Hay v Surrey County Council

Ms Hay complains of discrimination on grounds of disability, leading to unfair dismissal, on the part of her former employer Surrey County Council [Surrey]. That claim succeeded before an Employment Tribunal [ET], whose decision was however overturned by the Employment Appeals Tribunal [EAT]. Ms Hay appeals from that latter decision by permission of this court. Before the tribunals below Ms Hay represented herself. She then was assisted in applying for permission to appeal by Mr Grant, instructed by the Bar Pro Bono Unit; and since then her case has been taken up by the Disability Rights Commission, who have instructed Mr Allen QC. We thank all concerned for the assistance that they have given to Ms Hay. Surrey have been represented throughout by Mr Palmer, afforced in this court by Mr McManus QC.

The issue in the case was whether Surrey had breached the requirements of sections 5 and 6 of the Disability Discrimination Act 1995 (the ruling statute at the time at which the issues arose) by failing to make reasonable adjustments to the circumstances of Ms Hay’s employment to prevent those circumstances from causing a substantial disadvantage to Ms Hay by reason of her admitted disability. Ms Hay suffered from a degenerative knee condition, identified during knee surgery that took place after she had commenced employment with Surrey. The factual circumstances in which Surrey’s duty to make adjustments was said to arise are set out in considerable detail by the ET, and summarised by the EAT in terms that were not criticised before us. As an introduction to the appeal I set out part of that summary below. Anyone who needs to know more about the case can safely consult the determinations of either of the tribunals.

The EAT recorded in its §7 that the ET had set out the facts with considerable care, and quoted these paragraphs from the ET’s Determination:

The EAT then went on to express the further findings of the ET in its own words. It said, at §§ 8-13:

Having set out that criticism of the failure to make a risk assessment, the ET then went on, in the very important §15.5 of its determination, to make findings about what reasonable adjustments to the claimant’s work requirements would have been indicated by a review, if such had been carried out. The ET said:

15.5

The Tribunal was unanimous in its view that, ignoring the question of whether the mobile library vehicle's clutch was in good working order, a risk assessment would have recommended adjustments to her work and/or her working environment. The adjustments would be designed to eliminate the risk of further Injury to her knee as a consequence of handling books in and around the mobile library. There are three likely proposed adjustments: first to engage an assistant to work every day (in effect extending the hours of the part time assistant from the 2/3 days he or she was working with the Claimant); secondly to make adaptations to the vehicle and the Claimant's pattern of work to ensure that she did not place any strain on her knee when handling books nor undertake any manual work that might be a risk to her condition (for example by redesigning the shelving); or thirdly by swapping her duties with Mr Collingwood (who had a full time assistant) or in some way merging the two jobs so that the Claimant always had an assistant – either her own in the mobile library vehicle - or Mr Collingwood's when doing his job. While it is not possible to say which of the three alternatives would have been recommended by the risk assessment the Tribunal is unanimous in its view that one or more would have been proposed. Indeed there might have been others, such as counterpoising the lower shelving.

And on the basis of that analysis of the available reasonable adjustments the ET concluded in its §15.6:

The Tribunal is unanimous in its view that it was reasonable that the Respondent make adjustments in order to enable the Claimant to carry on her work as a mobile librarian. The Respondent was not justified in failing or refusing to make adjustments. In the course of a risk assessment exercise the Respondent would be expected to consider the proposed adjustments and carry out a cost analysis and a cost effectiveness exercise -both of which it failed to do on a forma! basis. The absence of a risk assessment exercise is fundamental to this case. But the Tribunal is bound in any event to consider the adjustments referred to above In relation to cost 2nd cost effectiveness. The Tribunal is of the view that the annual cost of a part time assistant (£10000) is, in the context of the turnover of the Respondent, a relatively small cost for which there might have been sources of external funding. The Tribunal does not know if reallocating duties between Mr Collingwood and the Claimant could have been undertaken but it is likely that Mr Collingwood's contract would not prevent his being transferred to another vehicle. Such a change would have had no or no significant financial consequences. Making minor changes to the inside of the mobile library vehicle to avoid books being kept on low shelves and similar adaptations would have involved a relatively small expenditure.

That was how the ET concluded that Surrey had discriminated against Ms Hay under section 5(2) of the 1995 Act, by failing to take reasonable steps under section 6 to accommodate her disability. When Surrey concluded that it was not possible to adjust Ms Hay’s duties or circumstances as Mobile Library Manager to enable her to continue in that post, it offered her an alternative post in the information services operation, which was intended to avoid the physical demands of the mobile library. Ms Hay refused that post, and was dismissed. The ET held that her refusal could only have been unreasonable if the offer of the new post was necessary in order to accommodate her disability. Since in the ET’s opinion the disability could have been accommodated by the adjustments to her existing work that it had identified, the offer of the new post was not necessary or reasonable, and Ms Hay reasonably refused the offer. It was accordingly unfair to dismiss her on the basis of that refusal.

The EAT reviewed the findings of the ET in relation to adjustments to the requirements of the post of Mobile Library Manager, and concluded that the findings had been perverse; with the result that the judgment of the ET was set aside. There was some suggestion in the exchanges before the oral hearing that the EAT had not applied the right test in reaching that conclusion. However, a full reading of the determination shows that the EAT had perversity well in mind, and also had in mind the ruling authority in this court of Yeboah v Crofton [2002] IRLR 634. That however is not now an issue, because it is agreed, in circumstances to which I shall shortly come, that the issue in this court is indeed whether the ET’s determination was perverse, but that that issue has to be decided by this court for itself, and not by way of critical commentary upon the reasoning of the EAT.

There were two matters that originally agitated debate between the parties, but which in the event were not contentious before us. First, the issue already referred to in §5 above, of whether this court is concerned with the reasoning of the EAT. I doubt whether it is possible to give a single answer to that question that covers all appeals, but the parties were agreed that in a case such as the present, where the single complaint is the perversity of the findings of the ET, the court has to focus on that single question, however valuable it may find the observations of the EAT when answering that very same question. I am content in this case to proceed on that basis, whilst still taking the liberty of expressing some bemusement that the expertise of the EAT, a specialist court with expert knowledge not only of industrial relations but also of employment tribunal procedures, plays such a secondary role in the appellate process.

Second, one of the complaints in this case, and a matter to which I shall have to return, is that Surrey were criticised in §15.4 of the ET’s determination, and elsewhere, for not having carried out a “formal risk assessment” of Ms Hay’s ability to perform her work in the light of her disability. In thinking or appearing to think that a risk assessment was a separate component of the employer’s duty under section 5 the ET saw itself as following the decision of the EAT in Mid-Staffordshire NHS Trust v Cambridge [2003] IRLR 566. It was agreed between the parties in this appeal that that reliance had been incorrect, and that the law was properly stated in §§ 77-78 of the later judgment of the EAT in Tarbuck v Sainsbury’s Supermarkets [2006] IRLR 664, which held that the single question under section 5 was whether the employer had complied with his obligations there set out. If he had failed to conduct a proper (not a “formal”) assessment then he could not use ignorance by reason of that failure to excuse lack of compliance; but there was no separate and distinct duty to perform that assessment.

Mr Allen QC however told us that despite there being no issue on the point between the parties to this appeal we needed to review and pass on the jurisprudence just referred to. That was because the industrial relations community would welcome confirmation from this court that Tarbuck rather than Mid-Staffordshire should be followed in future; and because the Disability Rights Commission was concerned about certain aspects of the guidance in Tarbuck, not arising in this case but which they would like to see clarified. I fear that, however well-intentioned either of those objects may be in general terms, they cannot be served through the medium of this appeal. If the court were to respond properly it would have to hear adversary argument, something not likely to be forthcoming when both sides are in agreement; and all in the interests of producing observations that would be obiter and thus carrying no certainty of resolving whatever concerns that exist. I would also add that, valuable as has been the intervention of the DRC in this case, that cannot justify attempts to use litigation between private parties as a platform for investigating the DRC’s wider strategic concerns.

Before descending into the detail of the arguments it may be helpful, in order to put those arguments in context, to recall what it was that Ms Hay was complaining about before the ET. The ET recorded in its §6 that at the opening of the hearing Ms Hay confirmed, on enquiry by the tribunal, that her case was that Surrey should have made sufficient of the adjustments that she had suggested so that, and with the result that, she was able to continue acting as Mobile Library Manager. It was specifically not her case that by reason of her disability Surrey should have deployed her elsewhere within the organisation. And that fitted with the attitude of Ms Hay in earlier discussions with Surrey because, despite the opportunistic changes of position identified by the ET in its §15.8, quoted in §4 above, her ambition and claim was always in practice to stay in the mobile library. That is why the case, and the discussion of it that follows in this judgment, focuses almost entirely on adjustments to that job, in the mobile library, and not at all on the possibility of deployment elsewhere.

Surrey’s first point before us was that (as was now accepted: see §9 above) the ET had been wrong to view the absence of a formal risk assessment as “fundamental” to the case (as the ET said in its §15.6, quoted in §5 above). That had had two consequences. First, that view had fatally infected the whole of the ET’s treatment of the case, to the extent of rendering the whole of its findings perverse. Second, and perhaps a subsidiary point, to speak in terms of a “formal” risk assessment exaggerated what was expected of the employer. Once it was seen, as had been seen in Tarbuck, that the assessment was required not as an end in itself, but as a means for the employer properly to inform himself about what the discharge of his duty required, then the question was simply whether the employer’s decisions had been made on a sufficiently informed basis.

The first of these points was not Surrey’s case before the EAT. Far from it. There, Surrey accepted that the law was correctly stated in Mid-Staffordshire, now accepted on all sides to be wrong: see §9 above. But that is neither here nor there, since we have to act as if we were not hearing an appeal from the EAT: see §8 above. Surrey did however take the second point, that all that Mid-Staffordshire (and thus a fortiori Tarbuck) requires is a proper, not a formal, risk assessment. Surrey’s case as to that point, and as to what had been done to meet the requirement as properly understood, was as recorded by the EAT in §20 of its determination:

Surrey were certainly justified in stressing the importance that the ET had placed on what they thought to be the risk assessment that was required. Not only was the need for that assessment described in the determination as fundamental, but also passages from the proceedings, shown to us by both counsel, revealed the Chairman reverting to that issue. Granted that the ET’s treatment was founded on that mistaken premise, we have to approach it with caution. However, if the ET’s determination is read with the assumptions in its favour that Yeboah v Crofton demands, the charge that the ET’s view of risk assessment in itself infected and rendered perverse the rest of the determination is not made out. If it had been alerted to the argument as it developed in this court, the ET might have arranged its conclusions somewhat differently from the form in which they appear in §§ 15.4-15.6 of its determination. But it is possible to say that the ET, having dealt with risk assessment, then went on, as a separate exercise, to make findings about what the risk assessment would have revealed, and what ought to have been done about it. In its findings it was undoubtedly influenced by the view that it had taken about risk assessment, a matter that we will have to take into account when we come to the findings themselves. But the ET never said, or implied, that the nature of the risk assessment was conclusive in reaching those findings, and its review addresses many matters other than those directly related to the risk assessment or lack thereof.

I conclude, therefore, that the first ground of perversity adduced in this court by Surrey is not made out. I therefore turn to consider the second issue that is before us, the ET’s criticism of Surrey’s failure to make the adjustments sought by Ms Hay.

I set this out as a separate section of the judgment because the ET’s determination was fatally flawed by its approach to the nature of Ms Hay’s disability and the employer’s reaction to it. Again, this is not, or at least not quite, how the case was put in the EAT, nor is it the way in which the EAT analysed the case. Again, on the understanding of our role urged on us by both parties that is neither here nor there.

Ms Hay had surgery on her knee on 1 July 2003. On her return to work in August she expressed concern that driving the library vehicle, with a “heavy clutch”, would aggravate her underlying condition. She looked for an alternative vehicle with a lighter clutch. Surrey sought an opinion from Ms Hay’s surgeon, Mr Twyman, as to Ms Hay’s “ability to drive without incurring further injury”. Mr Twyman replied on 28 August 2003:

Mrs Hay has a problem with her left knee with some early degenerative change. While this is not a problem with most activities, driving a vehicle with a heavy clutch is going to aggravate the joint. I understand Mrs Hay runs a mobile library which has a heavy clutch and it may well be that she would be better employed in a vehicle that was more suited to her capabilities.

That report was addressed to Ms Hay’s ability to drive, because that was all that Mr Twyman had been asked, Surrey in asking that limited question simply responding to the limited concern expressed to them by Ms Hay. On receipt of that opinion Ms Hay was then seen by Dr Sperber, of Surrey’s occupational health unit [OH] on 9 September 2003. Ms Hay was strongly critical of Dr Sperber’s successor at OH, Dr Waddy, in terms reported without comment in ET §12.24. However, there is no record that she lacked confidence in Dr Sperber. We are entitled to assume, as Surrey was entitled to assume, that Dr Sperber, as an occupational health professional, would have looked at the whole situation of Ms Hay’s health in the context of her account of the nature of her work. We are also entitled to assume, from the ET’s analysis of Ms Hay’s personality and powers of expression (set out in ET§12.1 and quoted in §3 above), that she would not have lacked confidence in explaining those matters to Dr Sperber.

Dr Sperber’s report, dated 12 September 2003, was unequivocal as to Ms Hay’s inability to continue at the mobile library:

This lady’ knee degenerative changes are progressive and this progression is likely to be accelerated by her driving vehicles with manual transmission on a regular basis. In light of her ongoing symptoms and the likelihood that they will continue to worsen if she continues to work in her current role, this lady is unfit for work in my opinion…..Redeployment should now be actively explored. The job for which this lady is considered should avoid actions likely to exacerbate her condition, such as driving vehicles with manual transmission or crouching or squatting.

Acting, as it had to, on that advice Surrey removed Ms Hay from work on the Mobile Library and sought redeployment for her, as summarised in EAT §§ 11-12, set out in §4 above. Those efforts, and in particular the redeployment to Redhill, not being successful, Ms Hay saw Dr Sperber again (it is not clear at whose initiative) on 7 November 2003. In his report to Surrey dated 11 November 2003 Dr Sperber recorded Ms Hay’s complaint that she had not been redeployed and had not been supported by Surrey in looking for alternative roles, and that the job at Redhill had been “menial”. Dr Sperber continued, in line with his previous report:

Her underlying remains relevant although since stopping her previous role her symptoms have not been as significant. I believe that management need to be more proactive in pursuing and organising alternative employment opportunities for this lady if her allegations are true. She remains unfit to return to her previous occupational duties.

Shortly thereafter an already arranged review meeting took place, at which Ms Hay was offered a post in Surrey’s Information Services Team. Ms Hay was not prepared to accept that post, a matter to which we will have to return. On 13 December 2003 Ms Hay complained about the failure either to redeploy her or to offer her pensionable retirement, and suggested that she should exchange duties with Mr Collingwood: as to whom see EAT §12, set out in §4 above. Ms Hay indicated that, failing any of those steps by Surrey, she would present herself for her former duties.

Faced with that statement of intention, and various other complaints by Ms Hay about the handling of her case, Surrey referred her back to OH. Ms Hay was seen by Dr Waddy, apparently Dr Sperber’s successor, who reported to Surrey on 8 January 2004. Dr Waddy’s report concentrated on Ms Hay’s presenting concern, which related to her ability to drive the mobile library vehicle. Dr Waddy indicated that she had not been able to form a firm view as to the problem that was perceived with the various vehicles, including that used by Mr Collingwood, and requested that the vehicles be inspected in order to see whether there were differences in ability to use the clutch. She also said that she was seeking more specific information from Ms Hay’s consultant, and indeed wrote to Mr Twyman on that same day. The letter requested advice as to Ms Hay’s suitability for driving, but also, albeit in somewhat standard form terms, asked for a general report on the case.

The letter was replied to on 28 January 2004 not by Mr Twyman but by a Mr Dabis. There was some suggestion in argument that this report should be discounted, as Mr Dabis had never examined or treated Ms Hay. However, the report is a careful account of the whole history, taken from proper records, and informed by the professional insight of a consultant surgeon who is an FRCS with orthopaedic speciality. No responsible employer could have ignored it. Mr Dabis stated:

In my opinion the function of her left knee will remain sub-optimal. She should use her left knee within its physical limitations to avoid exacerbation of her knee symptoms. She should avoid manual and strenuous activities. In my opinion there is increased risk of developing degenerative changes in the medial compartment of the left knee in the future. She has no problems driving manual vehicles except for the two mobile library vehicles that cause her a problem. This knee does not affect her capability as a driver and should not be report to the DVLA. I would consider her to be at some disadvantage in the job market. It is advisable that she avoids any manual physical job including any form of library work. This condition will go on beyond her retirement age.

Dr Waddy asked for clarification of the advice that Ms Hay should not do library work. Mr Dabis replied on 17 March 2004:

In [my previous] report I advised that she cannot do a manual physical job. However in my opinion she is able to do sedentary and seated type of employment with the flexibility of walking in the office to keep her mobile and use the knee joint to a reasonable degree. She should avoid any manual physical jobs and jobs which involve a long period of standing.

All this was against the background of detailed discussion with Ms Hay as to her unwillingness to accept the offered post in Information Services. Dr Waddy advised on that question on 18 June 2004. Having referred to the advice received from Mr Dabis she said:

With regard to redeployment I believe that [Ms Hay] would be able to work on a full time basis between the hours of 8.00am and 8.00pm especially if it was local to home. She can lift between knee and shoulder height and needs to keep mobile in the workplace. Since being absent from work she has gained computer skills. She should not drive any library vehicles unless it can be shown that the clutch in these are significantly easier that on the vehicles which she highlighted as being difficult for her.

Mr Norris, head of library services, sent a copy of this report to Ms Hay on 23 June 2004, stating, as set out in ET §12.50:

We explored the option of returning to a mobile library during your period of sickness and the subsequent sickness capability hearing. This is not a viable option as your condition not only precludes driving but also all the other strenuous activities that are part of the role, including standing, lifting, squatting and stretching. In any case, we have explained previously your insurance cover to drive a County Council vehicle has been withdrawn. I shall, therefore, not be assessing the clutches of further mobile library vehicles nor ordering a specially adapted vehicle.

Ms Hay replied saying that she did not want redeployment, and intended to return to her position as Mobile Library Manager. She was accordingly dismissed for failing to accept alternative employment. An internal appeal upheld that decision on the ground that she was medically unfit to undertake the full requirements of Mobile Library Manager and had unreasonably refused the offer of suitable redeployment.

The ET thus had clear evidence that the relief sought by Ms Hay, see §11 above, had been impossible on medical grounds, and that Surrey had acted on medical advice to that effect. That was underlined by Mr Phillips, head of mobile libraries, when the Chairman of the ET intervened in his cross-examination and the following exchange (as set out in the agreed note of evidence) ensued:

Q. Why did you not do a risk assessment?

A. Had consistent advice of occupational health re redeployment and the need to look for a sedentary role.

Q So never on the advice that you had (medical and occupational health) was she going to fulfil a role of Mobile Library manager?

A Yes. That was the consistent advice received.

Q. There were two elements of the job. (1) Driving- and in principle she could drive a manual vehicle but there was a risk where a stiff clutch, and you did check clutch against ordinary private car. Construe as part of risk assessment?

A. Yes. Advised by OH to look and could be considered a risk assessment.

Q. (2) You got advice that she should work in a sedentary role with some movement. You didn’t carry out any assessment of risk subjected to if she had carried on in a mobile library?

A. Because of the consistent advice that she should avoid bending, stretching-all activities that were involved in that type of work.

Q. You say “we didn’t need to – you’re going to have to do some of the things that OH said you can’t do”

A. Yes.

When the difficulties for Ms Hay’s case that arose from the medical advice were raised with Mr Allen in the course of the hearing he said that the state of the evidence had been that there was a disagreement between Mr Dabis and Dr Waddy as to whether Ms Hay could do the mobile library job, and that the ET had simply resolved that disagreement in the direction supported by Dr Waddy, as was the ET’s proper function. But, first, Dr Waddy never disagreed with Mr Dabis, nor would one imagine that she would have felt qualified to do so. She was concerned to clarify his advice as to the particular matter of driving, but she passed on to Surrey, without demur, his advice that a sedentary occupation was required. And, second, the ET certainly did not go through any sort of process as suggested by Mr Allen. It simply never focussed on the implications of Mr Dabis’s advice.

What the ET should have done was to consider whether Surrey’s conclusion that Ms Hay had to be redeployed was justified. On the medical advice there was only one possible answer, and it was that medical advice on which Surrey relied. The ET appears to have been deflected from taking proper account of the advice of, in particular, Dr Sperber and Mr Dabis by its conviction that something that could be characterised as a separate “risk assessment” was required of the employer in every case. But here Surrey carefully considered Ms Hay’s work in the light of professional advice. A formal risk assessment would have added nothing, because it would have had to be conducted on the basis of the advice of Dr Sperber and Mr Dabis. It was therefore wrong of the ET, in the face of that medical opinion, and of the employer’s reliance on it, nonetheless to demand of Surrey that it should take steps to enable Ms Hay to continue in a job for which she was medically unfit.

The conclusion has to be that the criticism of Surrey was unjustified to the point of perversity. The ET did not merely make a judgement on matters on which legitimate differences were possible. Rather, the ET ignored the full effect of medical evidence that was fatal to Ms Hay’s case as presented to it. The decision of the ET cannot stand.

In the light of that fundamental error in approach it is not strictly necessary to go on and analyse the issues that mainly concerned the tribunals below, and not least because those issues concerned adjustments to Ms Hay’s routine that, on the medical evidence, would have been futile. I however do go on and review these briefly. Although the ET’s explanation of those adjustments in its § 15.5 has already been set out, I will repeat it here to assist in following what is already an unduly long judgment. The ET said:

15.5

The Tribunal was unanimous in its view that, ignoring the question of whether the mobile library vehicle's clutch was in good working order, a risk assessment would have recommended adjustments to her work and/or her working environment. The adjustments would be designed to eliminate the risk of further Injury to her knee as a consequence of handling books in and around the mobile library. There are three likely proposed adjustments: first to engage an assistant to work every day (in effect extending the hours of the part time assistant from the 2/3 days he or she was working with the Claimant); secondly to make adaptations to the vehicle and the Claimant's pattern of work to ensure that she did not place any strain on her knee when handling books nor undertake any manual work that might be a risk to her condition (for example by redesigning the shelving); or thirdly by swapping her duties with Mr Collingwood (who had a full time assistant) or in some way merging the two jobs so that the Claimant always had an assistant – either her own in the mobile library vehicle - or Mr Collingwood's when doing his job. While it is not possible to say which of the three alternatives would have been recommended by the risk assessment the Tribunal is unanimous in its view that one or more would have been proposed. Indeed there might have been others, such as counterpoising the lower shelving.

The difficulty about the first of these adjustments is that it redefines Ms Hay’s job out of existence. The assistant was provided on those days of the week when a lift was used to enable disabled or elderly customers to enter the van. But, that function apart, the job was essentially for a single person. On the ET’s premise that Ms Hay was not going to drive, and that the assistant was going to do any specifically manual work, it is extremely difficult to see what other than the most marginal tasks would have been left for Ms Hay. It was perverse of the ET to think that she could be retained with almost nothing to do. The second option, redesign of the vehicle, was put only in vague terms, and it is not really possible to comment on it. The third possibility, the exchange with Mr Collingwood, suffered from the difficulty that his round, largely concerned with taking books into old persons’ residential homes, involved much more shifting of books and specifically manual work than did an orthodox mobile library such as that previously operated by Ms Hay. And the ET’s attempt to avoid that difficulty, by pointing to the presence of an assistant, did not take account of both of the persons operating that round being required to play their part in book-moving.

I have also read the analysis of these issues by Rix LJ in §§38-41 of his judgment, with which I respectfully agree.

For the reasons already indicated, this enquiry is artificial, because it assumes a premise that the medical evidence had falsified. Nonetheless, and taken on their own terms, the ET’s conclusions were perverse in the two respects mentioned in §31 above.

Ms Hay was dismissed because she refused the Information Services post. Strictly speaking she cannot complain of that, because her case is limited to saying that she should have stayed at the mobile library: see §11 above. And the ET’s reason for finding the dismissal unfair was not that the job was unsuitable in itself, but that Ms Hay should never have been asked to take it because she should have been left in her old post: see §6 above. That reasoning accordingly fails on the same basis as the disability complaint fails. However, in fairness to Surrey I would add that they made every effort in difficult circumstances to assist and support Ms Hay in the new post, a post that was consonant with the medical advice: see Mr Dabis’s advice of 17 March 2004, set out in §23 above. It was well open to a responsible employer to think that with training Ms Hay could accommodate the needs of the new post, and in the process, as was pointed out to her, acquire transferable skills.

Despite the jurisprudence referred to in §8 above, it remains the stubborn fact that the only order that we have statutory jurisdiction to interfere with is that of the EAT. I would not disturb the EAT’s order in this case. I would dismiss the appeal.

I agree. As we are holding the ET’s findings to have been perverse, I add a few comments of my own.

On the subject of the medical advice about Ms Hay’s disability, which, as Lord Justice Buxton has pointed out, makes the decision of the ET an impossible one, Mr Allen QC submitted on behalf of Ms Hay that the ET, as the finders of fact, were entitled to come to their own conclusions in the face of conflicting or at least developing opinions from the doctors. In this connection he relied specifically on what the ET said at para 15.3 of their judgment (cited at para 4 above) to the effect that the condition of Ms Hay’s knee “placed restrictions upon the extent that she could undertake manual work” etc. (The ET again acknowledged the medical advice in referring at their para 15.5 (cited at para 5 above) to the need to “eliminate the risk of further injury to her knee as a consequence of handling books in and around the mobile library”.) However, not only was the medical advice consistent, even if it progressed in answer to further enquiries, as Buxton LJ has shown, but it seems to me that in this passage the ET were essentially acknowledging such consistent advice, even if they then failed to draw the inevitable conclusion that Ms Hay’s disability prevented her from carrying out her previous duties.

I turn to the ET’s suggested adjustments to Ms Hay’s routine. In the light of the common ground that the ET had erred in requiring a formal risk assessment, it was Mr Allen’s primary submission that the ET’s findings as to reasonable adjustments contained in para 15.6 of their judgment (cited at para 5 above) were findings which the ET were entitled in their expertise to make and which it was impossible for this court (and wrong for the EAT) to say were perverse. In my judgment, however, the ET’s conclusions here, if they are indeed properly to be read as findings as to what could reasonably have been required of Surrey under section 6 of the Act, make no sense. For these purposes, it must be recalled that the ET made no finding that any mechanical adjustment to the clutch of Ms Hay’s van (or any other van) could reasonably be required. The only adjustments proposed were to the lay-out or set-up of the library interior of the van. It follows, therefore, that on any view, as Mr Allen accepted, Ms Hay could not continue as a mobile library driver unless she swapped with Mr Collingwood and drove his van, which had a lighter clutch. It was not suggested by the ET that otherwise the clutch problem could be ignored, or that the clutch could be changed or that Surrey were reasonably to be required to purchase a van with automatic transmission – all matters which had been explored in evidence.

It follows that the first two suggested adjustments, that of an assistant on five days of the week and that of the alteration of the shelving within the van, were pointless unless it could reasonably be said that such adjustments would leave Ms Hay to do her old job, as adjusted, as distinct from providing merely ancillary services to what would otherwise be the double or even triple staffing of her role. Assistants could not drive: as Mr Phillips, Surrey’s head of mobile libraries, said: “Assistant wouldn’t drive. Would arrange for a relief driver, possibly from agency. Not in assistants’ job profile to drive or manager vehicle.” Thus an assistant was of no use without a driver. Section 6(3)(b) of the Act gives “allocating some of the disabled person’s duties to another person” as an example of a reasonable adjustment which might be required of an employer. In this connection I note that the Code of Practice to which we were taken by Mr Allen (see section 53A(8)) has the following comment on that example:

“Minor or subsidiary duties might be reallocated to another employee if the disabled person has difficulty in doing them because of the disability. For example, if a job occasionally involves going onto the open roof of a building an employer might have to transfer this work away from an employee whose disability involves severe vertigo.”

There is no support there for the opposite extreme of double or triple staffing of the main aspects of a job.

Therefore the critical suggestion is that Ms Hay could have swapped with Mr Collingwood. But could she? The ET do not go as far as to say that she could. They said (at their para 15.6):

“The Tribunal does not know if reallocating duties between Mr Collingwood and the Claimant could have been undertaken but it is likely that Mr Collingwood’s contract would not prevent his being transferred to another vehicle.”

Mr Allen submitted that the ET’s cautious language merely reflected their ignorance of the terms of Mr Collingwood’s contract of employment, but in the light of the unchallenged evidence on this subject which they heard it is more reasonable to suppose that their uncertainty reflected the question of whether Ms Hay could perform Mr Collingwood’s routine. The evidence on this from Mr Phillips was as follows:

“A. Part of job is going into houses with stock and making collections. 2 people undertake that operation: books are taken into the lounge, visiting 3 or 4 homes a day, on crates and trolleys. The public don’t enter the vehicle: it is not a public service.

Q. [from Tribunal] Why is an assistant required?

A. Sheer quantity of material: one person couldn’t do it…

Q. [from Tribunal] If there was one person on board who could lift and carry, and one person who couldn’t?

A.

Reduce the level of service to the homes. It’s a county wide service. It requires 2 operators to maintain the service, both of whom work as a team to do the manual job.”

It follows that Mr Collingwood’s routine required a team of two, both of whom had to be capable of active manual work.

I therefore conclude that the proposed reasonable adjustments, if they constitute findings against Surrey, were perversely and irrationally found.

Finally, however, I revert to a prior question, which Buxton LJ has considered at para 14 above, which is tied up with the consequences of the ET’s view that the lack of a formal risk assessment was fundamental. It was Mr McManus QC’s submission that this error undermined their determination as a whole. For my part, if it had been necessary, I would have agreed with Mr McManus that the role of the need for a formal assessment was so pervasive in the ET’s judgment that the single sentence at the beginning of their para 15.6 where it may appear that they made a finding that reasonable adjustments ought to have been made could not survive as an independent and separate finding. It is not merely that that apparent finding is hedged about before and after (see paras 15.4, 15.5 and 15.6 as a whole) with the insistence on the importance of the absence of a risk assessment exercise. It is also the fact that the three suggested adjustments are themselves put forward in such a contingent and hypothetical way.

Thus in para 15.4 it is said that the purpose of the absent risk assessment was “to determine what adjustments might be appropriate and reasonable. The Consultants did not have the necessary information…Informed medical opinion could then be given”. Para 15.5 introduces the three adjustments as “likely proposed adjustments”. Para 15.6 says that “In the course of a risk assessment exercise the Respondent would be expected to consider the proposed adjustments and carry out a cost analysis and cost effectiveness exercise”. Although at one point, at the beginning of para 15.6, the ET say that “it was reasonable that the Respondent make adjustments” and they conclude (at para 15.7) that “the Respondent was under a duty to make reasonable adjustments and that there were adjustments that could be made to enable the Claimant to continue in her work”, they never say in terms what adjustments ought to have been made. In my judgment, this is tied up with what has otherwise struck us as the ET’s perverse and irrational reaction to the evidence before them. As it seems to me, it is because the ET were basing themselves on the absence of risk assessment that they felt that they did not themselves have to resolve what adjustments ought to have been made, reasoning merely that Surrey could not prove that one or other of the three suggested adjustments would not have been required.

If necessary, therefore, I would other matters apart, have remitted the matter to the ET, or possibly to a new tribunal, to consider the claim afresh. Mr Allen recognised that that might be a possible outcome. As it is, however, I agree for the reasons which Buxton LJ has given, on which I have added some further observations, that this appeal must be dismissed.

I agree with both judgments, save where they differ. I agree with Rix LJ that the ET's failure to identify which adjustments ought to have been made to satisfy Surrey's duty under the 1995 Act is attributable to the degree to which their error as to assessment infected their decision as a whole. I agree that the ET's decision is vitiated by its erroneous approach to the process of assessment. I add only this. It seems to me to undermine the important purposes of disability legislation if the substantial expenditure of time and public money by Surrey, as identified by the EAT and amplified by Buxton LJ at paragraphs 17-25, is met, in the end, by this lengthy and, in the end, fruitless litigation.