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||BAILII case number:  UKEAT 0087_06_1406
||Appeal No UKEAT/0087/06/DM & UKEAT/0255/06/DM
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
||At the Tribunal
||On 4 May 2006
||Judgment delivered on 14 June 2006
THE HONOURABLE MR JUSTICE SILBER
MR B R GIBBS
MRS J M MATTHIAS
|HEATHERWOOD & WREXHAM PARK HOSPITALS TRUST
|MRS MONICA BEER
Transcript of Proceedings
© Copyright 2006
|For the Appellant
||MR GEORGE THOMAS
Messrs Radcliffes, Le Brasseur
5 Little College Street
|For the Respondent
||MR DAVID READE
Messrs BP Collins
32-38 Station Road
Claim for disability discrimination-
Did the effect of the claimant's impairment have "a long-term effect"? Did the Employment Tribunal consider this issue and the question of whether proper adjustments were made properly? The answer to both questions was in the affirmative.
Did the Employment Tribunal err in concluding (a) that the Whitley Council conditions did not apply and (b) that the claimant's wages while suspended continued to be calculated in accordance with various e-mails after she was taken ill while still suspended? The answers to both questions are in the negative.
THE HONOURABLE MR JUSTICE SILBER
- By a decision ("the liability decision") of the Reading Employment Tribunal which was sent to the parties on 30 November 2005, Mrs Monica Beer ("the claimant") succeeded in claims for disability discrimination and for unauthorised deductions from wages against her employers Heatherwood & Wrexham Park Hospitals NHS Trust ("the Trust") but she was unsuccessful in her claim for holiday pay.
- The Employment Tribunal then held a hearing to determine the remedies to be given to the claimant. By a written decision ("the remedies decision") sent to the parties on 24 February 2006, the Trust was ordered to pay the claimant £7,170.35 (subject to tax and National Insurance contributions) in respect of her claim for wrongful deduction of wages between 1 December 2002 and 28 October 2003 and other sums, which are not the subject of any appeal. There is to be a further remedies hearing.
- The Trust appeals against both the liability and the remedies decisions and contends that in its liability decision the Employment Tribunal erred first in finding that the claimant was disabled for the relevant periods and second in failing to apply the correct test for reasonable adjustments and third in making its findings in relation to such adjustments.
- In respect of the remedies decision, the Trust contends that the Employment Tribunal failed to properly assess the impact of first the claimant's sickness on her pay entitlement while she was suspended and second the Whitley Council's Conditions of Service ("the Whitley Council's Conditions").We must stress that appeals to the Employment Appeal Tribunal can only be made on questions of law and so we cannot deal with complaints about any factual findings, which are not errors of law.
- In order to understand the submissions, it is necessary to give a brief overview of this case, which we take from the helpful chronology supplied by counsel, In April 1997, the claimant started working for the Trust. On 9 November 2002, she was suspended from work at a meeting held after an incident involving a patient Mrs Penfold.
- On 13 March 2003, the claimant's GP noted her "low mood" but that she was "not depressed although this remains a danger". On 31 March 2003, a meeting took place between the claimant and the Trust at which Mrs Gibbs, the Trust's Human Resources Manager, noted the difference in the claimant since the suspension meeting held on 9 November 2002. On 31 March 2003, the claimant saw her General Practitioner, who prescribed medication. On 1 April 2003, Mrs Gibbs writes to the Occupational Health Department of the Trust to express concern about the claimant's state of health. On 4 April 2003 Carol Pearson of the Occupational Health Division of the Trust saw the claimant at her home when she noted that the claimant's speech had deteriorated, and that her General Practitioner was actually actively involved. On 17 April 2003, the claimant saw her General Practitioner who noted the claimant's low mood and that she was "better but still stuttering somewhat".
- On 17 April 2003, the claimant was asked to attend a disciplinary meeting on 22 May 2003 relating to the incident which had taken place five months earlier in November 2002. On 16 May 2003, a medical certificate was written signing the claimant off-work and on 19 May 2003, the claimant duly advised the Trust that she would not be attending the disciplinary meeting to be held on 22 May 2003. On 29 September 2003, the claimant was admitted to a psychiatric unit at Prospect Park Hospital due to depression. On 23 October 2003, the disciplinary hearing proceeded in the absence of the claimant but in the presence of her daughter.
- On 28 October 2003, the claimant was informed by her daughter that the result of the disciplinary proceedings against her was that she was to receive a final written warning and that she was not to be involved in a post involving direct patient care. On 3 November 2003, the claimant was discharged from the psychiatric unit. On 26 November 2003, Carol Pearson of the Occupational Health Department of the Trust wrote an important letter to the claimant setting out the Trust's plans to enable the claimant to return to work. When we turn to consider the adjustments issue in section IV below, we will explain what the Trust actually did in the way of adjustments.
III. Was the claimant a disabled person within the meaning of section 1(1) of the Disability Discrimination Act 1995 ("the Act")?
- The Tribunal received expert evidence from consultant psychiatrists, who were called by the Trust and by the claimant. The Employment Tribunal accepted the evidence of the claimant's expert Dr J. Cutting which was that from March 2003 the claimant had had a depressive illness (International Classification of Diseases Code F32.1) and that she had had a medical impairment since March 2003.
- It was common ground that the Employment Tribunal had to consider whether the adverse effect of the mental impairment of the claimant was long-term because section 1 (1) of the Act provides, insofar as is material and with emphasis added, that:
" ..a person has a disability for the purposes of the Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities"
- Guidance is given in Paragraph 2 of Schedule 1 of the Act on the issue of whether impairment is a "long-term effect" by providing that:
"(1) The effect of an impairment is a long-term effect if
(a) it has lasted for at least 12 months;
(b) the period for which it lasts is likely to be at least 12 months; or
(c) it is likely to last for the rest of the life of the person affected.
(2) Where an impairment ceases to have the substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur"
- Mr George Thomas, counsel for the Trust, contends that the Employment Tribunal was not entitled to find that the effect of the impairment (the existence of which was not in dispute on this appeal) was "a long-term effect" because it was not until 16 May 2003 that the claimant's general practitioner first certified her as being unfit to attend work. We are unable to accept that submission because the Employment Tribunal was quite entitled to accept (as it did) the evidence of Dr Cutting to the effect that the claimant "has a mental impairment and has had one since March 2003". In any event, a statement by a general practitioner that somebody is fit to work does not prove that the person concerned is not disabled: if that were not the case, the scope of the Act would be of very limited impact in the employment field.
- The second criticism that is made by Mr Thomas is that the Employment Tribunal failed to take into account that at all times between 30 December 2003 and 26 April 2004, the depression had lasted less than twelve months. This criticism is unjustified because the Employment Tribunal accepted (as it was entitled to) the finding of Dr Cutting referred to in the previous paragraph that as at 26 April 2004, the claimant's mental impairment had lasted for over twelve months since March 2003. Even if Mr Thomas is correct and the date at which the assessment is deemed to have been made is the date of the alleged discriminatory acts and not at the date of the hearing, as he contends was decided in Latchman v Reed Business Information Limited  ICR 1453, the Tribunal was correct in holding that the impairment was of long-term effect as it had lasted for at least twelve months because the Employment Tribunal found that the discriminatory acts of which complaint was made, namely the failure to make reasonable adjustments lasted until the commencement of the Employment Tribunal proceedings on 28 February 2005. They certainly lasted on the findings of the Employment Tribunal from March 2003 until beyond March 2004, which would amount to the period of 12 months specified in the Act. In fact, the Employment Tribunal found that the Trust was continuing to fail to make adjustments beyond March 2004. In any event the disability of the claimant was likely to last for 12 months at every point prior to March 2004 and so qualify as having a "long term effect" under paragraph 2 (1)(b) of Schedule 2 , which is set out in paragraph 11 above. It is noteworthy that it was not argued in front of the Employment Tribunal that the claimant's condition would not last for at least 12 months, according to the counsel for the claimant. For all or each of these reasons, the complaint of the Trust cannot be accepted.
- The next criticism of the Employment Tribunal made by Mr Thomas is that there was no clinical indication between 30 December 2003 and 26 April 2004 that the depressive episode suffered by the claimant from 29 September 2003 to 3 November would recur. We cannot accept that complaint because of the findings of Dr. Cutting to which we have referred in paragraphs 9 and 12 above. Even if that were correct, that would not assist the claimant because the effect of her impairment was regarded as a "long-term effect" because, as we have explained the Employment Tribunal found that in the words of the Act, the impairment of the claimant "has lasted for at least twelve months".
- It is convenient here to deal with a further submission made by Mr Thomas which was that the Employment Tribunal failed to take account of sections 6(6) (b) of the Act (which after 1 October 2004 was re-enacted in section 4A(3) of the Act), which provides that:
"(6) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know-
(a) in the case of an claimant or potential claimant, that the disabled person concerned is, or may be, an claimant for employment; or
(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1)"
- Mr Thomas had to accept that the Trust had not relied before the Employment Tribunal on this provision with inevitable result that the officers of the Trust were not questioned about their knowledge or beliefs or any matters relevant to this provision that they could not reasonably be expected to know that the claimant was disabled. There is therefore no basis on which the Employment Tribunal could have found that section (6) (b) could assist the Trust and nor could this Appeal Tribunal and so this ground fails. We should add that we are very surprised that the Trust raises this point as the chronology set out in paragraphs 6 to 8 above shows that the officers of the Trust knew full well of the claimant's illness and her time in a psychiatric unit
17. The Trust makes many complaints about the Employment Tribunal's treatment of adjustments. The relevant provisions are to be found in sections 5 and 6 of the Act. These provisions were altered with effect from 1 October 2004 and as the matters of which complaints were made straddle this date, it is necessary to set out the provisions in force both before and after that date. The Employment Tribunal considered the case in this way by applying both the pre-October 2004 and the post-October 2004 provision and we will also do so as counsel both agree that this is appropriate.
- Starting with the position before 1 October 2004, section 5 defines "discrimination" and section 6 deals with the duty of an employer to make reasonable adjustments. It is more logical to start with section 6 which provides that:
"(I) Where- (a) any arrangements made by or on behalf of an employer, or (b) any physical feature of premises occupied by the employer, place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect.
(2) Subsection (I) (a) applies only in relation to-(a) arrangements for determining to whom employment should be offered; (b) any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded.
(3) The following are examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (I)-(a) making adjustments to premises; (b) allocating some of the disabled person's duties to another person;(c) transferring him to fill an existing vacancy; (d) altering his working hours; (e) assigning him to a different place of work; (f) allowing him to be absent during working hours for rehabilitation, assessment or treatment; (g) giving him, or arranging for him to be given, training; (h) acquiring or modifying equipment; (I) modifying instructions or reference manuals; (j) modifying procedures for testing or assessment; (k) providing a reader or interpreter; (l) providing supervision.
(4) In determining whether it is reasonable for an employer to have to take a particular step in order to comply with subsection (I), regard shall be had, in particular, to- (a) the extent to which the step would prevent the effect in question; (b) the extent to which it is practicable for the employer to take the step; (c ) the financial and other costs which would be incurred by the employer in taking the step and the extent to which it would disrupt any of his activities; (d) the extent of the employer's financial and other resources; (e) the availability to the employer of financial or other assistance with respect to taking the step".
- As Maurice Kay LJ explained in Smith v Churchill Stairlifts plc  ICR 524:
"there is no doubt that the test required by section 6 (1) is an objective test."
20. After 1 October 2004, section 6 was replaced by section 4A which provided insofar as it has not previously been referred to that:
(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 an order to prevent the provision, criterion or practice, or feature, having that effect.
(2) In subsection (1), "the disabled person concerned" means-
(a) in the case of a provision, criterion or practice for determining to whom employment should be offered, any disabled person who is, or has notified the employer that he may be, an claimant for that employment;
(b) In any other case, a disabled person who is-
(i) An claimant for the employment concerned, or
(ii) An employee of the employer concerned…"
21. Before 1 October 2004, the operative provision was section 5, which is headed "Meaning of Discrimination", and which provides that:
"(1) For the purposes of this part, an employer discriminates against the 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 for whom that reason does not or would not apply; and (b) he cannot show that the treatment in question is justified
"(2) For the purposes of this part, an employer also discriminates against a disabled person if- (a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and (b) he cannot show that his failure to comply with that duty is justified.
"(3) Subject to subsection (5), for the purposes of subsection (I) treatment is justified if, but only if, the reason for it is both material to the circumstances for the particular case and substantial.
"(4) For the purposes of subsection (2), failure to comply with a section 6 duty is justified if, but only if, the reason for the failure is both material to the circumstances of this case and substantial."(5) If, in a case falling within subsection (I), the employer is under a section 6 duty in relation to the disabled person but fails without justification to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 6 duty".
- After 1 October 2004, section 5 was replaced by section 3A which provides that:
"(1) For the purposes of this part, a person discriminates against a disabled person if-
(a) For a reason which relates to the disabled persons 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.
(4) But treatment of a disabled person cannot be justified under subsection (3) if it accounts to direct discrimination falling within subsection (5).
(5) A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.
(6) If, in a case falling within subsection (1), a person is under 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".
- The approach of the Employment Tribunal on the adjustments issue was (with the numbering of the bullet points in square brackets inserted by me) that:
"82. The Tribunal is entirely satisfied that the Trust was under a Section 6 duty to make adjustments, the claimant being a disabled person and someone placed at a substantial disadvantage in comparison with persons who were not disabled in the absence of adjustments. Alternatively the Trust was under a Section 4A [sic] to make reasonable adjustments. The Trust clearly identified and confirmed by the letter of 26 November 2003 the reasonable adjustments required, which were:
 To establish the claimant's skills which has to be undertaken by occupational therapy.
To modify sick pay entitlements to extend sick pay whilst she was being placed.
 Human Resources to supply details of suitable roles to occupational health.
 Occupational Health to consider whether those roles were suitable.
To aim to achieve a phased return to an identified and suitable role.
Quite simply none of that happened. Why? It was not implemented due to failings on the part of the respondent's HR department to monitor the situation and implement the adjustments required. The process was not properly managed. It appears that was in part because Maggie Gibbs considered that she was dealing with a redeployment following a disciplinary sanction and not compliance with the requirements of the DDA".
- Towards the end of his submissions, Mr Thomas contended for the first time no doubt on instructions that the second and third bullet points had, contrary to the conclusion of the Employment Tribunal, been satisfied. The Employment Tribunal found that they had not been satisfied and there has been and there is still no appeal against that finding or any finding that none of the matters in any of the bullet points had been satisfied. Therefore, we are bound to approach the appeal on the basis that the Employment Tribunal was correct on these factual findings and will do so.
25.. Mr Thomas contends that the Employment Tribunal misdirected themselves by not saying what test it had intended to apply or had applied on the question of adjustments but in paragraph 85 of its Reasons, the Employment Tribunal concluded that the adjustments referred to in paragraph 82 and which we cited in paragraph 23 were:
"reasonable and had manifestly been identified as such by the [Trust]. In failing to implement those adjustments the [Trust] discriminated against the [claimant]".
- Mr Thomas also criticised the Employment Tribunal because he said that they failed to consider how the Trust might fulfil its duty to make reasonable adjustments beyond the contents of its letter of 26 November 2003. This submission fails to take account of the fact first, the Employment Tribunal has to be seen as an industrial jury using its collective knowledge to make factual findings and second that no cogent argument was put forward to show that the Employment Tribunal's approach was wrong as a matter of law in accepting as a proper basis for dealing with adjustments the Trust's approach in their letter of 26 November 2003 constituted an error of law. It was somewhat ironic for the Trust's counsel was contending that the Employment Tribunal erred in approving of the approach of his clients, the Trust, which they must have regarded as reasonable at the time when they sent the letter of 26 November 2003 and which they never thereafter expressly told the claimant was or would be inapplicable.
- Nevertheless, in considering whether the Employment Tribunal was quite clearly entitled to consider that the approach of the Trust in the letter of 26 November was reasonable, it must not be forgotten that the Employment Tribunal had found that the claimant's mental impairment had an adverse effect on her ability to carry out day-to-day activity. It had noted that the obvious impact of the mental impairment on the claimant has been on her speech in that it took the claimant "significantly longer than average to verbally communicate both at the time of the events considered by the Tribunal and now". It was pointed out by the Employment Tribunal that the stutter from which she suffered from at the time was significant and had a substantial adverse effect on her speech and her ability to carry out normal day-to-day activities.
- Furthermore, the Tribunal were satisfied that the claimant's mental impairment had an adverse effect on her memory and ability to concentrate with "a short attention span". The Tribunal also found that the claimant, who had lost the ability to sustain activity over a reasonable period, needed constant support from a close network of friends to deal with her own affairs and her day-to-day activities. All these impairments would have meant that careful inquiries would have to have been made by the Trust concerning the work which the claimant might have been capable of doing before seeking to identify a suitable post for her in a hospital environment in which an ability first to communicate orally with out difficulty and second to concentrate would have been requisite qualifications for many jobs. Against that background, we do not think that there can be any justifiable criticism that the approach put forward by the Trust in its letter dated 26 November 2003 was wrong as a matter of law as their proposals were eminently reasonable especially if it is borne in mind that the bullet points would have to be looked at sequentially so that first the Occupational Therapy Department would establish what skills the claimant had available, then the Human resources would supply details of suitable roles to the Occupational Health Department, who would then consider whether those roles were suitable so she could then achieve a phased return to work in an identified and suitable role.
- In so far as Mr Thomas contended that the Employment Tribunal had made an error in its conclusion as the Trust had actually made reasonable adjustments, we are unable to agree in the light of the factual findings of the Employment Tribunal, which cannot be regarded as reaching anywhere near the high threshold required for a finding by this Appeal Tribunal of perversity by the Employment Tribunal. The first job that the claimant was offered was working in patient records but when she arrived on the first day, no Manager or Deputy Manager was present and she was told there was no work for her. She was later given a stack of test results to be sorted into piles. The claimant worked a further half day on 27 January 2006 but no check had been made with Occupational Health to assess whether any possible role in that department was appropriate for somebody with the claimant's disabilities. The Employment Tribunal was entitled to conclude that in paragraph 60 of its Reasons that:
"it was not clearly spelt out to the [claimant] what role she was to do. there was specially defined role…no checks were made with occupational health to assess whether any particular role was appropriate"
- The next position given to the claimant was working in an operating theatre but when she attended on the 1 April 2004, she found that she was not expected. So she was sent away and told to return the following week. The Employment Tribunal also found that at no point in relation to the theatre placement was it made clear to the claimant what the nature of the placement was, and what job it might lead to at the end of the placement.
- As they explained in paragraph 67 of their Reasons, the Employment Tribunal concluded in respect of the claimant that, "there was a complete lack of any clarity in what was happening to her. Further there was no check made by the Trust with Occupational Health as to whether the position was in any event suitable for her". This showed that the Employment Tribunal was not satisfied (which was a decision it was entitled to reach as the designated fact-finders ) that the Trust had carried out reasonable procedures or reasonable adjustments. The general practitioner of the claimant recorded on 16 April that she had suffered a "single major depressive episode. Matters at work are no better".
- Then on 16 April 2004 Mrs Gibbs sent an e-mail to the claimant stating "a substantive post cannot be offered until your suitability is assessed as I have previously explained". The Employment Tribunal pointed out (again as they were entitled to) that Mrs Gibbs clearly overlooked the need set out in the letter from her employers, the Trust, for it to obtain and then to consider a proper skills assessment for the claimant and on advice from Occupational Health as to an appropriate position for her employment even though those matters had been identified nearly five months earlier. The letter of 26 November 2003 referred to in paragraph 23 above had required the Occupational Therapy department to establish the claimant's skills but the meeting never took place as the person who could have done this, Brendan Fielke, left the Trust's employment on 18 March 2004 before the meeting could take place. There was no provision after he left for any alternative skills assessment profile preparation of the claimant. So the essential pre-condition for finding a suitable job for the claimant and identified by the Trust as a crucial part of the adjustment process was never satisfied.
- Then a competitive interview was arranged for the claimant for 19 April 2004 for a position in stock control. Mrs Gibbs accepted that to assist the claimant, she had agreed to support her and attend with her at the interview. Unfortunately she did not do so. When she was unable to do so, the Employment Tribunal concluded that if Mrs Gibbs had wanted to assist the claimant in the interview "she would have at the very least bothered to alert her to the fact she would be unable to attend the interview and would explain to the panel [the claimant's] circumstances". Mr Thomas complains about this but the Employment Tribunal was entitled to make this comment and in any event, even if it was wrong it would not undermine their main conclusion that the Trust had failed to ascertain what job the claimant could do as they had agreed to do.
- All this leads us to the conclusion that the Employment Tribunal was quite entitled (even if not obliged) to find that the Trust failed in what they stated was their aim for the claimant in a letter of 26 November 2003 namely "to achieve a phased return to an identified and suitable role". In our view the Tribunal was right to say in paragraph 84 of the Reasons "whilst clearly a trial period might be required that could only have been once capabilities were identified and occupational health had considered the proposed role and assessed the chances of success. That was not done." The stark fact is that the Employment Tribunal cannot be criticised from stressing the importance of the Occupational Health Department of the Trust appraising the claimant as an integral part of the process of making adjustments for the claimant. We stress that we regard that such an assessment must have been in the view of the writer of the letter of 26 November 2003 and the Employment Tribunal the essential pre-condition for the Trust to comply with its obligations to make adjustments. As we have explained in paragraphs 27 and 28 above, the Employment Tribunal found that the claimant had many disabilities, such as her speech problems and her short attention span, which would have prevented her from carrying out or being suitable for many jobs in a hospital.
- In so far as there is a criticism of the Employment Tribunal's finding that phased return to work was inconsistent with their own findings, the reasonable adjustment that was required was not merely to achieve a phased return but (with our emphasis added) in the words of the letter of 26 November 2003 "to achieve to phase return to an identified and suitable role". It is these emphasized words, which are important as showing the duty, which the Trust regarded as imposed on itself, and which the Employment Tribunal was entitled to hold that the Trust did not fulfil because the Employment Tribunal was entitled to conclude that there was never an inquiry carried out by the Occupational Health team of the Trust to ascertain what was "an identified and suitable role" for the claimant. Instead what happened was that the claimant was given various roles because in Mrs Gibbs' words "she was not working under any Disability Regulations" (paragraph 51 of the Reasons).
- There is no merit in the Trust's complaint that the Employment Tribunal failed to consider the refusals of the claimants to accept an alternative post because the Employment Tribunal found that as the Trust had failed to establish the skills which the claimant had in the light of her disability and then to identify a suitable post for the claimant, they had failed to take the vital first step in making adjustments. These were essential pre-conditions to ascertaining if a job was suitable for the claimant and then a refusal of any work was unreasonable. Furthermore, this criticism of the Employment Tribunal appears to us to be a disguised allegation that the Employment Tribunal's decision on this issue was perverse but the Trust fails by a long way to reach the high threshold required to succeed on such an allegation.
- A further criticism made of the Employment Tribunal by the Trust was that it erred when it stated that that competitive process would place the claimant at a substantial disadvantage. We do not understand how this criticism even if true would undermine the decision of the Employment Tribunal but in any event we do not accept it. The Employment Tribunal had seen the claimant and was concerned about her ability to communicate orally and to concentrate as these limitations were part of her disability. These problems would have placed the claimant at a great disadvantage and so the Employment Tribunal was entitled to comment as it did. Even if that criticism was justified, we fail to see how it could lead to the decision of the Employment Tribunal being impugned as the Tribunal was in our view quite entitled to take the view that in the light of the claimant's history the requirements that reasonable adjustments were required were those set out in the letter of 26 November 2003 to which we referred in paragraph 23 above but these had not been followed.
- Mr Thomas makes many other criticisms of the Employment Tribunal's reasoning but none of them overcome the insuperable difficulty that it was entitled to find that the Trust had not made reasonable adjustments for the reasons set out in the last paragraph. Most of them in any event are disagreements with factual conclusions which the Employment Tribunal was entitled to reach.
- In addition, the criticism that the Employment Tribunal erred in concluding that Mrs Gibbs failed to support the claimant at the interview is an attempt to appeal a factual finding which the Employment Tribunal was entitled to reach and which fails to reach by a long way the high threshold needed to show that a factual finding is perverse. For the same reason, we reject the criticism that that the Employment Tribunal was wrong to criticise Mrs Gibbs for failing to act sensitively as this was not a perverse finding and even if correct neither of these criticisms would mean that there was an error of law in the Employment Tribunal's reasons which would cause us to interfere with their eventual findings.
- The criticism that the Employment Tribunal failed to consider whether the claimant refused to accept an alternative post in June 2004 fails to take account of the facts that the claimant was then off ill and that in any event the suitability of the claimant for this job had not been assessed by occupational health or by anybody who knew of the claimant's disability. Again this must be rejected, although this might perhaps be relevant on the issue of mitigation of loss with which this appeal is not concerned.
- In our view, the Employment Tribunal considered the question of adjustments sensibly and fairly before reaching decisions open to them in the light of the evidence and the applicable legal principles which they explained properly. The simple fact is that the procedure set out in the Trust's letter of 26 November 2003 should have been followed because the Employment Tribunal was entitled to conclude Ms Gibbs regarded the Trust's treatment of the claimant as being part of a disciplinary process and thereby ignored the requirements of the Disability Discrimination Act 1995. We were unable to identify any statutory provision which the Employment Tribunal should have considered but did not consider or which it did not apply properly. So none of the very large number of complaints of the Trust relating to the Employment Tribunal's approach to the adjustments issue succeeds
- The Employment Tribunal was entitled to conclude that the claim for discrimination succeeded because for the matters set out in paragraphs 84 and 85 of its Reasons, the Trust had failed to comply with its obligations under section 6 of the Act. There are no grounds for impugning the finding of disability discrimination and for the purpose of completeness, we add that the Employment Tribunal had first to determine the facts and then apply the relevant legal principles but that only means considering the relevant legal principles on the controversial issues under consideration, which is what the Employment Tribunal did. The mere fact that there were some aspects of the Act, which the Employment Tribunal did not consider is not of significance if the Employment Tribunal applied the relevant principles, which is what they did here.
VI. Incorporation of Whitley Council's Conditions.
- Although this issue might well be academic in the light of our finding that the disability discrimination claim succeeds, we will comment on it as we heard submissions on it. The Trust makes numerous criticisms of the finding by the Employment Tribunal that the Whitley Council's Conditions were not part of the claimant's contracts of employment. These conditions were negotiated between representatives of the employers and of the employees. It was argued by the Trust that these conditions were incorporated into the claimant's contract of employment.
- The Employment Tribunal rejected this submission in the following terms in its response to an order of the Employment Appeal Tribunal of 3 February 2006 when it explained that:
"5. The respondent argued that the "Whitley Councils for the Health Service (Britain) Terms and Conditions of Service for Ancillary Staff" dated June 1992 contained the claimant's terms and conditions of employment. However, the respondents were not able to produce to the Tribunal at the Hearing any evidence that those had ever been brought to the attention of the claimant. In her evidence to the Tribunal Mrs Maggie Gibbs accepted that there was no reference in either the Statement of Particulars or the Terms and Conditions in the Employee Handbook to the Whitley terms and conditions. The respondent argued that on a contractual analysis the reference in the documents …to "conditions" was sufficient to direct the claimant to the Whitley terms and to incorporate them. Had the respondent intended them to apply it could easily have referred expressly to them but did not. There is no reference to them in the Terms and Conditions…. In the absence of any evidence that the Whitley terms having been brought specifically to the claimant's attention before or at the time she signed the Statement of Acceptance, or at any time the Tribunal do not find that they were incorporated into her contract of employment and accordingly she was not bound by them. The respondent further argued that their incorporation could be implied as a term by virtue of custom and practice on the basis that all its ancillary staff worked to them. However that argument fails because on the evidence of Mrs Gibbs they were not automatically applied in their entirety to all ancillary staff. She accepted that there were variations from the Whitley terms for other staff and that those variations were the subject of local collective agreements".
- Mr Thomas contends that this reasoning is incorrect and that the Whitley Conditions were incorporated into her contract of employment. It is settled law that where, for example, a ticket refers to conditions in a specific document, a person who buys that ticket will be bound by those conditions (see for example Thompson v London, Midland and Scottish Railway Company  1 KB 41). The reasoning is that the wording on the ticket makes it clear that there are other conditions and exactly where they can be found. In other words, there has to be something in the contractual documents which constituted a link with conditions relied upon
- Relying upon that principle, Mr Thomas points out that in the Statement of Particulars of the claimant's employment, it is stated that:
"Conditions of Employment: All other conditions of employment are laid down in the Trust Conditions of Service. A complete set of conditions are available for inspection in the Personnel Department. These conditions may be varied from time to time as notified by the Trust"
- The difficulty for the Trust was that there was no such document as the "Trust Conditions of Service". There was, however, an employee handbook but that does not specifically refer to the Whitley Conditions or state that they were incorporated into the contract of employment of the claimant. Thus, unlike in the ticket case, there is no link or bridge between the employee's contract and the Whitley conditions and that is a critical failing. The mere fact that there were other conditions available for inspection in the Employment Department does not assist the Trust because the opening word of the passage in the Statement of Particulars quoted in the previous paragraph state (with emphasis added) that "all other conditions of employment are laid down in the Trust Conditions of Service". Furthermore the statement of acceptance signed by the claimant states that the claimant "understand(s) and accept(s) the conditions under which I am employed are as defined in the Trust's Conditions of Service and these may be altered from time to time by a decision of the Trust…".
- That means that the claimant's terms would not be contained anywhere other than in the Trust Conditions of Service, which did not exist or have not been shown to the satisfaction of the Employment Tribunal to incorporate the Whitley Conditions. The mere fact that a copy of the Whitley Conditions was in the Personnel Department does not assist the Trust as there must be something in a contractual document which shows that these Whitley conditions were to be incorporated but that cannot be shown in this case. There is no basis for contending that the decision of the Employment Tribunal was perverse or an error of law when it found that there was no reference in any contractual document to the Whitley conditions. Thus our view is that the Whitley Terms were not expressly incorporated into the claimant's contract of service and the decision of the Employment Tribunal on this matter cannot be impugned.
- In reaching this conclusion, we have not overlooked the contention of the Trust that in the words of its written skeleton argument that "the existence of further terms which included the [Whitley Conditions] were expressly drawn to the [Claimant's] attention" but the Employment Tribunal did not find this fact and no notes of the evidence before the Employment Tribunal were put in evidence before the Employment Appeal Tribunal so as to support this allegation. Nor was the Employment Tribunal asked for its notes or to make further findings or to review its decision on this point. Thus this point also fails.
- In the light of the findings of the Employment Tribunal, the stark fact is that the Trust have failed to show that the Employment Tribunal was bound as matter of law to conclude on the material before it that any of the contractual documents signed by the claimant or given to her put her on notice that the Trust was expressly incorporating the Whitley conditions in her contract of employment. For our part, we are clear that the Trust has not shown us that the Employment Tribunal erred in this way and we stress that if the Trust had wished to succeed on this point relating to the express term, we would have needed the extracts of the relevant evidence but we did not receive any of this.
- We are unable to accept the contention of Mr. Thomas that the Whitley Conditions were to be implied as being incorporated by custom and practice as the Employment Tribunal would have to have been satisfied that those conditions were "reasonable, notorious and certain" (see Devonald v Rosser  2 KB 728, 743 per Farewell LJ) and that "the parties must be shown to be applying the term because there is a sense of legal obligation to do so"(Solectron Scotland Limited v Roper  IRLR 40  per Elias J). The Employment Tribunal found that the Whitley conditions did not apply as they were not applied automatically to all its ancillary staff and that there were variations, which were the subject of local collective agreements. Those findings, which have not been shown to be perverse, indicate that the Trust has not shown that there was "a sense of legal obligation" to apply the Whitley conditions or that their incorporation was "notorious and certain". The difficulty for the Trust was that the Employment Tribunal made factual findings, which have not been shown to be perverse
- In so far as it is contended there was an implied term that the Whitley Conditions would apply, the evidence falls a very long way short of showing such a term in spite of Mr Thomas's valiant submissions. It is settled law that for a term to be implied "the touchstone is always necessity and not merely reasonableness" (Liverpool City Council v Irwin  AC 239, 266). The Trust cannot show that it was necessary or reasonable for the Whitley conditions to be incorporated into the claimant's contact of employment as her contract was perfectly workable without the Whitley Conditions. Furthermore the findings of the Employment Tribunal were that the term could not be implied as a matter of custom because they found, as Mrs Gibbs had accepted, that these terms were not applied to all ancillary staff. This conclusion is unassailable. Thus this ground of appeal also fails.
VII. The Remedies Issue.
- The contention of the Trust is that the Employment Tribunal erred in finding that the claimant was entitled to full "average" pay during the period from the 22 May 2003 until 23 October 2003 when she was not simply suspended but when she was also off-work on grounds of sickness. In other words, the case for the Trust is that when the claimant was sick, she was precluded her from obtaining average pay.
54. The Employment Tribunal dealt with it in this way in the reasons for the remedies decision when it explained that:
"10. The Tribunal have considered carefully the circumstances surrounding the dispute and in particular have considered the exchange of emails that appears on page 347 of the trial bundle. The claimant quite clearly raised on Friday 7 February 2003 a query in relation to her pay during her suspension. She stated,
"Although the letter of 9th states that I have received full pay, I appear to be receiving only basic. At the meeting on 9 December, I was assured by Maggie Gibbs that the fact I normally work every weekend would be taken into account. This does not appear to be happening".
The response by email later that same day unequivocally confirms,
"You should be paid "average" pay and not "basic" pay. I will speak to Annie in payroll and get this situation rectified. Apologies for any inconvenience this has caused you"
11. Applying the definition of wages contained in Section 27(1) (a) ERA 1996 wages are defined as "Any fee, bonus, commission, holiday pay or other emolument referable to employment, whether payable under his contract or otherwise. Although there is no specific reference in the contract to the basis on which pay was to be calculated the tribunal are satisfied that the statement in the respondent's email of 7 February 2003 was a clear commitment to pay average pay and therefore falls within the scope of "otherwise" in Section 27(1) (a). Accordingly we find that the claimant is entitled to be paid at the average rate".
- In our view, the Employment Tribunal was quite entitled to take the view that while suspended the claimant would be paid "average" pay and not merely "basic" pay. Nothing was said expressly in the e-mails or anywhere else that her right to "average pay" would only continue while she was suspended and fit to work. Our reading of the messages was that the promise to pay "average pay" related to the entire period she was suspended. The case for the Trust entail rewriting the e-mails so that the words "only while you are fit to work are inserted" and no reason have been put forward to show why this should be done. In any event, the Trust's e-mail promising "average pay" was never the subject of a further communication explaining that it did not apply when she was ill as it should have been if that is what the Trust intended. On any objective reading of the e-mails, the decision of the Employment Tribunal on this issue cannot be criticized. Thus this ground of appeal must also fail.
- A further reason why this ground of appeal has to be rejected is that the Trust did not lift the suspension of the claimant or tell her that she was free to return to work. Thus an (if not the) operative reason for claimant not working continued to be the suspension and this means that the terms on which she would be paid during suspension continued to apply.
- For the reasons we have sought to explain, this appeal must be dismissed. In essence, the Employment Tribunal reached conclusions which were open to them on the facts and in the light of the applicable principles of law. Although the Trust will be disappointed with this result, it might be some consolation to them to know that every argument that could have been put forward on their behalf has been put forward with commendable skill by Mr. Thomas as indeed were the contrary submissions from Mr. Reade. The stark fact is the more we considered the submissions, the more convinced we became that the Employment Tribunal's decision did not disclose any errors of law. The appeal must therefore be dismissed.
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