Appeal No. UKEAT/0220/06/DA	

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 September 2006

Before
HIS HONOUR JUDGE McMULLEN QC
MR M CLANCY
MR I EZEKIEL

LONDON BOROUGH OF BARNET	APPELLANT

MRS J FERGUSON	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR ANDREW BURNS
(of Counsel)
Instructed by:
London Borough of Barnet
Borough Solicitor
North London Business Park
Oakleigh Road South
London N11 1NP	
For the Respondent	MRS J FERGUSON
(The Respondent in Person)	

SUMMARY
Disability Discrimination - Reasonable adjustments
Unfair Dismissal - Reasonableness of dismissal
The Employment Tribunal wrongly did not apply the 4 stage process required to decide if a duty to make reasonable adjustments existed and was breached: Smith’s Sentinel Watford applied. The Judgement was set aside. But this did not affect the finding of unfair dismissal which was unarguably right.

HIS HONOUR JUDGE McMULLEN QC

1.	This case is about disability discrimination and unfair dismissal due to incapability. The Judgment represents the views of all three members. We will refer to the parties as Claimant and Respondent. 

Introduction 

2.	It is an appeal by the Respondent in these proceedings against a Judgment of an Employment Tribunal sitting over seven days at Watford, Chairman Mr J Metcalf, registered with reasons on 23 January 2006, liability, and 27 July 2006, remedy. Without objection we will take the latter into account. As here, the Claimant represented herself and the Respondent was represented by Mr Andrew Burns of Counsel.

The issues

3.	The nature of the dispute is set out in paragraph 1 of the Tribunal Judgment:
“The Claimant, who is an intelligent and capable law graduate but not a qualified solicitor or barrister, was employed by the Respondent from 9 December 2002 until the effective date of termination of her employment on 13 December 2004 as a legal assistant within the Borough’s Legal Department. She appealed against that decision by a letter of 22 December 2004 and after an appeal hearing on 21 February 2005 the decision to dismiss was upheld. The Claimant raised a written complaint about this by a letter dated 22 February 2005 and on 10 March 2005 she presented her complaints of unfair dismissal and disability discrimination to the Employment Tribunal. The Respondent has accepted that, of course, it dismissed the Claimant and further it has accepted that she suffers from a disability diagnosed as chronic fatigue syndrome but it denied both unfair dismissal and disability discrimination. For her part the Claimant has accepted, during the course of these proceedings, that she was not capable of working as a legal assistant either upon a full-time or a part-time basis due to the affects of her medical condition but she had contended that she was capable of working in a secretarial or administrative capacity which the Respondent failed to consider.”

4.	The essential issues as defined by the Tribunal, limited to what is now relevant on appeal, were as follow: 
 “3.2.2 Did the Respondent fail in his duty to make reasonable adjustments contrary to Section 4A of the Disability Discrimination Act 1995  as amended.
3.2.3 The complaints included that:-
(a)	the Respondent had failed to take specific action during the capability procedure when it had undertaken to do so.”

5.	There is a real criticism made on appeal about the characterisation of the issue in 3.2.2, which it is said exposes the error in the case. As to unfair dismissal, the point was this:
 “3.1.1 Was the Claimant subjected to less favourable treatment for a reason relating to her disability in being dismissed and, if so, can the Respondent show that the treatment in question was justified?”

6.	The Tribunal decided in the Claimant’s favour on both her claims. The Respondent appeals. The Tribunal awarded her £4,000 under the Disability Discrimination Act 1995 (DDA) for injury to her feelings and £961.97 for unfair dismissal. No separate appeal is made against those sums. Directions sending this Appeal to a full hearing were given in Chambers by HHJ Peter Clark. He also directed the parties to adopt a procedure for resolution of disputes as to what evidence was adduced before the Employment Tribunal. There has been no formal agreement but in substance we can see how these matters can be resolved here.

The legislation

7.	The relevant provisions of the legislation are not in dispute: Disability Discrimination Act 1995 ss3A and 4A:
“3A Meaning of “discrimination”
(2) For the purposes of this part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.  
4 Employers: discrimination and harassment
(2) It is unlawful for an employer to discriminate against a disabled person whom he employs-
(d) by dismissing him, or subjecting him to any other detriment.
4A Employers: duty to make adjustments
(1) Where
(a) a provision, criterion or practice applied by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer, places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature having that effect.”

8.	The Tribunal directed itself by reference to those provisions but not to the authorities cited to it in Mr Burns’ written opening, nor in the Claimant’s closing. This will be shown to be its undoing. 

The facts

9.	The Respondent is a local authority in North London. The Claimant was found to be impressive, intelligent, well-organised and reliable:
“4.1 The Claimant started work in the Respondent’s Property and Contracts Team from 9 December 2002 and until June 2003 she worked well in that department, the head of which was her line manager, Mr Bloom. On 23 June 2003 she began a period of sickness absence that lasted for a month, suffering from a bad back and a viral infection and her symptoms included tiredness. After her return to work in July, there followed a series of absences due to illness which led to her being away from work for the great majority of the time between then and the date of her dismissal on 13 December 2004. If it had not been for the fact of her illness she would have wished to have worked on a part-time basis, the reason being connected with her child’s change of school and her own domestic responsibilities.”

10.	We think the correct end-date is 14 January 2005, as this was the last date of her employment. Thus in a career of two years, she worked well for six months, had periods in and off sick for six months, and then for a year was completely off sick. The Respondent engaged the experienced occupational health physician Dr Davis to examine the situation one year on. The Tribunal found this:
“4.4 Between 24 December 2003 and 7 January 2004 the Claimant was on her Christmas holidays. She was again absent through illness on 8 and 9 January 2004. She tried to return to work on 12 January 2004 but she had to go home as she was ill. She remained off sick from then until the date of her dismissal. Her condition had begun to deteriorate and it seemed likely that one of the effects of CFS is that it makes it difficult for the sufferer to concentrate for any length of time. At this stage the Claimant was too ill to do any work and she even had some difficulty with her domestic chores.”

11.	The Respondent began to show impatience about the Claimant’s attendance. Dr Davis was commissioned and he wrote as follows: 
“4.8 A report from the Royal Free Hospital arrived on 24 May and on 25 May as a result of the contents of this report, Dr Davis wrote to H.R. informing them that he had received the report from the hospital but there was no evidence to suggest that she might return to work in the foreseeable future. He suggested that the Respondent think in terms of an ill-health retirement. On 30 June, Dr Davis was informed that the Respondent had agreed to that suggestion and, in consequence of that, on 6 July he sent the papers to Dr McGrath. The reason for this was that Dr McGrath is an independent medical assessor and the pension trustees have to be satisfied on the advice of two medical practitioners before they can approve an early ill-health retirement.”

12.	There was no agreement on early retirement and there was further consultant evidence. So the Tribunal found that the Respondent switched its attention with growing impatience to the capability procedure. The Claimant put her case succinctly in writing, saying that no suggestion had been made to her as to ways of getting her back to work. She attended the capability hearing on 27 September 2004. The view expressed by management was this: 
“4.17 … [Mr Lustig] expressed reasonably the view that she was not able to cope with the duties of her current employment. Mrs Ferguson had said that on her bad days she would not have been able to cope with her job as a legal assistant even on a part-time basis but she did specifically mention clerical or secretarial work which she felt she could cope with even on bad days. (see page 151). Mr Lustig also mentioned that he wanted clarification of the difference in view between Dr Davis and Dr McGrath regarding ill-health retirement and he proposed adjourning  the hearing for 6 weeks for two reasons:-
“One to explore redeployment options and the other to investigate whether the conclusion as to ill-health retirement had been made prematurely. Mr Westwood undertook to be pro-active in seeking administrative or secretarial work from the weekly vacancy list. He said, “We won’t leave it all to her, both of us will look.”

13.	In due course the Tribunal found that the Respondent’s subsequent behaviour in terms of looking for administrative or secretarial work was not proactive, it simply consisted of sending out the weekly vacancy list. The Respondent failed in particular to notify the Claimant of two jobs which had become available, and it is this that is at the heart of the case against the Respondent, as found by the Tribunal, which records this:
“4.19 … At that hearing she was told in relation to redeployment that she had been considered for two posts which had become available hut it had been decided that she would not be suitable for either of them. The reasons were given by Mr Westwood. One was in a pressured environment and the other was lower graded and would have involved a reduction in salary. He had not seen fit to consult the Claimant. She asked why she had not been informed or consulted about these positions but no explanation was given. Mr Bartley described the attitude of Mr Lustig at this hearing as dismissive. According to Mr Bartley, Mr Lustig had said that the purpose of the meeting was to ascertain whether his sister was capable of doing the job she had been employed to do or not. The Tribunal accepted his evidence about the meeting. Given that Mrs Ferguson had said at the meeting of 27 September 2004 that she was prepared to consider on a part-time basis other less well paid roles, it is difficult to understand how Mr Westwood sought to justify not consulting her about one of these posts upon the basis that it was lower graded and with a lower rate of pay. Also there had been no further questions put regarding the difference or apparent difference in opinions between the doctors but Mr Lustig did not seem to pay much heed to this. He took the decision to dismiss the Claimant.”

14.	On this basis, the Respondent had not given the Claimant much of a fair hearing. The Tribunal concluded in these terms:
“7.1 It was common ground that the Claimant was unable to continue to work upon any basis as a legal assistant. She had exhausted her occupational sick pay entitlement by March 2004. At the capability hearing at the end of September 2004, the Claimant had made it clear that she was willing to undertake part-time work of a secretarial or administrative nature. The Respondent undertook to be pro-active in its search for such employment with her but in the event it took a somewhat passive stance and rejected two possibilities of such employment for the Claimant without even consulting her. Thereafter, on 13 December 2004 it took the decision to dismiss her. The appeal hearing did nothing to rectify this Process. There was clearly a sense of impatience within the legal department and a desire for the situation to be “resolved”. Whilst it was entirely proper, so that the legal department could have its proper complement of legal assistants to seek to plan forward and recruit another legal assistant, it did not follow logically from this that they needed quickly to establish whether or not the Claimant could work in any other capacity. No steps were taken in this regard. There was a failure to consult about a post that had become
7.2	The Tribunal concluded that the employer had failed in its duty to make a reasonable adjustment, that is to consider the Claimant for alternative employment in a secretarial or administrative capacity. Although there was a stated willingness to do this there is no evidence to support that there was in fact any such willingness; rather the reverse in that the Claimant was not even consulted when such opportunities arose. The Tribunal considered that the employer had failed in its duty to make reasonable adjustments. The Claimant clearly offered to work on a part-time basis and a secretarial or administrative capacity but the Respondent did not pursue this at all pro-actively.
7.3	This failure was inextricably linked with the decision to dismiss the Claimant. The reason for the dismissal was clearly capability. In considering section 98(4) of the Employment Rights Act 1996, the Tribunal took into account the fact that the employer is a comparatively large undertaking with a human resources department and a legal department and that it failed to take account of its duties under the Disability Discrimination Act 1995. Upon this basis the Tribunal concluded that the Claimant had been unfairly dismissed.”

15.	At the Remedy Hearing, the Tribunal went on to find this: 
“2.1 … [Mrs Ferguson] conceded at the start of her own submissions that it would have been very difficult for the London Borough of Barnet to have found a position for her.
2.2 The Tribunal accepts that after a period of some few months in 2005 the council, if it had gone about matters the way it ought originally to have done, would have been in a position when it could have dismissed her not unfairly and without falling into error in terms of the Disability Discrimination Act. Nevertheless it did fall into that error.”

The Respondent’s case

16.	The Respondent submitted that the Employment Tribunal had erred in law in three principal respects. First, it had not paid attention to the submissions made by Mr Burns in writing as to the steps to be taken before a Tribunal could find a breach of the obligation to make adjustments. There was no physical feature of the work, nor was there any provision or criteron which had been applied to the Claimant in her position of legal assistant which could be ameliorated by means of a reasonable adjustment. The Tribunal had mischaracterised the submission made to it, for there was no acceptance by the Respondent that it was under a duty to make an adjustment. If there were a duty, how could it be ameliorated if the Claimant was already too ill to do a legal assistant’s job full or part-time? And there is no indication that what created the disadvantage for that job, was not also attendant upon an administrative job just down the corridor. 

17.	Secondly, it was contended that there was no evidence of any provision which could have been made for the Claimant. Dr Davis’s evidence was unchallenged, as the exchange of correspondence between the Claimant and the Respondent showed following the Order of Judge Clark. His evidence should have been accepted in those circumstances. 

18.	Thirdly, the finding by the Tribunal of fault by the Respondent, and therefore liability, was based on a failure by the Respondent to consider making adjustment and this as a matter of law does not constitute a breach. 

The Claimant’s case

19.	The Claimant did not present a Skeleton Argument but indicated in advance that she was relying in full upon the Tribunal’s reasons. We were assured today that she has recovered very substantially from the chronic condition she had and we were delighted to hear that she had, by the time of the Remedy Hearing, obtained work, being self-employed, as a legal assistant and legal support, which explains in part why there was no award for loss of earnings. Essentially the Claimant argued that she was under a substantial disadvantage because, as a result of her contracting CFS or ME, she became liable for dismissal where others were not. She relied on the Judgment of the House of Lords in Archibald v Fife Council [2004] ICR 954, and of the Court of Appeal in Clark v TDG Ltd t/a Novacold [1999] ICR 951, which show the appropriate comparison. She told us that she did not challenge Dr Davis’s evidence because of the stance he had taken. While he had considerable experience in occupation health, it was not focused directly on CFS or ME, and that was why a consultant’s report should have been bespoken. As to unfair dismissal, although the Tribunal had found that the Respondent could have dismissed the Claimant fairly at some later stage had it carried out the procedures in which it was found wanting, the claim was correctly judged to be one of unfair dismissal and the Tribunal was right.

Discussion and conclusions

20.	We prefer the arguments of the Respondent and have decided that Appeal should be allowed in part, in respect of disability discrimination.

Reasonable adjustments

21.	The law on reasonable adjustments is stated in the Judgment of the EAT, HHJ Serota QC and Members in Smiths Detection Watford v Berriman,UKEAT/0712/04 and UKEAT/0144/05,  where the EAT said this: 
84.	We consider that the Employment Tribunal fell into error in paragraph 7.3 by concluding that the Respondent was bound to make adjustments simply by reason of its knowledge that the Claimant was disabled. The Employment Tribunal has elided or omitted the need under Section 6(1) of the Act to identify the arrangements made by the employer or the physical feature of’ the premises which placed the Claimant “at a substantial disadvantage” as compared with persons who were not disabled. In our opinion the Employment Tribunal could not properly make any finding of less favourable treatment without having identified those arrangements or physical features.
85. In our opinion an Employment Tribunal considering a claim that an employer has discriminated against an employee pursuant to Section 5(2) of the Act by failing to comply with the Section 6 duty must identify:
 (a)	the relevant arrangements made by the employer
(b)	the relevant physical features of the premises occupied by the employer
(c)	the identity of non-disabled comparators (where appropriate) and
(d)	the nature and extent of the substantial disadvantage suffered by the Claimant. It should be borne in mind that identification of the substantial disadvantage suffered by the Claimant may involve a consideration of the cumulative effect of both “arrangements” and “physical features” so it would be necessary to look at the overall picture.
In our opinion an Employment Tribunal cannot properly make findings of a failure to make reasonable adjustments under Section 5(2) without going through that process.
86. Unless the Employment Tribunal has identified the four matters we have set out above it cannot go on to judge if any proposed arrangement is reasonable. It simply is unable to say what adjustments were reasonable:
“To prevent the arrangements or feature placing the Claimant at a substantial disadvantage.”
It follows that when the Employment Tribunal identified in paragraph 7.3 of its Decision the four proposed adjustments, the approach of the Employment Tribunal was again flawed. It had not, at that stage identified any substantial disadvantage caused by any arrangements or physical features. It could not, therefore, properly assess the likelihood of the adjustments alleviating those disadvantages. It is wrong, in our opinion for the Employment Tribunal to have simply based the finding that the adjustments would have been effective as it appears to have done, on the fact that these were what the Claimant wanted. There is simply no evidence or reasoning to support those findings. We leave aside two points made by Mr Laddie which seems to us to have merit (a) “transfer” must be to an existing vacancy; see Section 6(3)(c) and not simply an unspecified “transfer” and there is no evidence that there were any in the present case (b) it is not failure to consider that gives rise to discrimination but failure to implement. There is simply no evidence at all to support the Employment Tribunal’s finding that the adjustments would have been effective as to alleviate some of the Claimant’s symptoms.

22.	That Judgment substantially follows the account in Archibald, where Lord Rodger of Earlsferry said this: 
 “35. Section 6(1) envisages a comparison, but its exact nature is not spelled out. Lady Hale considers that the duty arises if the disabled person is placed at a substantial disadvantage in comparison with “non-disabled people generally”. It respectfully appears to me, however, that, to be meaningful, the comparison must be with some limited class of persons who are not disabled.
36. The difficulty in identifying the appropriate comparators arises, in part at least, because section 6(I) is intended to apply in a range of situations.
42. … That arrangement places the disabled person at a substantial disadvantage by comparison with persons who are not disabled, because she is liable to be dismissed on the ground of disability whereas they are not. The appropriate comparators are therefore other employees of the employer who are not disabled, can therefore carry out the essential functions of the jobs and are, accordingly, not liable to be dismissed on the ground of disability.”

The use of the word arrangement there is a reflection on the law as it that then stood, but which, as we have shown from the citation above, has been enlarged by amendment, to include provision, criterion or practice

23.	The approach of Baroness Hale was slightly different, for she said this: 
63. … Hence she was eventually dismissed for incapacity. Any steps which the council might have to take under section 6(1) must be “in order to prevent arrangements… having that effect”. “That effect” clearly refers to her being placed at a substantial disadvantage in comparison with non-disabled persons. So who are the non-disabled persons concerned?”

24.	Nevertheless, it is plain that Mr Burns is right when he submits that a Tribunal must go through the stages set out in Smiths Detection so as to make the correct comparison. The focus here is upon the job. In the case of Ms Ferguson, there is no indication of what it was about the job, whether the physical nature of the premises or the practices adopted by the Respondent, which put her, a person disabled by ME, at a substantial disadvantage. There was no indication as to whom she was to be compared with. The illustration given by Archibald is of matters which pertain to the allocation of duties given to Ms Archibald, sweeping and walking. But there was no indication of what it was about being a legal assistant which created the substantial disadvantage in the Claimant’s eyes. She was after all unable to do work in that capacity on a full or part time basis, therefore there was nothing that could be done to adjust for her. The duty simply did not arise. Although not cited, or relied on by us, Home Office v Collins [2005] EWCA civ 598, paragraphs 31-34 per Pill LJ would point to this conclusion. 

25.	We hold that the Tribunal erred by failing to follow the authority placed before it very properly by Mr Burns at the outset of the case and that it has run into the error which we have identified. The requirements set out in Smiths Detection are in firm terms and they steer a Tribunal along the course along which it must walk if it is to make a finding that there has been a breach of the reasonable adjustment requirements of the DDA. The Tribunal did not do so here and therein lay an error. 

The medical evidence

26.	We accept the submissions relating to the way in which the evidence put before the Tribunal was treated. Dr Davis in his unchallenged evidence said this:
“28.	The Claimant was ill-served by the NHS; delays occurred which were unacceptable. In particular, the delay from the date of the decision to undertake counselling prior to joining the graded rehabilitation programme to actually receiving treatment grossly disadvantaged the Claimant.
29.	The stringency of the local authority ill-health retirement regulations resulted in Dr McGrath’s inability to support my request for an ill-health retirement, which would have been the esser of two evils.
30.	1 understand that the Claimant complains that she was disadvantaged by the Respondent’s premises or arrangements due to her CFS. I do not think that this is correct. Her condition meant that she was sadly unfit for any work at all, whatever premises or arrangements were involved. I understand that she alleges that the Respondent failed to make adjustments. I fail to see how the Respondent could have successfully made any adjustments under the DDA, bearing in mind the variability of the Claimant’s symptoms and their severity. These symptoms would have prevented her from working and adjustments would not have made a difference in my view. I believe that initially we tried the best adjustment, a very slow return to work for relatively few hours. Even this proved unsuccessful and her condition worsened without any subsequent improvement where adjustments could have been successfully applied.”
	
27.	It is clear that the consultant is their addressing the terms of the Act and the nature of the work itself. If the Tribunal were to engage in the kind of exercise required of it by Smiths Detection it should have followed the evidence of Dr Davis, it being there in unchallenged form. That being so, the Tribunal fell into error on this ground too. 

Considering adjustments

28.	The third ground relates to the finding that the duty existed to consider the Claimant for alternative employment, that duty being a duty under the DDA. There has been a divergence of opinion at the EAT as to whether, put simply, a failure to consider an assessment of what what adjustments could be made is a breach of the statute. The EAT most recently in Tarbuck v Sainsburys Supermarkets Ltd [2006] IRLR 664, Elias J (President) and Members, sought to resolve the issue as it had been presented to it. The EAT was asked to decide whether the case of Mid-Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566 EAT should be followed. That was the Judgement of Keith J and Members. Relevant to this debate is the Judgment in British Gas Services Ltd v McCaull [2001] IRLR 660, EAT Keene J and Members, which was not cited to the EAT in Mid-Staffordshire. 

29.	The outcome was that the EAT in Tarbuck followed the latter but not the former and held this:
“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] IRLR 651. 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.”

30.	There is at least one other case, which is a Judgment I gave on behalf of the EAT in Surry County Council v Hay, UKEAT 0710/05, on 28 April 2006, and not brought to the attention of the EAT in Tarbuck. In that case we followed Mid-Staffordshire for there was no argument as to whether it was correctly decided. Counsel, appearing then for Surrey Council, accepted that there was a duty on his client to carry out a proper assessment before dismissing an officer for a disability-related reason. We understand that case is due to be heard in the Court of Appeal in January 2007, but of course in the light of that concession, the issue which we are now ventilating should not arise. We would as a matter of practice respectfully follow the Judgment of the President and Members in Tarbuck if it were necessary for us to do so rather than add to the disagreement. As it happens, we have decided this case without having to deal with that matter, but since it was raised we would need very strong persuasive arguments against it if we were not to follow it. 

31.	Mr Burns has presented arguments in favour of Tarbuck and we would follow it. Thus this case represents the kind of error illustrated in Tarbuck. It is not a failure to make a reasonable adjustment to fail to consider whether alternative work is available for the reasons given by Elias J (President) cited above. The sole basis was a failure to consider, which is equivalent to a failure to consult or to carry out an assessment. It is what is done that is important. If there is a failure to make adjustments when the duty applies then there will be a breach. Failure to assess, as the President pointed out, may put an employer who does not do this at risk, but it is itself not a breach. It would be good practice and common sense for employers always to consider an assessment because if it does not it is likely that it will miss an important avenue and an important possibility of there being an adjustment that could reasonably be made to save the employee’s job, at least to adapt it for his or her present condition. For those three reasons therefore we uphold the submissions of Mr Burns. 

Unfair dismissal

32.	We then turn to unfair dismissal where we disagree with him. We accept that the Tribunal has linked the territory of the case as between the two different jurisdictions. The Tribunal has addressed the proper test under section 98(4) and has taken account of the large resources of the Respondent. Mr Burns accepted that, if this were an ordinary unfair dismissal case, a dismissal on the grounds of capability of a person who was suffering from a medical condition would be unfair if there were no, or inadequate, consultation with her and/or if the employer failed to consider properly any alternative employment. In this case the Tribunal found that there were two jobs which the Claimant was considered for but was not consulted about and she ought to have been.

33.	Is the finding fatally tainted by the error into which the Tribunal fell when it discussed reasonable adjustments? We have decided that although the Tribunal did commit that error, its Judgment in favour of the Claimant on unfair dismissal is unarguably right, see Dobie v Burns [1984] ICR 812 CA. That means that we can uphold it. It certainly was not Mr Burns’ suggestion that this matter should be remitted to the Employment Tribunal. The failure to consult the Claimant upon the two alternative employment opportunities represented a failure under section 98(4) to consider her case correctly. It is of course unaffected by the finding by the Tribunal based on Polkey v A E Dayton Services Ltd [1988] ICR 142 HL, that the Respondent could have dismissed fairly had it gone through this consultation procedure first. And it seems to us that it reduced the compensation substantially. Very fairly, Mr Burns took no point about the detailed components within the unfair dismissal award and we consider we do justice to the parties if we leave in place the award for unfair dismissal but allow the appeal on disability. 

34.	We would very much like to thank Mr Burns and Mrs Ferguson for their helpful submissions today.  The appeal is allowed in part.