Appeal No. UKEAT/0252/09/DM 

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 January 2010

Before
HIS HONOUR JUDGE SEROTA QC
MR C D EDWARDS
MR P GAMMON MBE

MISS A M ASHMAN	APPELLANT

SAINSBURYS SUPERMARKETS LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MISS A M ASHMAN
(The Appellant in Person)	
For the Respondent	MISS G ROBERTS
(of Counsel)
Instructed by:
Sainsbury Supermarkets Ltd 
(Legal Services)
33 Holborn
London 
EC1N 2HT	

SUMMARY
PRACTICE AND PROCEDURE: PERVERSITY
Perversity appeal failed on facts.

HIS HONOUR JUDGE SEROTA QC
Introduction
1.	This is an appeal by the Claimant, Miss Anne-Marie Ashman, from a decision of the Employment Tribunal at London (Central) dated 10 February 2009 after a four-day hearing.  The hearing was heard by Employment Judge Grewal and two lay members.  The Employment Tribunal concluded that the Claimant had been unfairly dismissed and although it made a basic award in her favour it declined to make a compensatory award because it found the Claimant would have been dismissed fairly on the grounds of capability. 

2.	The matter came before HHJ Peter Clark on the sift and he initially disposed of this matter under Rule 3(7) of the Employment Appeal Tribunal Rules of Procedure on 19 March 2009.  The Claimant took the matter under Rule 3(10) and it came before Burton J.  Burton J sent limited grounds to a preliminary hearing on 11 June 2009 and made an order under the Employment Appeal Tribunal’s Burns/Barke procedure seeking further information from the Employment Tribunal.  On 18 September 2009, the Employment Judge responded to the Burns/Barke request and the matter came before HHJ Hand QC and Professor Corbey and Sir Alistair Graham on 21 October 2009.  The matter was then referred to a full hearing.  We have been shown this morning the transcript of Judge Hand’s decision.

The Factual Background
3.	We now turn to the factual background which we have largely taken from the decision of the Employment Tribunal.  The Claimant is disabled as a result of having the misfortune to suffer from repetitive strain injury.  It is right to say that on occasions her disability has been such that even turning on her computer, let alone using a mouse and keyboard has caused her discomfort.  But the extent of her discomfort is well documented and we need say little more about it.  

4.	The Respondent is a well known national retailer.  The Claimant was initially employed as an accounts clerk and her employment began in 1995.  It was in April 2000 that she was diagnosed suffering from RSI as we shall call it which was undoubtedly aggravated by working with a keyboard and a mouse.  In November 2000 the Respondent outsourced its finance IT department to a company known as Accenture and there was a TUPE transfer of the Claimant’s employment to Accenture. 

5.	At the time the Claimant was employed by Accenture, various work assessments were carried out.  There were various adjustments.  In February 2005, after an occupational health report had informed the employer that the Claimant could carry out normal duties but her upper limb pain was aggravated by large volumes of work and working under pressure, various adjustments were made to her working practice and there were a number of reports that were bespoken in relation to her position.

6.	In October 2005 she was warned of the risk of possible redundancy because of the reduction of duties associated with her role.  On 27 April 2006 the Respondent took back the IT employees from Accenture in house and the Claimant’s employment was transferred, therefore, back under the TUPE regulations and in any event from 27 April 2006 she has been employed by the Respondent.  The role that she was filling, while with Accenture, was a role which was now carried out in the Respondent’s procurement administration section to which the Respondent attached the Claimant.  It was aware of her RSI and of the need for her to do work that was not within short timescales or intensely repetitive.  She was initially deployed on a billing process in relation to certain recently novated capital BT contracts.

7.	On 20 July 2006 she emailed the IT Finance Manager to whom she reported, Mr Patrick, to the effect that her role was causing her discomfort and asked if alternative work might be found.  A DSE work station assessment was procured and various adjustments put in place.  On 23 August 2006 she saw the Occupational Health Advisor, Miss Wiseman.  At this time the Claimant was suffering an acute flare up of her RSI and there was a report made available from her GP recommending that she refrained from using a keyboard for two weeks.  

8.	On 14 September 2006 Miss Wiseman told the Claimant that as she was susceptible to recurrence of her symptoms, Miss Wiseman wanted to approach her GP for a full medical report so the Respondent’s Occupational Health advisors could advise the Claimant’s managers.  She was asked to sign a consent form consenting to Occupational Health assessing her medical records, but the Claimant refused.  She took the view that Accenture had obtained a number of reports in May or June 2005 and, therefore, she was not prepared to agree.  However, in the absence of this consent form the Respondent’s Occupational Health advisors felt they were unable to provide further advice on the Claimant’s condition and the impact it had on her abilities to carry out her work.

9.	From September 2006 until January 2007 the Claimant was given whatever work was appropriate to her condition within the procurement administration team but the Employment Tribunal found that this was insufficient to keep her occupied full time, although of course she was paid in full.  

10.	In February 2007 she met with Mr Patrick and Miss Wiltshire of the Respondent’s Human Resources department to explore what role she might undertake that would accommodate her acute RSI and to explore the possibilities of finding a role outside finance.  Miss Wiltshire made it clear to the Claimant, the Employment Tribunal found, that if no appropriate role could be found, as a last resort a procedure for dismissal on medical grounds might be invoked.  There were continued efforts thereafter, however, to accommodate the Claimant by obtaining new software and, indeed, on a number of occasions software was obtained and then upgrades of that software that might enable the Claimant effectively to work without or with only the most limited use of a mouse and keyboard.  Going further into the future, at this stage, we note that those attempts to find some form of voice activated software were never sufficient to accommodate the Claimant’s disability. 

11.	At the time of which we are speaking, in early 2007, the Claimant expressed interest in roles outside procurement administration including roles within Sainsbury’s Bank.  But she continued to suffer discomfort and no appropriate post could be found for her.  She continued to be under utilised because of the constraints on the tasks she could carry out, but she continued, as the Employment Tribunal has recorded at paragraph 29, to attend work every day on full pay.  The Employment Tribunal noted there was very little work that she actually could do.

12.	On 7 June 2007 the Claimant attended a meeting with Mr Richard Dickson, the head of the Respondent’s IT central services, to review the possibility of further adjustments and to review the position in relation to the search for alternative posts.  The Claimant was warned that if no further adjustments could be made that would enable her to carry out her work effectively full time or that no alternative post could be found, again dismissal on grounds of capability, that is medical grounds, would have to be considered.  

13.	The Claimant at that time was accompanied by an experienced trade union representative, Mr Durant.  The Claimant said that she felt discomfort on a daily basis and so far as the work that the post entailed she was only able to do less than 10%, 9% we think is the figure that was given, without discomfort.  Many of the roles the Claimant had sought entailed working either with Excel or PowerPoint and she could not accommodate such work.  She was interested in work that could be carried out using a process known as scripting, a process using voice activated software.  This, it was considered, might assist the Claimant.  

14.	Mr Dickson said that as the Claimant’s medical condition had deteriorated it was necessary or appropriate to obtain a further medical report.  Thereafter, the Human Resources Department regularly discussed and looked at the possibility of alternative roles and the Claimant expressed interest in certain banking posts, but unfortunately, when she was assessed for these posts she failed to meet the appropriate benchmark target.

15.	There were discussions with an independent organisation called Access Made Easy about the possibility of scripting roles and the Claimant was given the option of pursuing scripting roles in a number of positions, but she chose to limit herself to procurement administration.

16.	She was then asked if she would sign an AMRA form and we now refer to the finding made by the Employment Tribunal at paragraph 35.  The AMRA form was a form of consent for Occupational Health to access the Claimant’s medical records.  The Claimant was not prepared to sign the form although she did consent to the Respondent contacting Dr Axford, a consultant rheumatologist who had provided a report for Accenture in 2005.  She also spent two days with an AME representative, Miss Webb, working on scripting.  

17.	On 2 August 2007 she again met Mr Dickson.  She was, on this occasion, also accompanied by Mr Durant and Mr Patrick was also present.  The Claimant was confident that with the assistance of AME, she could effectively, by use of scripting, carry out any role in the finance department.  She was unhappy at remaining in the procurement administration role but Mr Dickson concluded that this was the only realistic option.  

18.	There was a discussion about the Claimant’s unwillingness to sign the AMRA form and of the possible consequences of her refusing to do so.  She did sign the AMRA form but she qualified the form, limiting her consent to a report on RSI only.  As a result the occupational health physician wrote to her to say it was not acceptable to him and in order for him to provide proper advice to the Claimant, it was necessary for the Respondent to consult the Claimant’s GP on her wider health.

19.	On 9 August 2007 a further meeting took place with Mr Dickson when the progress of scripting was discussed and he made it clear that he did not want the Claimant’s future to be totally reliant on the success of scripting, so the search for alternative roles should continue.  Later in August there were investigations as to whether the Claimant could undertake a role as a buying assistant because another RSI sufferer had fulfilled this role using voice activated software known as Dragon.

20.	The Employment Tribunal noted that by the end of August there were barely any duties the Claimant could carry out without feeling discomfort.  She said, and I quote, “Logging on to the PC in the morning was enough to cause [her] discomfort as was answering the telephone repeatedly”.  In early September Mr Patrick and Miss Wiltshire advised the Claimant to consult her GP to see if she was fit to work and to work shadow only, not to work herself until she had clearance from her GP.  

21.	On 30 October 2007, the Claimant met Mr Dickson together with her representative and Mr Patrick and Miss Parton of the Respondent’s Human Resources Department.  She reported that scripting had not improved the situation as even with scripting she needed to use the keyboard something like 30% of the time and this caused her discomfort.  She did not consider that further adjustments were possible and Mr Dickson considered in those circumstances she could not continue in the Budget role (the Procurement Administration Department had been renamed the Budget Department), because it was causing her discomfort.  It was left that the Claimant would continue to seek an alternative role and Miss Wiltshire would also continue her efforts to find one.  Later Mr Patrick met the Claimant and advised her to consult her GP because no work was available that did not entail the use of a keyboard and mouse.

22.	It was at this point in time, round about the autumn of 2007, that the Respondent considered that the transfer back of its IT division from Accenture had bedded down and it wanted to review staff numbers.  There was a review of Mr Patrick’s team that led to the Respondent considering reducing its headcount.  On 31 October 2007, the Claimant was notified that she was one of three staff affected and she was placed in the pool for possible redundancy.  The Claimant took the view that she should not be in the pool because she, in fact, had not been working in the Budget review team.  Mr Patrick pointed out that was the role in which she was employed.  Even if she was excluded from that particular pool, she would still be at the risk of redundancy in a floating role.

23.	Attempts to find an alternative role for the Claimant continued.  On 12 November, a further meeting took place attended by the Claimant, Mr Patrick and Miss Parton where it was clear that no suitable vacancies had been identified and all the roles that had been investigated by the Respondent and by the Claimant involved the use of a keyboard and mouse.  There were certain roles the Claimant would not consider because they were based either in Coventry or in Streatham.

24.	On 14 November 2007, the Occupational Health physician suggested that the Claimant should be examined by an independent specialist to assess her fitness to work.  However, the Claimant would not sign the consent form until the Occupational Health advisor wrote a letter setting out the reasons for seeking such advice.  Miss Wiseman attempted to explain to the Claimant the reasons, but the Claimant insisted the reasons be given in writing and she would then decide.  Miss Wiseman wrote a letter explaining the reasons why a full health assessment was required on 3 December and asked the Claimant to consent.  The consent form, the Employment Tribunal, found, was never returned.

25.	On 3 December the Claimant was called to a meeting and informed that her employment would terminate on 25 February by reason of redundancy unless an alternative role could be found for her by that date.  From 19 December, the Claimant was off sick as a result of surgery.  She, and the Respondent, continued to look for alternative posts.

26.	The Employment Tribunal found that the Respondent’s redundancy terms were more generous than the statutory minimum and she, in fact, received a sum of £9,771.09 under the redundancy scheme and the Employment Tribunal was satisfied that the Respondent considered the Claimant would be better off financially if she were to have been made redundant rather than dismissed for capability.

27.	The Claimant began these proceedings and it was anticipated that she would also make a claim for disability discrimination on the basis that the Respondent had failed to make reasonable adjustments.  On 2 July, the parties had agreed at a case management discussion that a medical report was necessary.  The parties had gone so far as to identify an expert, principally, but not entirely to deal with this claim.  However, the Claimant did not pursue that claim and there is a most important record of a case management conference held on 15 October by Employment Judge Sigsworth which we have at page 42 of our bundle.

28.	The case management discussion was attended by the claimant and by a solicitor, Mr Coffey, acting for the Respondent.  It was noted that the telephone case management discussion had been held as there had been difficulties and little movement in the obtaining of medical evidence and disclosure of medical records.  It was not necessary for the Employment Judge to go over the details of this because the Claimant had decided to withdraw her reasonable adjustments claim rather than give consent to any further disclosure of medical records.  She maintained she had given full disclosure of her occupational health records and the records that were available to the Respondent’s Occupational Health advisors at the time of the redundancy and incapacity processes, and at the date of her dismissal.

29.	The order continues in these terms: 
“Thus, the claims that move forward to a hearing on 4 November 2008 are the unfair dismissal claim and the Claimant’s case under the Disability Discrimination Act that she would not have been selected for redundancy but for her medical condition and therefore the dismissal was unfair and discriminatory.  Her case is that she would always have refused to disclose further medical evidence to the Respondent if they had asked for it before her dismissal and in the course of the redundancy process.” 

30.	That order was sent to the parties on 23 October 2008 and there was no challenge raised to that order.

31.	Now, we turn to the decision of the Employment Tribunal.  The Employment Tribunal, at paragraphs 3(1) and 3(4) correctly directed itself as to the law in relation to unfair dismissal and as to the relevant provisions of the Disability Discrimination Act 1995.  It also directed itself correctly as to the reverse burden of proof provided for in discrimination cases and such cases as Madarassy v Nomura International [2007] IRLR 246.  It then set out the facts as we have set them out ourselves and its conclusions started at paragraph 56.  

32.	Firstly, the Employment Tribunal concluded that the dismissal could not properly be regarded as a dismissal on the grounds of redundancy because the Respondent’s post, albeit she had not been able to carry out the work, still remained in place.  Therefore, technically there was no redundancy situation on 25 February 2008.  It followed that her dismissal was unfair.

33.	The Employment Tribunal had this to say:
“The reason that the Claimant was dismissed is as set out above and, that is, that the Respondent knew that she did not want to do that role and that it would have had to dismiss her in any event for capability.  As we have indicated, part of the reason was that the Respondent thought it would be kinder to the Claimant to dismiss her for redundancy in that she would be financially better off as a result of that.” 

34.	The Employment Tribunal went on to reject disability discrimination on the facts and there was nothing to engage the reverse burden of proof.  It then turned to deal with issues of remedy.  It made the basic award, which we have referred to, and held that this award should be made without any deduction on the grounds of contributory conduct nor was it possible for credit to be given for any payments that had been made against the basic award which was calculated as being £4,620.

35.	The Employment Tribunal then went on to consider the compensatory award.  It noted that the Claimant had barely worked for two years.  A dismissal on the grounds of capability, it found, was inevitable.  Since 25 February 2008, despite the adjustments that had been made and despite the Claimant and Human Resources seeking alternative roles, no roles had been found.  The Claimant had remained on full pay although she had been able to contribute very little to the work of the department.  

36.	By October 2007, when the redundancy process started, it was clear from the discussions and the meetings the Respondent had with the Claimant at that time, it had already come to the end of the road and dismissal on the grounds of capability was inevitable.  Although the Occupational Health doctor had suggested getting independent specialist advice on 14 November 2008, the Claimant had not signed the consent document for that:
“We are not satisfied that the Claimant would have given consent for that and even if she had, we are not satisfied that she would have consented to the specialist having access to all her GP records and in the absence of that it would have been difficult for the specialist to be able to properly advise the Respondent.  Furthermore, on the basis that the Claimant had had the condition for a number of years and that it had not given any indications in the past two years of improving, we think it is unlikely that a specialist would have concluded either that the Claimant was capable of undertaking her role at that time or that she would be so capable in the very near future.” 

37.	In those circumstances the Employment Tribunal was satisfied on all the evidence that the Respondent would have dismissed the Claimant on the grounds of capability on or indeed before 25 February 2008 if it had not, in fact, gone down the redundancy route.  In those circumstances, no compensatory award was made.

38.	The original notice of appeal contained a large number of allegations which were in effect abandoned at the hearing before Burton J and the notice of appeal, as redrafted by counsel, who appeared on her behalf under the ELAA Scheme, raised three points.

39.	The first point that it is said that the finding of the Employment Tribunal at paragraph 61 was perverse, that the Claimant would not have given consent for a medical report and that even if she had she would not have consented to the specialist having access to all her GP records and that, in the absence of that, it would have been difficult for the specialist to be able to properly advise the Respondent.  It was said that the Claimant’s evidence was that she did not provide the consent because it was no longer required in the context of her alleged redundancy.

40.	The second ground of appeal is that the Employment Tribunal improperly speculated on the likely course of such medical advice when the only proper course in considering remedy was for there to have been medical evidence to consider the likely course of the Claimant’s continued employment, with appropriate adjustments to accommodate her disability; also in the light of her willingness to permit a medical report on the basis of appropriate medical disclosure.

41.	The third ground of appeal was that the findings made in paragraph 61 were perverse and that they were findings that no Tribunal could reasonably have made in that a significant and relevant matter of evidence was overlooked or rejected in the findings made.  That is said to be a statement to the effect, by the Claimant, that she did not provide a medical report because she was told it was no longer necessary in the redundancy process.

42.	It is most unfortunate that the Claimant’s skeleton argument and indeed her submissions today have ranged very much wider and in many instances the Claimant is simply seeking to refer to parts of the evidence, to re-argue the merits of her case and that is impermissible even on a perversity appeal.  It is not for the Employment Tribunal to revisit evidence where the conclusion of the Employment Tribunal was supported by evidence it accepted in an attempt to argue that the Employment Tribunal should have accepted other evidence.

43.	The various questions were referred back to the Employment Tribunal as we have mentioned under the Burns/Barke procedure.  In particular, Burton J asked whether any evidence had been given in relation to a statement by the Claimant in her witness statement that she had not provided the consent for medical records because she had been told as the redundancy procedures were being gone through it was not necessary.  

44.	The answers from the Employment Judge were not altogether helpful.  He had no note of the Claimant giving evidence on that issue, that when Miss Parton was asked whether she had said it, she said, “I don’t remember saying to the Claimant we didn’t need consent to the referral because we were going to make her redundant”.  She went on to say that she could not recall that the Employment Tribunal had reached any conclusion on the issue and suspected their view might have been it was not a crucial issue because they concluded even though the Claimant had not been told it was unlikely she would have given her consent based on the facts that she had not done so between 14 November and 12 December, the date of the meeting which she claimed she was told this, and even if she had given her consent it would have been limited consent on the basis that since August 2007 she had not signed a consent form that was not limited.

45.	We need to refer briefly to the law, this being a perversity appeal.  We do not wish to add to the number of authorities on the approach of the court in perversity appeals.  We shall limit ourselves to citing the well known passages in the judgment of Mummery LJ in the case of Yeboah v Crofton [2002] IRLR 634.  What he had to say at paragraph 14 was when the principal ground of appeal is, as here, perversity of the decision of the fact-finding Tribunal: 
“There is an increased risk that the appellant bodies’ close examination of the evidence and the findings of fact by the Employment Tribunal may lead it to substitute its own assessment of the evidence and overturn findings of fact made by the Employment Tribunal, only the Employment Tribunal who hears all the evidence first hand.  The evidence is available to the Employment Tribunal and to the Court of Appeal or on appeal on a question of law is always seriously and incurably incomplete.  Much as one or sometimes both of the parties would like it to be so an appeal from an Employment Tribunal is not a retrial of the case.  The scope of the appeal is limited to consideration of questions of law which, it is claimed, arise on the conduct of the proceedings and the decision of the Employment Tribunal.  The legal points must of course be considered in the context of the entirety of the proceedings and the whole of the decision but with an awareness of the limitations on the court’s competence to question the evidential basis of findings of fact by the Employment Tribunal.  It is a rare event for the appellant body to have all the documents put in evidence in the Employment Tribunal.  No official transcript of the oral evidence exists.  If an order is made for production of the Chairman’s notes it is usually on a selected basis and noted to the particular grounds of appeal which should always be particularised on a perversity challenge. Most important of all, none of the witnesses give oral evidence on appeal.”  

46.	Later in the judgment, Mummery LJ said this: 
“Such an appeal ought only to succeed where an overwhelming case is made up 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.  Over the years there have been frequent attempts consistently resisted by the Employment Appeal Tribunal to present appeals on facts as questions of law.  The technique sometimes employed is to trawl through the extended reasonable Employment Tribunal, selecting adverse findings of fact on specific issues in which there was a conflict of oral evidence and alleging without adequate particular supporting material or even proper grounds these particular findings in fact are perverse, therefore, the overall decision is perverse.  An application is often made to obtain the notes of evidence made by the Chairman in the hope of demonstrating the notes are silent or incomplete on factual points; that the findings of fact were not, therefore, supported by the evidence and a question of law accordingly arises for the determination of the Employment Appeal Tribunal.  Inevitably, there will, from time to time, be cases which an Employment Tribunal has unfortunately erred by misunderstanding the evidence, leaving it to make a crucial finding of fact unsupported by evidence or contrary to uncontradicted evidence.  In such cases, the appeal will usually succeed but no appeal on a question of law should be allowed to be turned into a rehearing apart from the evidence by the Employment Appeal Tribunal.  I am of course well aware that this is easier said than done, especially when [as here] neither side was legally represented on the first level of appeal.  As the Employment Appeal Tribunal was well aware, unrepresented litigants and understandable problems separating questions of law from proof of fact and in distinguishing the making of legal submissions from submissions of fact even giving evidence in the course of submissions.  Lord Justice Brooks said, ‘In my judgment, this case reveals the dangers that lurk in the path of an Appeal Tribunal which has no jurisdiction to hear appeals on fact and which allows itself to be lured into a factual investigation founded on wholly unparticularised allegation, perversity with no assistance other than that which the enbaffled lay litigants were able to give the Tribunal themselves’.  In our court we benefitted greatly from the help we were accorded by Miss Monaghan, although she was retained to appear for Mr Yeboah she had an enormous amount of help both to the court and enabling us to find our way around over 20 lever arch files to understand what happened and what did not happen.”

47.	We do not need to refer to authority to say that an Employment Tribunal is perfectly entitled to make secondary findings of facts and to draw inferences from the primary facts it found.  Secondly, the Employment Tribunal cannot intervene where the factual conclusion of the Employment Tribunal is permissible on the evidence before it, however much the Employment Tribunal may itself have taken a different view.

48.	The Claimant’s first ground of appeal in her submissions and in her skeleton argument is to challenge the finding that the Claimant would not have consented to giving access to all the medical records.  She has taken us through material which she says supports her case.  Secondly, she submitted that the Employment Tribunal, as we have said, had improperly speculated as to the likely effect of medical advice and, further, that the finding that the Claimant would have dismissed her for capability by 25 February was perverse.
 
49.	The Respondent obviously seeks to rely heavily on the authorities related to perversity and, in particular, Yeboah v Crofton which we have cited.  It has to be said that the Respondent, as is to be expected, strongly relied upon the concession made before Employment Judge Sigsworth on 23 October 2008.  Furthermore, it is pointed out to us that at no time in her evidence which was before the Employment Tribunal did the Claimant ever say that she would have consented.  

50.	These matters are set out fully in the submissions made, written submissions made by Miss Taylor at paragraphs 11.1 and 11.2 and 12.1 and 12.2.  We feel bound to say that we think these submissions are unanswerable.  It is extremely difficult to say how one could possibly characterise the Employment Tribunal’s decision as perverse when, firstly, the Claimant never sought to argue or to give evidence that she would have consented to a full medical examination.  She never did, nor did she ever agree to the disclosure of all her medical reports, neither during the course of her employment nor during the course of the proceedings.  She had made it clear to the Employment Tribunal in the passage which we have already referred to during the course of the case management discussion that she would always have refused to disclose further medical evidence to the Respondent if they had asked for it before her dismissal and in the course of the redundancy process.  

51.	It seems, in those circumstances, that ground one is, in our opinion, virtually unarguable.

52.	So far as the second round is concerned, the conclusion by the Employment Tribunal, it seems to us, is based on common sense and is logical.  There is no evidence to suggest the contrary.  If one looks, one sees that the Claimant was warned not only by Miss Wiseman (see Employment Tribunal decision at paragraph 16) but also by the Occupational Health physician, that without full access to her records, proper advice could not be given.  This is not a speculation but this is a proper inference from the evidence before the Employment Tribunal.  Furthermore, the Claimant at any stage during the proceedings could have sought to provide medical evidence to the contrary to show that, in fact, she would have been capable of carrying out her role, but she consistently refused to do so.

53.	So far as the third ground of appeal is concerned, and that is that the Respondent would, in any event, have dismissed the Claimant on the grounds of capability, this is supported by ample evidence.  The Employment Tribunal was entitled to have regard to the totality of the evidence including whether or not the Claimant would co-operate in providing medical reports.  

54.	It is apparent from a reading of paragraph 61 of the Employment Tribunal’s decision that the Employment Tribunal had, in fact, had regard to all of the evidence.  That is what the Employment Tribunal has said.  The Claimant was clearly incapable of carrying out her role.  There was little work that she could do, as found by the Employment Tribunal, and as the Claimant had herself conceded (see paragraph 43 of the decision) all reasonable adjustments had been carried out.  There were no alternative roles that could have been carried out by the Claimant without entailing discomfort (see the findings at paragraph 48) and she had been warned on a number of occasions that unless adjustments could be found, or some alternative role found, dismissal on medical grounds, if not inevitable, was a definite possibility.  Had the Respondent not decided, in perhaps a misguided sense of taking a favourable decision to the Claimant, to dismiss her on the grounds of redundancy, there is ample evidence that justified the Employment Tribunal’s decision that she would have been dismissed on medical grounds by February 2008.

55.	We, finally, would say this.  This is not a case in which the Respondent’s treatment of the Claimant in relation to attempting to find her alternative posts and finding alternative adjustments can be criticised.  It seems to us, as it seemed to the Employment Tribunal, that the Respondent went out of its way to assist the Claimant, even to the extent of employing her when she was working at her most limited capacity for some two years.  It is only because the Respondent considered that the Claimant might be better off were she to be dismissed for redundancy that she was not dismissed on grounds of capability which would have led to her receiving less compensation.  

56.	In those circumstances it seems to us that all three grounds of appeal must fail and the appeal, therefore, stands dismissed.