Neutral Citation Number: [2016] EWCA Civ 633

Case No: A2/2015/0427
IN THE COURT OF APPEAL (QUEEN’S BENCH DIVISION)
ON APPEAL FROM THE Employment Appeal Tribunal

Royal Courts of Justice
Strand
London, WC2A 2LL

Thursday, 14 April 2016

Before:

LORD JUSTICE SALES

- - - - - - - - - - - - - - - - - - - - -

Between:

	MAKUCHOVA	
Applicant	
	- and -		
	
GUOMAN HOTEL MANAGEMENT (UK) LIMITED

Respondent	

- - - - - - - - - - - - - - - - - - - - -

DAR Transcript of
WordWave International Limited
Trading as DTI Global
8th Floor, 165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7404 1424
Official Shorthand Writers to the Court

- - - - - - - - - - - - - - - - - - - - -

The Applicant appeared in person

The Respondent did not appear and was not represented

- - - - - - - - - - - - - - - - - - - - -

Judgment
a.	LORD JUSTICE SALES:  
2.	This is a renewed oral application for permission to appeal from a decision of the Employment Appeal Tribunal dismissing an appeal from a decision of the Employment Tribunal promulgated on 4 September 2013.  The application has been presented by Ms Makuchova in person with commendable focus and brevity.  Ms Makuchova has explained very clearly what she sees as the defect in the decisions in the tribunals below.

3.	Ms Makuchova was employed by the employer for a period of about ten years in the restaurant and hotel business.  In March 2012 she was diagnosed with an incipient degenerative condition of the spine which caused her significant problems at work.  There were discussions with the employer as to whether adjustments could be made to her existing job in such a way as would have enabled her to continue in that post.  It was clear that she could not continue without adjustments being made.  

4.	The issue which emerged between her and the employer was whether any realistic adjustments could be made to the job which she carried out.  A report was obtained from Dr Philippa Beatson-Hird, an occupational physician.  In the relevant part Dr Philippa Beatson-Hird said:  

i.	“It is my opinion that she is likely to struggle with a return to her substantive role due to the requirement for prolonged standing and carrying what are described as heavy items.

ii.	She may be able to manage to stand for an hour at a time followed by a short period of rest but she would struggle with standing for an entire shift.”

5.	Against that background her employer offered Ms Makuchova a return to work with breaks after each hour.  Ms Makuchova was not persuaded that the job was realistically feasible for her to carry out with such a level of adjustment.  She pressed the employer for different adjustments in the form of a redeployment to other roles.  

6.	The parties remained in dispute over this and in the end Ms Makuchova was dismissed in March 2013.  She then commenced proceedings for unfair dismissal on the basis that her employer had breached its duty under section 20(3) of the Equality Act 2010 to make reasonable adjustments to cope with a disability that she had.  

7.	The Employment Tribunal, whilst regarding Ms Makuchova’s position in relation to the adjustments offered to her as being understandable, nonetheless considered that reasonable adjustments had been offered by the employer. The adjustments offered could have been tried out in practice and further adjustments made if found not to be suitable; but on the face of the medical reports received there was a serious prospect that they would be found to be suitable and sufficient if carried through in an appropriate manner.

8.	The Employment Tribunal was referred to the case of Archibald v Fife Council [2004] ICR 954, a case in which a road sweeper was physically unable to do her old job and it was simply incapable of adjustment, but the tribunal distinguished that case (see paragraph 55) since in the present case there was at least a possibility on the medical evidence of the claimant being able to do her own role with suitable adjustments, and the reason why this did not go forward was that the claimant would not attempt them and try them out.

9.	Ms Makuchova appealed to the Employment Appeal Tribunal and was given leave to pursue this aspect of her case.  Her appeal was heard by Singh J in the Employment Appeal Tribunal on 11 December 2014.  However, he dismissed the appeal on the basis that in his assessment there was no error of law on the part of the Employment Tribunal.  He concluded that the Employment Tribunal had been entitled to distinguish Archibald in the way that it did.  Since reasonable adjustments on this view had been offered in respect of Ms Makuchova’s existing job, there was no wider obligation on the employer to offer her different jobs.  

10.	Ms Makuchova now seeks permission to appeal to this court.  Her application for permission to appeal was dismissed on the papers by Vos LJ.  He said:  

i.	“There is no real prospect of success on appeal.  The EAT’s judgment and reasons are compelling and correct.  The duty under section 20(3) of the Equality Act 2010 is only to make reasonable adjustments to avoid the disadvantage to the employee, which can be achieved by making reasonable adjustments that, objectively judged, enable the employee to return to an existing job.  There is no duty to find an alternative role unless the employee cannot return to the old role with the reasonable adjustments having been made.  The ET and EAT were entitled to form the view that the appellant could return to her existing role with the proposed reasonable adjustments.  That was a factual decision for the ET, which it properly made on the basis of the evidence.  There is no point of law raised by the proposed appeal.”

11.	Despite Ms Makuchova’s best efforts today to persuade me that there would be a real prospect of success on appeal, I have come to the same conclusion as Vos LJ, essentially for the same reasons, that there is no real prospect of success on appeal and there is no other compelling reason why permission to appeal should be granted, and accordingly this application is dismissed.

12.	Order:  Application refused