“6.4 … This is described as an involuntary jaw jerk or muscle spasm. [The claimant] interchangeably referred to the myoclonic seizure as an “absence” seizure. He used this term because, for a split second, he may experience a moment of apparent unconsciousness and sometimes this may manifest in momentary confusion, alexia and dysphasia. In the moment of such a seizure, words he would ordinarily be able to read and understand become difficult to comprehend. We find the duration of these events to be that of a split second, … taken from his consultant’s description. They require him to gather his thoughts before being able to continue with the task in hand. To put the scale of the seizure into context, [the claimant] said he would be surprised if anyone would notice, including a person with whom he was holding a conversation. 6.5 [The claimant] confirmed there was no inherent disadvantage arising from a myoclonic seizure beyond the momentary forgetfulness … and that in themselves they do not interfere with his ability to work. The significance of myoclonic seizures is that they are an indicator of how his brain is responding to the reading stimuli. The more frequent and intense the myoclonic seizures become, the greater the risk that he may be moving towards a tonic-clonic seizure which is to be avoided. Faced with that situation, the clinical advice is to remove the stimuli by simply stopping reading which might require little more than looking away from the words or sometimes taking a break. These measures allow the effects of the stimuli to subside. In terms of the scale of these control measures, they themselves may occupy an equally short period of time and may coincide with the natural variation in tasks being performed either at his work or in his private life.”
“6.6 … not put on the basis of a disability arising from mental health although [the claimant] was absent for many months with stress and depressive symptoms. His neurologist also had previously recorded a longstanding history of anxiety and depression unconnected with PRE. On the evidence we have seen in this case we find that PRE is not the cause of [the claimant’s] stress, anxiety and depression and we find the two are unrelated. We do, however, accept that being stressed may well mean his awareness of myoclonic seizures are heightened and may be intensified. It is important to record that that is the way the claimant puts the relationship between stress and PRE. It is also important to emphasise that we are not asked to decide this case on the basis of a disability arising from stress, anxiety or depression and we have not done so. That is not how it has been put, argued or defended.”
“6.9 … the best evidence was that which came from [the claimant’s] consultant neurologist. …That recommendation was limited to “occasional breaks from reading off a computer screen”.”
“6.10 … the scale of the likely disadvantage in any given situation is therefore low and the adjustments necessary to reasonably address it adequately are likely to be of similar measure.”
“7.6 … [the claimant] had said he might need additional time to read through documentation. Shortly after his appointment, [the claimant] sent an email to his Manpower contact letting them know of his condition of PRE but there were no implications or potential disadvantages raised as a result of this. We find no adjustments were discussed, requested nor any disadvantages anticipated by either party.”
“7.6 … Significantly, … the information was not passed on to the respondent and there was nothing thereafter that could reasonably have alerted the respondent to the possibility of anything causing disadvantage to [the claimant]. [The claimant] accepted the respondent was not aware of what little communication there was on the issue between him and Manpower.”
“7.11 … continued in his role as he had before, working well and without any apparent disadvantage or need for adjustments. …”
“7.21 … he did not derive much pleasure from the work itself and … the nature of conflict resolution can be draining, even if one is good at it. …”
“7.25 … a likely contributor to work related stress for an individual who was, at best, indifferent to this area of work but at least competent in his original demand area. The ... additional demand areas were new to [the claimant] and, although there was thorough training, it must have felt to him like starting the job all over again.”
“7.44 The report that was sent following this consultation focused on the value of a DSE and stress risk assessment which was already in hand … It made no reference to PRE. We accept the reason was as given by Mr Milligan when the following year he was asked to respond to [the claimant’s] subsequent grievance. He said how it was not a current problem and he did not regard it as related to the issues being raised by [the claimant]. He stated that the issues raised did not relate to reading but the job role and devising a plan related to addressing those stressors. He said he was asymptomatic at the time and he did not consider any adjustments were necessary. [The claimant] agreed in evidence that it was reasonable for the respondent to accept this as suggesting he was not suffering any issues relating to PRE at the time.”
“7.51 ... We find it hard to understand why, if PRE was a feature of the initial causes of the absence as alleged, it was not reported as such on the fit notes. It can only be that this did not feature in any discussion between [the claimant] and his GP or, at least, that the GP did not regard it as causative. We note that when the GP was invited to contribute to the occupational health advisers reaching a final clinical assessment explicitly in the context of what was then known about his PRE, the GP still described the reason for absence as being “depressive episode secondary to work stress” and that he had been seen several times since to renew his sick note due to stress which he reports is caused by difficulties with occupational health”
“7.61 … neither Occupational Health nor the trade union representative raised PRE as a specific reason for [the claimant’s] continued absence. We are unable to reach a finding that the relationship between stress and PRE was stated in the manner that is alleged. We do accept, however, that it was raised and was expressed as a potential symptom secondary to the work-related stress in that being stressed can aggravate the symptoms of PRE. We do not accept that [the claimant] put it the other way around, that is, that lack of adjustments for PRE was the cause of his mental health problems or reason for his absence.”
“7.72 … He recorded the headaches which he felt were related to the work situation. In respect of his epilepsy, he reported: [The claimant] has not had any major seizures for many years and indeed has only ever had two in his life. He still gets the jaw jerks when reading and talking, perhaps associated with a very brief second interruption of awareness. He can actually read much better on screen than on paper as this seems to cause fewer jerks. He finds that taking a break from using the screen is a good way of settling this down, …” [The claimant] has not had any major seizures for many years and indeed has only ever had two in his life. He still gets the jaw jerks when reading and talking, perhaps associated with a very brief second interruption of awareness. He can actually read much better on screen than on paper as this seems to cause fewer jerks. He finds that taking a break from using the screen is a good way of settling this down, …”
“7.80 … comfortable with all of the actions that had been agreed and appreciated the support.”
“7.87 … He saw no value in any future review of the adjustments. We found that to be an unreasonably inflexible position particularly in circumstances where he was not even prepared to try the adjustments during the initial phased return.”
“7.92 … We find this to be a highly supportive scheme allowing an additional period of time during which [the claimant] would simply be “acclimatised” to the normal expectations of working life. We cannot over state just how basic these expectations were. This was a gradual plan to get [the claimant] used to nothing more than getting out of the house and to work; turning up on time; engaging with his colleagues; socialising; catching up on developments in the business and matters of that nature. It was a plan which would take place over four weeks before he then embarked on the original four-week return to work plan. It was a period during which it was understood the workplace assessments by access to work and others could take place. There was, therefore, a period of around eight weeks planned before any review would take place of the effectiveness, either way, of all the permanent adjustments that had by then been planned to be put in place.”
“7.109 … This letter set out the recent history and the previously agreed return to work plan together with the plan for exploring further support. It recorded the attempt to engage with the GP to inform the occupational health position. It set out in detail the adjustments that had previously been agreed to support both a four-week phased return to work and the initial work conditioning. We record that the letter is the culmination of various points of face to face and written communication within which the respondent had informed [the claimant] that it was prepared to put in place measures of the nature that we are now tasked with assessing as failures to make reasonable adjustments, specifically including issues of additional and flexible breaks, uninterrupted paperwork time, focusing on limited areas of business, ongoing support and reviews to identify additional support. Against that background, [the manager] then set out the crux of the issue which was now a warning about what would happen in the future if he did not return to work. She said:– As reasonable attempts have been made to resolve the dispute regarding your fitness to work and no new medical information was presented by your GP in your medical report, you have been deemed fit to return to work with the above adjustments in place. It is therefore my expectation that you return to work on19 March 2018 on the return to work plan previously agreed with you. Failure to return to work on19 March 2018 would result in your absence being viewed as unauthorised and as a potential disciplinary matter.”
“7.114 … gives an insight into [the claimant’s] present intention not to return to work and is consistent with the state of affairs that had existed over the previous five months whereby whenever it appeared that a plan had been agreed for his return to work, rather than test it, a new challenge create [sic] a new obstacle to any return to work. It also highlights a separation between [the claimant’s] own thoughts and feelings and the complaints being expressed on his behalf through the grievance and other correspondence apparently originating from [the claimant]. It follows we find nothing that the respondent could do would have resulted in [the claimant] returning to work. It is inevitable that this employment relationship would have soon come to an end.”
“7.121 .. It is necessarily a lengthy document running to 22 pages. As to the disciplinary allegations, she found that [the claimant] was fit to return to work and that all the adjustments contended for were there to be implemented on his return and had been made clear to him that they would. She accepted that if there had previously been any doubt about that, it was put beyond doubt in the discussions on12 March 2018 which had been put in writing on13 March 2018 . She expressed her concern that [the claimant] had not demonstrated a willingness to return to work and was concerned that his accounts of earlier discussions about PRE had not been supported by those he said he had spoken to about it. Her conclusion was that against that background his continued absence amounted to gross misconduct and he was dismissed with effect from15 June 2018 .”
“8.3 The respondent has relied on an aim of efficient absence management to ensure consistency and quality of service for the respondent’s customers. We are satisfied that is a legitimate aim. … 8.4 The something arising relied on in this case is sickness absence. There is no doubt that [the claimant] was absent from work. We have found the reason for that absence was his stress and depressive symptoms and not his PRE. Whilst [the claimant’s] level of stress can have a bearing on how he experiences the symptoms of PRE, we are clear in our findings of fact that the absence did not arise in consequence of the PRE but because of other factors, including the changes to [the claimant’s] work following the reorganisation of the business to a complaints centre. That is a fundamental and fatal conclusion to claims of unfavourable treatment. Nevertheless, so far as it is possible to do so we have gone on to consider the remaining elements of each allegation.”
“8.8 … The reason for his dismissal was the employer’s view of his conduct in his refusal to engage with the measures put in place to assist in his return to work. That was in circumstances where the employer was not only of the view that it had made sufficient steps to set up the necessary adjustments to support him back to work to such an extent that made it reasonable to insist on him returning to work, but those steps had at various times during the absence apparently been agreed by [the claimant]. There were a number of stages during the 10 months’ period of sickness absence where it appeared that there was agreement for a package of adjustments to support a return to work which he then felt unable to engage with. There was no sanction in October, or November or any of the other points before the respondent had reasonably satisfied itself that reasonable adjustments were there to be implemented. There is nothing that explains why sickness absence should be the reason at 10 months (or even 7 when the disciplinary process was started) but not 4, 5 or 6 months. Something else was operating on the mind of the employer. In our judgment, it was the refusal to engage in the return to work process.”
“8.9 … we are satisfied that the treatment of dismissal at that time was proportionate. It occurred after approximately 10 months; about 9 months after the meeting to explore barriers to return to work; for around 6 months or more the occupational health advice had been that he was fit to return to work with the package of adjustments; the employer and occupational health were alert to his PRE and took this into account and the decision to dismiss was reached only after a particularly thorough investigation into his grievances. Against that background, the alternative of simply allowing his sickness absence to continue indefinitely was not an adjustment we could say would have been a reasonable one to make, particularly as by then [the claimant] had expressed a negative view of returning to work on more than one occasion and his personal view, unadvised by Mr Parson’s drafting or Miss Kaur’s trade union advocacy, was that he wanted substantial compensation from the employer. For those reasons, if our primary conclusions are wrong, we are satisfied that the respondent had made available all reasonable alternatives [sic] to supporting [the claimant] back to work. We are satisfied that the treatment was therefore the least discriminatory and therefore a proportionate means of achieving the aim of efficient absence management to ensure consistency and quality of service for the respondent’s customers.”
“9.14 … The significance of the continued sickness absence is such that what was thereafter put in place formed part of developing a managed programme of measures to assist [the claimant] return to work. As he never actually got to a point where he returned to work, where these adjustments could engage with any disadvantage caused by the disability itself, we are assessing the reasonableness of those measures as a whole and as part of a phased programme which was subject to review. We accept the thrust of Mr Gillie’s submission, relying on NCH Scotland v McHigh EATS 0010/06 that the time to consider the duty is when there is a clear return to work date but with some qualification. We take the view that where adjustments are part of the solution to getting an employee back to work, there has to be at least a reasonable plan to implement the necessary reasonable adjustments.”
“9.20 … We accept that reading is a trigger for myoclonic seizures and may intensify when under stress. To the extent that these occur during any reading, they are momentary and are not said in themselves to cause any inherent disadvantage. To the extent these are a disadvantage of the PCP of reading in the workplace, we have concluded they do not pass the threshold of substantial. So far as the disadvantage manifest in the employment relationship, there was no material detrimental effect arising on [the claimant’s] ability and performance in his role. However, so far as the disadvantage may manifest in a personal sense, the frequency and nature of myoclonic seizures is still transient but it serves as an indicator to the prospect of a tonic-clonic seizure before it arises. We accept that a tonic-clonic seizure is a serious matter. Reading does not inevitably cause such a seizure but, by the very nature of the condition, it does increase the risk of such a seizure occurring. That is enough to amount to a substantial detriment.” 47.4 Further found that the respondent did not have knowledge of the disadvantage thus identified before 18 October (wrongly recorded as September in the ET reasons) 2017 and could not reasonably have been expected to have such knowledge. 47.5 Identified the adjustments contended for by the claimant as being: additional breaks; reducing his performance expectations; providing text reading software; giving extra time to do the work; providing a Bluetooth headset. Reaching the following conclusions in respect of those adjustments: “9.23 We do not accept that the text reading software and the provision of a Bluetooth headset are reasonable adjustments. The question of reasonableness engages two scales. On one side are factors such as the cost or disruption to the employer of implementing the adjustment, the effect on others, and the extent to which it might create further disadvantages etc. We accept they carry minimal weight in this example. On the other side of the scale is the extent to which it would address the disadvantage in question, either to remove it or to substantially mitigate its effect. We have been unable to understand how this could remove reading altogether. As the trigger for myoclonic seizures could be found in shorter episodes of reading from screen and reading from paper, we have nothing to suggest that the text reading software would, in itself, have any meaningful effect. However, if the cost and disruption of implementing was minimal, the benefits also only have had to be minimal to make it an adjustment that was reasonable to make and it may have formed part of a wider package of adjustments, the sum of which was reasonable. In this case, the bottom line is that the respondent did not refuse to make this adjustment and was more than prepared to explore the scope for such auxiliary aids or technological solutions. Time was planned to be available to explore the efficacy of these measures with involvement from Access to Work during either the period of work conditioning or the phased return itself. [The claimant] never reached a point of starting his work conditioning and was never in the workplace at a time when the duty would otherwise have arisen. Ultimately, there has not been a failure to make the adjustment. 9.24 Similarly, we are satisfied that additional breaks, additional time to do work and reducing performance expectation were all ready to be in place on [the claimant’s] return to work. [The claimant] never reached a point of starting his work conditioning and was never in the workplace at a time when the duty would otherwise have arisen due to his continued sickness absence for stress and depressive symptoms. He was therefore never exposed to the disadvantage at a time that the respondent was under the duty to make the adjustments.”
“(1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities. …”
“(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”
“(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. …”
“(1) A failure to comply with the first, … requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. …”
“A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know… (b) that an interested disabled person has a disability and is likely to be placed at the substantial disadvantage referred to in the first, second or third requirement.”
“If an employer’s agent or employee (such as an occupational health adviser, a HR officer or a recruitment agency) knows, in that capacity, of a worker’s or applicant’s … disability, the employer will not usually be able to claim that they do not know of the disability and that they therefore have no obligation to make a reasonable adjustment. …”
“… Where a principal has a duty to investigate and make disclosure, the principal may be imputed not only with facts which the principal knows but also with material facts that relevant agents might have been expected to tell the principal.”
“if an employer has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment, it will be very difficult for them to show that the treatment was objectively justified for the purposes of a discrimination arising from disability claim.”
“… decisions are not to be scrutinised closely word by word, line by line, and that for clarity’s and brevity’s sake [ETs] are not to be expected to set out every factor and every piece of evidence that has weighed with them before reaching their decision; and … what is out of sight in the language of a decision is not to be presumed necessarily to have been out of mind. It is our duty to assume in an [ET’s] favour that all the relevant evidence and all the relevant factors were in their minds, whether express reference to that appears in their final decision or not …”
“i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong. ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached. iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it. iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him. v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable. vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.”
“… did he ever talk PRE NS: mentioned, didn’t know what was, asked to explain, he said if reads too much may fit but he knew what needed to do like look away from screen to prevent + said it didn’t impact at work. I recom[ende]d he speak to Panna [at Manpower] to see if any support needed. … [the claimant] said he chased it up a few times NS I only remember 1 convo re this, he said didn’t impact so we never went … back to it … So he never came back to chase up? NS: no.” … [the claimant] said he chased it up a few times … So he never came back to chase up? NS: no.”