Appeal No. UKEATS/0003/08/MT

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HS.

	At the Tribunal
	On 4 November 2008

Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MISS J GASKELL
MS A MARTIN

COMMISSIONERS OF INLAND REVENUE	APPELLANT

MR W MILLAR	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR R N THOMSON
(of Counsel)
Instructed by:
Solicitor’s Office
HM Revenue & Customs
Clarendon House
114-116 George Street
EDINBURGH
EH2 4LH	
For the Respondent	MR D LOUGHNEY
(Trade Union Representative)
on behalf of the Respondent.

SUMMARY

PRACTICE AND PROCEDURE:  Perversity
UNFAIR DISMISSAL:  Reasonableness of dismissal

The Employment Tribunal found that the claimant had been unfairly dismissed and subject to disability discrimination.  The dismissal was found to be unfair for procedural reasons. The disability discrimination resulted from a failure by the employers to make a reasonable adjustment, namely to offer the claimant alternative employment at the appropriate time. The employers contended that these conclusions demonstrated errors of law, principally on the grounds that they were based on findings of fact, and inferences drawn from those facts, which were not sustained by the evidence and were indeed inconsistent with it.  Alternatively, the conclusions were perverse.

The EAT dismissed the appeal and held that the findings were open to the Tribunal notwithstanding that many tribunals would have assessed the evidence differently. The EAT did also emphasise, however, that in assessing unfair dismissal compensation the Tribunal must apply a Polkey analysis and assess the likelihood of the claimant remaining in employment even had proper procedures been complied with.  A similar exercise would also need to be applied when assessing the loss flowing from the disability discrimination. 

The EAT dismissed a cross appeal against the Tribunal’s finding that compensation for unfair dismissal should be reduced by 30% for contributory fault.

THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1.	This is an appeal against the finding of the Employment Tribunal sitting in Edinburgh which held that the claimant was unfairly constructively dismissed and had been unlawfully discriminated against contrary to the Disability Discrimination Act. The Tribunal also found that the claimant had contributed 30 per cent to his own dismissal. The employers appeal the principal liability findings, and there is a cross appeal against the contributory fault determination.

2.	This is an unusual case in that it concerns events which occurred some ten years ago, and indeed led to the claimant’s dismissal in August 2002. In part, the reason for the extensive delays in determining this case is that there was an issue as to whether or not the claimant was disabled, and that was appealed up to the Inner House of the Court of Session, who remitted the matter to an employment tribunal, who found that he was indeed disabled. This is therefore the second time the case has been up to this Tribunal and the events to which the appeal relates began some nine years ago.  

The background.
3.	The claimant started work as an administrative officer with the Revenue in February 1992. Prior to that he had been a police officer and retired on medical grounds. Initially he worked in the Enforcement Section. This involved accounting duties and manual calculations. He very much enjoyed this work. 

4.	In 1996 he moved to a different section, known as LP21, which dealt with enquiries from individuals for PAYE, as well as from employers. He would answer enquiries either by letter or by telephone. The work was almost entirely VDU based because he had to look up customer records on computer. He found this work far less appealing, and felt that he was inadequately trained for it.

5.	In February 1997 the claimant wrote to the respondent’s Human Resources Section indicating that the transfer, which he had not sought, was unwelcome. He felt that the job did not make use of his skills and abilities and in particular his aptitude for numbers. He reported that the post was depressing him and that he had attended his doctor and was taking tablets for depression.

6.	No action was taken at that point with respect to his transfer. He was, however, absent for sickness-related reasons on a large number of occasions. These were mainly self-certified, but occasionally there would be a medical certificate.

7.	On or about August 1998 the claimant began to suffer symptoms of sensitivity to bright light and experienced drooping of his left eyelid. He attributed this to a fall in the toilets on the Revenue’s premises in late July 1998. He had contacted his GP immediately after the fall and returned to work but only for a few weeks. In fact, his last day of work proved to be mid‑August 1998.

8.	The claimant, as we have indicated, was disabled within the meaning of the Disability Discrimination Act. He suffered from ptosis and photophobia. This caused him some difficulty in using a VDU for any extended period of time. His contact with the Revenue immediately following his sickness absence in August 1998 was the respondent’s welfare officer who kept in touch by telephone with the claimant. 

9.	In May 1999 the claimant was seen by Dr Saravolac, who had been instructed by the Revenue. She produced a report which was forwarded to the Human Resources Department. Her report indicated that the claimant had undergone extensive investigation at the Neurology Department of the Western General Hospital but they were unable to discover the main cause of his complaint and had dismissed him from further follow up in January 1999. Dr Saravolac indicated that the main complaint was the painful and watery left eye if exposed to bright lights, and consequent headaches. Her view was that the claimant needed the involvement of an eye specialist, and she indicated that she would be writing to his GP to advise him of this.

10.	She thought that the claimant could resume part of his duties on a temporary basis. She recommended that he should be limited in using a VDU for up to 2 hours over 4-5 separate occasions, and the other part of the day could be taken up with clerical and administrative duties. She also thought that he should build up to full work beginning with six hours a day and increasing the hours through a period of two or three weeks. Similarly, she envisaged that the VDU work should commence at 30 minutes a day and be gradually built up to two hours over a period of time. Finally, she recommended that there should be a work based assessment to give the Revenue clear guidance regarding his ability to do the tasks associated with the post.

11.	The Tribunal recounted that at this stage the claimant was still keen to return to work. The sick pay scheme under which he was employed provided that he would receive full pay for six months and then half pay for six months. There was, however, an exception for someone who suffered an accident as a result of an injury at work and the claimant had been able to take advantage of this. He was therefore still on full pay, but that was due to run out in about August 1999. Thereafter he would still receive an income, but it would be reduced.

12.	Following Dr Saravolac’s report, the claimant had a meeting with Ms Reynolds from Human Resources on 2 July 1999. He told her that he was keen to return to work. A work place assessment, as suggested by Dr Saravolac, was arranged for 13 July and the claimant saw Ms Murray, a senior occupational health nurse, who carried out that assessment.  The claimant again reiterated that he was keen to return to work, being bored at home. 

13.	Ms Murray was concerned that the work being recommended for him was entirely VDU work. The Revenue told her that there was really nothing else at his particular work place which would enable the proposals for limited VDU work to be implemented. 

14.	During the course of conversations with the claimant, he told Ms Murray that he was due to go back and see the consultant neurologist on 22 September 1999. Ms Murray notified HR about this and wrote a letter to them on 23 July 1999.  The Tribunal placed emphasis on this letter, the material parts of which were as follows:
“Mr Millar and I discussed his post and management unit …..
It appears the work in this area involves constant use of the visual display terminal (VDT) and there is no scope for task rotation or alternative duties which do not involve the use of the computer. I have viewed the working area and this is confirmed. The Line Manager is concerned that they could not provide Mr Millar with other tasks in the time period if he is not allowed to use a VDT. This post is not suitable for Mr Millar at present until further investigations are carried out and the prognosis of the case becomes clear.
However, Mr Millar is very keen to resume work as soon as possible as he is becoming bored and frustrated at home. He is able to return to a post which would allow task rotation and use of the VDT in the pattern described in Dr Saravolac’s report of 19 May 1999, ie VDT work, beginning with 30 minutes a day on 2 or 3 separate occasions, gradually increasing to a maximum of 2 hours on 4-5 separate occasions. It is therefore essential that Mr Millar is assigned to a post which would allow clerical work or other duties during the time he is not using the VDT…
I would recommend a review assessment for Mr Millar following his rehabilitation programme. On return to work Mr Millar is likely to require a period re-training with support and monitoring from management. He continues on medication at the present time which is prescribed by his GP. 
In answer to your specific questions in your letter dated 29 March 2000, I would suggest that Mr Millar is ready to return to work following the above advice. Unfortunately I am not able to confirm that Mr Millar will give regular and effective service at this point in time. A “wait and see” approach needs to be adopted. However on a positive note, previous correspondence to you indicates that Mr Millar’s Consultant expects him to be able to give regular and effective service.
The restricted VDU duties at present is expected to be a temporary adjustment. Mr Millar enjoys figure work and ideally would like to do this kind of work on a permanent basis.”

She went on to state that this was a reasonable adjustment until the final medical assessment became evident. She also observed that Mr Millar was a
“keen and enthusiastic employee who does not wish to be on sickness absence unnecessarily.”
The reference in that letter to the observations of the welfare officer was to a comment she had made that the claimant would need a lot of reassurance and advice about undertaking even the limited amount of the VDU recommended by Dr Saravolac.  

15.	The Tribunal noted that at this stage the HR department appear to have taken the view that they would wait until the claimant had seen the consultant neurologist on 22 September before progressing matters further. Unfortunately this decision was not immediately communicated to the claimant, nor indeed to any of his medical advisers. The Tribunal noted that there was no apparent explanation as to why this decision to delay his return to work was taken.  This was a curious observation because an explanation was given by letter dated 1 September from a Mrs Patterson of the HR department to the claimant.  The Tribunal in fact referred to this letter. Mrs Patterson told him that she was reluctant to start looking at adjustments to the job until the prognosis had become clearer. Specifically she said this:
“I understand you have an appointment with the consultant neurologist on 22 of this month and that the occupational health doctor wishes to see you after that. I should then be in a position to know what kind of work you will be physically able to do. I would not like to bring you back to work now only to find that your daily tasks cause exacerbation of your condition.”

16.	An additional problem at this stage in finding appropriate work was that the claimant had been working at a particular work place at Trinity House but that was closed.  Following a re-organisation, the new jobs generally involved even greater use of computers and VDU screens than had hitherto been the case. 

17.	In February 2000 Dr Saravolac wrote to Mrs McKean of Human Resources advising her that the claimant had been seen in September by Dr Lueck, a consultant neurologist at the Western General Hospital in Edinburgh. He had found there were no objective neurological abnormalities in respect of the right eye but that the condition persisted and that fact had to be recognised. 

18.	Dr Lueck had indicated that the condition should not cause much difficulty, that many patients with these conditions could lead perfectly normal working lives, and that the condition had no effect on Mr Millar’s mental health. Dr Lueck also confirmed that he could not foresee any problems regarding the claimant providing the Revenue with regular and effective service in the future. Dr Lueck went on to reiterate the previous advice she had given in May 1999 and said that although it was difficult to predict the outcome: 
“We need to take the ‘wait and see’ approach in his specific case.” 

19.	A further work place assessment was carried out on 19 April 2000 by Mrs Barrowman, an occupational health nurse. She noted that Mr Millar was motivated to return to work but was convinced that VDU work exacerbated his condition and was damaging his good eye. She therefore recommended only administrative work or clerical duties for the initial period so that he might build up his confidence in the work place and then could at a later stage be introduced to VDU work. She thought that his rehabilitation programme should involve a gradual increase in hours up to six hours after some six weeks, at which point he could be introduced to VDU work in short bursts for up to two hours a day.

20.	It is to be noted, as the Revenue emphasise, that the claimant was not at this stage accepting that he would at a later stage do VDU work; he remained opposed to it.  It was Mrs Barrowman’s view that he might be persuaded gradually to do it. 

21.	By this stage the Tribunal noted that the claimant was becoming depressed. He had been out of work for over eighteen months and was worried about his future. He was on a very considerably reduced rate of pay. Mrs McKean wrote to various departments within the Revenue to seek to find any employment but she was unable to do so. No post appeared to be available. 

22.	In May the claimant indicated in terms that he would be unable to consider any VDU work.  (The Tribunal say that he merely indicated that he would not “initially” be prepared to do so, but the agreed statement of facts states that at this time he was unable even to limited VDU work.  We do not think it legitimate to go behind that agreed basis. ) The Revenue then decided that in view of this change in attitude it was necessary to obtain a further medical report. Dr Saravolac provided that report on 17 August 2000. This indicated that the claimant would be fit to resume an alternative post where VDU work was not required and would only be able to do that kind of work after he had recovered from ptosis.

23.	 The respondents obtained yet another report from a Dr Freeland who noted that the claimant’s position regarding VDU work had hardened. He observed that the claimant had set up a number of significant barriers to returning to work quite apart from his concerns about VDU work. He was unable to drive due to his ptosis; he objected to using lap tops as an adjustment; he would not wear an eye patch; and he found difficulty concentrating.  Dr Freeland recommended that there should be some dialogue about a return to work, but was not optimistic that it would be successful.

24.	By the beginning of 2001, Mr Clive Dunlop, who was the Operations Manager based in the Telephone Contact Unit, was tasked with identifying duties which could be carried out by the claimant. He produced a job description which identified temporary non-VDU clerical duties which could be carried out by the claimant. 

25.	Ms Reynolds discussed this possibility with the claimant in February 2001. She formed the view that he was very negative in his initial response and she advised Mrs McKean accordingly. The claimant’s objection, according to Mrs McKean was that the work would be (to use his words) “total rubbish”. 

26.	Mrs McKean then wrote to Dr Saravolac on 14 March 2001 asking for further information regarding the claimant’s condition. There was a further examination carried out by Dr Freeland in July 2001, and a meeting was then called with the claimant, Mr Dunlop, Mrs McKean, the claimant’s wife, and his trade union representative. It was agreed that the claimant would visit Mr Dunlop at one of the possible sites where he might be able to do some work. It was also agreed that Dr Freeland would write to the claimant’s consultant with a copy of the job profile and consider what adjustments might be made to ease Mr Millar back to work.

27.	The claimant duly attended Greyfield House and was shown round by Mr Dunlop. Mr Dunlop reported to Mrs McKean that the claimant demonstrated some apprehension. He was particularly conscious of the unnatural lighting and he said that he did not think he could work under those conditions. 

28.	Dr Freeland then, as had been agreed, wrote to Dr Stone, the claimant’s consultant on 7 August 2001. He forwarded a copy of the temporary job profile. Dr Stone responded on 26 October 2001 and Dr Freeland reported the outcome to Mrs McKean in a letter of 5 November 2001. He noted that Mr Millar was fit for work. His principal obstacle by this time appeared to be his perception of how his former colleagues would interpret his return. He was under the impression that he would be humiliated by former colleagues who would be hostile to him because they did not believe that he was really ill.  It was pointed out that it was unlikely that he would come into contact with any past work mates or that there was any objective reason to believe that they would be hostile.  

29.	On 19 October 2001 Mrs McKean wrote to Mr Millar. She noted that she had been trying to telephone the claimant, but without success. She also said that Dr Stone, the claimant’s consultant, was fully supporting the recommendations that were being put in place to facilitate a return to work.

30.	 Mrs McKean wrote again to the claimant on 18 December 2001. She noted that Dr Stone had accepted that the claimant’s sensitivity to light could be overcome if various measures were taken with respect to the working environment.  She noted that the claimant had concerns about returning to duty among former colleagues and then said this: 
“…
1. To help facilitate a return to duty, I think it would be pertinent to arrange a further visit to the offices. Having attended a visit at Grayfield House, I would suggest arranging a visit to our office in Saughton House at Broomhouse. I have therefore asked Ted Comerford from L P Lothians in Saughton to get in touch to arrange this visit.
2. Once this visit has taken place and a suitable work place identified, I will then contact the Disability Services Team (part of the Employment Service) to visit and provide advice and guidance on alternative equipment and lighting.
3. Dr Stone has also intimated that you have anxieties about returning to duty amongst former colleagues. I appreciate how you must be feeling, however, I would like to reassure you that following the complete reorganization of the London Provincial Districts, it is highly unlikely that you will be working amongst former colleagues.
I am hopeful then that we can successfully facilitate a return to duty…”

31.	Mr Cummerford did write to the claimant on 7 January 2002 inviting him to a meeting. The claimant did not respond. He told the Tribunal that by this time he was totally fed up. He said he was very depressed and had no interest in anything by this stage.  As the Revenue point out, however, he was at this time in regular correspondence with them about the wage he was then receiving.

32.	On 24 January 2002 the claimant was notified that because of his continuous absence on sick leave from 20 August 1998 his absence record was considered unsatisfactory and he was told that he might be dismissed on grounds of unsatisfactory attendance. The claimant’s case was reviewed by Mr Smith, who was then Contact Centre Manager at Greyfield House, which is where the claimant would have returned to work had he been willing to do so. He reviewed the correspondence and wrote to the claimant on 1 February 2002 informing him that unless he was able to return to work on or before 1 March it would be necessary to consider termination of his employment.

33.	The claimant did not return and he was informed by a letter from Mr Smith dated 14 March 2002 that his contract would be terminated for “unsatisfactory attendance.”  Curiously, Mr Smith wrote another letter in similar terms dated 17 May giving the claimant three months’ notice of dismissal, again the reason being given as “unsatisfactory attendance.”  His last day of employment was 15 August.

The decision.
34.	The Tribunal set out the relevant law and it is not suggested that they misdirected themselves in any material respect. They first considered the issue of unfair dismissal.  They concluded that the dismissal was on grounds of capability. They do not explain why they so describe the reason, given that the employers were ostensibly relying on unsatisfactory attendance.  They seem to have assumed that it was essentially the same reason.

35.	The Tribunal noted that at the material time there was no specific obligation under the employers’ policies to have a meeting prior to dismissal, but they were satisfied that a reasonable employer would have done so. Their reasoning was as follows. In their view the position had been reached where the only further step that needed to be taken before the claimant would be able to work was the consent of his GP.  They were critical of the steps taken by the employers to get the employee back to work and commented that the visit to the second work place at Saughton simply seemed to peter out in 2001. 

36.	The Tribunal recognised that the employee was not in a psychological state where he was responsive to attempts to get him to return, but nonetheless they thought that a reasonable employer would at least have made one final attempt to have a meeting and try to resolve the matter. They were critical of the letter that Mr Smith sent to the claimant and did not consider that it was genuinely an attempt to assist him to return to work. The claimant had not been told where he should attend or what he should do. Indeed there was no work place designated for him. 

37.	The Tribunal were, however, critical of the claimant for not being sufficiently co-operative and in particular for failing to respond to Mr Cummerford’s suggestion that he should visit the second site at Saughton, but they felt nonetheless that the principal responsibility for his treatment lay with the employers. They therefore concluded that dismissal was unfair, but given that the claimant had been less than positive in his attitude about returning to work, they felt that a reduction in compensation was appropriate for contributory fault.  They assessed that at 30 per cent. 

38.	They also indicated - as they put it, solely for the purpose of assisting the parties to resolve matters - that they were provisionally inclined to award future loss for the claimant for a period of 24 months from the date of dismissal. They did not think that the claimant had taken adequate steps to mitigate his loss, but recognised that his age and health were against him. 

39.	They then turned to the disability discrimination claim. They considered that in this case the essence of the claim centred around alleged failures to make reasonable adjustments. The Tribunal noted that from the very outset the employers’ own health advisers had taken the view that the claimant could return to work if certain adjustments were made. These recommendations remained fairly similar throughout. Initially they involved limited use of the VDU and a gradual introduction to using that equipment. They recognised that the position altered in May 2001 when the claimant made it plain that he would not want to do any VDU work at all.  However, throughout the period the advice was consistently to the effect that the important thing was to effect a phased return to work on a “wait and see” basis.

40.	The Tribunal concluded that, given this clear advice, steps should have been taken actively to reintroduce the claimant to work in mid-1999. The employers instead chose not to do anything positive.  In particular, they did not take steps to find work for the claimant following the letter from Dr Saravolac of 28 May 1999 and the further communication from Ms Murray in July. The Tribunal considered that this was at the root of the difficulties which occurred. At that stage the claimant was still keen to return to work and it was the employers who were proving discouraging. 

41.	The Tribunal considered that there was really little justification for waiting until a further investigation had been carried out into the claimant’s eye complaint.  The adjustments suggested at that time involving limited VDU work were clearly achievable, as demonstrated by the fact that the employers were in principle prepared to introduce more fundamental adjustments, involving no VDU work at all, at a later stage. The Tribunal took the view that the forthcoming appointment was simply an excuse to do nothing at that stage.  As they put it, the Revenue “seized the excuse” and thereby delayed taking this necessary step at the crucial time.

42.	The Tribunal indicated, again expressing a provisional view, that they would award compensation for failing to make a reasonable adjustment from August 1999 until the date of dismissal. Unfair dismissal compensation would apply thereafter. They did not suggest that they would need to assess the likelihood of the claimant accepting the job if offered, or the length of time for which he might be expected to do it.  They also indicated, again provisionally, that any injury to feelings would be at the lower end of the middle band of the guidelines set down by the Court of Appeal in Vento v Chief Constable of West Yorkshire Police [2003] ICR 318. 

43.	There is, however, some uncertainty about the finding on disability discrimination. There is plainly a finding that there was a failure to make a reasonable adjustment in 1999, and that the effects of that continued for some time thereafter.  The Tribunal also stated that the dismissal itself constituted a separate act of disability discrimination because at that stage also there were adjustments that could have been made to allow the claimant to return to work.   The Revenue submitted that it is not entirely clear from the decision how this conclusion was reached, or whether this is seen as a continuation of the adjustment which should have been made in 1999 or some different adjustment applicable at the time of dismissal.  For reasons we give below, either way we are satisfied that this particular conclusion was unsustainable.

44.	 The Tribunal found these acts of discrimination to involve breaches of the Disability Discrimination Act both because they involved a failure to make reasonable adjustments and, it seems, because they constituted disability related discrimination.  The latter finding cannot now be supported in the light of the decision of the House of Lords in Lewisham London Borough Council v Malcolm [2008] IRLR 700 which has fundamentally altered the previous understanding of that concept.  However, the Tribunal’s central findings on the failure to make reasonable adjustments is not affected by that decision.

The law.
45.	We can deal with the relevant principles of law relatively briefly because they are not in issue in this case. As regards unfair dismissal, the employer must establish the reason for the dismissal and show that it is potentially fair. The Tribunal concluded in this case that the employers had done that, and that the reason was capability, which falls within section 98(2)(a) of the Employment Rights Act 1996. 

46.	The Tribunal must then be satisfied that the dismissal is fair in all the circumstances, having regard to the reason shown by the employer. The issue is not, however, whether the Tribunal would have dismissed in the circumstances. It is whether it was open to a reasonable employer to do so. Again, this Employment Tribunal recognised that principle and referred to a decision of the Court of Appeal in Alidair Ltd v Taylor [1978] ICR 445, which applied that principle specifically to a capability dismissal. 

47.	The relevant provision with respect to disability discrimination is found in what is now section 4(a) of the 1999 Act. That is in the following terms (para 41 of the decision):

“(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 of 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.”

48.	It is to be noted that, as originally drafted, the Disability Discrimination Act allowed for the possibility that an employer would be able to justify failing to make reasonable adjustments. That was the law in force at all material times in this case. The Tribunal did not specifically recognise that and as a consequence did not consider the issue of justification. However, Mr Thomson realistically recognises that nothing turns on that in this case. If the Tribunal were entitled to find that a reasonable adjustment had not been made then there was no basis for a finding that the employers were in any event justified in failing to make it. 

49.	There are two relevant principles with regard to this aspect of discrimination that must be borne in mind. The first is that the reasonable adjustment may, and frequently will, involve employers being obliged to take positive steps to treat an employee more favourably than would otherwise be the case.  That is inherent in the concept of making a reasonable adjustment. Second, where an employee is unable to carry out certain jobs or duties because of disability then reasonable adjustments may involve transferring the employee to a job which does not involve the duties which cause him difficulties. This is clear from the decision of the House of Lords in Archibald v Fife Council [2004] IRLR 651.  In this case it involved transferring the claimant to work which did not include VDU work.

50.	Moreover, in contrast with the situation in unfair dismissal law, it is now clearly established that whether or not a reasonable adjustment could have been made and has not been made is a matter for the tribunal to determine objectively: see for example the observations of Maurice Kay LJ in Smith v Churchill Stairlifts plc [2006] IRLR 41 at para 45.   

The grounds of appeal: general observations.
51.	The grounds are extremely extensive. The employers feel deeply aggrieved by this decision. In summary, they consider that they had acted not just reasonably but with considerable restraint in their dealing of the claimant and they consider that the Tribunal’s conclusions were in substance perverse and unwarranted.  The dismissal itself followed numerous attempts to find work suitable for the claimant, but he resolutely refused to co‑operate. In the circumstances, the Revenue was entitled to take the view that matters could drift on no longer and to bring the contract to an end.  

52.	The Tribunal’s finding that there was a procedural failing in not providing the opportunity for a further meeting was not a conclusion open to it.  Any reasonable employer could properly take the view that enough was enough and that there was no realistic prospect of the claimant being willing to attend such a meeting. 
 
53.	As to the finding on disability discrimination, the Revenue acted reasonably in May/June 1999 in delaying making adjustments until a further neurological examination had taken place. The claimant had expressed a strong reluctance to do any VDU work, and the employers were understandably and fairly concerned that he should not return in circumstances where his condition might be exacerbated.  This was a step which showed proper consideration for the claimant rather than the converse. Looking at the matter objectively, no tribunal could say that this delay amounted to a failure to make a reasonable adjustment.  

54.	It is difficult to deal with the detailed grounds of appeal succinctly since they challenge exhaustively both certain findings of primary fact by the Tribunal, and also the inferences which the Tribunal drew from those facts. In some cases the allegation is that the finding was based on no evidence or was against the weight of evidence.  We preface our analysis of the grounds with the observation that these are notoriously difficult challenges to make for the following well known reasons.

55.	First, it is not for this Tribunal to revisit the findings of fact or even to disagree with the Tribunal as to the weight to be given to certain facts:  see Eclipse Blinds Ltd v Wright [1992] ICR 723.

56.	Second, if a perversity case is to be made, then it is necessary for the EAT to have either agreed notes of the evidence (or at least agreement on the substance of the relevant evidence) or the employment judge’s notes.  In the absence of that, the EAT cannot with confidence make a finding that a decision was made without evidence.  The Tribunal may have heard live evidence from the witnesses which provides a proper basis for its conclusions, even if on the face of it they appear to be at odds with documentary material.  

57.	The significance of that in this case is that we do not have either agreed notes or the employment judges’ notes.  There was, however, before the Tribunal an agreed statement of facts, and we do accept that it would not be permissible for the Tribunal to go behind those agreed facts and make findings inconsistent with them (or at least not without the question being specifically raised and ruled upon, which did not happen here).  To the extent, therefore, that the challenge is to findings inconsistent with the agreed facts, we accept that it can properly be made.

58.	Third, it is not enough that this Tribunal may raise an eyebrow ‑ or even both eyebrows ‑ at some of the conclusions reached by the Employment Tribunal in the light of the evidence that it has heard.  In order to establish that they are perverse it is necessary to meet the rigorous standard set by  Lord Justice Mummery in Yeboah v Crofton [2002] IRLR 634 para 93 when he said:  
“Such an appeal [perversity appeal] ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has “grave doubts” about the decision of the Employment Tribunal it must proceed with “great care.”
That is an extremely high hurdle to cross. 

The detailed grounds.
59.	We now turn to consider the grounds in detail.  We do so by considering them under four categories. 

60.	First, there are certain general observations about the Tribunal’s approach to their analysis which, it is said, cast doubt upon the reasoning in general. 

61.	Second, as we have indicated, it is submitted that the Tribunal made certain findings which are unsustainable on the evidence and undermine its conclusions.  

62.	Third, it is said that the Tribunal made a fundamental error in its analysis of the reason for dismissal and in concluding that the dismissal was procedurally unfair. 

63.	Fourth, the employers challenge the Tribunal’s conclusion that the employers had failed to make a reasonable adjustment by delaying putting the claimant onto work involving only a small amount of VDU work in July 1999. We will give our response to each of these issues as we raise them.

Alleged errors in the Tribunal’s approach.
64.	There are a number of observations made by the Tribunal which the employers submit were plainly wrong. 

65.	First, the Tribunal referred on a number of occasions to the fact that the employee was constructively dismissed, whereas that was plainly not the case. We accept that was somewhat sloppy, but we do not think that anything material turns on it. The actual events and incidents leading up to the dismissal were set out in great detail in the Tribunal’s conclusion and we do not accept that this mis-description reflects any real misunderstanding of the law..

66.	There is also criticism of the fact that the Tribunal noted that whereas everyone was seeking to tell the truth, in the event of conflict they preferred the evidence of the claimant to that of the respondent’s witnesses because, putting it broadly, the incidents were directly affecting him and he would be likely to have a better reason to recall them. 

67.	Mr Thomson submits that this ignores the fact that whereas the claimant may well have been credible, in the sense that he was seeking to tell the truth, nonetheless the reliability of his evidence had to be tested not only against the other evidence from other witnesses, but also against the documentary evidence. 

68.	Again, we do not think that this is a material error.  We do not accept that the Tribunal was intending to say that it would accept the claimant’s evidence even in the face of conflicting documentary evidence.  It was only making a general observation concerning the assessment of evidence.  In any event, given the extensive agreed statement of facts, there were very few areas indeed where the primary facts, as opposed to inferences to be drawn from those primary facts, were in issue. So in practice the observation had no real significance.

69.	Moreover, it is plain that in one or two cases the Tribunal did make findings which showed that they were assessing the evidence in the round. For example, the claimant apparently gave contradictory evidence as to whether or not he had attended a particular meeting with Mrs McKean. The Tribunal concluded that he had, and accepted Mrs McKean’s evidence on this. There was documentary evidence about that meeting. 

Certain key findings of the Tribunal.
70.	A number of the Tribunal’s findings are challenged as being unsustainable on the evidence or perverse. We have already indicated how difficult it is to sustain such challenges, particularly without the relevant notes of evidence.

71.	A very important finding of the Tribunal was that the claimant was, at least in the middle of 1999, keen to return to work. The Tribunal emphasized this on a number of occasions. Indeed the general tenor of their analysis was that he had initially been very keen to return, but that he had become disillusioned with the fact that the employers were dragging their feet, and this caused him at a later stage to become depressed and to take no pro-active steps in seeking to return to a new post.

72.	Mr Thomson submits that this is simply unsustainable on the evidence. He accepts that the Tribunal was entitled to find that the claimant wished to return to work. In our judgment, that is plainly right.  He had enjoyed his previous job; his full pay was due to come to an end in August 1999; and it was open to the Tribunal to conclude in principle he would prefer to work. 

73.	However, Mr Thomson says that there is no evidence at all that the claimant was ever prepared to return to work if that work involved any VDU duties. He had at all times made it plain that he considered that this would be potentially damaging to his health. He had no wish either to go back to his current job, or indeed to any other job which involved VDU work.  He had never liked his current job, and his real objective was to return to the original job from which he had been transferred.  

74.	Even though the medical experts had considered that some restricted VDU work would be compatible with his state of health, the claimant himself was never willing to accept that. In particular, reliance is placed upon certain comments from the welfare officer as early as July 1999 in which she noted that he was very reluctant to undertake VDU work.  That would have been the genuine and justified understanding of the employers at the relevant time.  

75.	Similarly, the finding of the Tribunal that he was willing to work with VDU screens “so far as his health allowed” was simply a travesty of the evidence.  There was not one production of any nature which showed this to be the case.  In any event, it was his position that his health did not allow it.  

76.	There is also criticism of a related finding that by May 2000 the position of the claimant was that “initially at least” he was not prepared to do VDU work. It is submitted that insofar as it suggests that he was open to the possibility that he might be willing to do VDU work after an initial period without such work, that was contradicted by all the evidence. He had by that stage set his face against doing any VDU work.

77.	We do see considerable force in the Revenue’s observations with respect to the conclusion that the claimant was “keen” to return to work. We have no doubt, as Mr Thomson concedes, that he was keen to return if he could secure the kind of work that he considered appropriate. But the question is whether the Tribunal was entitled also to conclude that he was keen to do the kind of work that the medical experts were saying that he should be able to do, namely some limited VDU work, albeit introduced over a period of weeks. 

78.	We have no difficulty in accepting that it is putting it too high to say he was keen to do work of that kind. That is contradicted by the statement in the report of the welfare officer to the effect that he was showing considerable reluctance to do that work, and indeed by his later refusal to do it at all. It is not denied that this was in any sense a misrepresentation of his position.

79.	Having said that, we do not accept Mr Thompson’s submission that the only proper construction of the evidence was that he had at that stage categorically set his face against returning to work on the terms suggested by the medical experts. There was certainly some evidence which supports the Tribunal’s conclusion that he may have been willing to accept such work had he been told that it was available to him at that time. 

80.	First, it is reasonable to infer that the medical experts would not even have made the suggestion that he might gradually build up his involvement in VDU work if he had expressed a settled opposition to that proposal. Indeed, when he became opposed to it in 2000, Dr Saravolac changed her recommendation.

81.	Second, the assessment by Ms Murray, the senior occupational health nurse who made a report on 23 July 1999, was to the effect that notwithstanding the operational difficulties, and bearing in mind the comments of the welfare officer, he should be offered a post which would involve a gradual introduction of limited VDU work, which should be followed by a further review following the consultation with the consultant. Moreover, at that stage all the witnesses were saying that he did want to return for reasons of boredom and pending loss of income.

82.	The difficulty with the argument advanced by the Revenue on this point is that they never put the issue to the test. They did not, in fact, make an offer of a kind recommended by their own health advisers either at that time or indeed at any other time. Accordingly, whilst it could not be said that he was keen to do any VDU work, neither could it be said that the evidence demonstrates that he was by this stage totally refusing to do it.  That is highly material when assessing whether the employers failed to make a reasonable adjustment.

83.	We do accept however, the criticisms, of the Tribunal’s finding that the claimant was “initially at least not prepared to do VDU work by May 2000”. As we have said, the statement of facts makes it clear that at that stage he was not willing to do VDU work at all and although Mrs Barrowman hoped that he might be persuaded to do it after some time if he were allowed gradually to return to work, that was not the claimant’s position.  

84.	We make the same observation with respect to its finding that he was prepared to do the work “as far as his health allows”.  In any event, that finding would need to be qualified by the observation that the claimant had at that point plainly demonstrated that as far as he was concerned, his health would not allow him to undertake VDU work because it was causing his condition to deteriorate.  However, in our view neither of these errors is material to the liability findings of the Tribunal, although the fact that the claimant was by this stage refusing to do VDU work could have relevance to the issue of compensation.

The unfair dismissal conclusion.
85.	The first complaint here is that the Tribunal categorised dismissal as one for capability when it was not for that reason at all. We recognise that the reason given by the employers was unsatisfactory attendance and the Tribunal appears to have drawn the inference that the employers were concluding that it was unsatisfactory attendance as a consequence of the employee’s inability to do the job. In fact, the employers contend that they do not accept that he was not in a position to do the work that was being offered to him.  Rather they considered that he was being un-co-operative and was refusing to finalise the arrangements which would have secured a return to work in a way which was wholly compatible with the medical advice, including that of the claimant’s own consultant.

86.	We recognise that the Tribunal’s categorisation was not entirely satisfactory. We suspect, however, that even if the position were that the claimant was truly unable to come to work for some health reason or another, the employers would still have taken the same step. Whether he was unable or unwilling to work, they had taken the view that they could do no more for him and the contract had to be brought to an end.

87.	In any event, we think nothing of significance turns on this mischaracterisation of the reason for dismissal. We accept that frequently it will, but we do not think it did so in this case. The reason is that the basis of the finding of unfair dismissal was a failure to hold a meeting with the claimant, at which in effect a final ultimatum could be given. The Tribunal in terms stated that they were conscious that they had to consider what a reasonable employer would do, and in the circumstances this required a further meeting. Nor did they think that a reasonable employer would send a letter of the kind which was sent here informing the employee that he had to return to a job which had never been identified, and where the place of work had not even been clarified.

88.	Mr Thomson strongly contends that the Tribunal erred because they ought to have concluded that no reasonable employer would have felt under an obligation to go that extra mile of holding a meeting, given the complete failure by the claimant to respond to the Revenue’s attempts to discuss this job offer with him. The claimant had been quite willing to communicate with the Revenue about the amount of his pay, but was wholly un-co-operative with respect to the return to work. If he was serious about wanting to return then he could have responded to the letter warning him that unless he returned he would be dismissed.

89.	Again, we can understand why the employers may consider this finding somewhat harsh. There is no doubt that at the later stages at least there was a distinct failure by the claimant to help himself in any way at all, and he was frustrating the return to work process. The Tribunal reflected this fact in their finding on contributory fault. However, the question is whether a tribunal could properly conclude that a reasonable employer would have invited the claimant to a meeting for the purpose of ironing out any misapprehensions which he may have about the job and to assure him that the Revenue were committed to trying to make the job work. 

90.	The Tribunal noted that each party had a different perception of the other’s conduct: the employers considered that the claimant was being wholly un-co-operative, whereas he felt that they had dragged their feet and was depressed as a consequence. The Tribunal considered that a meeting might have helped to ensure that each side understood better the other’s position. 

91.	Mr Thomson said that the employers had no evidence that the claimant was depressed. We do not think that is particularly material; they could readily anticipate that the employee would have some difficulties returning to work after being absent for so long. At that stage he was simply not responding to communications from the employers but an indication that this was a ‘make or break’ meeting might well have brought matters to a head. 

92.	Mr Thomson submits that in all probability the employee would not have attended such a meeting. That may be so, but until the offer was made and rejected, it is not possible to say whether that is correct or not.

93.	Accordingly, in our view it was legitimate for this Tribunal to say that the way in which the final stages of the process were handled left something to be desired and that a reasonable employer would have called the claimant to a further meeting.  As we have emphasised, the issue is not whether we would have reached that conclusion, but whether it was open to this Tribunal to make it.

94.	It follows that, in our view, the Tribunal was entitled to find the dismissal was unfair and their conclusion cannot be described as perverse. 

95.	However, we are somewhat surprised by the Tribunal’s indication - albeit only on a provisional basis - that compensation should be assessed on the basis of possible further employment for two years. In our judgment, that fails to have regard to the possibility - and we have to say what on the evidence might appear to be a very strong possibility - that even had procedures been properly complied with, there was little or no chance that the claimant would have taken up the offer, given the fact that he had set barriers in the way of all possible returns to work: see Polkey v AE Dayton Services Ltd [1988] AC 344. 

96.	The Tribunal will need, when considering the question of remedy, to have in mind the Polkey case, which requires it to assess the chances of the employee returning to work even had a proper procedure been complied with.

97.	This dismissal took place before what is now section 98A of the Employment Rights Act.  This provides that in principle an otherwise unfair dismissal for procedural failings is capable of being rendered fair if, on the balance of probabilities, the outcome would have been the same even had proper procedures been complied with. So, the dismissal could not in this case be rendered fair by relying on that provision. However, it is an important factor for the Tribunal to consider when assessing compensation. In fairness, it may well be that the Tribunal did intend to consider that in any event at the remedies hearing, but we have felt that we must draw it to their attention in case the matter were overlooked.

Reasonable adjustments.
98.	As we have indicated, a central feature of this ground of appeal is that the Tribunal was not entitled to conclude that the employee was keen to return to work in June/July 1999. We have already made our observations about that. We would accept that describing him as ‘keen’ to return to do the work suggested by the medical experts is a gross exaggeration, but there was evidence, as we have indicated, from which the Tribunal could properly find that he was, or at least might have been, prepared to return to do the work recommended, however reluctantly, had a relevant offer been made at that time. The question is whether given that fact, the Tribunal was entitled to find that the employers had failed to make a reasonable adjustment.

99.	In our judgment, at the point of determining whether the obligation under the Act is satisfied, it is not relevant to reach a conclusion whether the claimant would have agreed to the adjustment. It may, of course, be reasonable for an employer not even to investigate a possible adjustment if the employee has categorically indicated in advance that it will not be acceptable to him. It cannot be necessary for an employer to pursue a line of investigation which will plainly be pointless and lead nowhere.

100.	But that is not this case. The indications were that the claimant was keen to return to work, albeit as we have indicated not to the particular job that was being proposed. However, until it was proposed it was plainly difficult to know whether it would be acceptable or not. The medical experts, and also Ms Murray who assessed the matter in July 1999, must have thought that there was at least some prospect that he would do the job if it were offered to him. Whether he would have done so or not may well be highly relevant to the question of what compensation flows from the failure to make a reasonable adjustment, but it does not, in our judgment, in principle affect the question whether a reasonable adjustment was made.

101.	What has concerned us most of all is the Tribunal’s finding that, viewed objectively, it was not reasonable for the employers to wait until the outcome of the investigation which the consultant was going to carry out in late September 1999. This was against a background where the employers had evidence that the claimant was reluctant to do this work. 

102.	This has caused us real difficulty. The lay members, in particular, are conscious that an employer might very well understandably take the view that if there is a risk of a condition being exacerbated at work then it is reasonable to defer that return. It was not in this case going to be for a significant period of time. The job assessment had been carried out in July and it was only a couple of months before the investigation was due to take place. 

103.	Against that, however, we must recognise that the report from Ms Murray, supporting the earlier report of Dr Saravolac, was that the claimant should be reintroduced to new work, which at that time properly included a build up of VDU work, and that matters should be reviewed in the light of the neurologist consultant’s report.  We also note that Dr Saravolac expressed some surprise in September that that the claimant had not been back at work in accordance with the recommendation.

104.	Furthermore, the Tribunal was not convinced that the reason was satisfactory. They felt that the pending appointment had been seized upon as an excuse.  They made that assessment in the light of the evidence they heard.  Bearing in mind the injunction of Mummery LJ in the Crofton case, we do not think we can properly say that it was a perverse finding.

105.	 We have therefore concluded, not without some hesitation, that it was open to the Tribunal to say that in the light of that report the reasonable step to take would have been to offer the claimant work at that point. It was always clear that it would be on a ‘wait and see’ basis so that even if the claimant did accept the offer, he would immediately be able to stop if he felt that it were adversely affecting his health.  

106.	Again, however, the Tribunal, when it comes to the question of remedies, will need to carry out a very careful assessment as to what the likelihood was of the claimant accepting an offer at this stage which would then have involved working on VDU. At that time, everyone accepted that the claimant was in a position to do that.  Furthermore, there will need to be an assessment of for how long he would have been likely to do the job, had he have been willing to undertake it in the first place, given in particular his strong opposition to doing any work of that kind a year later   It cannot simply be assumed that he would necessarily have accepted the offer and been willing to remain in post doing VDU work thereafter until his dismissal. 

107.	Finally, we observe that if and insofar as the Tribunal were concluding that the Revenue were still failing to make a reasonable adjustment at the point of dismissal, that is  unsustainable on the facts. By then on any view they had made a reasonable adjustment and were offering a job to the employee which involved no VDU work, and where they were effectively giving him some leeway as to the place where he should work. The procedural failings which resulted in a finding of unfair dismissal do not alter that fact. Whatever the reason for the employee choosing not to co-operate with respect to that offer, it does not seem to us legitimate to infer that the dismissal itself was an act of disability discrimination by reason of failure to make a reasonable adjustment.  Nor could it sensibly be said that the earlier failure continued.  It may be that the consequences of the earlier failure were still being felt by the employee, but that does not justify a finding that there was a separate failure reasonably to adjust at the time of dismissal.

108.	With respect to the finding that there was no reasonable adjustment in 1999, the Tribunal will again have to consider whether the employee would have been willing to accept the offer of some VDU work at that stage and if so, for what period of time he would have been likely to have remained in that employment thereafter.

The cross appeal.
109.	There is also a cross appeal against the finding that the compensation should be reduced by 30 per cent.  

110.	In our judgment, this is quite hopeless. There was plenty of evidence to show that the claimant did not co-operate with the employers in seeking to return to work.  In fairness to Mr Loughney, a retired trade union official who presented the case for the claimant skilfully and succinctly, he conceded that some reduction for contributory fault was justified.  His quibble was with the amount.  However, it has been said on many occasions that the EAT cannot interfere with such findings unless they are plainly wrong.  This is not such a case; indeed, we suspect that the claimant may consider himself fortunate and that many tribunals would have fixed the amount higher. So the cross appeal fails.

Conclusions.
111.	We dismiss the appeal on the basis that the Tribunal was, in our view, entitled on the evidence to conclude both that the dismissal was unfair and that there had been a failure to make a reasonable adjustment by offering the claimant employment in the summer of 1999.  

112.	We do, however, uphold the appeal against the finding that the dismissal itself was in breach of the Disability Discrimination Act.

113.	However, we would emphasise that in determining the amount of compensation it is necessary for the Tribunal to focus on what loss has flowed from any infringement of the law. In respect of the unfair dismissal that means that they must bear in mind the Polkey principle and determine what would have happened had proper procedures been complied with. That is, of course, quite independent of the finding on contributory fault.