Employment Cases Update

London Underground Ltd v Vuoto UKEAT 0123/09/DA

Date published: 25/01/2010

Appeal No. UKEAT/0123/09/DA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 20 October 2009

Judgment handed down on 18 January 2010

Before

THE HONOURABLE MRS JUSTICE COX

MR G LEWIS

MR D WELCH

LONDON UNDERGROUND LTD (APPELLANT)

MR G VUOTO (RESPONDENT)

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant
MR DAVID E. GRANT (of Counsel)

Instructed by:
Messrs Eversheds LLP
Kett House
Station Road
Cambridge
CB1 2JY

For the Respondent
MR NICHOLAS TOMS (of Counsel)

Instructed by:
Messrs Thompsons Solicitors
Transport House
50-52 New Road
Dagenham
Essex
RM9 6YS

SUMMARY

DISABILITY DISCRIMINATION

Disability related discrimination

Reasonable adjustments

JURISDICTIONAL POINTS: 2002 Act and pre-action requirements

Appeal by Respondents against ET's findings on disability related discrimination, reasonable adjustments and unfair dismissal. No error of law found in ET's reasoning or decisions on these claims. Given their findings of fact, they were held to be entitled to find in the Claimant's favour and their judgment was held to be sufficiently reasoned. Appeal dismissed.

The Cross-appeal by Claimant against ET's conclusions on statutory grievance procedures was successful, the ET having erred in their approach to the relevance of the Claimant's failures in the circumstances. Cross-appeal allowed.

THE HONOURABLE MRS JUSTICE COX

1. In this case London Underground Limited, the Respondents below, are appealing from a judgment of the London Central Employment Tribunal, promulgated with reasons on 9 December 2008, upholding the Claimant's claims of unfair dismissal and disability related discrimination under Section 3A(1) Disability Discrimination Act 1995 (DDA).

2. In addition the Claimant, Gianpaolo Vuoto, is cross appealing against the Tribunal's dismissal of his free-standing claim, under Section 4A of the DDA, of a failure by the Respondents to make reasonable adjustments.

3. On the appeal the Respondents contend, essentially, that the Tribunal erred in law in upholding the discrimination claim under Section 3A(1); in holding that there were reasonable adjustments which could have been made for this Claimant; and in upholding, as a consequence, his claim for unfair dismissal.

4. The two discrete points taken on the cross appeal are that the Tribunal erred (a) in concluding that the absence of a grievance by the Claimant effectively debarred him from pursuing a free-standing reasonable adjustments claim under Section 3A(2) and Section 4A; and (b) in deciding that, when dismissing the Claimant, the Respondents had complied with Step 2 of the Statutory Dismissal Procedure in Part I of Schedule 2S to the Employment Act 2002.

The Facts

5. The Claimant was employed by the Respondents in 1998. He worked as a Station Assistant Multi-Functional (SAMF), which meant that he could be required to work on a variety of tasks and on a variety of shifts during the day, including weekends, at a number of stations in a particular group over a six-week period.

6. In July 2002, when the Claimant was unwell and absent from work, he was diagnosed with multiple sclerosis (MS). It was and remains common ground that he is thereby disabled within the meaning of the DDA.

7. This debilitating condition means that his daily activities have been affected in a variety of ways, in particular his mobility, his balance and his ability to lift and carry items. Unsurprisingly it also had an effect on his ability to work as an SAMF.

8. The Claimant was, however, keen to continue working and to return to work. His line manager at that time, Jim Nicholson, visited him at home in October 2002 to discuss an action plan for his phased return to work. The Respondents' Occupational Health (OH) team provided reports in October and December 2002, and confirmed that the Claimant was not fit for the position of SAMF for the foreseeable future. Advice was given, however, as to adjustments that could be made to his job in order for him to undertake certain aspects of it. In particular, a regular hours work pattern was considered advisable.

9. A report from the Claimant's GP in November 2004 referred to the Claimant making "a tremendous effort to continue working". He was helped in his efforts to continue working by a number of adjustments made by Mr Nicholson to his working arrangements. At some point the Claimant moved to a permanent rostered position at Green Park Station and was required to work only fixed (i.e. non-shift) hours, namely 8.00 am to 4.00 pm on Monday to Friday. He was not required to carry out any lifting and track or platform work, and his duties were effectively confined to working at the ticket window.

10. These arrangements were to remain in place until further advice was received from the OH team or until the Claimant submitted further medical evidence. They did not change even when the implementation of a 35-hour week in February 2006 necessitated changes to working shift patterns. There were also changes connected with the Respondents' implementation of a computer generated model of required station staffing known as "the schematic". The Tribunal found that, despite the introduction of this new schematic, and consequent changes to shift patterns, the Claimant continued to work the same regular hours on a permanent basis at Green Park and was not required to undertake shifts.

11. Between 2004 and his dismissal in November 2007 it was agreed in evidence that the Claimant's absence record averaged 21 days per annum and that this was the level of absence which was envisaged by the OH team. Whilst this was slightly higher than the absence levels of other employees the Respondents conceded in evidence that they "could cope with" this average (see paragraph 5.82), and no-one appears to have complained about either the Claimant's absences or his working arrangements until November 2006.

12. On 5 November 2006 Peter Jukes took over from Mr Nicholson as Group Manager of the Green Park group of stations. The Tribunal found that Mr Jukes wished to change the reasonable adjustments that had been agreed with the Claimant. He was encouraged by his manager, Stuart Burnett, to review all members of staff who had some form of medical restriction and the Claimant was one of them.

13. The Tribunal referred to the various policies and procedures that the Respondents had in place at this time. These included an attendance standard policy, a limited attendance at work procedure, an attendance at work support pack; and a set of DDA guidelines for managers. Managers were required to comply with the various steps referred to in these documents. The limited attendance procedure and support pack envisaged three steps being taken in relation to a fitness to work case. Active consideration of reasonable adjustments was required first and then, if and when no such adjustments were possible, active pursuit of suitable alternative employment, i.e. medical redeployment on a permanent basis. Finally, and only as a last resort, consideration could be given to termination on medical grounds.

14. These policies provided that case conferences with the employees in such cases were to be conducted in a friendly atmosphere, with the emphasis on assisting the employee and guidance being sought from the OH team where necessary.

15. The Tribunal found that Mr Jukes did not refer at any stage to the managers' DDA guidelines or to the practical advice and guidance given as to reasonable adjustments, discussions with the employee concerned and the need for flexibility in such cases.

16. What happened was that Mr Jukes decided to seek a further opinion from the OH team and referred the Claimant's situation to them, although without first consulting the Claimant. He asked whether the previous restrictions could be lifted so that the Claimant could undertake both weekend work and earlier and later shifts. The response confirmed the original OH advice that the Claimant should perform regular daytime shifts because that helped to stabilise his condition. The present restrictions were all still considered to be necessary.

17. On 12 January 2007 Mr Jukes sent an email to Human Resources and to Mr Burnett stating that the Claimant was carrying out shifts which were incompatible with any roster on the group. He therefore asked that he be allowed to go "one above" the numbers of staff at Green Park, in order to accommodate the Claimant's restrictions. Mr Burnett, who knew of the Claimant's MS and had received the most recent OH report, rejected this request out of hand.

18. The Tribunal found at paragraph 5.34 that there was no good reason why Mr Burnett had rejected it. There were a number of options found to be open to him, including having the proposed adjustment referred to more senior management with a view to obtaining additional funding, or consideration being given as to how the shifts could be reorganised to minimise any financial effects. In fact the Tribunal found that no research had been undertaken on the actual financial implications of the Claimant's adjustments, if any, and no evidence of any financial effects was produced to the Tribunal. The Tribunal found that Mr Burnett:

"Simply chose not to research the financial implications. He did not wish to depart from the roster and wanted all employees wherever possible and regardless of their abilities to work rostered shifts."

19. At a meeting with the Claimant on 12 February 2007 Mr Jukes said that the duties the Claimant was doing meant that his colleagues bore the brunt of doing all the other shifts. The Tribunal found, however, that Mr Jukes had not interviewed any of the Claimant's colleagues in order to seek their views, merely asserting that it was unfair to them. In fact, there had been no complaints, and it is not in dispute that two of the Claimant's colleagues gave evidence before the Tribunal that they were happy to accommodate him and the adjustments put in place for him. We note in addition that at paragraph 5.82 the Tribunal found that the effect of changing the Claimant's shifts would in fact be to increase the pressure on other staff to do extreme shifts.

20. At this meeting Mr Jukes suggested that the Claimant should work shifts. Four shifts were identified, namely Green Park at 9.30, Hyde Park Corner at 7.30, and Knightsbridge at 6.45 and 10.45. The Tribunal found that the Claimant had difficulty with the Hyde Park Corner shift, because he would have to lift coins, and with the Knightsbridge shift because of the complication of walking to different offices several times a day.

21. The Tribunal found as follows at paragraph 5.37:

"5.37 What is clear is that the new shifts were being proposed solely to assist the Respondent by moving the Claimant to the current rostered shifts and away from his fixed permanent shifts which had previously been agreed. The Respondent's motivation was that it solely perceived the new shifts as better fulfilling its business needs and in no sense whatever were any 'adjustments' put forward to improve the Claimant's position. However, the Respondents clearly took the view that the Claimant could undertake limited shift work within the confines of not doing 'extreme' early or late shifts."

That finding is not challenged by the Respondents in this appeal.

22. The Claimant was told that there was no position at Green Park that was suitable for him. Other stations were mentioned as being stations where possibly his shifts could be accommodated. At no stage was he told whether his own position could continue and the implications of that. The Tribunal found that it was clear that the Claimant was "extremely stressed by this interview", which was not a case conference of the kind envisaged under the procedures. On the contrary the Claimant was being told that the Respondents were going to withdraw the reasonable adjustments that had previously been agreed.

23. Events moved on and a case conference did proceed on 12 March 2007. The Tribunal found that:

"5.40 … At no point in this meeting did the Respondent identify to the Claimant what step the procedure had reached. The Claimant was told that the company would not, what it described as 'go above numbers,' to accommodate the Claimant's shifts. He was told there was no job at Green Park during the hours he was currently working and that he would not be allowed to carry on doing what he was doing. He was told it was having a detrimental effect on his colleagues. Mr Jukes mentioned that there may be similar positions at Shepherds Bush and Barkingside. The Claimant confirmed that he would go if 'push came to shove'. That said he confirmed there was no point in thinking about it if there was no position. No specific position was ever identified and Mr Jukes suggested that they consider a part time post but again no specific vacancies were identified. The Claimant said he could not afford to work part time in any event. The Claimant was told that the only other option was redeployment and Mr Jukes acknowledged that the Claimant did not wish to go down that route. The Claimant confirmed he did not want redeployment as he would have to find a job himself."

The Respondents were found to be aware that the Claimant did not feel able to cope with interviews due to his condition. The Tribunal continued at paragraph 5.41:

"5.41 Mr Jukes did not suggest to the Claimant that the Claimant would not have to look for the jobs himself. The Claimant believed that he would have to attend interviews. The Respondent did not do anything to suggest otherwise. The Claimant was told that if he was not successful with redeployment the Respondent would look at medical termination."

24. They found as a fact that the Claimant was told by Mr Jukes that he would have to make a decision that day as to whether to place the Claimant on redeployment. At paragraph 7.56 the Tribunal concluded that at this meeting Mr Jukes was deliberately putting pressure on the Claimant in an inappropriate way, and that this was contrary to the Respondents' policies and procedures, which emphasised the necessity for case conferences to be conducted in a friendly way, with the emphasis on flexibility and assistance for the employee.

25. After a short adjournment the Claimant accepted a change in his duties, such that he was required to work at 6.45 at Knightsbridge, 7.30 at Hyde Park Corner and 9.30 at Green Park. He was told that these changes would be monitored. They were due to take effect from Monday 19 March.

26. On 29 March the Claimant went off sick. The Tribunal found that he was suffering from MS which was exacerbated by work related stress. The required change of shifts was found to have produced an enormous stress on the Claimant, which contributed to his absence (see paragraph 7.30). The Claimant returned to work on 16 April and, although the new shift pattern had commenced, he appears to have worked only his usual hours of 8.00 am to 4.00 pm.

27. Before any action was taken in respect of this, however, the Claimant was involved in a road traffic accident on 29 April 2007, when he suffered a whiplash injury. He was signed off work, initially for two weeks. As will become apparent, however, and as is common ground before us, this injury had only a minor impact on the Claimant's underlying condition and he made a full recovery from it.

28. On 23 May Mr Jukes wrote asking the Claimant to attend a meeting on 29 May to review his progress.

29. The Claimant spoke to Mr Jukes on 25 May when he stated that he was too unwell to attend the meeting. On 26 May, during a second conversation, the Tribunal found that it became heated and that Mr Jukes shouted at the Claimant.

30. The Claimant told Mr Jukes that he did not want him to visit him at his home, but the Tribunal found that, despite this request, Mr Jukes did visit the Claimant at home and on a date which had not been arranged (see paragraph 7.57). Mr Toms appearing on behalf of the Claimant, points out that this is not a case where there was any suggestion of the Claimant not being genuinely unwell or unable to come to work. The medical evidence was all agreed.

31. The Claimant contacted the Respondents, stating that he did not wish to have any further meeting or case conference with Mr Jukes. Mr Jukes then wrote a letter representing to the Respondents that the Claimant was refusing to attend meetings and had declined a home visit. The Tribunal found that this was misleading. It was clear to Mr Jukes that there was no refusal, but simply a statement that the Claimant was too ill to attend. Mr Jukes had conceded in his evidence that not attending for medical reasons was not a refusal to attend. The Tribunal found that Mr Jukes' letter was inaccurate and further that he knew it to be inaccurate at the time that he wrote it.

32. A case conference was arranged for 8 June, whilst the Claimant was still on sick leave and two days before he was due to go on three-weeks annual leave. He was then asked to attend a conference on 29 June, whilst he was still on annual leave. The Claimant's union representative Mr Hartshorn wrote a memo complaining about these requests. He described their impact on the Claimant as considerable and said that he felt he was being harassed by local management because of his condition. Mr Hartshorn asked for any further correspondence to be sent to the Claimant's union representative.

33. The Tribunal found that Mr Jukes did not take this memo seriously and that he did not consider a complaint from a union representative to be a valid complaint. Further, despite the complaints of harassment, Mr Jukes considered it appropriate for him to continue to manage the case and he did so.

34. A new case conference was arranged for 2 July and on that day the Claimant returned to work. He was agitated and restless and said that he could not deal with it. He left duty that day. Mr Jukes wrote informing him that the meeting would be rearranged for 5 July at Victoria and that the case conference would proceed in his absence if he did not attend.

35. The Claimant did not attend and Mr Jukes wrote telling him that he had failed to attend and had failed to engage in any discussions re his state of health and how Mr Jukes might support him. He was told that the case conference was arranged for the final time for 13 July and would proceed in his absence.

36. On 12 July the Claimant sent an email to Mr Jukes stating the he was too unwell to attend, but that he did wish to try and resolve the matter. He suggested further contact by email or letter.

37. Despite the Claimant's email Mr Jukes proceeded in his absence on 13 July. He noted at this meeting that the reasonable adjustments made had not satisfactorily improved the Claimant's attendance.

38. However, as the Tribunal found at paragraph 5.56,

"Mr Jukes was aware that the adjustments made to the Claimant were to accommodate the Respondents' business requirements as defined by Mr Jukes."

39. After this case conference the Tribunal found that no further adjustments were made. Nor was the Claimant referred to the OH team, who were not asked to advise on the Claimant's ability to do any alternative job. The Tribunal found that Mr Jukes knew that the Claimant wished to remain employed; and that it was unclear whether he understood this case conference to be Step 1 or Step 2 of the Respondents' procedure. The case conference was not adjourned for three months, as the Respondents' procedure envisaged, so that the position could be kept under review.

40. The case conference concluded with Mr Jukes deciding that there was no option but to refer the Claimant for redeployment. The Claimant was informed of this decision by letter of 17 July, in which he was told that if he had not found a job after 13 weeks, his employment might be terminated on medical grounds.

41. Correspondence sent to the Claimant referring to redeployment and requiring him to attend an induction was found to have provided no information as to the nature of the process. The Claimant believed that redeployment involved him applying for jobs and attending for competitive interviews.

42. On 25 July Mr Hartshorn wrote to Mr Jukes stating that Mr Jukes was not medically qualified to assess the Claimant's ability to do his current job and that the matter should have been referred to the OH team. The process would be challenged, and so would the validity of the finding of 13 July. An OH appointment was requested. Nevertheless the 13-week period commenced on 24 July.

43. Mr Jukes wrote again on 1 August seeking to arrange a visit on 6 August. The Tribunal found it to be clear that Mr Jukes did not have a full understanding of the Claimant's current illness and inability to attend work. The Claimant stated that his union rep was away and that he would therefore be unable to attend.

44. The meeting was rearranged for 30 August and the Claimant was told that if he refused to attend it would be treated as a conduct issue. The Claimant's union representative was still away and the Claimant informed Mr Jukes that he would be unable to attend as a result. By letter of 30 August Mr Jukes stated that the Claimant had failed to carry out reasonable management instructions and to attend the meeting and the case management conference. His pay was therefore being suspended. The Tribunal found that this was a final decision, because the Claimant's pay for the period 13 August to 16 September was not subsequently reinstated. However, Mr Jukes had no power to suspend the Claimant's pay under the Respondents' disciplinary procedures.

45. The Tribunal concluded at paragraph 7.60 that the Respondents had failed to follow their own attendance at work procedures, and that they failed throughout to identify which step of the procedure was being considered. In particular they failed to consider reasonable adjustments. This, they found, led the Respondents into error in that redeployment was considered in what must have been a Step 1 meeting. This was in itself inappropriate and caused stress to the Claimant, which contributed to his absence. Further, despite the obvious problems which existed, Mr Jukes remained involved in an active management role.

46. A further case conference took place on 26 September. However, Mr Jukes began it by referring to the Claimant's failure to attend the previous meeting. The Claimant took offence. The meeting quickly became heated. The Tribunal considered it unclear why Mr Jukes, who they found to be an experienced manager, should have allowed a meeting which should have been conducted in a sympathetic manner to become heated so quickly. Mr Jukes offered no explanation as to why he considered it necessary to ask the Claimant at the outset about his failure to attend previous meetings.

47. After a short adjournment Mr Jukes stated that the Claimant's attendance pattern had deteriorated and that he would be sent for an appointment with the OH team. He did not explain the purpose of that appointment. He also stated that there would be a further four weeks in redeployment. The only other option referred to was termination of the Claimant's employment on medical grounds. The Tribunal found no evidence that there was any significant consideration of any further reasonable adjustments. Nor was there any reference to a referral to the OH team to determine the Claimant's capacity for alternative employment. Nor did the referral ask whether the Claimant was incapable of undertaking his current job. It did ask whether his condition had been affected substantially and whether he would be able to sustain any return to work and as to the effects of medication upon his ability to return to work and sustain that return.

48. Before the OH report was received, Mr Jukes wrote to the Claimant on 3 October and stated that at the next case conference he would consider termination of employment.

49. The OH team reported on 9 October. It's contents included the fact that the Claimant was now suffering from stress, which was related to work issues; that the stress would improve once the work issues were addressed and resolved; that the Claimant could resume his work in the booking office, starting with short shifts and, with regular breaks, working back up to his previous duties over the course of three weeks; that for the foreseeable future regular shift patterns would help to stabilise his condition and help him to manage the side effects of his medication; that he remained restricted in platform and hazardous machinery work; and that the road traffic accident had had only a minor effect on his symptoms. The report specifically stated that if the Claimant were to return to work he would sustain that return and would not be taking any extra medication.

50. The final case conference took place on 8 November 2007 which, on this occasion, was conducted by Chris Oduola.

51. At this conference Mr Oduola decided to dismiss the Claimant for what he described as medical grounds. The Tribunal set out those matters he considered at paragraphs 5.77-5.83 as follows:

"5.77 … In reaching his decision he relied on a number of specific points and further gave an explanation as to what he considered to be medical grounds. He relied on the following conclusions: Mr Jukes decision to revise the shifts in March had been in keeping with the business needs and he felt this was a reasonable decision as there was a strong case for previous shift pattern not meeting business needs. Mr Oduola did not seek any specific clarification on these matters from senior management. Since the implementation of the new shift pattern the Claimant had only worked 23 shifts. He asserted that this was a reasonable adjustment which had not improved the Claimant's attendance. He concluded Mr Jukes had offered the Claimant several opportunities to discuss the situation and had been flexible about dates. He further concluded that the Claimant had not engaged in the process. He asserted Mr Jukes' decision to refer the Claimant to redeployment had been correct and might have been an opportunity to find the Claimant a position which better met his need to work regular hours. He said the Claimant had stated redeployment was not a suitable option. He did not specifically comment on the reason for this. He referred to the possibility of part time work and noted the Claimant had indicated this was not suitable financially. He stated Mr Dukes (sic) had looked at the Claimant working at different locations nearer his home. He noted that Interferon can trigger allergic reactions which could impact on the Claimant's attendance. He noted the Claimant suffered 2 conditions, diabetes and multiple sclerosis and that he had been signed off for a further 2 months. He noted the Claimant's mobility issues and he could not walk more than 100 metres which caused difficulties at work. The medical restrictions imposed would remain for the foreseeable future. Further, there were elements of the Claimant's role which he could not undertake particularly gateline duties.

5.78 Mr Oduola then went on to summarise the reasons for termination on medical grounds as follows: Mr Jukes had tried to make reasonable adjustments to accommodate the Claimant's medical condition but the Claimant had remained sick. The Claimant had not engaged in any meaningful manner in the attendance at work procedure. He had not attended case conferences. He was concerned over the sustainability of any return to work. He was concerned by the impact on the business. He was certain there were no further reasonable adjustments that could be made with which the business could cope as the impact on the service delivery and customer service would be too great.

5.79 During his evidence Mr Oduola stated that at the time of the case conference he was satisfied the Respondent had been keeping the Claimant in his current job by carrying out reasonable adjustments which had not been successful. He was satisfied that the Respondent explored the possibility of work at other locations doing the SAMF role. He was satisfied that this was not a possibility and he considered whether the Claimant could remain in full time work at London Underground. He considered whether his requirements could be accommodated with restrictions. He though that the matter could be considered in redeployment. He then went on to confirm that he took account of the fact that the Claimant had been off sick since March and he presented a further sick note for 2 months.

5.80 Mr Oduola took the view that the Claimant would not be able to return to work and sustain attendance despite the LUOH report. He based his opinion, which on the face of it was contrary to the medical evidence, on the Claimant producing a sick certificate for 2 months. He did not refer the Claimant back to LUOH to consider this.

5.81 He was aware the Claimant's sickness absence record in the 3 years prior to 2007 where his absence was 21 days in 2004, 28 days in 2005, 15 days in 2006. It was agreed in evidence that this is an average of 21 days per annum. It was agreed that this was the level of absence envisaged by the LUOH report. Mr Oduola stated that the impact on business needs and particularly on service delivery related to overtime payments and on occasions the ticket window would be closed. He considered this was not sustainable. He said the business could not continue to accommodate this on a regular basis.

5.82 In his evidence Mr Burnett who was ultimately Mr Jukes' Manager conceded that the Respondent could cope with an average of 21 days per annum. Mr Oduola did not consult Mr Burnett. Mr Oduola did not seek clarification as to what the actual financial impact would be. Mr Jukes did not consult with reserve staff nor did Mr Oduola. Mr Jukes did not consult as part of his original consideration for changing the Claimant's shift pattern. He stated the reserve staff would have to do more extreme early and late shifts. In fact by changing the Claimant's shifts so that he did some of the shifts covered by reserve staff the effect of the change would be to put more pressure on the existing reserve staff and do extreme shifts and not less.

5.83 Mr Oduola was unable to say how many times the ticket window had closed in the 3 years prior to 2007. Mr Oduola conceded that returning the Claimant to permanent fixed shifts of 08.00 – 16.00 may have removed the stress referred to in the LUOH report and this could have improved attendance. Mr Oduola did not believe that an adjustment could be made to the redeployment procedure such that the Claimant would not have to go through interview. Mr Oduola did not seek specific confirmation of what positions were available, further he did not identify the step of the procedure in which he was involved. He did not specifically refer to the procedure during his findings."

52. The letter of dismissal was dated 9 November 2007. It stated that the reason for dismissal was medical grounds and included the following words

"5.84 … 'you confirmed that the unpredictable allergic reaction to medication would mean that you require further periods of time off work and you would be undergoing a further course of treatment in hospital in the near future. We also discussed the fact that your condition has caused you to take time off work on a number of occasions over the past year.' "

53. The Claimant appealed against this decision. His appeal was heard by Mr Burnett, even though he had been involved in the original decision to change the Claimant's shift pattern.

54. The hearing took place on 10 December 2007 and Mr Burnett dismissed the appeal. At paragraph 5.88-5.91, the Tribunal found that:

"5.88 Mr Burnett upheld Mr Oduola's decision to terminate the Claimant's employment describing it as a perfectly reasonable decision to take. Mr Burnett said there had been a fair procedure followed. He acknowledged his duties to consider reasonable adjustments but said that it was not limitless and concluded by saying 'we spent a long time over a long period trying to accommodate you but you left us no option but to terminate your employment.'

5.89 Mr Burnett did not refer specifically to the various company procedures including the attendance at work support pack. Mr Burnett did not reconsider the adjustments made in 2007 and did not consider Mr Jukes assertion that the reason was to reduce the number of extreme shifts for other reserve staff. He asserted that there was an impact on service delivery needs. There was no attempt to analyse this in any objective manner. Mr Burnett did not consider seeking extra funding. He did not consider it a viable option to continue with the shift system existing prior to March 2006. Mr Burnett asserted that the Claimant had not engaged with the redeployment process but does not appear to have considered the matter further. In particular he did not consider identifying any reasonable adjustments which could be made to the redeployment process. Mr Burnett asserted that Mr Jukes had been right to consider asking the Claimant to be more flexible and to explore reasonable adjustments which could better meet the business needs.

5.90 Mr Burnett noted the Claimant had reacted very badly to the small variation in duties put in place in March 2007. Mr Burnett confirmed that in view of the report of 9 October 2007 he was concerned about the Claimant's ability to sustain a return to work even with reasonable adjustments in place. He also noted the Claimant had been signed off for a further 2 months.

5.91 Mr Burnett ruled out consideration of whether a role near the Claimant's home could be an option. He stated in view of the above restrictions in attendance pattern he did not feel that this was reasonable. There appears to have been little or no attempt at all to investigate this matter critically. He did not consider what reasonable adjustments might be made to the redeployment process itself. The appeal decision was sent to the Claimant by letter of 14 December 2007."

The Tribunal's Decision

55. The Tribunal directed themselves, correctly, as to the relevant statutory provisions for the claims of disability discrimination and unfair dismissal. They also referred to some of the relevant case law to which their attention had been drawn by both counsel in detailed closing submissions.

Disability Discrimination

56. The fact that the Claimant had a disability and that the treatment complained of, namely dismissal, had taken place were obviously admitted. The reason for dismissal advanced by the Respondents was found to be the operation of their absence procedure to the Claimant, who had been off work and was not able, on 8 November 2007, to confirm when he would be able to return to work.

57. The Tribunal found that this reason related to the Claimant's disability. Whilst for part of the time the Claimant was off work as a result of the road traffic accident he was also absent because of stress, which in this case could not be divorced from his underlying condition of MS. The stress related directly to the restrictions on his working arrangements, caused by the MS, and separating the two conditions would be entirely artificial. There was found to be a direct causal link between the disability, the stress, the absence and the eventual dismissal.

58. In relation to the appropriate comparator, this case was heard shortly after the decision of the House of Lords in London Borough of Lewisham v Malcolm [2008] IRLR 700. Applying that decision the comparator selected by this Tribunal was a non-disabled person who was absent for the same length of time as the Claimant and who presented a GP sick note for a further two months. This is not challenged by either party in this appeal.

59. It meant that the Tribunal approached the claim broadly as one of direct discrimination with the need for a comparator whose circumstances, apart from disability, were the same or not materially different from the Claimant's. The Tribunal then turned to consider the question of less favourable treatment and in particular whether the Claimant had proved facts for which they could conclude, in the absence of an adequate explanation from the Respondent, that they had acted in a way which was unlawful under the relevant statutory provisions.

60. They decided, having regard to the evidence, that there were facts from which they could conclude that this Claimant had been treated less favourably in being dismissed and that the burden of proof therefore shifted to the Respondents. They had regard in so deciding to the Respondents' admission, which it is accepted came from Mr Oduola in cross-examination, that if a non-disabled person had also been absent as a result of a road traffic accident in the same manner as the Claimant that person would not have been referred to redeployment at the same time as the Claimant was. This they considered was "a material difference ultimately relating directly to the Claimant's disability'.

61. Further, they found that in reaching his decision to dismiss Mr Oduola took into account a number of factors which were specifically and directly related to the Claimant's disability. These were set out at paragraphs 7.12-7.18 as follows:

"7.12 The Claimant was taking Interferon and this could trigger an allergic reaction which could impact on the Claimant's attendance.

7.13 There is a direct reference to the fact that he suffers from diabetes and multiple sclerosis and has been signed off for a further 2 months.

7.14 There is no attempt to obtain a further medical report despite the fact that the only medical report Mr Oduola had available clearly indicated the Claimant could return to work. Mr Oduola effectively ignored this report. Instead of accepting the report or getting further medical evidence to address any doubts Mr Oduola at least in part substituted his own view. We are not satisfied that assumptions would have been made about a non-disabled person in the way they appear to be made about the Claimant and we can draw an inference from this matter.

7.15 There is an assertion that the attendance pattern, which was agreed as an average of 21 days absence, was not sustainable. This was contradicted by the Respondent's evidence before us where it was agreed that it was sustainable. We can infer from this that a non-disabled person would not have been treated in the same manner which is effectively a failure to actively consider the true business needs and sustainability of the absence. Here the Respondent has simply proceeded on assumptions and it is reasonable to draw an inference from that.

7.16 There is a reference to the Claimant having mobility issues, particularly not being able to walk more than 100 metres. The reasons given for dismissal say these causes difficulties, it is not clear why this has been included and again an adverse inference can be drawn from this.

7.17 There is also reference in the decision to dismiss to the fact that if the Claimant returned, his medical restrictions would remain for the foreseeable future. The implication is that the Respondent objected to the medical restrictions. This is something which would not have applied to a non-disabled comparator and it is reasonable to infer that it was therefore the mobility restriction arising out of the disability which influenced the treatment. This would not have applied to the non-disabled comparator.

7.18 There is also reference to concern about the sustainability of a return. This is despite the fact that the Respondent's own medical evidence contradicts this. It is reasonable to infer that assumptions of the same nature would not have been made about a non-disabled comparator."

62. At paragraph 7.20 they stated:

"7.20 We next turn to consider whether the Respondent has shown that the Claimant has not been treated less favourably than the comparator having regard to any reason advanced. We must consider whether the Respondent has put forward an explanation for the treatment which proves it did not act in the discriminatory manner. Here we find that there is no adequate explanation which has been put forward. It follows that the primary case of disability related discrimination succeeds."

63. When dealing with justification the Tribunal considered within the framework of Section 3A(6) DDA, as they were bound to, whether there had been a failure by the Respondents to make reasonable adjustments.

64. The provision, criterion or practice (PCP) in this case was the Respondents' attendance at work procedure, as expanded upon by the support pack and its operation as a term of the Claimant's contract, which ultimately exposed him to the possibility of dismissal. The Claimant had identified at the outset of the hearing a number of PCPs within that procedure, including the need to work shifts in the shift roster system; the need to have a certain level of attendance; and the need to identify suitable employment and attend interviews himself during the redeployment process. The Respondents' case was that they had followed the whole of that procedure and, having reached its end, had then dismissed the Claimant. The substantial disadvantage in this case was, of course, the dismissal.

65. There was no dispute that these PCPs placed the Claimant at a substantial disadvantage, namely dismissal, in comparison with non-disabled persons who would not normally be exposed to those PCPs. The duty to make reasonable adjustments was therefore held to be engaged. At the start of the hearing below the Claimant set out the five specific adjustments that he was relying upon and the Tribunal recorded them at paragraph 2.8 as follows:

"2.8 The Claimant relied upon specific reasonable adjustments as follows:

2.8.1. The Claimant should have been allowed to maintain his original agreed hours of 0.800 – 16.00 Monday to Friday.

2.8.2. The Respondent should have accepted a higher level of sickness absence from the Claimant than someone without multiple sclerosis.

2.8.3. The Respondent should have allowed him to return to the pre-March 2007 shift pattern for a trial period prior to dismissing him.

2.8.4. The Respondent should have allowed a further attempt at redeployment following the trial period.

2.8.5. The redeployment process should have been adjusted to assist the Claimant by placing him in an existing vacancy without the need for interviews including the possibility of the vacancy at Shepherds Bush."

66. Noting that the reasonable adjustments contended for by the Claimant must operate so as to prevent the PCP identified, namely exposure to the procedure, having the effect of dismissal, the Tribunal considered whether the Claimant had identified in the evidence any potentially reasonable adjustments which the Respondents had had an opportunity to consider and address. In relation to each of the five adjustments proposed by the Claimant they held that the burden shifted and they therefore looked to the Respondents to show that they had not failed to comply with their statutory duty.

67. The Tribunal's findings in relation to reasonable adjustments appear at paragraphs 7.28-7.39 as follows:

"7.28 Adjustment 1 – this adjustment was working his previously agreed shifts 8.00 – 16.00. These had been shifts which had been accommodated by the Respondent for a number of years. Further the Respondent had accommodated these shifts during a time when the new schematic had been implemented. The only reason the shifts were changed was so that the Claimant better fitted into the Respondent's schematic. They were not changed in any sense whatsoever to benefit the Claimant. The Claimant had maintained an acceptable level of attendance whilst working those shifts such that he was not exposed to the absence procedure.

7.29 In considering whether this would have been a reasonable adjustment we have regard to Section 18B of the DDA. We note the following. The adjustment may have prevented the Claimant taking time off work and thus he would not have been exposed to dismissal. The shifts requested were practical as they had previously been carried out. The Respondent has produced no evidence to show that the financial costs incurred would have been significant. We are not satisfied that there would have been significant disruption to the Respondent's activities. In reaching this conclusion we have regard to the fact that the shift was still available when the other shifts were not available to the Claimant. It was the default shift.

7.30 The change of shift clearly produced an enormous stress on the Claimant which contributed to his absence. There is considerable flexibility in the way the Respondent can organize its activity. Further altering shifts is envisaged by the Respondent's own procedure. Transferring some of the Claimant's duties to others is also supported by the guidance contained in the act.

7.31 For the reasons we have set out we are satisfied that this would have been a reasonable adjustment. Reintroducing the shift may have reduced stress and allowed the claimant to continue as he had previously shown that he could.

7.32 Adjustment 2 – being given a trial period in respect of shifts agreed in March 2007. We are satisfied that a trial period would have been appropriate. Here the adjustment would have been to see if the Claimant could cope with a new changed pattern imposed in no sense whatsoever to assist the Claimant. This in our view is different to a trial period for an adjustment designed to assist the claimant. In the case of an adjustment to assist the claimant, the focus would be on the adjustment under trial and the trial period would not be an adjustment in itself. This case can be distinguished as what was being imposed, being the change in shifts, was something for the benefit of the Respondent and not an adjustment for the benefit of the Claimant.

7.33 In reaching this conclusion we take the view that Mr Jukes in fact indicated that the matter would be kept under review. The fact is that the Claimant never worked any new shifts. He clearly felt stressed simply because of the way in which there had been requested to change his shifts. Had the Claimant actually started working the shifts we are satisfied it would have been reviewed and to that extent it would have been a reasonable adjustment as this is effectively admitted by the Respondent.

7.34 Adjustment 3 – tolerating a higher level of sickness absence than for a non-disabled employee. It was the Respondent's evidence that the sickness level, as envisaged by its own occupational health report, being an average of 21 days per year was an absence level which could be sustained and tolerated. It follows that it was the Respondent's evidence that this would have been a reasonable adjustment to make. We would observe that in general there is no obligation as such for employers to ignore disability related absences. However, we conclude that in this case having regard to all the factors outlined in Section 18B in particular the size and resource of the Respondent and further having regard to the Respondent's own evidence it would have been a sustainable adjustment. We find that on the evidence of the Respondent in this case that this would have been a reasonable adjustment.

7.35 Adjustment 4 – offering the Claimant a further period of redeployment. In considering this we are concerned by the way the Respondent's has operated its own procedure. We have found that it would have been a reasonable adjustment to allow the Claimant to return to his original shifts. With this in mind it is clear that the Respondent has failed to consider a reasonable adjustment under step 1 of its own procedure. Under step 1 it would have been appropriate to consider the shift change. There were a number of reasons why this did not happen. Extra funding was requested but this was rejected out of hand by Mr Burnett. Consideration was given to the effect of other staff by Mr Jukes, however, Mr Jukes failed to enquire of those staff. Had he done so he would have been told that the shift changes made in March 2007 actually put more pressure on the reserve staff by removing a number of shifts that they would otherwise have done.

7.36 Step 2 is not reached until reasonable adjustments cannot be made or any reasonable adjustments which are made do not improve attendance. Here reasonable adjustments could have been made having regard to the history of the case they would in all likelihood have improved his attendance by removing stress. This is the very stress referred to in the Respondent's own occupational health report obtained in October.

7.37 The alternative envisaged by the procedure is that occupational health confirm the employee is no longer able to do his or her job for medical reasons. This did not apply. In those circumstances step 2 was never reached. Even if step 2 had been reached if the employee wished to stay in employment, as the Claimant did the Respondent must seek advice from LUOH regarding the employee's ability to do an alternative job. This did not occur and in any event the Respondent had not reached that stage of its procedure. Instead the Respondent proceeded on the wrong assumption that adjustments made by Mr Jukes were made to improve the Claimant's attendance, that was clearly not the case. The adjustment made by Mr Jukes inevitably put more pressure on the Claimant by removing the regularity of his shifts, the need for regularity which was something that was envisaged by occupational health itself. Given that the redeployment should not have been reached offering a further period would have been a reasonable adjustment.

7.38 Adjustment 5 – adjusting the redeployment process so that the Claimant would not have to attend interviews and seek work himself. The Respondent's evidence on this matter was confused. We find that the Claimant was never told prior to his dismissal that he would not have to go through a competitive interview or that he would not have to find a job himself. In our view it would have been reasonable to make adjustments to the redeployment process. Indeed these adjustments appear to be envisaged by the attendance policy itself. The policy at step 2 R1/58 refers to the Respondent actively pursuing suitable alternative employment. Having regard to the guidance given in Archibald it would have been a reasonable adjustment to place the Claimant in suitable alternative employment without requiring a competitive interview. Further it would have been reasonable to actively identify employment for him. The Respondent has advanced no convincing case to suggest that this could not have been reasonable adjustment.

7.39 In reviewing this case we have regard to Section 18B. The evidence as it was before the Tribunal indicated that there may have been a number of suitable positions. It would have been entirely practicable to take the step. It would not have incurred significant financial or other costs and certainly that has not been argued by the Respondent. Had suitable alternative employment been found, and there was clearly a possibility of this, it would have prevented the dismissal."

68. Finally, in relation to justification, the Tribunal held as follows at paragraph 7.40:

"7.40 We now consider whether the dismissal was justified in that the reason was material to the circumstances of the particular case and was substantial. In considering justification we have to consider whether dismissal would have been justified even had the reasonable adjustments identified above been made. This would include particularly returning him to his original shifts and removing the stress of varied shifts. Had those reasonable adjustments been made we conclude on the balance of probabilities that the Claimant would have returned to his original shifts and would have in accordance with the Respondent's own medical evidence reverted to an average absence of 21 days per annum. This is sustainable. The Respondent would not have been dismissed. Given it is sustainable no reasonable employer would have dismissed and in that sense dismissal is outside the range of reasonable responses and we do not accept that the treatment can be justified in this case."

The Appeal in Relation to Disability Discrimination

69. Mr Grant, appearing for the Respondents, challenges the Tribunal's decision on both (1) disability related discrimination and (2) reasonable adjustments. We shall consider each in turn.

(1) Disability Related Discrimination

70. Mr Grant submits that the Tribunal correctly identified the reason for the Claimant's treatment, which was dismissal, and the appropriate comparator, following Malcolm. However, he submits that they fell into error in their findings at paragraph 7.14 that Mr Oduola ignored the OH report and made no attempt to obtain a further report; and that they were not satisfied that Mr Oduola would have made assumptions about a non-disabled person in the way that he made assumptions and substituted his own view about this Claimant.

71. Mr Grant submits that the Tribunal erred in failing to acknowledge Mr Oduola's oral evidence that he would not have dismissed the Claimant if he had been able to return to work and that he would have acted in the same way had he been faced with a non-disabled person with the same absence record and with a sick certificate for a further two months.

72. He relies for this submission on notes of extracts from Mr Oduola's evidence taken by each counsel below and included in our appeal bundle. These comprise answers to questions asked of him by the judge, before cross-examination began, and then some answers to questions later asked of him in re-examination.

73. Mr Grant submits that the Tribunal erred in failing to acknowledge this evidence or in failing to explain why they rejected it. At the very least he submits that they fell into the error of regarding any perceived bad treatment of the Claimant by Mr Oduola or others as dispositive of the question whether the Claimant's disability was the reason for the treatment.

74. Further, and in any event, he submits that the two-month sick note presented by the Claimant at the hearing on 8 November, and the fact that the Claimant could give no indication as to when he might return to work both lay at the heart of this case. Mr Oduola's evidence was to the effect that the Claimant would not have been dismissed if he could have returned to work; that the absence of a prospective return date was a key factor in his decision to dismiss and that he would have acted in the same way in relation to a non-disabled person.

75. Given this evidence he submits that the Tribunal erred in holding at paragraph 7.19 that there were facts from which they could conclude that the Claimant had been treated less favourably than a hypothetical non-disabled comparator and that the burden of proof therefore shifted to the Respondents. On the evidence from Mr Oduola the Claimant was treated in the same way that the comparator with all the relevant characteristics save as to disability would have been and the Tribunal should have so found.

76. Finally, Mr Grant submits that, in simply stating at paragraph 7.20 that the Respondents had put forward no adequate explanation for the dismissal, the Tribunal erred in ignoring once again the evidence of Mr Oduola referred to above, or in failing to give reasons for that statement and for their rejection of Mr Oduola's evidence. Thus, even if the Tribunal were entitled to find a "prima facie" case, they erred in finding that no adequate explanation for dismissing the Claimant had been given. There was no challenge to Mr Oduola's veracity and his evidence in answer to questions from the judge and in re-examination was a sufficient explanation for the Respondents' burden to be discharged.

Discussion and Conclusion

77. It is necessary for us to refer at this point to the relevant provisions of the DDA, which were correctly identified by the Tribunal in their decision. They are as follows:

"3A Meaning of 'discrimination'

(1) For the purposes of this Part, a person discriminates against a disabled person if-

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

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

(2) For the purposes of this Part, 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

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

(6) If, in a case falling within subsection (1), a person is under a duty to make reasonable adjustments in relation to a disabled person but fails to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with that duty.

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.

18B Reasonable adjustments; supplementary

(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to-

(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

(b) the extent to which it is practicable for him to take the step;

(c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of is activities;

(d) the extent of his financial and other resources;

(e) the availability to him of financial or other assistance with respect to taking the step;

(f) the nature of his activities and the size of his undertaking;

(g) where the step would be taken in relation to a private household, the extent to which taking it would-

(i) disrupt that household, or

(ii) disturb any person residing there.

(2) The following are examples of steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments-

(a) making adjustments to premises;

(b) allocating some of the disabled person's duties to another person;

(c) transferring him to fill an existing vacancy;

(d) altering his hours of working or training;

(e) assigning him to a different place of work or training;

(f) allowing him to be absent during working or training hours for rehabilitation, assessment or treatment;

(g) giving, or arranging for, training or mentoring (whether for the disabled person or any other person);

(h) acquiring or modifying equipment;

(i) modifying instructions or reference manuals;

(j) modifying procedures for testing or assessment;

(k) providing a reader or interpreter;

(l) providing supervision or other support.

17A Enforcement, remedies and procedure

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

78. The Tribunal identified at paragraph 7.5 the reason for the Claimant's dismissal and, at paragraph 7.6, held that the reason related to the Claimant's disability. They found that the effects of stress, which caused in part his absences from work, could not be divorced from the underlying condition of MS. There was in this case a direct causal link between the Claimant's disability, his work-related stress, his absences from work, and his eventual dismissal.

79. There is no challenge to the Tribunal's decision on these matters or to their identification of the comparator, namely a non-disabled person who was absent for the same length of time as the Claimant and who presented a GP's note for a further two months.

80. Nor is there any challenge to the Tribunal's self-direction at paragraph 6.15 as to less favourable treatment and the burden of proof.

81. Applying these principles the Tribunal then identified at paragraphs 7.10-7.19 all the factors which Mr Oduola had regard to in reaching his decision to dismiss. These we have already set out above, together with the relevant findings of fact. The Tribunal also relied on the admission recorded at paragraph 7.10, which it is agreed was made by Mr Oduola, that if a non-disabled person had also been absent as a result of a road traffic accident in the same manner as the Claimant, that person would not have been referred to redeployment at the same time as the Claimant was. This they regarded as a material difference ultimately related directly to the Claimant's disability.

82. It is apparent to us that, in his first ground of challenge, Mr Grant has focussed on only one part of Mr Oduola's evidence. His description of the two-month certificate and the Claimant's inability to indicate a return date as being "at the heart of this case" seems to us to elevate this evidence to a significance which it simply does not have when this judgment is read as a whole. Whilst we accept that it was clearly a factor, there were many other factors referred to by Mr Oduola in his evidence, to which the Tribunal were entitled to and did have regard in deciding whether the Claimant had established a prima facie case.

83. These included the fact that the Claimant was taking medication which could trigger allergic reactions and therefore impact on his attendance; the specific conditions from which the Claimant was suffering; the fact that the Claimant had mobility issues and could not walk more than 100 metres, which the reasons given for dismissal said caused difficulties; the Claimant's previous level of sickness and attendance pattern, which was said to be not sustainable and was assumed to impact on business needs; the fact that if the Claimant returned his medical restrictions would remain for the foreseeable future, which the Tribunal found implied that Mr Oduola objected to them; and the fact that he was concerned about the sustainability of his return to work notwithstanding the fact that the Respondents' own medical evidence in the OH report contradicted this.

84. In our view, given their findings of fact, there can be no criticism of the Tribunal's finding at paragraph 7.14, that Mr Oduola made no attempt to obtain a further medical report and effectively ignored the Respondents' own OH report. Notwithstanding the GP's certificate and the Claimant's own uncertainty, as a layman, as to when he would be fit to return, by 8 November Mr Oduola was in possession of the recent report from the Respondent's own OH team.

85. This report, which we were shown by agreement during the hearing, stated, as the Tribunal recorded at paragraph 5.75, that the Claimant was suffering from work-related stress which would improve once the issues at work were resolved; that the Claimant could resume work in the booking office; and that if he were to return to work he could sustain that return and would not be taking any additional medication.

86. The notes of short extracts from Mr Oduola's evidence before us contain nothing which could undermine the Tribunal's findings at paragraph 7. There is nothing which can reliably support the suggestion that the sick note and lack of return date were Mr Oduola's first or main concern.

87. The questions from the Judge, in our view, sought to do no more than clarify with Mr Oduola the documents that he had read and that were before him on 8 November; Mr Oduola's understanding and familiarity with the relevant policies and procedures relating to employee attendance and the various steps to be followed in handling such a case; and his reasons for dismissing the Claimant, only one of which referred to the two-month certificate and the lack of the return date. Mr Grant's note of evidence, which indicates that Mr Oduola described this as a "key factor", does not appear in Mr Toms' note and is not agreed.

88. Discrimination is referred to only in the short note of Mr Oduola's evidence in re-examination. Here too counsels' notes are not agreed as to what exactly was said. Mr Toms' note records the following questions and answers:

"Q. Impact of RTA. If someone not disabled had RTA – not through redeployment if fit for work.

A. I remember.

Q. If non disabled person – not?

A. I would consider redeployment."

89. Mr Grant's note, however, reads as follows:

"Mr Grant If you were concerned with a non-disabled person who was not fit for work, would you have put him through the same process.

Mr Oduola probably, yes."

90. These notes, which cannot easily be reconciled, are in our view inconclusive and take the Respondents' case no further. There has been no request for the notes of the Employment Judge. We also note, in any event, that the Respondents have raised no perversity challenge in this appeal.

91. Taken at its highest Mr Oduola's response of "probably yes" to the question asked by Mr Grant is equivocal. The question is itself somewhat vague. In neither note is he recorded as stating that he would have acted in the same way if he had been faced with a non-disabled person who was unable to say when he could return to work.

92. The context for these questions in re-examination is also relevant. Mr Toms informed us, and Mr Grant did not disagree, that they arose from an answer from Mr Oduola in cross-examination where he accepted that, if a non-disabled person had also been absent as a result of a road traffic accident in the same manner as the Claimant, that person would not have been referred to redeployment at the same time as the Claimant was. This is the evidence which is recorded by the Tribunal at paragraph 7.10 and which is not challenged in this appeal. Mr Toms submits, with some justification, that the re-examination on this issue was therefore an attempt to 'repair the damage' caused by this admission.

93. In these circumstances the Tribunal cannot be criticised for failing to acknowledge Mr Oduola's oral evidence, the content of and context for which was not as it is now represented to us, and which did not in any event have the significance now sought to be attached to it.

94. Even if Mr Grant's note of the question and answer in re-examination were viewed as unequivocal, we agree with Mr Toms that the Tribunal were not bound to rely on what would amount to no more than a denial of the discrimination being alleged. Nor was there a need for the Tribunal to refer to something which was already clear in the Respondents' resistance to the claim.

95. As Mr Grant fairly accepted in his submissions such evidence cannot be determinative of the question whether there has been unlawful discrimination.

96. Nor can the fact that Mr Oduola's veracity was not challenged in cross-examination. The task of the Tribunal in such cases is always to determine the facts and then, having regard to the totality of the evidence, to apply the burden of proof provisions in deciding whether the Claimant has proved facts from which they could conclude in the absence of an explanation from the Respondents that the Claimant had been subject to unlawful discrimination.

97. In our judgment there was ample evidence before this Tribunal upon which they could properly conclude, for the reasons they gave, that the Claimant had established a prima facie case of discrimination, so that the burden then shifted to the Respondents.

98. In concluding, at paragraph 7.20, that the Respondents had not discharged that burden, we agree that the Tribunal's reasoning is brief. That, however, reflects the reality in this case that they had already set out and considered in full the Respondents' explanation, when assessing whether the Claimant had established a prima facie case.

99. The less favourable treatment alleged in this case was the Claimant's dismissal. The Claimant was not seeking to rely on a series of other matters unconnected to the explanation for his dismissal. The reasons given by Mr Oduola for dismissing the Claimant were therefore the explanation for the treatment advanced by the Respondents and the Tribunal clearly had regard to them. We do not consider that the Tribunal were obliged to comment further upon the explanation for dismissal, which they had clearly found to be unsatisfactory for the reasons they set out when addressing the first limb of the test.

100. As the EAT pointed out in Laing v Manchester City Council [2006] ICR, at paragraph 71 in the context of race discrimination:

"There still seems to be much confusion created by the decision in Igen [2005] ICR 931. What must be borne in mind by a tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination. The shifting in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the tribunal on the balance of probabilities that certain treatment had been by reason of race."

101. It does not necessarily assist in answering that fundamental question to divide artificially the various steps for assessing it. In this case, therefore, what matters is whether the Respondents' explanation for dismissing the Claimant was properly considered by the Tribunal. We are entirely satisfied that it was. Viewing this judgment as a whole, the Tribunal clearly rejected the Respondents' case that their treatment of this Claimant amounted to a reasonable and proportionate response to the Claimant's condition and its effects. Their decision that the primary case of disability related discrimination succeeded is, in our judgment, unimpeachable.

Reasonable Adjustments

102. The five adjustments relied upon by the Claimant were those set out at paragraph 2.8, to which we have already referred. Their conclusions we have also set out, although they dealt with the adjustments in a rather different order.

103. Mr Grant submits that in concluding at paragraph 7.40 that, had these adjustments been made, the Claimant would probably have returned to his original shifts and reverted to a sustainable pattern of absence, and that he would not have been dismissed, the Tribunal fell into error in the following five ways.

104. (i) He submits that in a case in which the less favourable treatment alleged was dismissal the Tribunal erroneously considered historical adjustments, namely adjustments numbers 1, 2, 4 and 5, which related to periods prior to 8 November, that is the date of dismissal, and which were independent of it.

105. In relation to adjustment 1 (allowing the Claimant to work his previously agreed shifts) the Tribunal were considering matters as at March 2007, when the Claimant had agreed to change his shifts. Their reasoning at paragraph 7.29, that this might have prevented the Claimant from taking time off work could relate only to a period which was prior to 8 November.

106. Adjustment 2 (allowing the Claimant to work the pre-March 2007 shift pattern for a trial period) contradicted adjustment 1 and was in any event related to matters as at March 2007.

107. Adjustment 4 (allowing the Claimant a further attempt at redeployment following the trial period) related to the actions and decisions of Mr Jukes and Mr Burnett which predated the decision to dismiss.

108. Adjustment 5 (adjourning the redeployment process) related to a process on to which the Claimant was placed in July 2007 and this also predated the decision to dismiss.

109. Reading the judgment as a whole (and paragraphs 7.21-7.39 in particular) we are not persuaded that the Tribunal were considering the adjustments proposed simply from a historical perspective or that they arose independently of the dismissal. In our view they were inextricably linked with the Claimant's dismissal. The Tribunal recognised this and clearly approached them on the basis that they were a means of avoiding dismissal. They were plainly aware of the need for a causal link to be demonstrated (see paragraph 7.24) and they had that well in mind when considering each of the adjustments relied upon.

110. In relation to adjustment 1 they refer specifically to the fact that reintroducing the Claimant's original shifts may have reduced his stress and enabled him to continue as he had previous shown he could. They also stated at paragraph 7.35, when considering adjustment 4, that they had found that it would have been a reasonable adjustment to allow the Claimant to return to his original shifts.

111. At paragraph 7.32-7.33 the Tribunal do not refer to any particular period of time when considering adjustment 2; or suggest that a trial period was appropriate only as at March 2007. Nor do they find that the Respondents were in breach of their duty to make this adjustment in March 2007.

112. At paragraph 7.37, the Tribunal clearly regarded adjustment 4 as an adjustment that would have been appropriate as an alternative to dismissal, but considered that the redeployment stage should not, in fact, have been reached in the Claimant's case. We agree with Mr Toms that the reference to Mr Jukes and Mr Burnett are references to their removal of his original shifts and therefore relates to adjustment 1. There can be no criticism of the Tribunal in having regard to the background when considering whether the fourth adjustment proposed was a reasonable adjustment for the Respondents to make.

113. Clearly at paragraphs 7.38 and 7.39 the Tribunal regarded adjustment 5 as being reasonable right up to the time of the Claimant's dismissal and that, had suitable alternative employment been found, it would have prevented his dismissal.

114. We agree with Mr Toms that dismissal, in particular in an ill-health/capability case, inevitably involves a process; and that it will be a question of fact and degree as to when a capability process becomes part of the dismissal process. The highly experienced lay members of this Appeal Tribunal observe that dismissal will rarely, if ever, be already on the agenda at the start of such a process. In this case, however, it clearly was. The Tribunal found that termination on medical grounds was already being referred to as an option as early as February 2007 (see paragraph 5.39).

115. The attempt to separate out the adjustments proposed from the decision to dismiss is in our view wholly artificial on the facts of this case. The Tribunal were not in any event prevented by the provisions of Section 3A(6) from considering the reasonableness of any adjustment proposed which they found would have made a difference and consequently would have avoided the dismissal of the Claimant.

116. (ii) Mr Grant complained that the fourth adjustment (offering a further period of redeployment) was not dealt with in cross-examination and would only have arisen after any trial period (adjustment 2), which did not occur. He therefore submits that the Tribunal erred in holding that this was a reasonable adjustment.

117. Mr Toms does not accept that this adjustment was not dealt with by him in cross-examination, but in our view it is unnecessary for us to resolve this issue. The five adjustments relied upon by the Claimant were agreed at the start of the hearing and the Respondents were therefore able to deal with the Claimant's case as to this adjustment both in evidence and in their closing submissions.

118. In any event this submission, in our view, misrepresents the Tribunal's reasoning in relation to this adjustment. Their clear finding was that the redeployment stage of the process should not have been reached in the Claimant's case; and that the Respondents had failed to consider the reasonable adjustment of allowing the Claimant to return to his original shifts under Step 1 of their own procedure. Given that redeployment should not have been reached at all they were entitled to conclude in the circumstances that a further period of redeployment would have been a reasonable adjustment.

119. (iii) Mr Grant submits that the Tribunal erred in ignoring his reliance on the case of Home Office v Collins [2005] EWCA Civ, 598, to which they made no reference in their reasoning. He relies on this case as authority for the proposition that the inability or unwillingness of an employee who has indicated no definitive return date means that there is no obligation on an employer to consider a reasonable adjustment that she/he be allowed a phased return to work on a part-time basis.

120. He submits that the reasoning in this case applies equally to the present case and that any factual distinctions are immaterial. Given the two-month certificate and the Claimant's inability to say when he would be able to return to work, there was no need for the Respondents to consider any of the adjustments now being relied upon. The Tribunal should therefore have applied this authority to defeat the Claimant's reliance on the five adjustments proposed as reasonable and as preventing his dismissal.

121. It is correct that the Tribunal do not refer specifically to this decision in their reasoning, but in our judgment there was no obligation upon them to do so.

122. In that case the Claimant was a probationary employee who had extensive periods of sickness absence due to anxiety and depression arising from her diabetes. There was in that case no evidence of work-related stress having contributed to her illness. The probationary period was extended on two occasions and she was eventually dismissed. The Claim was therefore of disability discrimination based on the failure of the Home Office to make reasonable adjustments, the adjustment relied upon being a phased return to work on a part-time basis.

123. The Employment Tribunal rejected her claim and the Court of Appeal upheld their decision, finding as follows at paragraph 33-34:

"33. The essential finding of fact is clearly stated, and repeated, in paragraph 6 of the employment tribunal's decision and on the evidence was entirely justified. By September 2002, the respondent had been absent from work for over a year and this had followed a poor attendance record during the first six months of employment. Two extensions of the probationary period had been granted. In January 2002, return to work in 6 to 8 weeks was contemplated. The respondent had still not returned to work by September 2002 and the prognosis on 22 August was that the respondent should be able to return, on a part-time basis, in '3/6 months'. A sick note covering four weeks from 10 September 2002 was submitted. The respondent had been kept informed of the position and interviewed.

34. In those circumstances, the tribunal were entitled to conclude that it was reasonable for the appellants not to pursue the possibility of a phased return to part-time work until the respondent could indicate a definite date for her return to work for any period of time. The tribunal noted that all material times the respondent was medically certified as unfit to return to work."

124. In our view this case turned on its own particular facts, which were materially different from the present case in a number of respects. In particular, there was no evidence or finding by the Tribunal in Collins that the adjustment proposed would have enabled the employee to return to work. That is to be contrasted with the Respondents' own OH report concerning the Claimant in the present case. This was not, therefore, a case where the Claimant's condition had resulted in a situation which was irretrievable. Further, the Claimant in this case was found to be absent from work in part as a consequence of stress arising from the Respondents' treatment of him which, in the various respects identified, the Tribunal found to be inappropriate and to have placed the Claimant under extreme pressure.

125. We agree with Mr Toms that the case of Collins does not establish any general proposition of law that an employer's duty to make reasonable adjustments does not arise until an employee indicates when they will be able to return to work. The Tribunal were therefore not obliged to have regard to it and in our view it does not assist the Respondents' case on this appeal. Nor does the case of Stockton on Tees v Aylott UKEAT/0401/08, in which the Claimant was shown on the medical evidence to be someone who was unable to return to work at all.

126. (iv) Mr Grant submits that the test required by Section 4A is an objective one. The employer must have taken such steps as the Tribunal considers were reasonable to have been taken, in order to prevent the relevant PCP from having an effect (see Smith v Churchill Stairlifts Plc [2006] ICR, 524. In this case he submits that the Tribunal erred in concluding that any of the reasonable adjustments would have enabled the Claimant to return to work when he was in possession of a two-month certificate and when he could give no indication of when he would be able to return to work.

127. (v) Finally, Mr Grant contends that the Tribunal further erred in holding that, had the adjustments identified been made, the Claimant would have returned to his original shifts and reverted to an average absence of 21 days per year. This, he submits, ignores the reality of the situation as at 8 November 2007, namely the presence of the sick certificate and the Claimants' refusal to return to work; and the resultant increase in absence which the Respondents regarded as unsustainable.

128. We have considered these submissions carefully but we reject them. The objective assessment as to the reasonableness of a particular adjustment is clearly the function of the fact finding Tribunal who hear all the evidence. Perversity is not alleged in this case and we see no error of law in the Tribunal's reasoning which would permit this Appeal Tribunal to interfere with their decision.

129. There was clearly evidence upon which this Tribunal could properly conclude that the adjustments proposed, and in particular adjustment 1, would have enabled the Claimant to return to work; and to support their conclusion at paragraph 7.40. Of particular relevance were the Respondents' OH report of 9 October, the Respondents' failure to follow their own procedures, so that the Claimant was moved to redeployment when that stage had not yet been reached; and the fact that the cause of the Claimant's absences from work included work related stress linked to the Respondents' removal of his original shifts.

130. In relation to Mr Grant's fifth and final ground of challenge under this head, the absence regarded by Mr Oduola as unsustainable was the period of 21 days per annum envisaged by the OH team and which was regarded by Mr Burnett as sustainable. Further, the Claimant was not refusing to return to work on 8 November. He was, rather, unable on that date to say with certainty, given what the Tribunal found had happened to him, when he was going to be able to return. That is very different from a refusal to return. We see no error in the Tribunal's conclusion on all the evidence that, if the adjustments identified had been made, the Claimant would have returned to his original shifts and to a sustainable pattern of absence; and that he would not have been dismissed.

131. For all these reasons we dismiss the Respondents' appeal against the finding that they unlawfully discriminated against the Claimant contrary to Section 3A(1) of the DDA.

The Tribunal's Decision on Unfair Dismissal

132. The Tribunal had identified the reason for dismissal, namely that the Claimant had been absent from work from March 2007, had presented a further two-month sick note on 8 November and was unable to say when he could return. There is no challenge to this decision or to the decision that this was a reason which related to capability.

133. Turning to the fairness of the dismissal under Section 98(4) ERA, the Tribunal directed themselves correctly as to the relevant "reasonable responses" test, and to the need not to substitute their own view of matters for that of the employer's. No complaint is made as to the Tribunal's directions of law.

134. Referring to their findings of fact the Tribunal set out at paragraphs 7.56-7.69 their reasons for concluding that dismissal of this Claimant was not within the range of reasonable responses of a reasonable employer.

135. The Tribunal were very critical of Mr Jukes, who had materially failed to comply with the Respondents' procedures. They Concluded that he was "deliberately putting pressure on the Claimant in an inappropriate way"; that he had shouted at the Claimant and behaved in a confrontational manner; that he had visited him at home in the face of a request that he not do so and without any prior arrangement; and that he had continued to play an active role despite complaints of harassment against him by the Claimant and his union representative.

136. They had regard to what they found to be significant failures by the Respondents to follow their own procedures; and to the fact that they ignored their own medical evidence, which indicated that the Claimant could return to work; and to their failure actively to consider alternative employment. The Tribunal were not satisfied that Mr Oduola reviewed in a serious way whether the policies had been complied with, and they were critical of the fact that Mr Burnett heard the appeal when he had been involved in the original decision to remove the Claimant's shifts.

137. Finally, they considered the question of contribution and the operation of Polkey, finding as follows at paragraphs 7.70 and 7.71:

"7.70 We next consider the question of contribution. Whilst we note the Claimant would not always attend meetings. It is clear that his primary difficulty was with Mr Jukes and he offered to attend meetings with people who were not Mr Jukes. Given the way he had been treated by Mr Jukes that was perfectly understandable. It follows that we do not accept that the Claimant contributed to his dismissal.

7.71 We also consider the operation of Polkey. Had the Respondent implemented the reasonable adjustments we have referred to above, we believe on the balance of probabilities the Claimant would have been accommodated, his stress would have been reduced and his attendance would have improved to a level which the Respondent said was acceptable to it. We therefore decline to make a Polkey deduction and we take the view that the Claimant would have remained employed."

The Appeal

138. In relation to the finding on unfairness Mr Grant's challenge was based on the same alleged errors of reasoning that he relied upon in relation to the appeal on discrimination, but which we have rejected. His principal submission is that the Tribunal erroneously ignored the evidence relating to the two-month sick note and the Claimant's failure to give Mr Oduola any indication when he might be returning to work.

139. We reject that submission for the reasons we have already given when dealing with this issue under the head of disability discrimination. Further, the Tribunal have referred throughout their judgment to these factors and specifically to the medical evidence at paragraph 7.64, where they contrast the sick note with the contents of the OH report. They could not therefore be said to have ignored these matters. Mr Oduola's failure to refer the Claimant back to the OH department for further assessment, or to obtain further medical evidence, was clearly a factor in the Tribunal's decision that dismissal was not within the range of reasonable responses. In our view the Tribunal were plainly entitled to come to this conclusion on the evidence.

Contributory Fault

140. Mr Grant submits that the Tribunal erred in holding that the Claimant did not contribute to his dismissal, given his admission that at times he had been in the wrong in not responding to the manager; his union representative's admission that there had been a lack of communication on the Claimant's part; the Claimant's reluctance to accept the revised shifts and his refusal/unwillingness to enter into redeployment; his conduct throughout the case conferences; and his failure to indicate when he would be returning to work.

141. In his oral submissions Mr Grant fairly acknowledged that this ground of challenge raised matters of evidence, and that his submissions on this point would therefore be regarded as "less persuasive". That was a realistic position for him to adopt. Whilst there is some dispute as to whether all these matters were relied upon below as evidence of contributory fault by this Claimant none of them, whether considered individually or cumulatively, seem to us to give rise to an argument that the Tribunal's conclusion on contribution was arrived at erroneously.

142. The Tribunal clearly did consider the Claimant's conduct at the case conferences and their decision that he was not to blame for any of the difficulties is supported by evidence. Further, given the Tribunal's findings of fact as to the Claimant's agreement, albeit reluctantly, to change to new shifts in March 2007 and his inability, due to ill health exacerbated by work-related stress, to work any of these shifts and their conclusions that a return to his original shifts was a reasonable adjustment, they were clearly entitled to conclude that this Claimant had not contributed to his dismissal by any unreasonable or blameworthy conduct on his part.

Polkey

143. Mr Grant contends that the Tribunal failed properly to apply Polkey in concluding that, if the reasonable adjustments had been made, the Claimant's stress would have been reduced and his attendance would have improved. He relies further, in this respect, on the submission that there were no reasonable adjustments which could have been made given the existence of the two-month sick note and the Claimant's refusal to return to work while he had a sick note. Mr Grant submits that the Claimant would still have been dismissed even had a fair procedure been used.

144. However we reject these submissions for the reasons we have already given. The Tribunal was plainly entitled to arrive at the conclusion they did on all the evidence.

145. For these reasons we also dismiss the Respondents' appeal against the Tribunal's finding of unfair dismissal.

The Cross Appeal

146. There are two discrete grounds of challenge in the Claimant's cross appeal.

(1) The duty to make reasonable adjustments: the absence of a grievance.

147. This point arises because the Claimant also relied below on a stand alone claim of disability discrimination, namely that his dismissal amounted to a breach of the Respondents' duty to make reasonable adjustments under Section 3A(2) and Section 4A DDA.

148. It was common ground that the Claimant had not presented a grievance before presenting his claim to the Tribunal. The failure to make reasonable adjustments is a claim which is included in Schedules 3 and 4 to the Employment Act 2002 and is therefore subject to Regulation 6(1) of the Dispute Resolution Regulations 2004 unless the exception which appears in Regulation 6(5) applies.

149. The Tribunal held that it did not apply, and that the stand alone claim therefore failed. Mr Toms challenges as erroneous the Tribunal's conclusion on that issue and the reasoning behind it.

150. Regulation 6(5) provides that the statutory grievance procedures do not apply,

"Where the grievance is that the employer has dismissed or is contemplating dismissing the employee."

151. The Tribunal dealt with this at paragraphs 7.43-7.47 of their decision as follows:

"7.43 There is an exception which is Regulation 6(5). This provides neither of the grievance procedures apply where the grievance is that the employer has dismissed or is contemplating dismissing the employee. Dismissal is contemplated under Section 4 of DDA. It is unlawful for an employer to discriminate against a disabled person by dismissing him or subjecting him to any other detriment. The duty to make reasonable adjustments is set out separately at Section 4A. failure to make reasonable adjustments is discrimination under Section 3A(2).

7.44 The complaint here is a failure to make reasonable adjustments and that failure arises out of a provision, criterion or practice which has a substantial adverse effect. The effect is dismissal. The breach is a failure to make adjustments to prevent a provision, criterion or practice having that effect. Therefore the breach occurs before the dismissal. The complaint, as it relates to section 3A(2) is about a breach of a duty not about the effect of the breach. The fact that the breach means the claimant is subject to the substantial adverse effect of dismissal arising out of the provision criterion or practice does not, in our view, assist the claimant.

7.45 If this were otherwise it would be possible to argue that it would be reasonable to make an adjustment to simply remove the substantial disadvantage being dismissal. We do not believe that this is an argument open to the Claimant. The reasonable adjustment must operate on the provision, criterion of the practice to prevent the result which is dismissal. Here the Claimant seeks to base a stand alone claim on the result of the breach and not the breach itself. This can be contrasted, to for example, the position in direct sex discrimination where the act of discrimination could be the actual dismissal. It follows that the stand alone claim for reasonable adjustment fails.

7.46 We would add that under regulation 6 (5) it is clear that neither of the grievance procedures applies if the grievance is that the employer has dismissed or is contemplating dismissing the employee. Here we do not consider that the grievance is the dismissal or its contemplation it is breach of the duty to make reasonable adjustments so that he is not exposed to the substantial disadvantage. We do not think that it assists the Claimant that the ultimate disadvantage is dismissal although we can see how the alternative may be argued. We note that neither party has drawn our attention to any case that may assist on this point.

7.47 If we were wrong about this the claim for reasonable adjustment is put in exactly the same way as we have considered under disability related discrimination and would inevitably succeed."

152. Generally, the EAT has previously held that Regulation 6(5) should not be construed in a narrow and technical way (see Lawrence v HM Prison Service [2002] IRLR 468 and Otaiku v Rotherham Primary Care NHS Trust UKEAT/0253/07/JOJ). Mr Toms' main submission is that this is precisely what the Tribunal have done, and that the distinction made between the failure to make a reasonable adjustment and its consequences is entirely artificial.

153. Mr Toms developed this point in a number of ways in his submissions but, since the Employment Tribunal promulgated their judgment, the EAT has considered and decided this issue in Maley v Royal Mail Group Limited [2008] UKEAT/0232/08, a decision of Bean J in an unfair dismissal/disability discrimination case, with which we entirely agree and which in our view is determinative of this issue.

154. The Employment Tribunal in that case had adopted an interpretation of Regulation 6(5) which was identical to that of the Tribunal in the present case. Referring to the cases of Lawrence and Otaiku Bean J concluded at paragraph 12 that the Employment Judge's decision was "plainly wrong" on the basis that dismissal lay at the heart of the Claimant's complaint. In a case where the unlawful discrimination alleged is dismissal following a failure to make reasonable adjustments and no separate compensation claim arises in respect of the adjustments relied upon, the statutory grievance procedures simply do not apply.

155. We agree with and shall adopt that reasoning in the present case. We reject Mr Grant's submission that the decision in Maley appears to be contrary to the decision in Clarke v Novacold [1999] ICR 951 that the act of dismissal is not itself a breach of the duty to make reasonable adjustments. The decision on this point in Clarke, although it was not overturned in the case of Malcolm, was arrived at on the basis of the unamended provisions of the DDA. Dismissal can now itself be an unlawful act of disability discrimination by reason of the failure to make reasonable adjustments (see Fareham College Corporation v Walters UKEAT/0396/08 at paragraphs 68 to 74).

156. In our judgment therefore the Tribunal's dismissal of the claim under Section 3A(2) was wrong. We shall allow this first ground of the cross appeal and substitute our decision in the Claimant's favour on this point. The Tribunal's decision was arrived at as a pure point of law and there is no need for the matter to be remitted for further determination.

(2) Compliance with the Statutory Dispute Resolution Procedure and Automatic Unfair Dismissal

157. At an earlier case management discussion the Claimant had conceded that he would not be pursuing a claim for automatic unfair dismissal. During the course of the Tribunal hearing, however, the Claimant sought to withdraw that concession before the Tribunal and the Respondents objected. Essentially, the Claimant's assertion was that the Respondents had failed to comply with Step 2 of the statutory procedure.

158. After hearing submissions the Tribunal granted the Claimant's application to withdraw the concession, having regard to the fact that it had been made without the Claimant being present and that there had been no prejudice caused to the Respondents. All the evidence necessary to determine the claim had been presented to the Tribunal. There is no appeal by the Respondents against that finding.

159. When dealing with automatic unfair dismissal the Tribunal found as follows at paragraphs 7.51-54, having regard to the relevant statutory provisions and to the case of Alexander v Bridgen Enterprises Limited [2006] ICR 1277:

"7.51 We are satisfied that step 1 of the procedure was complied with. There are a number of letters which alert the Claimant to the fact that there is a meeting where his employment may be terminated for instance there is a letter of 3 October 2007 and we do not need to consider this matter further. We are satisfied that those letters are sufficient and the hurdle in the first instance is set at a low level.

7.52 The question is whether the Respondent complied with step 2. As we understand it the Claimant is not alleging that there was a failure to comply with the first step of the procedure. In order to comply with step 2 the meeting must not take place unless the employer has informed the employee what the basis was for including in the statement in the step 1 letter the ground or grounds given in it and that the employee has had reasonable opportunity to consider his response to that information.

7.53 Under step 2 the employer must inform the employee of the basis of the grounds given in the statement. The information does not have to be in writing, the basis for the ground is simply matters which have led the employer to contemplate dismissing. We remind ourselves that the Alexander case was concerned with redundancy. That does not apply here. Here the grounds are as we have set out. The Claimant had challenged the procedure through his union representative, he knew that he was off work as a result of illness, he knew the Respondent was purporting to follow its own procedure. He knew that he was on redeployment. He knew that they were contemplating dismissal because he was not rerunning to work. He knew that there was an issue with his health and his ability to return to work. He knew that they had concluded there would be no further reasonable adjustments.

7.54 We are satisfied that the Claimant knew the basis of the grounds such that he could challenge the contemplated dismissal. It follows that the statutory procedure has been complied with and the claim for automatic unfair dismissal fails."

160. Mr Toms accepts that there had been compliance with Step 1. He submits that the Tribunal erred in deciding that, when dismissing the Claimant, the Respondents had complied with Step 2 of the procedure.

161. Step 2, providing for a disciplinary meeting, provides at paragraph (2) that:

"The meeting must not take place unless:

(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and

(b) the employee has had a reasonable opportunity to consider his response to that information."

162. The issue is therefore what information should have been provided prior to the meeting on 8 November 2007, and did the Tribunal make sustainable findings in considering this point which, as Alexander makes clear, is not just an issue of fact (see paragraph 49). In assessing the extent of information necessary to comply with the procedures the bar should not be set too high or too low (see Alexander at paragraphs 33-46).

163. Having read the Tribunal's reasons with care, and in particular paragraph 7.53, we accept Mr Toms' submission that their conclusion is based solely on what they considered to be matters within the Claimant's own knowledge and not on what information was provided by the Respondents and whether it was sufficient to comply with Step 2(2).

164. We agree with Mr Toms that a general understanding of the issues involved in the process is insufficient for these purposes and that the Claimant must be informed as to the basis for the grounds included in the Step 1 statement.

165. The letters which we have been shown, being sent to the Claimant by the group station manager between 29 September and 16 October 2007, and upon which Mr Grant relies, certainly comply with Step 1. They refer throughout to termination of service on medical grounds as being one of the options in the Claimant's case.

166. However, dismissal in the Claimant's case was being considered in the context of capability and, by 8 November, matters had moved on. Mr Oduola was now in the Chair and he was by then in possession of the report from the Occupational Health team, dated 9 October. In our judgment step 2 required the Respondents to provide the Claimant with specific information, either orally or in writing, as to the matters that Mr Oduola was now considering in relation to his dismissal, thereby enabling the Claimant to understand why it was now being thought that dismissal was appropriate and necessary, and enabling him to respond appropriately.

167. Mr Grant submits that we can read into the Tribunal's decision at paragraph 7.53, that the Tribunal were finding that the reason the Claimant knew of these various factors can only be because he was informed about them. We are not satisfied, however, that the Tribunal properly considered this issue or asked themselves the right question in coming to their conclusions. Nowhere have they made clear findings as to what information was provided by the Respondents as required by Step 2, and as to whether it was adequate.

168. We therefore agree that this second ground of cross appeal also succeeds. This case must therefore be remitted on this ground so that the Tribunal can make further findings of fact and then determine, in the light of those findings, whether the Respondents were in breach of the statutory disciplinary procedure.

169. For these reasons the cross appeal is allowed.