it is said, the flaw in its approach, because the law only recognizes the assessment of loss by reference to the loss of a chance when liability has already been established.’

17.  We are not persuaded by this argument. If it were correct, it would deny s.6(1) practical application in very many cases. There must be many cases in which the disabled person has been placed at a substantial disadvantage in the workplace, but in which the employer does not know what it ought to do to ameliorate that disadvantage without making enquiries. To say that a failure to make those enquiries would not amount to a breach of the duty imposed on employers by s.6(1) would render s.6(1) practicably unworkable in many cases. We do not believe that that could have been Parliament’s intention. The fact that the preliminary steps which the tribunal had in mind are not referred to in s.6(3) is not decisive since the list of steps in s.6(3) is not exhaustive, and although s.6(4)(a) is, in terms of language, difficult to link in with preliminary steps of the kind which the tribunal had in mind, s.6(4)(a) was only a consideration which the tribunal had to have regard to, and it was not one which was to be treated as decisive. A proper assessment of what is required to eliminate the disabled person’s disadvantage is therefore a necessary part of the duty imposed by s.6(1) since that duty cannot be complied with unless the employer makes a proper assessment of what needs to be done. As the tribunal said in paragraph 36 of its extended reasons:

‘… in the absence of such an assessment it will often be impossible for an employer to know what adjustments might be reasonable, possible or effective.’

The making of that assessment cannot, in our judgment, be separated from the duty imposed by s.6(1), because it is a necessary precondition to the fulfillment of that duty and therefore a part of it.

18.   It follows that no doctrinal criticism can be made of the tribunal’s conclusion that Mrs Cambridge’s loss should be assessed by reference to what the chances would be of establishing that steps could reasonably have been taken to ameliorate Mrs Cambridge’s disadvantage to such an extent that she could have returned to her former post or been redeployed to an appropriate alternative post. It is true that the law only recognizes the assessment of loss by reference to the loss of a chance when liability has been established, but that principle has not been infringed here.

68.    Mr Jones submits that this reasoning is defective. He contends that the premise is incorrect: a failure to make enquiries could never render the breach of the duty imposed on employers by Section 6(1) unworkable. The premise of the argument, as Mr Jones suggests, is that an employer would be entitled to contend that he does not know what steps he ought to take by way of reasonable adjustment because he does not have the relevant information. We agree that that does appear to be the premise, and in our view, we respectfully consider that it is incorrect. 

69.   There can be no doubt that any employer would be wise to consult with a disabled employee in order to be better informed and fully acquainted of all the factors which may be relevant to a determination of what adjustment should reasonably be made in the circumstances. If the employer fails to do that, then he is placing himself seriously at risk of not taking appropriate steps because of his own ignorance.  He cannot then pray that ignorance in aid if it is alleged that he ought to have taken certain steps and he has failed to do so. The issue for the Tribunal will then be whether it was reasonable to take that step or not.

70.   We were also referred by Mr Jones to the case of British Gas Services Ltd  v McCaull [2001] IRLR 60 EAT.  This was not referred to the EAT in the Mid- Staffordshire case.  In McCaull the Employment Tribunal had found that there had been a failure to comply with a duty of reasonable adjustment under Section 6 because the employer had given no consideration at all to what steps might reasonably be taken. The logic of the argument is that if the employer is unaware of the duty then he cannot comply with it. The Employment Appeal Tribunal, Mr Justice Keene presiding, summarised the arguments and the conclusion of the court as follows:
“40. The appellant submits that the tribunal went wrong in law in adopting this approach. Miss Pollard contends that the test to be applied is an objective one, namely what steps it is reasonable in all the circumstances for the employer to have to take in order to prevent the arrangements or physical feature from placing the disabled person at a substantial disadvantage. The Act enables an employer to contend before a tribunal that a particular step would not have been reasonable for him to have to have taken, even if he did not think of it at the time. So a failure to consider a particular step or action is not automatically a breach of the duty under s.6. Section 6 does not itself impose a duty on an employer to discuss with an employee what steps might reasonably be taken.

41.   Mr Freer argues that there is a duty on the employer to consider what steps should be taken and even if there are no steps which could reasonably be taken to prevent the disadvantage, there would still be a breach of statutory duty. He relies upon the Code of Practice on Disability Discrimination, especially para. 6.20, which states that where there is a substantial disadvantage for the disabled employee ‘the employer must first consider any reasonable adjustment which would resolve the difficulty.’ A duty to give such consideration to the steps which might reasonably be taken is implicit in the provisions of s.6.

42.   We have set out earlier the crucial parts of the tribunal’s reasoning on this topic. Upon analysis the tribunal seems to be running together a number of separate points. First, it seems to be saying that an employer must consciously consider what steps it should take in the context of its s.6 duty; in other words, it will be in breach of that statutory duty if it is unaware of the existence of that duty. Insofar as the tribunal was saying that, it was wrong in law. There is no automatic breach of the s.6 duty because an employer is unaware of that duty: the question is not one of such awareness but of what steps the employer took and did not take. A benevolent and conscientious employer with a disabled employee might well take all reasonable steps as contemplated by s.6 while remaining entirely ignorant of that statutory provision itself.

43.   The tribunal also seems to be making an associated but separate point, to the effect that an employer cannot argue posthoc that a s.6(3) step was not a reasonable one which he should have taken, if he did not consider taking it at the time. We can see no basis for such an interpretation of the statute. Nothing in the Act prevents an employer so contending. The examples in s.6(3) are precisely that, namely examples. The test of reasonableness as set out in s.6(4) does not relate to what the employer considered but to what he did and did not do. Whether an employer considered any or all of the steps set out as examples (and no more than that) in s.6(3), the test remains an objective one under s.6: did he 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 made by the employer  from placing the disabled person at a substantial disadvantage in comparison with those who are not disabled? It is for the tribunal to consider what steps the employer took and what steps he did not take and then to apply the statutory test. The approach was in our judgment correctly spelt out by this Appeal Tribunal in Morse v Wiltshire County Council at paragraphs 46 and 47:

‘In taking these steps, the tribunal must, in our view, apply what Mr Ciumei called an objective test, asking for instance whether the employer has taken such steps as were reasonable, whether any of the steps in s.6(3) were reasonably available in the light of the actual situation so far as the factors in s.6(4) were concerned; and asking whether the employer’s failure to comply with its s.6 duty was in fact objectively justified, and whether the reason for failure to comply was in fact material to the circumstances of the particular case and in fact substantial.

No doubt, in carrying out these exercises, the tribunal will pay considerable attention to what factors the employer has considered or failed to consider, but it must scrutinize the explanation for selection for redundancy, for instance, put forward by the employer, and it must reach its own decision on what, if any, steps were reasonable and what was objectively justified, and material and substantial.’.

44.   Any other approach would deprive the employer of his entitlement to rely on s.6(4)  of the Act, under which he can seek to show that, for example, there were no particular steps which it was reasonable for him to have to take in all the circumstances. If Parliament had intended an employer to be in breach of statutory duty because he failed to consider what steps he might reasonably take, it would have so provided in the Act, and it has not done so.

45.   Of course, the reason for the employer’s failure to comply with his s.6 duty may come into play under s.5(4) and it will no doubt be very difficult for an 
employer to justify the failure to take reasonable steps if he has not considered what steps should be taken. But that provision only comes into play once a breach of duty has been established, and that requires it to be shown that the employer has failed to take such steps as is reasonable in all the circumstances for him to have to take to prevent the arrangement or feature having the substantially disadvantageous effect on the disabled person.

71.  We respectfully agree with that analysis and consider that it applies here. The only question is, objectively, whether the employer has complied with his obligations or not. That seems to us to be entirely in accordance with the decision of the House of Lords in  Archibald v Fife Council [2004] ICR 954.  If he does what is required of him, then the fact that he failed to consult about it or did not know that the obligation existed is irrelevant. It may be an entirely fortuitous and unconsidered compliance: but that is enough.  Conversely, if he fails to do what is reasonably required, it avails him nothing that he has consulted the employee. In our view the McCaull case would have to be treated as wrongly decided if the Mid-Staffordshire case were correct, because inevitably, if the employer is unaware of his obligations under the Act and gives no thought to them, then he will perforce fail to carry out any necessary consultation. 

72. Accordingly whilst, as we have emphasised, it will always be good practice for the employer to consult and it will potentially jeopardise the employer’s legal position if he does not do so- because the employer cannot use the lack of knowledge that would have resulted from consultation as a shield to defend a complaint that he has not made reasonable adjustments- there is no separate and distinct duty of this kind. 

73.  We are reinforced in this view by the fact that the examples of reasonable adjustments given in Section 6(3) of the Act do not include this duty. Whilst these examples are not intended to be exhaustive, as the Mid-Staffordshire case noted, in our view if there were to be an obligation of this nature imposed on the employer, then we would expect it to be spelt out in very clear terms.

74.  We were referred to the Code of Practice which also states that the obligation to consult is an aspect of making an appropriate reasonable adjustment.  In our judgment this takes matters no further for two reasons.  First, whether the failure to consult is capable of being treated as a failure to make a reasonable adjustment is a matter of law; and in any event we have no doubt that this passage in the Code is so framed precisely to reflect the ruling in the Mid-Staffordshire decision. 

Unfair Dismissal

75.    This aspect of the cross-appeal was pursued with muted enthusiasm by Mr Jones. He submitted that once the Tribunal had found that the dismissal was fair, save to the extent that the appeal process had not satisfactorily carried out, the defect in that procedure could not then render the dismissal unfair. He relied upon the case of Post Office v Marney [1990] IRLR 170. In that case the EAT held that a Tribunal should conclude that a dismissal was unfair as a result of a defect in the appeal process “only if the appellate process could and should have found and demonstrated a flaw in the decision at first instance in the internal procedures of the employer”. He says that there is no suggestion that this was the case here. 

76.  There are two problems with this analysis, it seems to us. First, as Mr Donovan points out, it is not accurate to say that the only error which the Tribunal identified in the disciplinary procedures was at the appellate level. The Tribunal also identified a certain lack of clarity in the way in which the Company had communicated with Dr Tarbuck, although it is right to say that the principal concern they expressed related to the appeal process.  Dr Tarbuck had raised a number of issues which were not apparently followed up and it was not clear to the Tribunal how many of the extensive points raised in her very lengthy appeal letter had actually been addressed. The Tribunal were left with the impression that the employers were going through the motions. 

77.  In any event, we do not consider that Marney remains good law. It suggests that a defect in the appeal process will only be relevant if a properly-conducted appeal would have made a difference to the outcome. That is inconsistent with the decision of the House of Lords in  Polkey v A E Dayton Services Ltd [1988] ICR 142, as is pointed out in Harvey on Industrial Relations and Employment Law, part D1, para 1014. ( We note that section 98A(2) of the Employment Rights Act 1996 which might affect that analysis was not in place at the material time.)

78.  In our view, it is also inconsistent with the decision of the House of Lords in West Midlands Co-Operative Society Limited v Tipton [1986] ICR 192. In that case the House of Lords held that the refusal to entertain the right of appeal could render an otherwise dismissal unfair. In the course of giving judgment in that case, Lord Bridge of Harwich referred to the following passage from the decision of Mr Justice Waite, sitting in the Employment Appeal Tribunal, in Greenall Whitley PLC v Carr [1985] ICR 451 at pages 458 and 459:

“Approaching the matter first as one of principle apart from authority, we would be sorry to see the internal appeal hearing excluded from consideration. In practice, every employer who has signed (as most employers these days do) a procedure agreement which includes disciplinary and appeals procedures knows perfectly well that anything relevant to the appeal hearing must also be relevant to the dismissal itself. Such appeals have become a fundamental feature of good industrial relations practice; and any sensible and realistic appraisal of the reasonableness of an employer’s decision to treat a particular reason as grounds for dismissal would, we think, require his state of mind and knowledge to be judged down to the conclusion of the internal appeal procedure on the footing that such procedure itself forms an essential part of the dismissal process.”

79.   To similar effect were certain observations of Wilkinson J in Sillifant v Powell Duffryn Timber Limited [1983] IRLR 91 at 95 (EAT), also relied upon by Lord Bridge, [1986] ICR 192 at 203:

“The common sense of industrial relations demands that in considering the reasonableness of the employer’s conduct account must be taken of information coming to his knowledge on the hearing of the appeal: the appeal is part of the procedural structure established by the employer to ensure fair treatment: see National Heart and Chest Hospitals Board of Governors v Nambiar …”

80.   In our view, this makes it plain that even if a dismissal could be fair if the employee chose not to appeal, the significance of the appeal is that is may enable further matters to be advanced by the employee, or representations to be made, which might affect the outcome.  In those circumstances, the denial of that right is capable of rendering a dismissal unfair and equally a failure to apply the appeal process fairly and fully may have the same result. If dismissal would be likely to have occurred in any event, then that will affect compensation, but not the finding of unfairness itself. 

81.   Accordingly, we reject this particular ground of the cross-appeal.

Conclusion

82.   If follows that both the appeal and the cross appeal succeed in part.  As to the former, we remit the case to the Tribunal to state whether it reached a conclusion as to whether it would or would not have been a reasonable adjustment for the employer to have given priority to Dr Tarbuck prior to, and in time for, considering her for the Finance Systems job.  If no such conclusion was reached then the Tribunal is directed now to consider the issue, hearing fresh evidence on the point if it sees fit.

83.  As to the cross appeal, we find that there was no breach of the Disability Discrimination Act arising from the failure to consult, but the ground of the cross appeal directed at the finding of unfair dismissal fails. 

84.  The matter will now have to be considered by the Employment Tribunal both to consider the point we have remitted, and to determine the appropriate remedy.