The question under this ground of appeal is when does any duty arise? For this it is necessary to consider the judgment of Pill LJ in The Home Office v Collins (above) where he said this:
The application of that approach, with its trigger date, arises in connection with the Tribunal's finding that the failure was to provide physical support. Yet at all relevant times, the Claimant was presenting no willingness or ability to return to work, nor was that the medical evidence. The highest it could be put in the documents which were supplied to us, in addition to the core bundle, is that on 7 May 2004 the Respondent was in receipt of an eight-week medical certificate and as she had shown some improvement, the Respondent wished to have her medically examined again. It is true that as long ago as 4 February 2003 a consultant psychiatrist had indicated her opinion that the Claimant was fit to work, but that was not a consistent view or one which was taken at the time. Given that the Claimant was absent for three years, the Respondent's intention to obtain independent medical evidence of her fitness to return was entirely correct.
We consider Mr Mackay is correct when he analyses the Tribunal's findings. If these are that there was to be a reduction in the Claimant's working hours, a reduction in her on-call duties, or an increase in supervision and support, these could not have been effected until the Claimant was back at work or at least indicated with a start date when she would come back. We agree that a managed programme of rehabilitation depends on all the circumstances of the case, but it does include a return to work date. And certainly, if additional management and supervision is to be required, they must be arranged in advance and not in a vacuum. Similarly, if additional costs were to be incurred by (not this case) the purchase of new equipment to counteract the effect of the environment on the disabled person, there would be no need to spend that money in advance of a clear indication that the Claimant was returning. In our judgment, applying the trigger approach cited above, it was not reasonable for the Respondent to pursue the possibilities which the Tribunal noted until there was some sign on the horizon that the Claimant would be returning.
This authority was not cited to the Employment Tribunal. Had it been, we consider it would have been bound to have found that the duty to make reasonable adjustments had not been triggered by the time the Claimant resigned.
The utility of the adjustments
The Home Office v Collins is also relevant to this aspect of the appeal, this time through the judgment of Ouseley J. The proposition, which we accept, is that if an adjustment is not going to cure or limit the substantial disadvantage in which the disabled person is placed, it cannot be reasonable under the terms of the Act to make it. Ouseley J said this:
It follows from the above analysis that while the Claimant was unable or unwilling to give a return to work indication, any adjustments would be futile. She was, after all, indicating through her medical certificates that she was unfit to work at all . If the indication were that she was fit to work part-time, an adjustment would have to be made for that. But while she is incapable of all work, it does seem pointless to impose a duty on an employer to make adjustments in case she can return, unless there is some reasonable prospect of that occurring.
In any event, this criticism of the Respondent must be seen in context. The Claimant insisted on dealing through her solicitor, and was at the same time seeking to leave on ill-health retirement grounds. This is the antithesis of seeking to return to work through reasonable adjustments.
The time bar point
It is contended by the Respondent that on a proper analysis of the issues in this case, the claim of breach of duty was made out of time. There was no application to extend the time on the grounds that it was just and equitable to do so. The claim must be made within three months of a relevant act unless it is a continuing act. In Humphries v Chevler Packaging Ltd UKEAT/0224/06 HHJ Reid QC held that a DDA claim was out of time, since time ran from the date the employer made it clear that no further adjustment could be made, and not from the date of termination of employment. He said this:
It must be recalled that in our case the Claimant pled that the failure to consider adjustments took place in 2001. The Respondent accepts that if the breach was as the Tribunal determined a failure "to spell out" what it might do to facilitate her return, that would be a continuing breach, but it could not survive the instruction by the Claimant that any further communication should be through her lawyer and that there would be not meetings with her. Since the Tribunal found that the breach here was a failure to provide physical support, it was bound to say when that occurred and it did not. Applying logically the judgment in The Home Office v Collins , no breach could occur until an indication of a return to work was given and it never was.
We are asked by Ms Marsh to hold that HHJ Reid QC was wrong in his analysis. For the reason we have given above it is unnecessary for us to take that step. In any event we are not so minded. As the tribunal did not address the trigger point but seems to have confined itself to assuming there was a continuing act, we would hold that it approached this question correctly. As alleged, this was not a single one-off failure, but the continuing failure after numerous medical reviews to consider making the adjustments which the Claimant felt were appropriate.
The minority judgment
Mr Thomson differs from Mr Sibbald and me on certain aspects of this judgment. We all consider that consultation with a disabled employee is very important prior to a phased return to work. In this case, consultation was attenuated by reason of the Claimant's instructions. Nevertheless, there was reasonable consultation in the circumstances and there was consideration of the adjustments which should reasonable have been made. That being so, Mr Sibbald and I consider it unnecessary to take any view diverging from the Tarbuck judgment. Mr Thomson disagrees. In his opinion the effects of the decision in Tarbuck that there is no duty to consult with the employee would be contrary to the purpose of the DDA and specifically against the intention of S.6 on reasonable adjustments which is to get persons/employees into work, to stay at work, or return to work. See para 30 above. It is also contrary to the advice in the Code of Practice. The importance of consultation and consideration of all measures is crucial to achieving the intentions of the Act. An employer does not behave reasonably unless it consults with the employee as to what measures the employee envisages as being necessary to reduce the disadvantage as a disabled person returning to work. In the instant case, it was not disputed that the Claimant was disabled by stress and that she alleged it was caused by overwork. The effect of Tarbuck is that she could be expected to return to work without knowing what, if any, adjustments had been, or would be made to the conditions which disadvantaged her. In the event she did not return to work and this could be the outcome in similar cases. He would thus support the line of authorities stemming from Mid-Staffordshire . Apart from that, the judgment is unanimous.
Disposal
If the only errors we had found in this judgment were the failure to consider justification, and the misdirection in relation to Tarbuck , it would be appropriate for us to remit this case, and to remit it to the same Employment Tribunal, it having found partly in favour and partly against the parties. However, none of these points, even if reconsidered, can overcome the fatal effect of this judgment on the trigger point. As we have we hope demonstrated, the degree of error in this case would make it inappropriate for it to be remitted. The judgment is set aside and the appeal is allowed.
We are grateful to both Mr Mackay and Ms Marsh for their very helpful oral and written submissions in this case which we have not found easy to resolve.