Appeal No. UKEAT/0530//07/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9-10 June 2008
Judgment handed down on 17 December 2008

Before
HIS HONOUR JUDGE BURKE QC
MRS M McARTHUR BA FCIPD
MR B R GIBBS

HM LAND REGISTRY	APPELLANT

MR B WAKEFIELD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MISS ANYA PROOPS
(of Counsel)
Instructed by:
Messrs Flint Bishop & Barnet Solicitors
St Michael’s Court
St Michael’s Lane
Derby
Derbyshire DE1 3HQ	
For the Respondent	No appearance or representation by or on behalf of the Respondent

Written submissions

SUMMARY
DISABILITY DISCRIMINATION:  Reasonable adjustments
PRACTICE AND PROCEDURE:  Perversity

The claimant applied for promotion to a more senior management post.  He was disabled by his stammer.  The employers made various adjustments to the interview process as a result; but they did not agree to dispense with an interview altogether.  The ET found that there had been a failure to make reasonable adjustments.

Held on appeal

(1)	that the ET’s conclusion that an expert’s report advised dispensing with a formal interview unless it could not reasonably be avoided was perverse; that was not what the expert had advised.

(2)	that the ET’s conclusion that there was no oral content in the post for which the claimant had applied was also perverse

(3)	that the ET’s assertion that if a disabled employee honestly asserted an entitlement to an adjustment the employers were bound to make it unless they could establish good reason for not doing so was wrong in law.

The ET’s decision reversed.

Comments made

(1)	on the unjustifiable use of strong and vivid language in ET judgments HM Prison Service v Johnson [2007] IRLR 95 followed

(ii)	on the undesirability of the ET, when asked a question or to supply notes by the EAT, providing self-justificatory or argumentative responses.

HIS HONOUR JUDGE BURKE QC

The Appeal
1.	This is an appeal by HM Land Registry (whom we shall call “LR”) against the judgment of the Employment Tribunal sitting at Newcastle upon Tyne, chaired by Employment Judge Garnon and sent, with reasons, to the parties on 9 August 2007.  By that judgment the Employment Tribunal found that the claim of the Claimant, Mr Wakefield, that he had been the subject of disability discrimination by LR, his employers, succeeded in part.  The Tribunal awarded him £7,500 by way of compensation for injury to feelings and £2,500 as aggravated damages; and they made the following recommendations:

“(a)	that in promotions for which the claimant applies in future, he should be given the pre-agreed questions in sufficient time in advance of the interview to enable him to prepare a legible written response which the interview panel should then read rather than requiring him to present his response orally.
(b)	if a job for which the claimant applies requires specific oral communication skills, he should be

(i)	told to what aspects of the job the requirement relates
(ii)	told whether any, and if so what, adjustments might be considered to assist him perform those aspects of the job
and
(iii)	any testing of his oral skills should be specifically with reference to the requirements of the job and done as a separate skills test rather than using the interview as a test of his general skills.”

2.	LR appealed against the Employment Tribunal’s decision that they were guilty of discrimination, the award of aggravated damages and the recommendations.  They were permitted by the Employment Appeal Tribunal, His Honour Judge McMullen QC presiding, at a preliminary hearing on 4 February 2008, to proceed to a full hearing of their appeal on all grounds set out in the Notice of Appeal, with the exception of Ground 1 as a free-standing ground.  

3.	In paragraph 13 of the Notice of Appeal, LR asserted that the recommendations were ultra vires the Tribunal’s powers because Section 17A(2)(c) of the Disability Discrimination Act 1995 permitted the Tribunal to make recommendations for action to be taken “within a specified period”; but those made by the Tribunal were unspecified as to period and unlimited in time.  By paragraph 6 of the order made at the preliminary hearing the Employment Appeal Tribunal ordered the Employment Tribunal to answer this question:

“Whether the Employment Tribunal considered whether the action recommended should be taken “within a specified time” and if so, what the time was, and if not to say why no time was specified in accordance with the Disability Discrimination Act 1995 s17A(2)(c).”

The Employment Judge responded to that order by a lengthy letter dated 18 February 2008.  He said on page 2 of that letter:

“I do not feel I need to consult the members before answering for I am absolutely clear we did not consider that point specifically.  I will explain why shortly.”

4.	The Employment Judge then went on, over a further 3 pages, to refer extensively to the history of the claim, to passages in the Employment Tribunal’s judgment and to authorities not mentioned in that judgment in the course of an explanation as to why the recommendation had been made.  He also made comments on grounds of appeal contained within the Notice of Appeal which did not affect the recommendations.  

5.	In the light of that letter the appeal was stayed by the Employment Appeal Tribunal on 4 March 2008 pending the Tribunal’s review, foreshadowed in the Employment Judge’s letter.
At paragraph 4 of his Order of that date Judge McMullen QC said:

“I thank the Employment Judge for his letters, which with respect deal with far more than the sole referred point which is on the issue of the date for recommendation.  We held this raises a question of law, and it has a reasonable prospect of success, since there is force in the Respondent’s point that the statute requires a date. …”

6.	The Employment Tribunal held that review on 26 March 2008 and decided to delete the recommendations in their entirety.  In their reasons for doing so, sent to the parties on 9 April 2008, the Tribunal did not restrict themselves to explaining why they so decided; they gave a lengthy explanation as to why they made the recommendations in the first place, making references to the evidence, to the skeleton argument put forward by Ms Proops, Counsel for LR, for the purpose of the Employment Appeal Tribunal’s preliminary hearing and to what the Tribunal apparently saw as criticism in that skeleton argument of aspects of their judgment which did not relate to the recommendations, seeking thereby, it would seem, to enhance or explain those reasons.  One example can be seen by comparing paragraph 3.27 of the Tribunal’s judgment with paragraph 2.10 of the review judgment – a point which did not relate to the review decision itself.  Further, when asked by the Employment Appeal Tribunal on 29 May 2008 to produce his notes or indicate his agreement to or disagreement with LR’s solicitors’ notes on two specific topics, in his response, produced with very commendable speed on 30 May 2008, the Employment Judge again went further than asked.  

7.	While we understand the sensitivities of an employment tribunal which has had to reach a perhaps difficult decision in a lengthy and fraught case, we feel it right to say that, unless an employment tribunal is asked by the Employment Appeal Tribunal to give reasons or expand upon reasons already given for an aspect of their judgment, under what is familiarly called “the Burns/Barke procedure”, an employment tribunal should not, under the guise of a reference to a particular question from the EAT or in a judgment upon a review upon one aspect only of the orders which they have made, seek to put forward explanations or make comments which go beyond a direct answer to the question or questions asked, which seek in any way to respond to or comment upon the contents of a Notice of Appeal or an Answer or to seek to enhance, add to or further explain the reasons given in their original judgment.  If a tribunal does not adhere to this important principle, difficulties are likely to arise as to the status of what the tribunal has said; and any appeal is likely to be lengthened and rendered more difficult to resolve by argument based upon the content and effect of what the tribunal has said.  In this case the EAT’s question could have been answered, entirely properly, very shortly; and the Tribunal’s decision on review could have been the subject of brief reasons only; anything more was undesirable.

8.	The recommendations having been deleted, the appeal is otiose so far as they are concerned and we need not refer to them again.

9.	However another preliminary point arose.  Prior to the preliminary hearing LR paid to Mr Wakefield the sums awarded by the Tribunal in full and without any reservation as to the effect, if they were to achieve it, of any measure of success in their appeal or otherwise.  Accordingly LR were ordered by the ET to file a skeleton argument which was to address the utility of the appeal.

10.	Ms Proops did put in such a skeleton argument and, subsequently, a supplemental skeleton argument directed to that issue; but, before we can decide the utility of the appeal, it is necessary for us to set out the history and the essence of the Tribunal’s conclusions; for our decision on that issue cannot be understood in a vacuum.

The history
11.	Mr Wakefield has been employed by LR since 1974, when he was sixteen.  He has always had a stammer; documents before the Tribunal showed that LR had long been aware of that.  By 1999 he had been promoted to grade RE2(U), the equivalent, we were told, of Senior Executive Officer grade in the Civil Service.  In 2001 he first sought promotion to grade RE1, the equivalent of Higher Executive Officer grade in the Civil Service; but, after being shortlisted, he was unsuccessful.  The interview panel on that occasion commented “Obvious stammer but not a problem”.  In 2004 he again sought promotion to RE1 grade, in the role of Customer Service Manager.  He was unsuccessful.  The interview panel commented that he had overcome his stammer.  Before the interview he was seen by a disability specialist whom he informed that he felt his impediment affected him in interviews and with public speaking but that he could manage with small groups and people he knew and that he tried to avoid public speaking and training on other than a small scale.

12.	When Mr Wakefield did not obtain the promotion sought in 2004 he brought a disability discrimination claim against LR.  LR did not accept that his speech impediment constituted a disability as defined by the 1995 Act, i.e. that it had a substantial and long term adverse effect on his ability to carry out normal day-to-day activities.  For the purposes of those proceedings a report was jointly obtained from a speech and language therapist, Miss McMorrow, who assessed Mr Wakefield on 7 July 2005 and wrote an undated report as a result, which report was followed by a letter dated 14 August 2005.  We will refer later to what Miss McMorrow said.

13.	In December 2005 the Employment Tribunal decided that Mr Wakefield did have a disability within the 1995 Act.  In the light of that decision, Mr Wakefield’s claim was settled

on terms that LR paid Mr Wakefield £750 and that:

“3.1	The respondent take appropriate advice from the Royal College of Speech Therapists or the British Stammering Society or other appropriate authority (such as the Employers’ Forum on Disability) on the appropriate format of interviews of people with a speech impediment.
  3.2	Following receipt of that appropriate advice the respondent then introduce changes as a matter of urgency.”

It is common ground, albeit not mentioned by the Tribunal, that LR did, as agreed, seek and obtain advice from the Employers’ Forum on Disability.

14.	In May 2006 Mr Wakefield sought another post at grade RE1, that of External Stakeholder Manager (“ESM”).  Before interview for that post, LR decided to offer in respect of that interview adjustments along the lines of Miss McMorrow’s report.  Mr Wakefield was asked what adjustments he would like.  He replied: (at page 17 of the Tribunal’s judgment)

“3.22	Further to your letter dated 26 May 2006, I can confirm that in the absence of a formal presentation I will require no special adjustment by the interview panel.  My stammering is such that I can be an extremely fluent speaker or I can lapse into stammering.  Hopefully it will be the former.”

LR replied by offering adjustments in these terms:

“3.23	We would do this by allowing you a set amount of time as preparation immediately before the interview in which you would be given a set of written questions that the panel expects to use, including some guidance regarding type of supplementary question which might be asked.  You could then use the time available to identify and note down suitable words that you can use in your replies.  In the interview you would be asked the questions by the panel and would have the opportunity to use your notes to prompt you in your verbal replies, which should address any concerns regarding you not being able to formulate a particular work or think of an alternative.”

15.	Mr Wakefield replied:

3.24	… “I would like to be treated no differently to any other candidate in relation to the interview.  I would like to progress on merit, despite the protection afforded to me by the DDA.  The board has kindly offered to make adjustments which I very much appreciate but in the circumstances I would ask that they treat [me] the same as other candidates.”

16.	In the course of the interview for that post Mr Wakefield realised that the job involved making oral presentations and told the panel “I am probably not your man”.  He was not appointed.  He appealed unsuccessfully, but on the principal basis that he had not been forewarned of the oral content of the post.  He did not make any claim to the Tribunal relating to that application.  

17.	While that promotion application was in train, Mr Wakefield applied, in late June or early July 2006, for promotion to the positions of Training Manager in E-Conveyancing (“TM”) and Business Requirement Officer (“BRO”), both at grade RE1.  

18.	Mr Wakefield was not shortlisted for the BRO post.  Although the Tribunal used some strong language in describing what happened in respect of that post (eg. “on this occasion the Claimant was not even offered an interview” at paragraph 3.29) the Tribunal found, at paragraph 3.31, that, in relation to that post, the LR applied no provision, criteria or practice which disadvantaged Mr Wakefield and that there was no evidence of bias of any nature.  The Tribunal accepted the evidence of Miss McDermott of LR who had chaired the interview panel that Mr Wakefield had not satisfied the minimum interview criteria.  Mr Wakefield’s claim that he had been the subject of disability discrimination in respect of the selection process for the BRO post was, therefore, rejected; see paragraphs 3, 31–3 and 5.5 of the Tribunal’s judgment.  

19.	It will be necessary to return later in this judgment to Miss McDermott’s evidence and what the Tribunal said about it.  

20.	The advertisement for the TM post described the main duties of that post in this terms:

“Main Duties

  The post holder will be responsible for a range of duties which will include:
•	Devise, implement and manage the training activities for Tranche 2 of the e‑conveyancing programme.  This will include the preparation of a production plan, responsibility for the delivery of the activities specified in the plan and ensuring that agreed timescales are met

•	Prepare and update key education and training strategy documentation for the e‑conveyancing programme.  The post holder will take responsibility for identifying changes that affect the programme and ensure that ETG members are kept up to date with developments

•	Represent and make decisions on behalf of the Head of Education and Training as the team moves into the novel type of services required for Tranche 2 of the e‑conveyancing programme

•	Influence and persuade key stakeholders through project boards and membership of specialist working groups/forums to ensure that novel decisions are agreed and implemented on time

•	Manage a training team comprising 2 RE2Us and one RE2L to co-ordinate the education and training modules for users of statutory e‑services both inside and outside the organisation including training for casework staff and support teams

•	To identify the different training needs for the external customer groups and be innovative in devising appropriate training material that gives customers sufficient information to participate in Tranche 2 of the e‑conveyancing programme

•	Undertake other key duties as directed by the Head of Education and Training”

And, under the heading “Essential Experience and Skills”, it said:

•	“Demonstrate an understanding of Land Registration processes and how they fit into the conveyancing process
•	A knowledge of Prince2 methodology or a willingness to learn
•	Excellent communication skills
•	An awareness of the Agency’s IT systems and how they support and improve the work processes or a willingness to learn
Requirements
The post can be based at either Durham Southfield or Stevenage Office
Frequent travel to Head Office, local offices and other locations will be required (sometimes involving overnight stays)”

21.	There were ten applicants for the post; six of them, including Mr Wakefield, met the criteria for interview and were invited for interview.

22.	Miss Norris, a Personnel Manager who was chair of the interview panel, after consultation with Miss Kemp, who had joined the HR function of LR in January 2004 and became Head of HR Services in January 2006, considered Miss McMorrow’s advice; and, as a result, Mr Wakefield was made an offer of adjustments in these terms:

“I note that you have declared a disability and am therefore willing to make appropriate reasonable adjustments to facilitate your performance at interview.  In the last exercise you decided that you did not require reasonable adjustments, but nonetheless I am offering them to you again on this occasion.  As stated previously, I can offer you the opportunity to have a form of written questions and the ability to note your intended responses.

I propose to do this by allowing you a set amount of time as preparation immediately before the interview in which you would be given a set of written questions that the panel expects to use, including some guidance regarding the type of supplementary questions that might be asked.  You could then use the time available to identify and note down suitable words that you can use in your replies.  In the interview, you would be asked the questions by the panel, and would have the opportunity to use your notes to prompt you in our verbal replies, which should address any concerns regarding you not being able to formulate a particular word or think of an alternative.

Clearly the panel may have to vary the questions slightly depending upon answers given and time available, which I cannot predict, so cannot let you have supplementary questions.  The preparation time will be under test conditions and I am sure that you will understand that I do have real concerns about our ability to maintain the integrity of our selection process in view of having provided written questions, so you will not be permitted to take the questions or your notes away from the interview.

As an organisation we place much importance on an individual’s own view in these matters as we consider that you are well placed to consider what adjustments your require, so we have no intention of compelling you to take this offer if you consider it unnecessary.  We would also be happy to hear any view that you have regarding these proposed adjustments.

Please let me know by Thursday 13 July whether or not you wish to take up this offer so that the appropriate arrangements can be made.  I would encourage you to make use of the reasonable adjustments should you need them because Land Registry wishes to ensure that all disabled candidates are able to complete on equal terms throughout the selection process.  We have a positive policy to try and provide practical support, access or equipment so that we can consider all candidates on their abilities not their disabilities.

We will in any case set aside additional time for your interview in case you should have difficulty and need to take longer over your responses.”

23.	It was Mr Wakefield’s case in relation to the TM post that LR had failed to make reasonable adjustments for his disabilities by insisting on an oral interview.  He replied to Miss Norris’s offer on 19 July in these terms:

“Sorry I couldn’t reply to your letter earlier, I have just returned to work after a week’s leave.  I am writing to ask for adjustments to the interview process because of my disability.  For the record, and for clarity for any future action, my preferred adjustment would be not to have the oral examination by the interview panel.  There is precedent for this in the RO to RE2L, and RE2L to RE2U promotion process.  Also court rulings have stated that it is not the offer of, or the actual making of adjustments that fulfils your duty under the DDA 1995, but when the perceived discrimination ends.  If I have a speech impediment, I will still have this after the adjustments, meaning that I will still have difficulty communicating my answers to the panel.  If you are saying that the adjustments you offer are the only ones on offer, I have no alternative, but to accept them, but I have serious reservations as to how effective they will prove.
I would also, if possible, wish to submit written documents to the panel on ideas I have in relating to the RE1 Training Manager’s role, these can be presented during the interview to back up my statements.”

24.	Miss Norris replied on the same day as follows:

“Thank you for your email dated 19 July.

I am sorry but I am not able to agree to your request that you be allowed to forego the oral examination by the interview panel as a reasonable adjustment under the DDA whilst still being considered for the post.  It would put you at a disadvantage if either you were assessed on your current written record against the other candidates who have the opportunity to demonstrate the actual competences for the job at the interview, or if you were to supply written responses; you would only be able to supply responses to main questions.  There would be no opportunity for the panel to ask follow up questions to clarify points etc.

I would like to make it clear that there is no precedent for this.  In the grades RO to RE2L and RE2L to RE2U that you refer to, these are technical progressions and competence can therefore be tested on the job.  Here we are selecting for a senior, specialist post.  Working in the role that you have been does not necessarily mean you can demonstrate the competences for this role.

Under the DDA employers have a legal duty to make reasonable adjustments.  However reasonableness has to take into account the extent to which it is practicable for the employer to take that step.  The adjustments that have been offered have regard to your disability as well as to maintaining the integrity of the selection procedures.

On Monday please be in reception at Head Office by 1.05.  You will be collected from reception by Rubina Bhugaloo.  At 1.15 you will be allowed to have the main list of questions that the panel will ask questions from.  You will be allowed ¾ hour in a controlled environment so that you can write down your thoughts on the questions.  Pen and paper will be supplied.  You will be able to take the paper into the interview to assist you.  This together with a longer interview time will allow for the fact that you have difficulty thinking of the right words to use in your answers.”

25.	Mr Wakefield responded on the next day, referring to Archibald v Fife Council ([2004] ICR 954) as supporting his case that there should be no interview; Miss Norris replied on 21 July that the interview panel would be unwilling to accept a large amount of documents at the interview but that the panel would be willing to accept a single sided A4 sheet of paper with a summary of his ideas for the TM post.

26.	The interview took place.  The Tribunal, perhaps because their focus was upon the issue whether there should have been an interview at all, made few findings as to the way in which the interview went; but it is common ground that Mr Wakefield was interviewed on 24 July before a panel of three, chaired by Miss Norris, and that the adjustments offered were made.  Mr Wakefield was unsuccessful; and his appeal against his non-appointment to the TM post failed.  Mr Wakefield did not suggest that, if he had not had an interview, he would have been appointed to the post.

27.	We need to add to this summary of the facts that, after the present proceedings had been issued, Mr Wakefield obtained a report from a different speech therapist, Miss Robertson.  She 

said, in her letter to Mr Wakefield sent in January 2007:

“The following recommendations are based on the findings and diagnosis of Eulyth McMorrow, Specialist Speech and Language Therapist (detailed in her report of July 2005) and continue to be appropriate and of significant benefit to Mr. Wakefield in an interview or similar situation.  In order to be able to compete fairly against other candidates he requires:
•	More time allowed
•	The opportunity to give written answers instead of verbal
•	The opportunity to submit a portfolio of ideas to support his interview
•	The opportunity to have a one to one interview 

I hope these recommendations can be adhered to so that Mr. Wakefield does not feel in any way discriminated against and can effectively demonstrate his full potential within an interview.”

This letter was in the Tribunal’s bundle but is not referred to by them in their judgment.  It was, of course, not in existence at the time of the discrimination of which Mr Wakefield complained to the Tribunal.  

The Tribunal’s decision
28.	The Tribunal, after setting out the relevant law, divided their judgment into three sections, headed “Findings of Fact”, “Submissions and Remedy Evidence” and “Conclusions”.  In the Conclusions section the Tribunal said, at paragraphs 5.1 and 5.2:

“5.1	Everybody is nervous when they go for an interview.  In the case of the claimant anything which reduces his level of stress and the consequent effect on his ability to communicate orally without thereby giving him an unfair advantage over others would be a step which, if practicable, should be taken.  There is no reason to doubt his word or his good faith.  If he believed that giving written answers to questions or otherwise supplementing his application in writing (even if he then had to go on to give oral answers to supplementary questions) would reduce his level of stress then in the absence of good reason, that step is one which should have been taken, whether the claimant asked for it specifically or not.

5.2	Nothing we have heard constitutes a good reason for not taking that step.”

They then said:

“5.3	The claim that the respondents have failed to comply with the order of the Tribunal from the 6 December 2005 is not proved in itself.  The wording that they should introduce “changes as a matter of urgency” is not very precise.  They did make some changes in that they offered the adjustments which they wishfully read as being the minimum adjustments required by Ms McMorrow’s report.  Had an oral “test” been necessary as a means of judging capability to do the job, it could have been an arguably good reason to interview orally.  First we do not believe oral skills were anywhere near as necessary as Ms Kemp or Ms Norris now say.  Second the interview process did not replicate the situations in which such oral skills as were necessary would be needed to be used.  This is not a good reason.

5.4	Why then were the respondents so resistant?  We do not believe Ms Kemp or any of the HR group are hostile to the claimant or to disabled people.  They are wedded to the view that oral interview is the only fair way of assessing the comparative worth of candidates for any senior position.  We accept that some, but not many, disabled people may use their disability to gain an advantage.  Mr Wakefield is plainly not such a person.  The fear of Ms Kemp is, in our view, that “giving in” as she sees it to Mr Wakefield’s demands might be the “thin end of the wedge” which will ultimately lead to the “integrity” of HMLR’s cherished promotion procedures being undermined.  Intransigent refusal to change procedures for testing and assessment are the greatest source of disability discrimination of the type we see here.  The respondent’s witnesses were at pains not to say what we have just found to be in Ms Kemp’s mind.  However in the absence of any credible explanation that is all that is left.  So powerful is the evidence that we do not need to think in terms of reversal of any burden of proof.  As May LJ said in Noone v North Thames RHA and Neill LJ repeated in King v Great Britain China Centre the inference is “almost common sense”.

5.5	There is no doubt that the claimant was discriminated against by a failure to make reasonable adjustments in connection with his application for the training manager’s position.  There was no unlawful discrimination in connection with the BRO position and there is no claim in relation to the ESM position.  Another Tribunal have already made an award in relation to the 2004 Customer Services Manager position.”

29.	There are, as we understand the Tribunal’s detailed reasons, principally set out in their fact finding section, section 3, three essential strands to the conclusion expressed in paragraph 5.5.  They are (1) that the LR did not offer as an adjustment for Mr Wakefield’s disability a selection process which, in his case, did not involve an oral interview as Miss McMorrow had recommended, (2) that an oral interview was not necessary in order to judge Mr Wakefield’s suitability for the TM post because LR’s evidence as to the oral content of that post was not accepted and (3) that if Mr Wakefield honestly claimed that he should not have to go through an oral interview, unless there were good reasons for denying his request, it should have been accepted.

30.	The findings of fact upon which the Tribunal base these conclusions are detailed and lengthy.  We do not propose to set them out in this part of our judgment.  In so far as it is necessary to do so – and it will be to a substantial extent - we will refer to them in addressing the main thrusts of the argument advanced by Ms Proops.

General and preliminary matters
31.	At various stages in this appeal, so as to avoid or reduce the effects of his disability, the EAT has sought to encourage Mr Wakefield to be represented and has pointed him in the direction of sources of representation; see paragraph 9 of the EAT’s judgment at the preliminary hearing.  However, Mr Wakefield has not been present or represented before us.  He wrote to the EAT, courteously explaining his reasons, which we respect.  Those reasons are not based upon his disability.  He should not feel that we criticise him in any way for not being present or represented or that we hold that against him in any sense.  He has put before us a detailed written submission; and his Answer to the Notice of Appeal is also detailed.  Ms Proops, as is her duty when presenting an appeal against a respondent who is unrepresented, was scrupulous to draw our attention to material which might be adverse to her submissions.  We have, of course, considered Mr Wakefield’s various written submissions and, in so far as it was relevant to do so, the material to which he has referred in those submissions.

32.	We do not intend in this judgment to go slavishly through all of these submissions, written or oral, or all of the material to which we were referred.  If we were to do so, this judgment would be even longer than it is.  We have, however, considered, in so far as relevant, all submissions and all material to which we have been referred.  

33.	We need to mention a number of further preliminary matters.  

1.	Mr Wakefield wrote a letter to the Tribunal dated 9 June 2008 objecting to LR putting before the EAT documents which, it was said, were intended to discredit or minimise the impact of the January 2007 letter from Miss Robertson.  Miss Proops did not press us to consider the documents to which Mr Wakefield took objection; and we have not done so.

2	Included in our appeal bundles have been all of the documents Mr Wakefield sought to have included, other than material consisting of new evidence which, as Mr Wakefield is aware, was excluded.

3.	There were some difficulties in resolving which notes of the evidence before the Tribunal should be sought.  LR initially made a request for such notes on too wide a basis.  However, eventually they made a properly confined and justified application, as a result of which limited extracts from LR’s notes of the evidence were obtained.  We have referred earlier, in a different context, to the request made to the Employment Judge in respect of those notes; as a result those notes were placed in our bundles.  

4.	Unusually there have been put before us two documents, one entitled “List of Agreed Facts” and the other “List of Disputed Facts”.  Both were prepared on behalf of LR.  They arise from a sensible attempt to produce a list of agreed facts to assist us in deciding this appeal.  It turned out that some of the facts which LR put forward as capable of agreement Mr Wakefield did not agree.  Although Ms Proops submitted that all of those facts which Mr Wakefield had not agreed can be seen to be indisputable because they are based either on the Tribunal’s judgment or on what occurred at the hearing before the Tribunal, we wish to make it clear that we are not critical of Mr Wakefield for taking the stance in relation to the proposed agreed facts which he has; and it has not been necessary for us to go through the list of disputed facts, still less to attempt to resolve any disputes of fact which have, as a result of this exercises, been revealed.  

Utility of the Appeal
34.	After hearing argument from Ms Proops on this issue and having considered the written arguments put forward by Mr Wakefield we concluded that, despite the unconditional payment in full to Mr Wakefield and the revocation or deletion of the Tribunal’s recommendations, we should nevertheless proceed to hear LR’s appeal and that we would set out our reasons for that conclusion in our judgment on the appeal.  We now give those reasons.

35.	Central to the Tribunal’s decision that LR had been guilty of discrimination was their conclusion that, by way of reasonable adjustment, Mr Wakefield’s request that there should be no oral interview in the selection process for the TM post should have been granted and that it had not been granted because the culture of the oral interview had become entrenched in LR’s promotion processes.  The Tribunal, at paragraph 1.11, described Ms Kemp as the embodiment of an attitude which was deplorable.  In paragraph 5.11 she was described as “the embodiment of a mindset of resistance to adjustment which she sees as likely to undermine the integrity of established procedures”.  The Tribunal used strong language elsewhere in expressing criticisms of LR and its relevant employees.  

36.	We have already said that Mr Wakefield did not claim that he would have obtained the TM job had the adjustment for which he contended been made; so he suffered no financial loss.  We accept, as is confirmed by what the Employment Judge said in his letter to the Employment Appeal Tribunal dated 18 February 2008, at the foot in the last paragraph on the second page, that Mr Wakefield had throughout, at least as one of his principal purposes in these proceedings, sought to secure change of practice for the future, for his benefit on future promotion applications and, no doubt, for the benefit of others.  Indeed it is common ground that Mr Wakefield had, by the end of the Tribunal’s hearing, already made such an application (albeit it was not pursued).  The Tribunal’s decision to make recommendations and what they have said about their reason for doing so demonstrated their intention to secure future change of practice.

37.	We accept Ms Proops’ submission that, although the recommendations were deleted by the Tribunal at the review hearing, the Tribunal’s decision is likely to have an important effect ‑ and plainly was intended by the Tribunal to have such effect – on the manner in which LR should conduct promotion exercises in which Mr Wakefield is a candidate and, potentially, other aspects of their employment relationship with Mr Wakefield; see paragraph 1.11.  In the absence of a decision upon the merits of LR’s appeal, it would be open to Mr Wakefield, if he is denied an interview-free appraisal in any future promotion selection process, to rely on the Tribunal’s decision in this case in support of a further claim as having powerful persuasive effect, if not more.  LR would have to argue, to counter that effect, that they had a challenge to the Tribunal’s decision the merits of which were at least sufficient to justify a full hearing but had been unable to pursue that appeal because of a technicality arising from a mistake.  If there is a further claim, the uncertainties which must arise as between the parties, if this appeal is not heard on its merits, may well cause considerable difficulty and argument.  Furthermore the Tribunal’s judgment could be used by others; it could be cited as an example of an approach to be taken by employers in similar cases in the future.

38.	There is a further point which we regard as important.  The use by the Tribunal of trenchant and vivid language in expressing their criticisms of LR is apparent from any reading of the judgment.  If the Tribunal’s factual conclusions and the criticisms of LR based on them may arguably have been perverse, it appears to us that it is of importance that LR should have the opportunity to seek to have those findings and the criticisms based on them, not only of LR as a body but also of individuals within LR, set aside and that there would be a serious potential denial of justice if LR are deprived of that opportunity because they have paid Mr Wakefield in full.

39.	Mr Wakefield has submitted that LR led him to believe, by paying him in full on 19 September 2007 as they did and in particular by saying in their letter enclosing their cheque:
“Please find enclosed a cheque in settlement …”, that they were not going to pursue this appeal and that LR’s actions demonstrated that their appeal had no merit.  Ms Proops tells us that the use of the words “in settlement” was an error – it was intended to say “in payment”; and as to the merits, the Notice of Appeal, containing numerous detailed grounds, is dated and was received by the Employment Appeal Tribunal on the same day as the payment letter, 19 September 2007.  Mr Wakefield put in a substantive Answer, received by the EAT on 8 November 2007; and the appeal has then proceeded without any real delay on his or on LR’s part.  It is not unknown in litigation for a losing party who wishes to appeal to wish nonetheless to pay the compensation ordered to the winning party without thereby being taken to indicate that their appeal is regarded as having little merit.  In any event it is for us, if the appeal proceeds, to decide upon its merits, without speculation as to the parties’ assessment of those merits.

40.	Ms Proops submitted that Mr Wakefield could not successfully rely upon his contention that he had been misled.  She submitted that (1) Mr Wakefield would have to establish a promissory estoppel which would prevent LR from resiling from any promise or representation relied upon by Mr Wakefield and (2) to do so Mr Wakefield would have to demonstrate that he had relied on such promise or representation, that he had suffered detriment in consequence and that it was unconscionable for LR to be allowed to resile – but he had not established those necessary elements.

41.	We do not need or intend to become involved in an analysis of the doctrine of promissory estoppel, which has not been argued before us in any detail.  In our judgment if on receipt of the cheque and its accompanying letter Mr Wakefield believed that LR would not pursue an appeal, that belief was short-lived; for the Notice of Appeal would have been served on him shortly thereafter, after the order made at the sift stage of the EAT’s procedures on 30 October 2007; and the steps we have described followed thereafter.  We cannot see that Mr Wakefield has, as a result of the payment of the compensation ordered, acted to his detriment or that there would be any unfairness to Mr Wakefield if we were to allow the appeal to proceed.

42.	Finally on this issue Ms Proops brought to our attention a possible argument in favour of Mr Wakefield, based on the use by LR in the letter of 19 September 2007 of the words “a cheque in settlement”.  She accepted that, if the payment had truly been made as or as part of a compromise agreement between LR and Mr Wakefield, then Mr Wakefield’s claim would have been finally disposed of by agreement between the parties and the appeal could not be pursued.  However in our judgment there was no compromise agreement – and none has been suggested by Mr Wakefield.  There is no evidence or suggestion of any negotiations at all between the parties as to the orders made by the Tribunal before that letter was sent.  We accept that there was no consideration moving from Mr Wakefield in respect of that payment and no contractual agreement between the parties in respect of which that payment was made.

43.	There is no absolute rule of law which prevents this appeal from proceeding.  We are satisfied that it is important to the parties and the future of their relationship and for wider reasons that the issues raised by this appeal should be resolved, for the reasons we have set out.  Accordingly we decided to allow LR to proceed to argue the substance of the appeal.

Choice of language
44.	We have already referred to the Tribunal’s trenchant criticisms and strong language.  Several examples can be seen from a reading of the judgment and are set out in paragraph 11(1) of the Notice of Appeal.  Although the ground contained in that sub-paragraph is not a ground of appeal upon its own, we feel bound to say a few words about it.  It is, of course open to a tribunal to reach firm and clear findings and to be strongly critical of a party to proceedings before them.  However, we have unanimously felt that some of the modes of expression chosen by the tribunal in this case are not desirable and might be thought to indicate a lack of total objectivity.  In at least one case trenchant criticism appears to be directed towards an individual who is unnamed, was not a witness and was, therefore, not able to defend himself; see paragraph 3.27.

45.	In HM Prison Service v Johnson [2007] IRLR 951 the Employment Appeal Tribunal, presided over by Underhill J, said at paragraph 36:

“The tribunal’s handling of this episode exemplifies a problem which we have found with the tone of many of the findings in the reasons.   The language in which the tribunal expresses its criticisms of the appellants is often highly-coloured.  This will be apparent from some of the passages that we quote; and elsewhere we find such terms as ‘atrocious’, ‘astonishing’ and ‘failed miserably’.  Tribunals are entitled to use strong words when dealing with conduct which merits it: there is no duty to be bland.  In this case the tribunal evidently felt that the claimant had been very badly treated by the appellants.  It had the full evidence before it and saw and heard the witnesses, and we would be very slow to find that that overall judgment of the appellants’ conduct was unfair.  But the very vehemence with which it is expressed raises a suspicion, which Mr Stilitz understandably urged on us, that the tribunal’s indignation clouded its judgment.  We have had to do our best to look behind the epithets and focus on the actual issues.”

We respectfully agree with the contents of that paragraph.  In this case too, the use of vehement language was, not unjustifiably, said by Ms Proops to indicate a lack of objectivity and of proper analysis.  We too have sought to put the language on one side and to consider the issues raised by the appeal on their merits; but we need to suggest that tribunals who feel tempted to use such language should consider with care whether it is both justifiable and necessary to do so.  

The grounds of appeal against the discrimination decision
46.	The Notice of Appeal attacks the Tribunal’s conclusion that there was disability discrimination on 13 grounds (omitting ground 1), many of which are divided into sub-grounds.  Ms Proops in a sustained argument sought, in order to make those grounds good, to take us in considerable detail through the overwhelming majority of paragraphs 3.1 – 3.62 and sections 4 and 5 of the judgment.

47.	There came a point in the course of argument when we suggested to Ms Proops that her appeal centred upon two vital issues, namely (1) were the Tribunal entitled to conclude that Miss McMorrow’s advice had not been met because that advice included the avoidance of an oral interview? (2) were the Tribunal entitled to conclude that the TM post had no substantial oral content?

48.	We suggested to Ms Proops and she agreed that if, we were not persuaded that the answer to one or both of those questions was “no”, her appeal would be bound to fail and that, if we were so persuaded, her appeal would succeed and that the remainder of her grounds of appeal and submissions, in so far as they did not go to those essential questions, was detail.  We would add to those two questions a third question which has importance in the light of our analysis of the fundamental bases of the Tribunal’s decision, as we have set them out in paragraph 29 above, namely were the Tribunal entitled to take the approach that if Mr Wakefield honestly believed that an adjustment should be made it was the duty of LR to make it unless there was good reason for not doing so.

49.	We propose in considering the principal argument put forward by Ms Proops and Mr Wakefield’s skeleton arguments and written submissions, to do so principally in relation to those three questions or areas of important subject matter.

The law
50.	The relevant law can be briefly set out.  Section 4A of the Disability Discrimination Act 1995, as amended, provides, in so far as relevant, as follows:

“4A	Employers: duty to make adjustments

(1)		Where ‑

(a)	a provision, criterion or practice applied by or on behalf of an employer, or

(b)	any physical feature of premises occupied by the employer,

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

51.	Section 18B of the Act, again so far as relevant, provides

“18B  Reasonable adjustments: supplementary
(1)	In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to—
(a)	the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

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

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

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

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

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

(g)	where the step would be taken in relation to a private household, the extent to which taking it would—
(i)	disrupt that household, or
(ii) 	disturb any person residing there.

(2)	The following are examples of steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments—
(a)	making adjustments to premises;
(b)	allocating some of the disabled person’s duties to another person;
(c)	transferring him to fill an existing vacancy;
(d)	altering his hours of working or training;
(e)	assigning him to a different place of work or training;
(f)	allowing him to be absent during working or training hours for rehabilitation, assessment or treatment;
(g)	giving, or arranging for, training or mentoring (whether for the disabled person or any other person);
(h)	acquiring or modifying equipment;
(i)	modifying instructions or reference manuals;
(j)	modifying procedures for testing or assessment;
(k)	providing a reader or interpreter;
(1)	providing supervision or other support.”

52.	In applying these provisions the tribunal must proceed on the basis of the following principles:

1.	The obligation to make adjustments can only arise if the Tribunal finds that there was a provision, criteria or practice which places a disabled employee at a substantial disadvantage in comparison with persons who are not disabled.

2.	If 1. above is demonstrated, the employer has a duty, in effect, to take steps to discriminate positively in favour of the employee so as to remove that disadvantage.

3.	That duty does not require steps to be taken which place the disabled employee in a better position than that in which he would be if not disabled.  As Lord Hope said in Archibald v Fife (reference above) at paragraph 15:

“… But it is not simply a duty to make adjustments.  The making of adjustments is not an end in itself.  The end is reached when the disabled person is no longer at a substantial disadvantage, in comparison with persons who are not disabled, by reason of any arrangements made by or on behalf of the employer.”

	and see O’Hanlon v Revenue and Customs Commissioners [2006] ICR 1579 EAT Elias P presiding, paras. 56 – 57.

4.	The duty to make adjustments requires the employer to take such steps as it is reasonable for him to have to take; the test is objective; see Smith v Churchills Stairlifts [2006] ICR 524 at paras.44-47.

53.	It is convenient, under this part of our judgment, to refer to the Disability Rights Commission Code of Practice: Employment and Occupation (2004), which, as is well known, does not contain principles of law but contains guidance to which employment tribunals must pay regard.  The relevant provisions of the code in this case are at paragraphs 7.19 – 7.26.  The Tribunal referred to those paragraphs in paragraphs 2.7 – 2.9 of their decision.  They did not find that LR had failed to comply with any of the provisions of the Code.  Those paragraphs do not suggest that in assessing an application for employment ‑ or by analogy for promotion ‑ an oral interview should in appropriate circumstances be dispensed with; a particular example of an applicant disabled by a severe stammer is given in paragraph 7.25.  

Perversity
54.	Ms Proops made no attempt to conceal that, so far as the Tribunal’s finding of discrimination is concerned, her appeal was based principally on perversity.  The Notice of Appeal sets out many grounds on which, under that head, she seeks to attack the Tribunal’s conclusions that LR had failed to made an adjustment which it ought to have made by failing to permit his application for the TM post to be considered without an interview.  We have earlier recorded that the first of Ms Proops’ 14 grounds, based on the language used by the Tribunal, was not permitted to be argued at the hearing before us as a freestanding ground; the remaining 13 grounds have been developed by Ms Proops in her skeleton argument and orally before us; and Mr Wakefield has responded to them in his written submissions.

55.	It is important, before considering the individual grounds, to set out the difficulties which face an appellant who seeks to attack the decision of an employment tribunal on perversity grounds.  The Employment Appeal Tribunal is not a fact finding tribunal.  The employment tribunal has the task of finding facts and of drawing secondary inferences of fact from their primary findings; it is, as Mr Wakefield correctly submits, not for the EAT to set about a fresh assessment of the facts.  We can only overturn a factual decision of the employment tribunal if it is demonstrated that the tribunal failed to consider a relevant factor which ought to have been considered, took an irrelevant factor into account or reached a factual decision which no reasonable tribunal could have reached.  These are the familiar elements of what is described as perversity.  Furthermore, as is regularly said by the EAT, an appellant who seeks to establish perversity has to overcome a high hurdle.  We do not need to consider the descriptions of that high hurdle set out in earlier decisions; for it was definitively described by Mummery LJ in his judgment in Yeboah v Crofton [2002] IRLR 634 at paragraph 93, with which Brooke LJ and Sir Christopher Slade agreed, in these terms:

“Such an appeal ought only to succeed where an overwhelming case is made out that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached.  Even in cases where the Appeal Tribunal has ‘grave doubts’ about the decision of the Employment Tribunal, it must proceed with ‘great care’, British Telecommunications PLC –v- Sheridan [1990] IRLR 27 at para 34.”

The McMorrow Report: Grounds 2, 3 and 5 of the Notice of Appeal 
56.	We propose to address first the grounds of appeal based on the Tribunal’s approach to Miss McMorrow’s report and her subsequent letter; in our judgment they are of very real substance.  

57.	In her report, which was prepared as a joint report for the earlier proceedings and was, without objection on either side, put in evidence in these proceedings, Miss McMorrow described that Mr Wakefield’s stammer consisted of overt and covert symptoms; the former consisted of silent blocks, initial sound repetitions at the beginning of words, increased rate of speech and an increased level of physical tension and loss of eye contact; and the latter consisted of avoidance of words and situations and negative emotions and attitudes connected with Mr Wakefield’s stammering.  She said, at page 2 of her report,

“Following my assessment of Mr Wakefield’s overt and covert stammering symptoms, it is evident that his stammer is a speech impairment that causes him to be at a considerable communicative disadvantage at work, socially and within his home setting.”

At page 3 of her report she said:

“As I am not qualified to assess the duties of the post Mr Wakefield has applied for, I am unable to comment on whether he is capable of performing the work for which he is employed to perform.  However, as a Speech and Language Therapist, I am able to advise any employer about the possible difficulties an employee is likely to have with interviews, verbal presentations and using the telephone.  Therefore, within these situations certain considerations should be made.  These include:
i.	allow extra time for an interview/verbal interaction
ii.	allow preparation time for questions so that an individual is able to formulate a written response and then present this verbally
iii.	consideration of the person’s work history for the skills being considered.
iv.	small group or small panel interactions.

Providing Mr Wakefield has the necessary knowledge and competencies to perform the post for which he has applied for, I can see no reason why he was incapable of performing his job.  However, given his stammer, certain adjustments should be made to the process of interview or presentations that he may be expected to participate in.  These are:
i.	his work history of specific oral skills required for the post should be considered.
ii.	he should be given extra time to respond in interviews and oral presentations.
iii.	he should have the opportunity to prepare a written response to questions which he can then verbalise at the time of his oral interview
iv.	he should have the opportunity to be interviewed by one or two panel members rather than larger panels.

Having had sight of the interview notes it would appear that all the above considerations had not been readily available for Mr Wakefield’s interview.  Consequently, it is likely that his verbal performance at the promotion board interview on the 29th September 2004 was adversely affected.”

58.	In her further letter Miss McMorrow answered questions directed to examples of normal day-to-day activities affected by Mr Wakefield’s stammer, plainly posed in the context of the then outstanding issue as to whether Mr Wakefield was or was not a disabled person within the meaning of the 1995 Act.  Her letter did not affect the recommendations set out in her report as to adjustments which should be made in Mr Wakefield’s case.

59.	The Tribunal set out Miss McMorrow’s recommendations at paragraphs 3.12 and 3.13 of their judgment and concluded, at paragraph 3.12:

“Any neutral reading of this report would not lead to the conclusion that Mr Wakefield would have no difficulty with an interview.  Given what had been said earlier in the report, Ms McMorrow appears to be pointing out what considerations should be made to adjusting an oral interview process if, but only if, such a process was not reasonably avoidable.”

They concluded at paragraph 3.14 that by the second set of recommendations, Miss McMorrow was adding that oral skills in the work environment should be looked at before or instead of interview and that the recommendations (ii) - (iv). only arose if oral interview could not be dispensed with.

60.	They said at paragraph 3.16:

“We anticipate Ms Proops may say the above interpretation of Ms McMorrow’s report has been formulated in these terms by the Tribunal rather than coming from the claimant’s mouth in cross examination or submissions.  First, we disagree in fact – the point, if not the language, is implicit in paragraph 12 of his statement.  Secondly, in judging this case, we will take into account what Ms McMorrow says (paragraph 3.10 above) that the claimant, as we saw frequently in this Hearing, appeared reluctant to embark upon what for him was orally demanding.  To us it was patently obvious what he wanted to say.”

61.	Ms Proops submitted that the Tribunal’s construction of Miss McMorrow’s expert advice, namely that she was advising upon adjustments which should be taken to ameliorate the difficulties arising from Mr Wakefield’s disability in interview only if an oral interview was not reasonably avoidable was plainly inconsistent with what Miss McMorrow had actually said; Miss McMorrow had not, either in her report or follow-up letter, even suggested either that an oral interview should be avoided or that her recommendations only applied if the preferred alternative, of omitting in Mr Wakefield’s case the oral interview, could not reasonably be achieved.  The Tribunal, in interpreting and applying Miss McMorrow’s evidence as they had, had acted perversely.

62.	On the evidence, she submitted, it was undisputed that LR had provided to the interview process the adjustments proposed by Miss McMorrow; subject to the Tribunal’s view that LR should have gone further and dispensed with an oral interview altogether, the Tribunal were not critical of those adjustments which were made.

63.	She further submitted, as set out in ground three of the Notice of Appeal, that the finding in paragraph 3.6 of the judgment that the 2004 process gave a “clear signal” to LR that reading from a script or notes would not help Mr Wakefield was perverse because that process was precisely what Miss McMorrow recommended.

64.	By ground five it is argued for LR that they were entitled, in terms of reasonableness, to rely on Miss McMorrow’s report when making adjustments to the interview, that the LR made those adjustments and that the position was not that Mr Wakefield was reluctant to enter upon what was orally demanding but that he, with the adjustments, was able adequately to cope with the interview as modified.

65.	Mr Wakefield’s written submissions addressed these grounds of appeal in considerable detail; he was right to do so; for, if Ms Proops’ submissions are sound, the Tribunal have based their ultimate conclusion on an erroneous premise.  We do not propose to set out his submissions in full; essentially his arguments were – and we hope we do not fail to do justice to them by summarising them –

1.	The Tribunal rightly relied strongly upon Miss McMorrow’s report which was consistent with Miss Robertson’s report.  LR’s attempts to discredit the latter’s recommendation that there should be no oral interview but an interview at which Mr Wakefield wrote down all answers to questions failed.  

2.	Therefore the Tribunal’s conclusion as to Miss McMorrow’s report was one which they were entitled to reach.  He was at a considerable disability; to avoid an oral interview was in the circumstances simple common sense and was consistent with the principle set out by Lord Hope in Archibald v Fife Council, which we have quoted above.

3.	There was other evidence supporting the Tribunal’s conclusion.  The documents before the Tribunal demonstrated that LR’s Head of Diversity had a briefing paper which expressly referred to the fact that a person with a stammer may have difficulties with interviews and to the resulting need to make adjustments and gave advice as to the making of adjustments; and he referred to a Tribunal’s decision in a case called Yaqub v Calderdale Council as a case study.  

4.	In any event the Tribunal, he argued, did not decide that the interview should have been dispensed with.  In the interview he had not been given sufficient time to write down answers to the questions put to him in advance.

66.	We start our response to these submissions by stating that, in our judgment, Mr Wakefield’s argument that the Tribunal did not advocate the abandonment of the interview process is unsound.  That appears with clarity from paragraph 3.60 of the Tribunal’s judgment in which they say:

“The provision criterion or practice which placed Mr Wakefield at a substantial disadvantage in comparison with persons who were not disabled was the insistence by the Land Registry on oral interview as a means of demonstrating one’s suitability for promotion.  His speech impairment made it harder for him than for people who are not so impaired.  As a result, in the opportunities which the Land Registry afforded him for promotion, they are accused by him of failing to take such steps as was reasonable for them to take in order to prevent the provision criterion or practice having the effect.  The adjustment he requested was a simple cost free one.  But it was refused.  At the end of the evidence of Ms Norris, the Tribunal members and chairman asked her certain questions.  Ms Norris replied that if the situation were to arise now, she would consider giving Mr Wakefield longer to look at the main questions and the opportunity to write his responses.  She emphasises even with the benefit of hindsight he would still have to undergo an oral test because of the nature of the job.”

and also from paragraphs 5.1 and 5.2 which we have already set out, at paragraph 28 above.

67.	The or a central pillar of the Tribunal’s judgment was their conclusion that LR ought to have made the adjustment sought by Mr Wakefield of dispensing with an oral interview unless it could not reasonably be avoided; no other reading is possible.

68.	It is worthy of note that the Tribunal did not decide that the adjustments made to the interview process of themselves did not comply with Miss McMorrow’s recommendations as to how such an interview should be conducted.  As we have said earlier, they did not make detailed findings about how the interview went; that was not their focus; their focus was on the question – interview or no interview.  We therefore turn to Ms Proops’ first and major point under this heading.

69.	In our judgment nothing which Miss McMorrow wrote supported the construction put upon her words by the Tribunal or Mr Wakefield’s case that there ought to be no oral interview.  It can be seen that, in describing Mr Wakefield’s symptoms and making her recommendations, she had his difficulties in the setting of an interview in mind.  She referred to those difficulties expressly in the passage cited by the Tribunal at paragraph 3.12 and at the foot of the third page of her report; she intended to give advice as to how the difficulties which faced Mr Wakefield could or should be the subject of adjustments; and the advice she gave did not include any suggestion that an oral interview should be avoided altogether.  Nor did she say that the recommendations at (i.) - (iv) on page 3 of her report or those which followed applied only if an oral interview could not reasonably be avoided.  Although the Tribunal were correct to say that the report did not lead to the conclusion that Mr Wakefield would have no difficulties with an interview – and it cannot be suggested that LR ever suggested the contrary, for they both offered and make adjustments in respect of those difficulties – the fact that the report did not lead to that conclusion did not justify the Tribunal in reaching the different conclusion that Miss McMorrow was in effect advising that those difficulties should be met by avoiding an oral interview altogether if possible and, only if that was not possible, by making the adjustments she expressly proposed.  

70.	It is not open to Mr Wakefield to seek to rely on Miss Robertson’s report.  That report was not available at the material time.  Secondly that report cannot purport to inform as to the correct construction of Miss McMorrow’s report.  Thirdly the Tribunal did not in any event rely on it; they did not refer to it at all.

71.	The briefing paper to which Mr Wakefield refers also does not support his case upon the Tribunal’s conclusions.  On its sixth page (page 307 in our bundle) it states:

“Candidates who stammer may be prevented from demonstrating their abilities and potential by conventional recruitment processes.

You need to make sure that you do not discriminate against a disabled job applicant during the recruitment process.  For example, people who stammer should not be refused a job or an interview on the grounds that the job requires ‘excellent communication skills’.  If you use external recruitment agencies, ask for evidence that they make reasonable adjustments for disabled applicants and work to the standards that underpin this guidance.

Assumptions should not be made, as people who stammer may well have excellent oral and communication skills.  People who stammer have succeeded in many areas, including sales and customer service.  There is no justification for arguing that customers won’t like being served by someone who stammers.

Ask applicants about reasonable adjustments as part of the recruitment procedure, remembering that in many cases the Access to Work scheme (through Access to Work Business Centres) can help to fund adjustments.”

In that passage there is no suggestion that oral interviews should be dispensed with.

72.	We would add that Miss McMorrow was not positing or conditioning her advice upon there being oral content in the duties of the post for which Mr Wakefield was seeking promotion or for which interview was proposed.  Her advice is broad and general.  

73.	We do not accept a submission from Ms Proops that the Tribunal could not, as a matter of law, go further in their conclusions as to what were reasonable adjustments than Miss McMorrow’s evidence had gone.  The Tribunal were not formally bound by Miss McMorrow’s recommendations; Mr Wakefield’s submission that Miss McMorrow’s report is not “definitive” is correct.  We therefore reject any argument that the Tribunal, in going further than Miss McMorrow, if that is what they did, were in error of law.  However we conclude from the Tribunal’s judgment when read as a whole and from the passages we have identified that the Tribunal proceeded not on the basis that they considered that Miss McMorrow’s report had not identified all the reasonable adjustments which they thought should have been made but upon the basis that the adjustment of dispensing with an oral interview, unless it could not be reasonably avoided, was advised by Miss McMorrow.  The Tribunal’s construction – in which it is clear they believed very strongly that e.g. “no one with an unbiased common sense view could fail to understand Miss McMorrow’s message” (paragraph 3.19) – was one which was wholly unsupported by the evidence and was one which no reasonable tribunal could reach.

74.	Part of Mr Wakefield’s argument is that in 2005 LR, before the Employment Tribunal, resisted his case, based on Miss McMorrow’s report, that he was under a disability as defined by the 1995 Act.  That is factually correct; but it does not in any way go to establish that there had been a breach of LR’s duty under Section 4A of the Act in relation to his application for promotion to the TM post.  In these proceedings, of course, disability within the meaning of the Act was not disputed.  

75.	Ms Proops has told us that it was not part of Mr Wakefield’s case before the Tribunal that the McMorrow report advised against an oral interview and that the Tribunal took the point which they made central to their decision themselves.  We are not confident that that is wholly correct; the penultimate words of the second page of Mr Wakefield’s written submission to the Tribunal can be taken as taking the point; but it is perhaps more indicative if we draw attention to Mr Wakefield’s written submission to us, at paragraph 4(6):

“The McMorrow report does not say that Mr Wakefield cannot be subjected to an interview process, neither does the judgment of the Tribunal.”

However, even that must not be taken too far; for what Mr Wakefield says is correct unless one adds the words “if it can reasonably be avoided”.

76.	We further accept Ms Proops’ submission that the finding in paragraph 3.6 that reading from a script or notes would not help Mr Wakefield was perverse; we agree that such a process was precisely what Miss McMorrow advised.  

77.	Finally in this section of our judgment we consider ground five of the Notice of Appeal.  We have already concluded that Miss McMorrow’s report did not advise the dispensing with an oral interview.  There can be no doubt that it was, in the Tribunal’s view, reasonable for LR to rely on Miss McMorrow’s advice; for they criticise LR for failing to do so in the absence of any other advice which recommended further measures – and we have referred above to the Robertson report and the document from the Employers’ Forum on Disability, on which Mr Wakefield relies but which do not help him; no other conclusion was logically or practically open.  Neither party was urging that the McMorrow report should not be relied upon (albeit Mr Wakefield said that it did not stand alone); the central argument was about what message it conveyed.  It is not in dispute, as we understand it, that the adjustments to the interview process recommended by Miss McMorrow were made (although there was an issue as to whether LR had done sufficient by way of investigation of Mr Wakefield’s work history).

78.	The Tribunal found, at paragraph 3.59, that when Mr Wakefield knows he is talking about matters he understands well his oral delivery can be more than adequate; and at paragraph 3.16 they said that, to the Tribunal, it was patently obvious what Mr Wakefield wanted to say.  The Tribunal said that in the context of Miss McMorrow’s report of Mr Wakefield’s reluctance to embark upon what for him was orally demanding.  The Tribunal’s comment as to their clear understanding of what Mr Wakefield wanted to say was made in the context of his having given extensive evidence and having handled cross-examination of LR’s witnesses.  These were, in our judgment, further reasons why the finding that there should not have been an oral interview if one could reasonably be avoided cannot be sustained.

Requirements of the Post:  Grounds of Appeal 9 - 12
79.	The Tribunal, in setting out the history of Mr Wakefield’s application for the ESM post, in respect of which he declined adjustments offered by LR (see paragraphs 3.22 – 3.32), were critical of the interview panel for that post.  The panel chairman’s notes said:

“…I advised Brian that the panel would be assessing him in the same way as all the other candidates i.e. from his application form and his responses during the interview.  I mentioned that it had seemed that Brian had been able to understand and respond to all of the questions during the interview.”

80.	The Tribunal went on to say:
“Why would Mr Wakefield have any difficulty understanding the questions?  There is absolutely no doubt at all about the claimant’s intellectual capacity.  It is a common stereotypical assumption that slowness of speech is associated with slowness of thought.  In America, the slang word for “stupid” is “dumb”.  The claimant who is far from stupid came joint bottom of the six interviewed candidates.  A report at page 453 says “the candidates were placed in the following order of merit, having full regard to their appraisals, application forms and performance at interview.”

81.	This paragraph, as we read the Tribunal’s decision, is an example of the Tribunal making strong criticism without a full analysis of the material before them.  There is nothing to show that Mr Wakefield complained or asserted that the interview panel in particular or LR more generally treated him as stupid or dumb because of his disability.  The interviewing panel for the ESM post did not include any of the witnesses before the Tribunal.  The writer of the words of which the Tribunal was critical did not give evidence and had no opportunity to explain why he wrote as he did; his use of the words “understand” and “respond” may not have revealed any stereotypical assumption and may have been wholly innocent.  Significantly, it seems to us, Mr Wakefield did not make this criticism to the Tribunal in his witness statement or closing submission.  Merely indicating that Mr Wakefield was able not only to understand (as would be expected) but also to respond to (as might not have been expected) all of the questions asked does not, in our judgment, justify the criticism made by the Tribunal, particularly when it had not been investigated in the evidence.

82.	We have referred earlier to the contrast between the words used by the Tribunal in paragraph 3.27 and what the Tribunal said in paragraph 2.10 of their review decision.  In the latter the Tribunal seemed both to draw back from what, in our view, they plainly did say in paragraph 3.27, that LR had made a stereotypical assumption that Mr Wakefield, because he stammered was dumb and to say that, in paragraph 3.27, they intended to convey that the panel interviewing Mr Wakefield for the ESM post presumed (by implication unjustifiably) that Mr Wakefield’s answers in interview were truly representative of what he wanted to say ‑ which, in paragraph 3.27, they equally plainly did not say.

83.	If we were permitted to take into account the words in paragraph 2.10 of the review decision, they would support our view that the criticism in paragraph 3.27 of the judgment was unjustified; but we think that we should not take those words into account (although they point up the difficulties which subsequent comments from the Tribunal on matters within their judgment create); in any event we conclude, without those words, that this criticism was not justified.  It should be remembered that Mr Wakefield did not claim any discrimination in relation to the ESM post.

84.	Ms Proops made a similar point, convincingly in our view, as to paragraph 3.24.  The context was that Mr Wakefield had, in the run up to his interview for the ESM post, been offered adjustments along the lines of Miss McMorrow’s report but had said that he did not require them; see paragraph 3.22.  There was, therefore, no issue between Mr Wakefield and LR at that stage as to LR’s proceeding to assess him as a candidate for promotion by a process 

which included an oral interview.  However, in paragraph 3.24 the Tribunal said:

“These were precisely the adjustments that were offered later on for the 24 July so we will deal with the matter later when considering the “training manager” appointment.  However it is clear even at this stage that the respondents were committed to there being an oral interview during which responses to questions would have to be given orally by the claimant.  The claimant replied:-

“I would like to be treated no differently to any other candidate in relation to the interview.  I would like to progress on merit, despite the protection offered to me by the DDA.  The board has kindly offered to make adjustments which I very much appreciate but in the circumstances I would ask that they treat [me] the same as other candidates.”

This is the antithesis of a person who is trying to use his disability to gain an advantage over other non-disabled candidates.”

85.	There is, it seems clear to us, a critical overtone in this paragraph particularly in the words “even at this stage”.  Oral interview is, it goes without saying, a standard element of the assessment of a candidate for a senior management post; an employer who wishes in the case of a disabled employee to proceed in that way without demur from the candidate is not properly to be described as “committed to there being an oral interview” as if there had been some dispute or confrontation about it in which the employer was refusing to change his view.  

86.	These conclusions on the part of the Tribunal in relation to the ESM post are not to be taken as decisive of the perversity or otherwise of their conclusions in relation to the TM post, in respect of which Mr Wakefield was offered and accepted adjustments to the interview process but sought to proceed without an interview at all.  They are, however, indicative, in our judgment, of the Tribunal’s thought process; the Tribunal appears to have concluded, unjustifiably we conclude, from what happened in relation to the ESM post that LR (through different personnel who were not involved in the TM post selection process) held stereotypical assumptions about Mr Wakefield’s disability and were unwilling to consider variation to their usual selection process, although the ESM process involved no suggestion of such variation and preceded the disagreement over the use of that process in respect of the TM post.  The Tribunal appear to have believed, unjustifiably in our judgment, that LR had an entrenched view before the dispute as to the TM post interview arose although the only other two such processes which they considered related to the ESM post, in which there was no dispute, and the BRO post in which Mr Wakefield was, without discrimination, not selected for interview at all.

87.	We need next to state that, when the Tribunal expressed themselves as they did in those paragraphs and the paragraphs which directly relate to the context of the TM post, they had already concluded that Miss McMorrow’s advice included dispensing with an oral interview (unless it was not reasonably avoidable), which conclusion was, in our judgment perverse for the reasons we have set out.

88.	Reading the judgment as a whole the pivotal nature of that conclusion and the importance of the two criticisms to which we have just referred becomes apparent.  The Tribunal appear to us to have proceeded from those conclusions, on the basis that Mr Wakefield genuinely wanted his assessment for the TM post to proceed without an oral interview, to the conclusion that LR had an entrenched view which led to a resistance to that request which was not justified.  Had they not, erroneously in our judgment, concluded as they did in relation to Miss McMorrow’s advice and as they did in paragraphs 3.24 and 3.27 it is not unreasonable to believe that their whole approach to the issue of the content of the TM post would have been different.

89.	The Tribunal turned to deal with the TM post and the selection process for it at paragraph 3.39; and their examination of that process and LR’s reason for deciding not to accede to Mr Wakefield’s request that the oral interview be dispensed with is the subject matter of paragraphs 3.39 – 3.58.  We do not intend to recite those paragraphs in this judgment; but it will be necessary for us to set out individual paragraphs or part of such paragraphs within that section of the judgment as we come to express our views upon the attack upon them put forward by M Proops.

90.	We have earlier set out the relevant parts of the advertisement and job description for the TM post.  The list of essential experience and skills includes “excellent communication skills” which, we note, is not limited to skills in written communication.  We are unanimously of the view that a fair reading or understanding of these documents as a whole leads to the conclusion that the post involved oral communication skills; see in particular bullet points 3, 4 and 5 in the list of main duties in the job description.  The post was, it was not in dispute, a senior management post; its holder would have to manage a training team; such a task ordinarily surely requires oral communication skills.  We must, of course, not substitute our view for that of the Tribunal; but, applying the test in Yeboah v Crofton set out above at paragraph 52 we conclude that any other understanding of the relevant documents could not reasonably be reached.

91.	Of course the natural meaning of those documents could be displaced by evidence which supported a different understanding; but it is not asserted that Mr Wakefield gave any such evidence; and the evidence of Ms Kemp and Miss Norris was to the opposite effect and supported the natural understanding.

92.	The Tribunal did not accept that evidence.  They said at paragraph 3.34 that Miss McDermott in her evidence, not about the TM post but about the BRO post the selection panel for which she had chaired, did not say that an applicant who lacked oral communication skills faced an impediment in being appointed to the post and did not say that in the case of that post “good communication skills” in the job description meant or included oral skills.  The Tribunal continued:

“We believe her.  Therefore when on day 3 at about 11.25 am Ms Kemp had said in evidence that the BRO job required the ability to argue the Land Registry’s position at confrontational meetings, we disbelieve that version.  We all checked our notes to make sure Ms Kemp was talking about the BRO job not the training manager job.  Our Notes confirmed she was.”

The Tribunal then used this for a basis for not accepting the evidence of Miss Norris and Ms Kemp on the oral requirements of the TM post.  

93.	We have difficulty in accepting the Tribunal’s reasoning at this point.  The two posts were not the same.  There had been no need for any detailed analysis of the importance of oral communication in the case of the BRO post because Mr Wakefield did not reach the interview stage of the selection process for that post.  The Tribunal do not say that Miss McDermott was asked in relation to the BRO post to distinguish between oral and written skills; the answers recorded in paragraphs 3.38 are general only; and she was not involved in the TM post.  The Tribunal appear to have concluded that Ms Kemp’s evidence about the BRO post was not to be believed not because of what Miss McDermott said about it but because of what she did not say.

94.	Furthermore the Tribunal’s acceptance of Miss McDermott’s evidence did not of itself lead to the conclusion, even if Miss McDermott had positively stated that the BRO job did not require oral communication skills, that Ms Kemp was to be disbelieved for expressing the contrary view.  The Tribunal’s use of the word “therefore” after “we believe her” in paragraph 3.34 demonstrates that that was the Tribunal’s approach – which, in our judgment, could not be justified.  It may, had Miss McDermott said what the Tribunal did not record her as saying, have been open to the Tribunal to disbelieve Ms Kemp when she put forward the contrary view; but the Tribunal would have had to consider whether Ms Kemp, whose witness statement does not address the BRO post assessment process (she having not been involved with it until after it was completed), had a genuine and sensible view of the content of the TM post, whatever she or Miss McDermott had said about the BRO post.  The Tribunal appear to have reached a conclusion on the basis that the rejection of Ms Kemp’s evidence followed from their acceptance of Ms McDermott’s evidence on this issue – or to be more accurate, from the evidence that Miss McDermott had not given.  That is, in our judgment, not sustainable.

95.	Even if we were wrong about that, the notes which we have had put before us, show that Ms Kemp was not at this point in her evidence “talking about the BRO job, not the training manager’s job”.  At page 330 of our bundle (the notes have the figure 94 at the top of the page, lest there is any ambiguity) Ms Kemp described the TM post, in answer to the Chairman, in this way:

“Not right to say upward progression of this role.  Role he applied for.  Page 435 (the job description) 3rd bullet point.  Not simply hands on training.  Definitely required strategic role in a new area for the LR.  Influencing key stakeholders.  Very much process going out plus selling new areas of training.  Focus of role very different, than if it was a step up.”

“Selling ideas.  Persuade plus influence. … EN (Miss Norris) would be better able to describe full details of this role.”

And then at page 331 (96 at top):

“Main duties of job.  Require individual to meet with groups of senior staff and influence them.  Those groups will be interjecting, influence and persuade, challenging.  If cannot perform in a 3 panel ‑ highly unlikely to cope in a large meeting at senior level.  Less structured.  These people will not assist in getting best info. from them.  Less support for individual will be argument against them.”

96.	In those passages it can be seen that Ms Kemp was speaking of the TM post.

97.	Further the Tribunal’s analysis seems to us at this point (although they refer to it later in a different context) to omit Miss Norris’s evidence.  As the notes demonstrate she told the Tribunal that the words “excellent communication skills” referred to both oral and written communications, for 20 – 25 per cent of the job involved presentations and meetings, but it was not possible to engineer that 20 – 25 per cent out of the job and that she did not see how oral communication skills could be tested other than orally.  The notes record her saying:

“Cannot demonstrate speaking skills by writing”

98.	Although the Tribunal found, at paragraph 3.49, that Miss Norris’s rejection of Mr Wakefield’s proposal that an oral interview should be dispensed with was derived from Miss Kemp’s view, that finding is not said to have caused the Tribunal to disbelieve her evidence about the oral requirements of the TM post.  

99.	The Tribunal appear, in deciding that the TM post did not require oral communication skills, to have also relied on the following observation in paragraph 3.41:

“The advertisement for the position is at page 435-6.  One of the essential skills is “excellent communication skills”.  In every job specification the claimant has seen either “excellent” or “good” communication skills are mentioned.  Nowhere does it say “oral skills”.

But the Tribunal had, in truth, seen in evidence three job descriptions only; they were the job descriptions of the three posts for which Mr Wakefield had applied.  They were all for senior management grade RE1 posts at a level at which, generally in the work place, an employer would expect to interview an applicant and an applicant would expect to be interviewed as part of the selection process.  In contrast Mr Wakefield’s evidence was that he was not interviewed when appointed in 1998/9 to his RE2 grade post.  

100.	In paragraph 3.42, however, the Tribunal rejected Miss Norris’s evidence that it was obvious from the job description for the TM post that it required oral communication skills.  Paragraph 3.42 is in these terms:

“Ms Norris’ evidence is that it should be obvious the post required oral communication skills as two of the items shown at page 435 are: 

‘Represent and make decisions on behalf of the Head of Education and Training as the team moves into the novel type of services required for Tranche 2 of e-conveyancing programme.
Influence and persuade key stakeholders through project boards and membership and specialist working groups/forums to ensure that novel decisions are agreed and implemented on time.’ ”

101.	We regret that, at this point too, that the Tribunal appear to have reached a conclusion which was not logically or reasonably open to them.  It is of course correct that people may be influenced and persuaded by the written word; but if the written word were always sufficient, meetings, discussions, working groups and forums would not be needed (other than to pass paper); and forensically no oral advocacy would be needed if written submissions were provided.  The fact that people can be influenced by the written word cannot justify the conclusion that oral communication on the part of the person who is tasked with persuading has no value.  

102.	Mr Wakefield’s written submissions include the argument that any employer could discriminate against a person with Mr Wakefield’s disability by saying that excellent communication skills are necessary in a job for which he has applied and that the oral content of the job cannot be removed.  As a general observation, that is correct; but the Tribunal did not find that LR had intended to discriminate against Mr Wakefield or were hostile to disabled persons in general or to disabled persons with a stammer in particular.  They found the contrary at paragraph 5.4; and they did not find that LR had put together the advertisement and job description of any of the posts under consideration in the manner suggested by Mr Wakefield.  The Tribunal had to decide on the facts whether the TM post did or did not require excellent communication skills; they did so; but they did so on the basis of reasoning which, in our judgment, is not sustainable and came to a conclusion which has been overwhelmingly demonstrated to have been perverse.  

103.	Ms Proops next took us through paragraph 3.44 and was critical of it in a number of respects.  She pointed out, inter alia, that there was no evidence that the person referred to in the second sentence had not had an oral interview; but it does not follow that such an interview, if it occurred, did not discriminate against him.  The last three sentences of that paragraph, however, trouble us.  We agree with Ms Proops that a job interview should ordinarily not be confrontational; there was nothing nonsensical in Miss Norris saying in evidence that Mr Wakefield’s job interview was not confrontational.  Her evidence was that the TM job required a degree of confrontation; but it is, in our judgment, neither logical nor commonsense for the Tribunal to regard it as contradictory or nonsensical for Miss Norris, on that factual basis, to say that an oral interview was seen as the best way to assess Mr Wakefield’s oral skills.  It is not possible in an interview setting to reproduce exactly the atmosphere or demands of the shop floor or workplace; yet an employer is surely entitled to regard an interview as a valuable tool in assessing how a candidate for promotion may react in a more confrontational setting.  We again remind ourselves, as we have throughout, that we must not substitute our view for that of the Tribunal who heard the evidence over five days; but this point is not one of evidence: the evidence which is referred to cannot, in our judgment, justify the conclusion.

104.	At paragraph 3.45 the Tribunal said:

“If we accepted that oral skills were needed in the job it may be a very valid reason for not dispensing entirely with an oral interview.  We therefore must first decide what we do accept and believe.”

In fact the Tribunal had already expressed the conclusion about Ms Kemp’s and Miss Norris’s evidence which we have discussed earlier in this section of our judgment.  However in paragraphs 3.46–3.51 they went through the exchanges between Mr Wakefield and Miss Norris prior to the interview which we have, insofar as necessary, set out in paragraphs 22 - 25 above; and they reached the conclusions, at paragraph 3.47, that Miss Norris’ response of 19 July 2006 to Mr Wakefield’s email of the same date contained nonsense, and, at paragraph, 3.51 that LR were by the interview subjecting Mr Wakefield clandestinely to a fluency examination.

105.	As to the first of these two conclusions, set out in the first full paragraph on page 25 of the Tribunal’s judgment, the Tribunal’s question in the second sentence indicates that they did not understand what Miss Norris was writing.  She did not say that an oral interview would be as straightforward for Mr Wakefield as for anyone without his disability; the unchallenged evidence was that, after discussion with Ms Kemp, Miss Norris offered adjustments to the interview process which Miss McMorrow had recommended; what Miss Norris was saying was that, without an oral interview, Mr Wakefield would not have the advantage of being able to respond to questions and clarify points as would candidates who did go through an oral interview.  As to the second and third sentences in that sub-paragraph, it was not Mr Wakefield’s case that there should be a partial oral interview; his case was that there should be no such interview.  It was LR who were offering to modify the usual process by making the adjustments which we have earlier described and which are set out in paragraph 3.23 of the Tribunal’s judgment.  Those adjustments involve the provision to Mr Wakefield in writing of written questions which the panel expected to use and guidance as to supplementary questions which might be asked in the course of the interview itself – which would seem to fit the point made by the Tribunal in the second sentence of that sub-paragraph.  

106.	As to the finding that LR clandestinely subjected Mr Wakefield to a fluency examination, we are of the firm view that, on the undisputed evidence, that was a conclusion to which the Tribunal could not reasonably have come.  LR have not sought to hide that one of the purposes of the interview was to assess Mr Wakefield’s suitability for the post he sought.  The Tribunal expressly quoted what Ms Kemp had said, at paragraph 3.50.  There is no suggestion that Mr Wakefield was misled in any way or that he did not appreciate that oral skills were an element of the requirements of the post he sought.  We have, much earlier in this judgment, set out our view that the advertisement and job description could not reasonably be understood as conveying that only written communication skills were required.  In this context, there was in our judgment no warrant for the Tribunal’s conclusions that he was being subjected to a clandestine fluency test.

107.	We have, in this section of this judgment set out sufficient to demonstrate and explain the reasons for our conclusion that the Tribunal’s principal findings as to the content of the TM post and as to the purpose and nature of the interview for that post were perverse in the sense that they were findings which, on the evidence, the Tribunal could not reasonably or logically have reached.  Ms Proops made many other criticisms of this part of the Tribunal’s judgment, many of them involving a line by line analysis of the detail of the Tribunal’s words; but we do not regard it as necessary or helpful, in this already but inevitably long judgment, to go through them all.  We have reached the view that, in important respects, which are not simply matters of detail, the Tribunal erred in law.  The rejection of Ms Kemp’s evidence and Miss Norris’s evidence as to the oral component of the TM post and as to the need for an oral interview cannot, in our judgment stand.  The Tribunal’s conclusions in paragraphs 5.1 – 5.3 therefore also cannot survive.

108.	We are aware that there are other points raised in the Notice of Appeal which for the reasons we set out we have not addressed; we regard it as unnecessary and probably unhelpful to do so.

The third thrust:  Notice of Appeal Ground 4
109.	We turn to the third of the major thrusts of Ms Proops’ criticisms and of the Tribunal’s decision.  In ground four of the Notice of Appeal reliance is placed on the Tribunal’s self ‑direction at paragraph 2.4 from the part of section 2 of their judgment in which they set out the propositions of law which they were intending to apply.  Paragraph 2.4 was in these terms:

“There are occasions when expert advice is important but generally speaking unless there is cause to disbelieve the claimant’s assertion that a particular step would help him, the expert advice should not be taken as the last word on the subject so that complying with it absolves the employer of the duty to take heed of the needs of the disabled person concerned.  The Code specifically says that an employer may be required to make more than one adjustment (paragraph 5.18) and that it is advisable to agree suggestions with the disabled person in question before they are made.”

110.	Ms Proops drew our attention to paragraphs 3.58, 5.1 and 5.10 of the judgment as demonstrating that the Tribunal have put that self-direction into effect in reaching their factual conclusions.

111.	In paragraph 5.10 the Tribunal said:
“Disabled people whose honesty is not in question know more than anyone, even medical experts, how their disability affects them.”
but the Tribunal were at that point of their judgment addressing issues of compensation; and in our judgment that paragraph does not throw light upon the Tribunal’s approach to their findings that there had been discrimination.

112.	However the same cannot be said of paragraph 3.58 and 5.1.  The latter reads as follows:

“Everybody is nervous when they go for an interview.  In the case of the claimant anything which reduces his level of stress and the consequent effect on his ability to communicate orally without thereby giving him an unfair advantage over others would be a step which, if practicable, should be taken.  There is no reason to doubt his word or his good faith.  If he believed that giving written answers to questions or otherwise supplementing his application in writing (even if he then had to go on to give oral answers to supplementary questions) would reduce his level of stress then in the absence of good reasons, that step is one which should have been taken, whether the claimant asked for it specifically or not.”

The directly relevant part of the former states:

“The culture of oral interview has become entrenched in the Land Registry’s promotion processes.  This combined with Ms Kemp and Ms Norris’ decision in effect to substitute their own view for that of the claimant as to how badly he was affected by the oral interview process was the operative cause for their refusal.  Ms Kemp refers at paragraph 15 of her statement to “the more excessive adjustments we might have offered to someone with a severely incapacitating stammer or other speech impediment”.  Ms Norris could not think of a single occasion upon which promotion had been given at this level without an oral interview or assessment centre.  She and Ms Kemp kept returning to Miss McMorrow’s report and quoting those paragraphs of it which suggested some adjustments to an oral interview as in effect prescribing what should be done.  They read it as setting out the greatest adjustments which would be reasonable and used it as their reason for not giving the claimant what he was asking for.  Was it that they did not believe the claimant when he said he needed more adjustments?  The claimant finds this particularly offensive.  So do we.  He has not brought any claim, for example in respect of the ESM.  He has never asked for an advantage, only for adjustments to minimise the disadvantage which is an integral result of his disability.  Ms Kemp even goes so far as to say that his declining the offer of adjustments at the ESM job shows he does not really need the adjustments he asked for at the 24 July interview!  If a person with a walking impairment refuses an offer of a wheelchair on one occasion and then falls, there is no rational excuse for refusing him a wheelchair if he asks for one on a subsequent occasion.”

113.	We have earlier said that the Tribunal were not formally obliged to go further in considering what adjustments could have been made than the recommendations in Miss McMorrow’s report; but the Tribunal, when the passages to which we have referred are taken together, can be seen to have approached their factual conclusions on the basis that, if Mr Wakefield requested a particular step be taken to alleviate his disability and was not in so requesting being dishonest, then in the absence of good reason why not that step should have been taken by LR.

114.	That approach involves, in our judgment, a misdirection of law.  We do not intend to enter into a discussion of the much debated questions as to the burden of proof in discrimination cases – as to which we have had no argument in this appeal; it is not necessary to do so in order to justify or explain what appears to us to be a straightforward point that, in a disability discrimination case, there is no principle that, if an honest employee asserts that a particular step should be taken, then that step should be taken unless the employer establishes a good reason for not doing so.  The tribunal’s task is to decide whether it is objectively reasonable for the employer to have to take the adjustment which is in issue.  Whether the employee is or is not honest in his belief in the need for the step which he contends ought to have been taken is neither necessary nor sufficient for the tribunal’s carrying out of that task (although in practice it may be that the tribunal would, if they regard the employee as dishonest, be less likely to find that the employer ought reasonably to have taken the step relied upon); and the assertion by an employee, honestly or otherwise, that a step ought to have been taken does not put any burden on the employer to prove a good reason why it was not taken.  

115.	Thus we conclude that the Tribunal in this respect erred in law.  That error was not technical; it appears to have coloured the Tribunal’s approach to their conclusions.

Considering work history: Ground 6
116.	There is one further point which we feel it necessary to address.  The Tribunal, at paragraph 3.14, may be thought to have found that the Respondent failed to make the adjustment recommended by Miss McMorrow that Mr Wakefield’s work history should be considered.  In fact we cannot see any such conclusion in section 5 of the Tribunal’s judgment; and although the Tribunal refer to a wider exploration of Mr Wakefield’s work history than they in fact carried out, at paragraph 3.46, we have found no such conclusion in section three either.

117.	However lest it be argued hereafter that we have not addressed this aspect of the Notice of Appeal when it has been argued and it may be relevant to our decision as to what should be the outcome of this appeal, we believe we should consider Ms Proops’ criticisms of the Tribunal’s approach to this issue as set out in paragraph 3.14.  In that paragraph the Tribunal said:

“During the Hearing the respondent’s witnesses were asked what they understood by the point (i) above.  Miss Norris responded that it meant that they should consider his application form and his appraisals.  This was something which they did for every candidate.  There was therefore no step being taken specifically to ameliorate Mr Wakefield’s stammering difficulties.  For example, contacting his managers to find out what the claimant was capable of doing at work rather than what he was not capable of doing would have shown his oral skills in a work environment.  In short, Ms McMorrow is saying if there is a need to assess oral skills required for the post, first do so by looking at his work history before or even instead of using a general interview as an oral skills test.  To the extent that oral interview cannot be dispensed with then steps (ii)(iii) and (iv) will help.”

Unfortunately it seems to us that here too the Tribunal have reached a conclusion on the basis of unsound reasoning.  Miss McMorrow’s recommendation was that Mr Wakefield’s work history should be considered.  The Tribunal found that, in the case of every candidate, LR considered his or her application form and his or her appraisals.  The nature of the application form is set out in paragraph 3.3; it was not a mere pro forma but gave the candidate an opportunity to provide information about his competencies; and the appraisals in the case of a long service employee were, as a matter of common sense, or at least could be likely to contain a substantial amount of history and information.  The Tribunal appear to have concluded that, because the process of looking at that material was followed in the case of every candidate, what was learned from it was irrelevant to the issue of reasonable adjustments; so that, if more could have been done, there was a failure to make a reasonable adjustment.  In our judgment that does not follow.  The fact that that process was followed in the case of every candidate could not support and still less lead to a conclusion that more should have been done in Mr Wakefield’s case; the fact that Mr Wakefield was disabled as he was did not of itself justify the conclusion that more than that process ought by way of reasonable adjustment to have been done.  For those reasons if the Tribunal had concluded (or, contrary to our understanding of the judgment, did conclude) that in that respect there had been a failure to make reasonable adjustments, that conclusion could not be sustained on the basis put forward by the Tribunal.  

Archibald v Fife Council
118.	Mr Wakefield’s submission shows that, in his view, the decision of the House of Lords in Archibald v Fife Council supported his case that the adjustments made were insufficient and that there ought to have been no interview.  However the issue in Archibald was, as we see it, different from any which arose in the present case.  Mrs Archibald was not physically able to continue in her manual job for the Council.  She was automatically short-listed for a number of other jobs but, in a competitive situation, did not secure one.  The Tribunal, in dismissing her claim, did not consider whether the employers should have made the adjustment of transferring her into a sedentary job or dispensing with the usual job interview because they believed the Council could not be required to treat Mrs Archibald more favourably than others who would have liked such jobs.  The House of Lords held that the duty to make reasonable adjustments could include a duty to transfer her to a sedentary job which she was qualified to do; see per Lady Hale at paragraphs 62-67 and Lord Hope at paragraph 19.

119.	However the House of Lords did not decide that a disabled employee who has or may have difficulties in interview must be placed without interview or a selection process into a new job.  The question as to whether there should be such an interview must be one of fact in each case; and it should noted that Archibald did not involve a promotion exercise, still less a promotion exercise to a senior management position.  At paragraphs 69-70 Lady Hale said:

“69.	… Thus local government appointments must always be on merit, subject to the duty to make reasonable adjustments. Usually, those will be reasonable adjustments in the post which is being offered so as to make it accessible to a disabled applicant. But section 7(2)(f) refers generally to sections 5 and 6, so that it is capable of including the step of transferring a disabled person from a post she can no longer do to a post which she can do, provided that this is a reasonable step for the employer to have to take. 
  70.	This will depend upon all the circumstances of the case, having regard in particular to the factors laid down in section 6(4). An important component in the circumstances must be the council's redeployment policy. This currently distinguishes between transfer to a post at the same or a lower grade and transfer to a post at a higher grade. Generally it must be reasonable for a council to maintain this distinction. But it might be reasonable to expect a small modification either in general or in the particular case to meet the needs of a well-qualified and well-motivated employee who has become disabled. Manual grades are often technically lower than non-manual grades even if the difference in pay is minimal. The possibility of transfer to fill an existing vacancy might become completely illusory for a manual worker who became incapable of manual work but was assessed as very well fitted for low grade sedentary work if that person was always up against the problem presented by her background. We are not talking here of high grade positions where it is not only possible but important to make fine judgments about who will be best for the job. We are talking of positions which a great many people could fill and for which no one candidate may be obviously 'the best'. There is no law against discriminating against people with a background in manual work, but it might be reasonable for an employer to have to take that difficulty into account when considering the transfer of a disabled worker who could no longer do that type of work. I only say 'might' because it depends upon all the circumstances of the case. While the 1995 Act clearly lays great emphasis on the circumstances of the individual case, the general policy of achieving fairness and transparency in local government appointments is also extremely important. The real question may be whether this case should have been seen as a sideways rather than an upwards move.” 

120.	Had Archibald not been decided as it was, the Tribunal might have had some hesitation as to whether Mr Wakefield’s case could fall within the terms of s4A of the 1995 Act; but it was not part of LR’s case that the adjustment Mr Wakefield sought could not, as a matter of law, be regarded as falling within the duty under s4A of the Act.  At best the decision in Archibald did not support his case that the appointment process, so far as he was concerned, for the TM post should have not involved an interview.

Conclusions
121.	We have not gone through all of the grounds and sub-grounds in the Notice of Appeal; nor have we considered, in this judgment, all of the authorities to which we were referred, some of which (and all of those sent to us as authorities on which Mr Wakefield sought to rely) are familiar to us but set out principles which do not inform the issues which we have had to resolve or do not add to the material to which we have expressly referred.  We have, however, considered the principal issues which arise in this appeal; and our conclusion, based on the reasons we have sought to expound above, is that the Tribunal’s judgment that LR had failed to comply with their duty to make reasonable adjustments has, in a number of respects, been demonstrated to have been perverse and/or in error of law and cannot stand and must be set aside.  LR’s appeal must be allowed for the reasons we have set out.  

122.	Accordingly we must next decide whether we should remit Mr Wakefield’s claim to the Employment Tribunal for rehearing or whether, in this case, we should substitute for the Tribunal’s judgment a decision that Mr Wakefield’s claim be dismissed.  We have considered this issue anxiously; and, having done so, our conclusion is that we should not remit this case for a rehearing.  

123.	We have of course been guided by the principles set out by the Court of Appeal in O’Kelly v Trusthouse Forte Plc [1983] ICR 728 at 764 C, namely that we cannot substitute a decision for that of the tribunal if it is an open question how the tribunal would have decided the matter had they directed themselves correctly.

124.	As is, however, suggested by implication at page 764 F-G in the judgment of Sir John Donaldson MR, where a tribunal’s conclusions have been found on appeal to have been perverse i.e. conclusions to which no reasonable tribunal could have come, substitution rather than remission is more likely to be appropriate.  What is decisive, in our judgment, is the role played in the Employment Tribunal’s judgment by the conclusions which have been found to have been perverse.  In this case the Tribunal’s conclusions as to the effect of Miss McMorrow’s advice was, as we have said before, pivotal to the Tribunal’s ultimate decision that LR had failed to make reasonable adjustments by insisting on oral interview.  We set out again what the Tribunal said at paragraph 3.8:
“A full understanding of the content of that report is vital to our decision in this case.”
But the Tribunal’s conclusion as to the meaning of that report was one which no reasonable tribunal could have reached.  Miss McMorrow’s words cannot be read as supporting a case that there should have been no oral interview or no oral interview unless it was not reasonably possible to dispense with one.  We have addressed above the ancillary issue as to the work history, on which the Tribunal did not base their decision in any event.  There is no doubt that the Respondent did make the recommended adjustments to the interview itself.

125.	In addition the Tribunal’s conclusion that there was no oral content to the TM post has also been demonstrated to have been perverse.  

126.	Accordingly in our judgment the Tribunal would, had they not made the errors which we have found to exist, have had no alternative but to find that LR were not obliged, in order to comply with their s4A duty, to dispense with an oral interview.  We therefore allow the appeal and dismiss Mr Wakefield’s claim.

127.	We should add for the sake of completeness that, if we had considered that there should be a remission:

1)	That remission would have had to have been to a fresh tribunal.  Applying the familiar principles in Sinclair Roche & Temperley v Heard [2004] IRLR 763 the Tribunal’s decision was flawed in crucial respects; and in view of the nature of those flaws and the nature of the language used by the Tribunal it would clearly be unjust for this case to be remitted to the same tribunal.

2)	We were asked on behalf of LR, if we decided to remit to a fresh tribunal, to remit to a different region of the Tribunal.  The basis for that request was that this case must have been the subject of discussion between the members of the Employment Tribunal at Newcastle-upon-Tyne and LR were, as a result, concerned as to whether full justice could be seen to be done if the case was remitted to be heard in Newcastle.  LR expressed their willingness to pay for any extra expenditure which Mr Wakefield might incur if the remitted hearing took place elsewhere, for instance by way of travel expenses, hotel expenses etc.

3)	We drew Ms Proops’ attention to the fact that Mr Wakefield had no notice of this request; and she agreed that, if we were to consider this request at all, Mr Wakefield should be invited to provide us with his written submissions upon it.  However (i) if we had ordered a remission we would not have acceded to LR’s request.  We cannot accept that it is not possible to convene a tribunal which has no compromising knowledge of this case; and Mr Wakefield is prima facie entitled to have his case heard in the tribunal local to his home and not to have to travel and even to stay away overnight from his home area.  If the Regional Employment Judge turned out to be unable to find an untainted tribunal, he could and no doubt would take the necessary steps; that would be a matter for him. But (ii) in any event these issues do not arise; we do not order a remission.