F Ntakibirora Mahoro v The Northern Care Alliance [2025] EAT 85

[2025] EAT 85Case No EA-2022-001343-BA
EMPLOYMENT APPEAL TRIBUNAL
Venue Rolls Building, Fetter Lane, London, EC4A 1NLDate 12 June 2025
Before
HIS HONOUR JUDGE JAMES TAYLER
Between
MRS F NTAKIBIRORAMAHOROAppellantTHENORTHERN CARE ALLIANCERespondentMRS F NTAKIBIRORA MAHORO Appellant- and –THE NORTHERN CARE ALLIANCE Respondent
DANIEL MATOVU (instructed by Direct Access) for AppellantJAMES BOYD (instructed by Horwich Farrelly Limited) for RespondentHearing Hearing date: 5 February 2025
JUDGMENT
[1]This is an appeal against the judgment of Regional Employment Judge Franey, sitting with lay members, after a hearing on 16, 17, 18, 21, 22 and 23 February, 21 and 22 April, 23 May and in chambers on 7, 8 and 9 June 2022. So far as is relevant to this appeal the Employment Tribunal dismissed complaints of disability discrimination and unfair dismissal. The judgment was sent to the parties on 14 July 2022.[2]The parties are referred to as the claimant and respondent as they were before the Employment Tribunal.[3]The claimant has a degree in Biomedical Sciences. The claimant was employed by the respondent as a Medical Laboratory Assistant (“MLA”) on 17 August 2004. She became a Biomedical Scientist (“BMS”) in October 2007. She was promoted to be a BMS team leader at band 6 in June 2014, subject to terms and conditions set out in a statement of 12 June 2014.[4]There are approximately 50 members of staff in the respondent’s Microbiology Service. It is split into sections. Each section has a manager at band 7 who is a BMS. Within each section there are BMSs at band 5, and some at band 6 who are specialist BMSs or team leaders. The team leaders undertake some management roles as well as laboratory work.[5]There a number of rooms including, reception, the urine section,the automation lab (where blood cultures are processed, and urgent samples such as spinal fluids analysed),the serology lab (where bloods are tested), the containment level 3 laboratory (for high risk work), a room where a mass spectrometer device (“MALDI”) is used to identify organisms, the main lab (including sections for gynae, enterics, tissues and wounds). Work is done at benches in the main lab that are higher than a normal office table.[6]BMSs are rotated across the different sections to ensure they do not lose their skills.[7]The core hours of the Microbiology Service are 9.00am to 5.30pm on weekdays and weekends. There are some early shifts from 8.00am to 4.30pm, and there would generally be a late shift from 11.30am to 8.00pm. There is an on-call service overnight.[8]The claimant has a long-term spinal condition that affected her mobility and caused her significant pain.[9]From December 2015, staff were trained on a new MALDI machine. The claimant was not on the list for MALDI training prior to her scheduled operation. Kate Ryan, the Operational Manager,accepted that the fact the claimant was going to be off for some time after her operation was part of the reason for not allocating training for her at that time.[10]After her operation the claimant was off sick and returned to work on a phased basis working half days on 29 November 2016.[11]MALDI training was not arranged on her return.[12]On 12 December 2016, the claimant submitted a flexible working application for “Medical reasons (avoid prolonged hours post spinal surgery)”. The claimant stated that she was currently working all three shifts, with on-call and weekend working, but wanted to work six hours per day, if possible 8.00am-2.30pm including a 30 minute break, 30 hours per week over five days. She said that was more practicable than 9.00am-3.30pm because she wanted to collect her children from school and avoid childcare costs.[13]On 22 December 2016, Ms Turner, the Specialist OH Physiotherapist, produced a report after a workstation assessment. Ms Turnersupported the claimant’s application to reduce her hours to avoid excessive strain on her back and recommended a new chair, with improved lumbar support, and that the claimant should be removed from on-call duties.[14]On 3 January 2017, Ms Ryan agreed that the claimant could work six hours a day for five days a week, leaving at 3.30pm, until a decision was made on her application.[15]On 4 January 2017, Sue Fraser, the Microbiology Service Manager refused the flexible working application. The claimant was offered an alternative arrangement of working 18.75 hours per week over 2.5 days.[16]The claimant appealed by letter dated 30 January 2017, asking for any arrangements between 9.00am and 5.30pm that allowed six hours working with a 30 minute lunch break, not necessarily starting at 8.00am. The appeal hearing commenced on 10 February 2017 before Jackie Elliott, the Pathology Directorate Manager, and Anita Finn, the HR Business Partner. The appeal could not be concluded.[17]Kath Briody, the Trust’s back care advisor, sought to find a chair for the claimant with castors so that the claimant could move it around freely, rather than “glides, rounded feet which enable a chair to be pushed or dragged across the floor, which was not appropriate for the claimant because of her back condition. Ms Briody sought a chair with Brake-Loaded Castors (“a BLC chair”), castors that would not move under load.[18]On 10 February 2017, Ms Briody sent an email to Ms Fraser stating that the majority of companies she had contacted did not offer a high chair, needed to work at the lab benches, with castors due to the risk of falling. One company would supply a chair with glides with a separate set of five castors which could be used to replace the glides, against their advice.[19]The claimant tried out a BLC chair in the office where she was working. The BLC chair had a fabric covering that would not be suitable for lab work, which requires a wipe clean vinyl covering.[20]In February 2017, Ms Briody found out that one of the two companies used by the Trust to supply chairs would not supply a BLC chair due to health and safety concerns.[21]On 28 March 2017, an unsuitable chair was delivered with glides rather than castors. The chair had armrests which prevented it being moved close enough to the terminal on the lab bench.[22]On 29 March 2017, the claimant resumed lab work for the first time since her operation. She was able to work for three days before complaining of increasing pain. The arm rests had been removed but the chair had to be moved around on the glides. The claimant felt that the heavy workload meant she could not afford to get up from the chair as much as she needed to mobilise.[23]The claimant was taken off lab work and put on paperwork pending assessment by Ms Briody. On 12 April 2017, Ms Briody recommended the provision of a BLC chair. Two BLC chairs were ordered that were due to arrive within a month. The chair provider, Wagstaff, sent an email on 20 April 2017 stating that a disclaimer would have to be signed. Senior managers considered that signing such a disclaimer would put the Trust at undue risk.[24]The claimant attended an occupational health assessment on 24 May 2017.Dr Prasad reported that the claimant was medically fit to work 30 hours over a four day period with a Wednesday or Thursday off and that swivel chairs would help the claimant to continue in her role, although that would still leave the issue of whether a chair with castors was safe. The claimant had tried a swivel chair without castors that she did not think was suitable.[25]The claimant was subject to an appraisal cycle which meant that she could expect an end of year review in the middle of each calendar year. A review was conducted by Sam Fish, a Senior Biomedical Scientist, on 29 June 2017. Ms Fish told the claimant that because she had been off sick and had missed her end of year review the previous year it would be a mid-year review.[26]The claimant made her own enquiries about a BLC chair. On 11 August 2017, the claimant identified a company, Oxford Seating, that would supply a BLC chair for use at lab bench height without a disclaimer having to be signed. However, the company’s website stated: “Oxford Seating does not accept liability where a user specifies freewheeling castors on hard floors or any type of castor for intermediate or high gas lift use. We recommend the use of glides for both high and intermediate chairs, although we are prepared to supply castors fitted to the chairs at the liability of the customer”.[27]On 22 August 2017, Ms Ryan told the claimant that she would be required to return to normal lab duties when 15 newly ordered swivel chairs were delivered, which she would not have to move because there would be one at every workstation.[28]The flexible working appeal reconvened on 12 September 2017. The outcome of the appeal was provided in a letter dated 21 September 2017. Hours of 8.00am-2.30pm, with a 30 minute break, were not possible because the claimant would be a lone worker from 8.00am which was not acceptable, and because management could not use the remaining 7.5 hours to recruit another person. There would be an impact on service delivery. The letter stated that the 18.75 hours per week post was no longer in existence and so now was not an option. The Trust did not regard the signing of a disclaimer as appropriate.[29]The claimant returned to work in the lab on a phased basis on 9 October 2017 in the “gynae” section. The claimant used a swivel chair with no castors. Colleagues were asked to collect racks of plates for the claimant to avoid her having to lift them.[30]Four weeks into the phased return, once working full days, the claimant started to feel increasing pressure in her lower back which affected her walking.[31]Dr Prasad reported on 30 November 2017 that there was now some use of a microscope, leading to pain in the claimant’s neck. He advised that the claimant should have adequate postural breaks and changes in position to help manage her symptoms.[32]On 4 December 2017, the claimant was moved to work on tissues and enterics. Ms Fish accepted that the tasks allocated to the claimant would take longer than 7.5 hours a day. The claimant had a swivel chair without castors, measured for and allocated to her, from the 15 new chairs. She had to ask a colleague to move the chair between the two sections several times a day.Her physical symptoms continued to deteriorate.[33]From early April 2018, the claimant worked only on enterics, but had a range of other tasks allocated to her which did not involve laboratory work.[34]Dr Prasad reported again on 9 May 2018. The claimant was said to be currently fit to continue in her role with adjustments but she should be reviewed towards the end of June 2018. Dr Prasad recommended that all benchwork at the different workstations be assessed for possible adjustments.[35]In late May 2018, Ms Elliott saw a report of an injury at work in a laboratory in Wigan when an employee had sat on a chair with castors which had shot away from under her when she was sitting down, as a result of which she fell to the floor. A risk assessment on laboratory chairs was carried out on 25 May 2018, which recommended that all castors be swapped for glides.[36]On 31 May 2018, the claimant met with Ms Fraser, who said that she was not currently undertaking the work of a band 6 BMS and that her contribution in the lab was “only 1%”.[37]The claimant attended an OH appointment on 3 July 2018. Dr Prasad advised that the claimant should be fit to return to contractual duties at reduced hours within the next 2-3 weeks. He said:
“I would advise that given the change in her condition over the past 6-12 months it would be advisable for her to reduce her hours, possibly between 15 to 20 hours per week, and I would also recommend reviewing flexible hours if this is feasible.”
He said that the claimant should be fit to return to contractual duties at reduced hours within the next 2-3 weeks.[38]The claimant attended a meeting with Ms Fish on 16 July 2018. The claimant alleged that she was “confronted about outstanding paperwork with a deadline of 20 July 2018”. The claimant pointed her finger at Ms Fish and said she did not feel that her health was being taken into account. The meeting ended when the claimant became upset. The claimant went off sick never to return.[39]Initially, the claimant submitted a fit note for stress at work for four weeks from 17 July 2018.[40]The claimant’s treating Consultant Spinal Surgeon, Mr Hassan, prepared a report on 10 August 2018 which recommended an Occupational Therapist review and suggested that a chair with a sloped seat without a back might benefit the claimant.[41]Dr Mijares, an Occupational Health Consultant and Clinical Lead, senior to Dr Prasad, produced a further report dated 24 August 2018. Dr Mijares had concerns about the claimant’s workload, relationships with management (he stated that the claimant felt intimidated, bullied and harassed), and a lack of control over her activities. Dr Mijares queried whether redeployment in another laboratory might be an option. He supported a reduction in working hours permanently to no more than 20 hours per week, working three days in a row with time to recover. Dr Mijares stated that if adjustments could be made, the claimant would be fit to return to work once her current anxiety-related symptoms settled. The report did not refer to seating.[42]The respondent commenced a review under the Long Term Sickness (“LTS”) policy in October 2018. The first meeting took place with Ms Fraser on 11 October 2018.[43]On 7 November 2018, Ms Fraser wrote to the claimant stating that a flexible working request of no more than 20 hours per week had been accepted. The claimant was offered 15 hours per week working two full days, Monday and Tuesday each week, for a 12 month period. The claimant replied on 30 November 2018 saying that this would help, but she would prefer to work 20 hours over three even days of six hours 40 minutes each day.[44]On 31 January 2019, Ms Ryan wrote to the claimant refusing the proposal to work 20 hours per week over three even days. She said that an early finish three days per week would require significant operational, functional and staffing changes which were not possible without a high risk of error and/or delays in the issue of important results, with the potential of patient harm. She gave examples of BMS work which was required in the afternoon up to 5.30pm. The offer to work 15 hours per week over two full days still stood. Ms Ryan offered a later start time of 9.30am to reduce the need for the claimant to travel during peak rush hour.[45]Dr Mijares reported again on 7 March 2019. Dr Mijares said:
“I believe that she would benefit from working her 20 hours distributed in three, four or five days per week.”
Potential adjustments beyond reducing working hours were a reduction of manual handling activities, an ergonomic chair and possibly an elevating desk, and a stress risk assessment. A phased return would be required.[46]On 11 April 2019, the claimant sent an email to Ms Ryan enclosing a fit note that stated that the claimant “May be fit for work if adjustments were made in line with the recommendations of Dr A Mijares, Occupational Health Consultant dated 4 March 2019.”[47]A second long-term sickness meeting took place on 9 May 2019. The claimant suggested that she could use a digital microscope which would allow her to view an image on a screen rather than having to bend forward to look through the microscope itself.[48]An outcome letter was sent on 20 June 2019. Ms Ryan remained of the view that an early finish could not be accommodated. The disclaimer required by the respondent’s chair provider was said to be a considerable concern. The issue of an appropriate chair could be considered by Access to Work.[49]An Access to Work assessment took place on 11 June 2019. A report was produced on 1 July 2019 recommending that four new chairs with appropriate back support should be provided for each of the four different areas in which the claimant worked. Access to Work also recommended a digital microscope. Ms Ryan sent an email to Access to Work on 22 July 2019 stating that the recommended chairs came with castors which created a risk when at lab height. She asked for confirmation that the recommended chair was safe for the claimant with her disabilities when working in the lab, but received no reply.[50]A trial of a digital microscope took place on 22 July, 29 July and 2 August 2019. The claimant went into the lab for those trials. The digital microscope was not considered to be effective by other staff members who tested it. Using the digital microscope would create a high risk of incorrect reports endangering patients.[51]Dr Mijares produced a further report about the claimant on 4 September 2019. He noted the claimant's view that she could return to work if the Access to Work recommendations were implemented and a digital microscope was provided. The claimant said that she could use the temporary chair in the office and return to work not doing microscopy. He said the claimant would not be suitable for redeployment because she was only able to work in her own field. Dr Mijares suggested a phased return.[52]The fourth long-term sickness review meeting took place on 12 September 2019 with Ms Ryan. The outcome was confirmed in a letter of 1 October 2019. A chair with casters was not safe in the laboratory. The claimant could not work solely from one designated bench with a lower chair because of workflow and the positioning of cabinets and equipment. It was not reasonable to ask colleagues to undertake manual handling for the claimant on a permanent basis. Working 20 hours per week over three, four or five days was not possible but 15 hours over two full days was still possible. The digital microscope could not be implemented because it was not safe.[53]The claimant was invited to a Final Long Term Sickness Absence Hearing on 14 November 2019. By a letter dated 18 November 2019, the claimant was informed that she would be referred to occupational health again before a final decision was made. After that had been done, Ms Elliott wrote to the claimant on 21 February 2020, notifying her that a decision had been taken to dismiss her. Ms Elliott stated: You provided a table at the hearing and via email in regards to the range of duties you felt you could undertake with or without adjustments, having reviewed this table and looking at the range of duties you feel you could undertake without adjustments, I do not feel this fits within the scope of your substantive role of band 6 Biomedical Scientist. Kate Ryan at the hearing reviewed the table and provided an overview to the panel on the duties suggested, for example, reception duties on the low benching, which is a band 2 job responsibility. To accommodate the adjustments required, it would mean redesigning the workflow of the department, at present microbiology laboratories are set up in order for the BMS to go to the section where the work is, not the work to go to where the person is. As stated most sections require a degree of microscopy which you will be unable to perform, thus adding this to the duties of already busy BMS staff within the department. Having taken into account all of the information received, I am writing to inform you that it is my decision to issue you with 12 weeks’ notice of the termination of your contract on the grounds of ill health. Your termination date with the Trust will be as of today, 21 February 2020. Your notice and outstanding annual leave will be paid to you. Your annual leave has been calculated as 148.5 hours (20 days). [emphasis added][54]The claimant appealed on 5 March 2020.The appeal hearing took place on 7 May 2020 before a panel composed of David Hargreaves, the Director of Human Resources, and Chris Sleight, the Managing Director of Diagnostics and Pharmacy, with HR support. The appeal was dismissed by letter dated 14 May 2020. The panel concluded that dismissal was reasonable. The claimant’s notice period was extended for a further 12 weeks to 31 July 2020 to enable redeployment to be arranged if possible. The claimant’s employment was terminated on the grounds of ill health on 31 July 2020. The claimant responded and requested a written statement of the reasons for her dismissal pursuant to section 92 Employment Rights Act 1996. As a result of an oversight this request was not dealt with. The decision of the Employment Tribunal[55]The Employment Tribunal dismissed complaints of direct disability discrimination, discrimination because of something arising in consequence of disability, failure to make reasonable adjustments (hours of work, chair, digital microscope, workstation and time off for medical appointments), disability harassment, unfair dismissal, unauthorised deductions from pay, breach of contract and unreasonable failure to provide a written statement of reasons for dismissal. Two complaints that would otherwise have succeeded were found to have been submitted out of time. The appeal[56]The claimant appeals against the dismissal of some of the complaints of failure to make reasonable adjustments (hours of work and chair), discrimination because of something arising in consequence of disability (MALDI training, 2017 mid-year review and dismissal), harassment, unfair dismissal, time limits and unreasonable failure to provide written statement of reasons for dismissal.[57]The appeal was initially considered by Clive Sheldon KC, Deputy Judge of the High Court, who was of the opinion that there were no reasonable grounds for bringing the appeal. The appeal was permitted to proceed at a Rule 3(10) hearing before His Honour Judge Murray Shanks who allowed amended grounds of appeal to proceed. HHJ Shanks considered that the most important aspect was the challenge to the rejection of two of the reasonable adjustment complaints: 1. I was persuaded by Daniel Matovu, who acted for the claimant below and has a good grasp of the detail, that his grounds of appeal were arguable. 2. In particular, he persuaded me that the ET’s conclusions on reasonable adjustments relating to hours of work and the chair had not taken proper account of aspects of the claimant’s case, thus:(a) at paras 271 et seq the ET concentrate only on the original request for a change of hours but fail to consider the more general request the claimant made by email of 30/1/17 which formed the basis of the case put forward at the ET and they failed to deal properly with the position of the two colleagues who worked different hours referred to at paras 277 and 278;(b) the consideration of the chair completely overlooks the possibility of sourcing a BLC chair from a company that did not require a disclaimer which the claimant herself had found (see judgment para 147). 3. His other grounds are either largely contingent on the reasonable adjustments case or appeared otherwise arguable.[58]I shall deal with the appeal against the different complaints separately. The core challenge is to the rejection of the complaints asserting failure to make reasonable adjustments in respect of hours of work and a chair. Having heard oral arguments on 5 February 2025 I concluded that some questions should be asked of the Employment Judge using the Burns/Barke procedure: see Barke v Seetec Business Technology Centre LTD [2005] EWCA Civ 578, [2005] IRLR 633. My order asking the questions was sealed on 13 February 2025. The Employment Judge provided a response on 10 March 2025. The claimant commented on 14 March 2025 and the respondent on 15 April 2025. The claimant provided final comments on 23 April 2025. That process has delayed the finalisation of this judgment.[59]The appeal challenges the decision making of the Employment Tribunal essentially contending that it failed to take account of evidence and/or reached perverse conclusions and/or failed to give adequate reasons.The grounds upon which a decision of the Employment Tribunal can be challenged in the EAT are limited: DPP Law Ltd v Greenberg [2021] EWCA Civ 672, [2021] IRLR 1016. The decision of an Employment Tribunal must be read fairly and as a whole, without focusing merely on individual phrases or passages in isolation, and without being hypercritical. An Employment Tribunal is not required to identify all the evidence relied on in reaching its conclusions of fact. Where an Employment Tribunal has correctly stated the legal principles to be applied, an appellate tribunal should be slow to conclude that it has not applied those principles. Reasons should be sufficient for a party to know, in broad terms, why he won or lost: Simpson v Cantor Fitzgerald Europe [2020] EWCA Civ 1601,[2021] ICR 695, CA paragraphs 29 to 31 and 64. Reasonable Adjustment Digital Microscope[60]The complaint of failure to make a reasonable adjustment by providing a digital microscope failed and is not challenged in this appeal. The Employment Tribunal accepted that the use of a manual microscope exacerbated the claimant's symptoms. Many of the roles of a BMS require the use of a microscope. The respondent concluded that use of a digital microscope would endanger patients. While the Employment Tribunal considered each of the adjustments separately, the fact that the claimant would not be able to use a manual microscope and so a return to work was unlikely to be possible, was a factor that could have been relevant to consideration of whether making other adjustments were reasonable. So, for example, if an adjustment to working hours would not facilitate a return to work because another adjustment, the use of a digital microscope, that would be required for a return to work, is not reasonable (because it is unsafe), it is hard to see how failing to alter hours of work would constitute a failure to make a reasonable adjustment if it would not have had any reasonable prospect of facilitating a return to work. If making an adjustment would have no realistic prospect of facilitating a return to work that could also limit any compensation available. That said the Employment Tribunal chose to analyse each adjustment separately and the respondent has not challenged that approach in this appeal. Working hours[61]The Employment Tribunal analysed this complaint by reference to the agreed list of issues:271. … Issue 2 simply recorded the concession that the Trust applied a PCP of working a full day and that it knew that this placed the claimant at a substantial disadvantage because doing so made her back symptoms worse.272. As for issue 3, we noted that the request made by the claimant in her flexible working application was quite specific. She wanted to work 8.00am – 2.30pm, including a 30 minute break, if possible, for a total of 30 hours per week. She said that option was “more practical” than 9.00am to 3.30pm, because the latter would require her to incur childcare costs.273. The application was rejected by Ms Fraser in a letter of 4 January 2017 at page 420, going into some detail. The claimant could not be the sole person in the lab between 8.00am and 9.00am because of her cardiac condition, and her work would not be completed by 2.30pm so that other staff would have to complete it when they already had other duties to undertake. Broadly, that remained the position even though matters were expanded upon in the claimant's detailed statement of appeal at pages 444-446, and the equally detailed notes prepared by Ms Fraser for the appeal hearing from pages 450 onwards. In particular Ms Fraser in appendix 3 to those documents responded to a document the claimant put forward about lab workflow and bench cover, and set out in some detail why she disagreed with the claimant’s propositions.274. It was clear that this was not an application which was dismissed out of hand: it was given serious and detailed consideration.275. In the light of the contemporaneous documents, and the evidence given orally to our hearing, and noting the provisions of the Code at paragraphs 6.27 and 6.28, we concluded that the adjustment sought by the claimant went beyond what would have been reasonable. This was a busy lab dealing with deadlines and work requiring prioritisation at different times. Delay in completing work could have a direct impact on patient safety and cause delays in other parts of the Trust. The decision that allowing the claimant to finish early on a working day would leave work to be done by others was substantiated by managers. There was a realistic concern about how difficult it would be to recruit a BMS to cover a few hours at the end of each working day, since that was very unlikely to be an attractive working pattern, particularly where there was an acknowledged shortage of BMSs. It meant that allowing the claimant to leave early would create additional work towards the end of the day for staff who had their own workloads to complete, and the concern that this would have a detrimental impact upon the performance of the lab was a genuine and reasonable one.276. We considered the point raised by Mr Matovu that the circumstances of the comparators showed that it would have been possible to have allowed the claimant to work less than full days. Although this allegation was also put as one of direct discrimination (see below), Mr Matovu relied upon these comparators as showing that what the claimant was seeking could reasonably have been done. In his written submission Mr Matovu highlighted two of those individuals.277. The first was Jessica Kervella, a BMS Team Leader at Band 6 who was allowed to work until 5.00pm Monday to Friday in 2015, then to 5.15pm. We did not consider that this assisted the claimant as a 5.00pm or later finish is quite different from a finish at 2.30pm.278. The second individual was Leena Lakhani, a part-time BMS at Band 6 who transferred under TUPE and worked 20 hours per week across three days. Sometime after the transfer her hours were amended to 18 hours per week, finishing at 3.00pm on three days. Ms Lakhani left the Trust in October 2014, about two years after her transfer in 2012. This was some time before the events in this case and it appeared that the working pattern was inherited by the Trust upon transfer rather than one to which it had agreed at the time. Without further details of the circumstances of this period, and the arrangements put in place to deal with it, we did not consider that it assisted the claimant.279. Mr Matovu also suggested that the Trust’s position was inconsistent with offering the claimant 18.75 hours per week instead of 30 hours per week, when they were saying that they were short of BMS staff. However, we concluded that was explained by the fact that the Trust considered that recruiting another BMS to work 18.75 hours per week, rather than a lesser figure, was more likely to be realistic.280. We therefore unanimously concluded that the complaint of a breach of the duty to make reasonable adjustments in the failure to allow the claimant to work part days on a permanent basis between November 2016 and July 2018 by failing to allow the claimant the working pattern she sought in her flexible working application failed. An adjustment of that kind went beyond what would have been reasonable.281. As for the later period from April 2019 onwards, we noted that the position had changed in the sense that for the first time an OH report recommended allowing her to work part days (report of Dr Mijares 24 August 2018 at pages 831-834). Previously the OH advice had not ruled out the claimant working full days.282. However, whether that adjustment could reasonably have been made remained a matter to be determined by reference to the working conditions in the lab, in which respect there had been no material change. The difficulties identified in the flexible working application during 2016/2017 remained.283. When the claimant asked in her letter of 30 November 2018 to work three days of six hours 40 minutes each, that was given detailed consideration by Ms Ryan when that request was refused (page 887). Ms Ryan gave a number of examples of BMS work which was required in the afternoon up to 5.30pm. She said that asking staff to take on additional work after an early departure by the claimant would be unreasonable as it would cause them unacceptable additional pressure and stress, and would likely lead to an increased number of errors which could potentially cause harm to themselves, colleagues or patients.284. The matter was raised again in the long-term sickness review meetings, but ultimately we unanimously concluded that such an adjustment went beyond what would have been reasonable and therefore the complaint failed for this period as well. [emphasis added][62]The core challenge to the dismissal of this complaint is that the Employment Tribunal treated the suggested adjustment as being limited to working with an early finish. The Employment Tribunal had noted that in the flexible working appeal letter of 30 January 2017 the claimant asked for any arrangements between 9.00am and 5.30pm that allowed six hours working with a 30 minute lunch break, not necessarily starting at 8.00am. Mr Matovu stated that the claimant never “resiled” from this position.[63]In response to my question about this the Employment Tribunal replied: 4. In our written reasons we did focus on the original flexible working request for an early finish.We had noted [98] that the claimant asked in her appeal document (page 442) for any 6 hour period over five days, which could end up to 5.30pm, but in our deliberations we accepted Ms Elliott’s evidence that an early finish was the claimant’s primary case because:• It was consistent with the flexible working application at page 413 which asked for 6 hours per day over five days finishing, if possible, at 2.30pm so that the claimant would be able to collect her children from school.• Ms Elliott said in paragraph 18 of her witness statement that at the appeal hearing on 10 February 2017 she became slightly confused as childcare arrangements (wanting to collect her children after school) were the claimant’s primary concern.• In cross-examination Ms Elliott stood by this recollection and said that this was the “main reason” the claimant was unable to work four days of 7.5 hours instead of five days of 6 hours. At the reconvened appeal hearing, as recorded in the outcome letter at page 572, it was understood that the claimant wanted to work five days with an early finish, which would make her childcare arrangements easier. 5. Although our reasons did not expressly address an adjustment of short hours starting late with a finish by 5.30pm each day, part of our conclusion was that management were right to say that reduced hours being worked over four days, not five, went beyond what was reasonable, whatever the proposed hours each day.• Firstly, at [275] we alluded to the fact that it was a busy lab with work requiring to be completed at different times. The management statement of case for the appeal (page 451) asserted that even a late start by the claimant each day would cause delay to patient results.• Secondly, we accepted the respondent’s contention that reducing to 30 hours over five days was not reasonable because recruiting to fill those 7.5 hours spread over five days (a role consisting of 1.5 hours per day) would not be possible. That appeared in the appeal outcome letter at page 572 and we recorded this at [149]. The comments made about recruiting for a few hours at the end of each day made at [275] were equally true of recruiting for a few hours at the start of each day. [emphasis added][64]I have considered the submissions of the claimant and the respondent and the final reply by the claimant. The fact that the claimant had not “resiled” from her suggestion that she could work any hours between 9.00am and 5.30pm that allowed six hours working with a 30 minute lunch break did not mean that the Employment Tribunal could not conclude on the evidence that she really wanted working arrangements that would allow her to leave in time to collect her children from school. Furthermore, although the Employment Tribunal focussed on an early finish, it also concluded that none of the arrangements that the claimant would be prepared to work to would constitute a reasonable adjustment. The claimant has not met the high threshold for establishing perversity. The reasons are more than adequate for the claimant to understand why she lost this complaint. The Employment Tribunal gave sufficient and permissible reasons why the circumstance of Ms Kervella and Ms Lakhani did not assist the claimant’s case.[65]While it was not relied upon by the Employment Tribunal, it would appear that any change in working hours would not have been likely to facilitate a return to her work as a BSM because the claimant could not use a manual microscope without exacerbating her condition. Chair[66]The Employment Tribunal held that provision of a BLC chair was not a reasonable adjustment as it would not be sufficiently safe. The Employment Tribunal held in respect of the first period:294. Against that background we considered whether provision of a BLC chair would have been a reasonable adjustment. Mr Matovu sought to suggest that the real reason for this had nothing to do with health and safety but was simply the requirement to sign a disclaimer. We rejected that because the two things were inextricably linked. The information from Wagstaff and the wording of the disclaimer made clear that it was required because provision of the chair with castors might “render it unsafe”. Similarly, the information later provided by Oxford Seating on the website (which the claimant sent to Ms Ryan at the end of August 2017) made clear that the company would not accept liability if a chair with castors was used in that situation. The decision that the Trust could not order a chair on this basis, where it would be solely liable even if an injury was caused to the claimant or another person due to the chair moving when under load, was one made by the Director of Human Resources, Mr Hargreaves.295. We unanimously concluded that supplying a chair with that increased risk, and the attendant disclaimers of liability by the manufacturer (whether signed by the Trust or not) would have been beyond what was reasonable. That was the position even before the provision of Dr Prasad’s report, although his report confirmed that the BLC chair was not required for the claimant in any event. We unanimously concluded, therefore, that the complaint of a breach of the duty to make reasonable adjustments in the failure to supply a chair with brake-loaded castors failed and was dismissed.296. This position was maintained throughout the claimant’s employment. The decision in May 2017 not to sign a disclaimer was influenced to a minor extent by the incident involving Ms Ashton some seven years earlier which featured in the evidence of Ms Ryan. However, within 12 months there was a further incident in the lab at Wigan which resulted in the approval of a risk assessment preventing chairs with castors being used in the lab. That reinforced the management decision that providing such a chair went beyond a reasonable adjustment. We concluded there was no breach of the duty in this respect. [emphasis added][67]The claimant has not come close to establishing that the decision of the Employment Tribunal was perverse. The reasons are more than adequate.[68]In respect of the second period the Employment Tribunal held:297. The second part of this allegation (issue 7) was about the provision of an ergonomic chair without castors. In the list of issues the claimant relied on the periods from December 2016 to 16 July 2018, and then from 11 April 2019 (when her fit note said she may be fit to return if adjustments were made) to the termination of her employment.298. In fact there was no pleaded case about the earlier period (22 December 2016 to 16 July 2018). The original claim form did not mention an ergonomic chair without castors in the section dealing with chairs, and the point arose only tangentially in the further particulars (page 61) when the claimant mentioned the report from her treating Spinal Surgeon in early August 2018. This in fact recommended a chair without a back and a sloped seat, which was somewhat different from an ergonomic chair.299. The position on the claimant's pleadings was properly reflected by Mr Matovu in his written submissions, because when he addressed the question of an ergonomic chair without castors (paragraph 56 of his submission) he did so from the Access to Work report in July 2019.The reality was that in the period before the claimant went off sick with stress in July 2018 the focus had been entirely upon provision of a chair with castors, and it was only after Dr Mijares provided his Occupational Health report of 7 March 2019 at pages 905-906 that the provision of an “ergonomic chair” was raised as a reasonable adjustment. That informed the fit note from the GP of 11 April 2019 which said that the claimant may be fit for work if adjustments were made in line with that OH report.300. The Access to Work report in July 2019 recommended the provision of ergonomic chairs with adjustable lumbar support, a memory foam seat, adjustable arms and a neck roll. However the chairs recommended came with castors, as was evident from the quotation at page 966. That recommendation concerned Ms Ryan, as the decision had been taken that castors were not suitable for use in the lab at high bench height, and she sought to clarify with Access to Work whether the chair would be safe for the claimant. That was done by telephone and then by email of 22 July 2019 at page 961. There was no response, and therefore the clarification sought by managers before these chairs could be ordered was not provided. 301. It has to be said, however, that the provision of an ergonomic chair with castors as recommended by Access to Work would not have assisted the claimant in her return to work unless she was able to work at a low bench. Mr Matovu recognised this link in paragraph 58 of his written submission. We explained above why we considered that management acted reasonably in ruling out the use of a chair with castors at a high lab bench. We consider below whether it would have been a reasonable adjustment to have provided her with a fixed workstation at a low bench. Given our conclusion that such an adjustment was not reasonable, it seemed to us that this could not be viewed as a failure to make a reasonable adjustment since for working at a high lab bench the ergonomic chair was not suitable. [emphasis added][69]In an amendment to the original grounds of appeal the claimant pleaded that: Moreover, the Tribunal wrongly assumed that the chairs recommended by Access to Work only came with castors (see Paragraphs 300-301 of ET Reasons), having overlooked the fact that a second quotation from the same supplier was for an ergonomic chair without castors, which could be provided as an alternative and was suitable both for a high lab bench as well as regular desk height. [emphasis added][70]In answer to my question about this assertion the Employment Tribunal responded: 6. The claimant’s case on this point was set out in paragraphs 56 to 59 of the claimant’s written submission. It focused on the provision of an ergonomic chair with castors, not with glides. 7. That was in line with our understanding, as recorded at [102], that the claimant's back condition meant that pushing or dragging her chair with glides was not appropriate. 8. As the claimant explained in an email at page 556, and we recorded at [144],that would have been so even if the respondent were to have provided four different chairs for each of the various workstations. The claimant would still have needed to have pushed the chair back or to have moved it forward even while keeping it at the same workstation. 9. We did not understand the claimant to be contending that providing a height adjustable ergonomic chair with glides rather than castors would have been a reasonable adjustment.[71]The Employment Tribunal was entitled to conclude that the claimant wanted a chair with casters. That is why it focussed on the quotation Access to Work had obtained for such a chair. I consider that on a fair reading of the judgment the Employment Tribunal concluded that neither a hight adjustable chair with castors or slides would be a reasonable adjustment. A chair with castors would be unsafe because of the risk of it slipping from under the claimant whereas “pushing or dragging” a chair with slides “was not appropriate”. I do not consider that there was any error of law in the decision of the Employment Tribunal.[72]Although not relied on by the Employment Tribunal or raised as an issue by the respondent, even if an appropriate chair could have been found it seems unlikely that this would have addressed the claimant’s difficulties in using a manual microscope. Discrimination because of something arising in consequence of disability Failure to provide MALDI training[73]The Employment Tribunal held:325. Training on the new MALDI machine had begun in December 2015 and there was a rolling programme. Staff were not all trained all at once. Ms Ryan accepted in her evidence that the claimant had not been trained by the time she went off for her operation in May 2016 in part because managers knew that she was going to be off for a period after that operation. That absence was something which arose in consequence of disability, and it had a material influence on the decision not to provide training at that stage.326. However, we were satisfied that this could not be regarded as unfavourable treatment or a detriment at this stage. The test is whether the claimant could reasonably regard it as unfavourable or detrimental. Regarding it as a detriment was not a reasonable view given that the claimant was going to be off for some time after the operation and not carrying out any work, let alone work which might be done on the MALDI machine. The real issue was the question of whether she would receive the training upon her return, which formed a later allegation and we will deal with it at that stage.327. Because there was no unfavourable treatment in not providing this training for the claimant before her operation, this allegation failed. [emphasis added][74]Discrimination against employees is rendered unlawful by section 39 Equality Act 2010 (“EQA”) 39 Employees and applicants … (2) An employer(a) (A) must not discriminate against an employee of A’s (B)— (a) as to B’s terms of employment;(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;(c) by dismissing B;(d) by subjecting B to any other detriment. [emphasis added][75]The claimant points out that it can be unlawful to discriminate against a person by not affording access to or opportunities for training.[76]To establish discrimination there must be prescribed conduct that resulted in the failure to afford access to or opportunities for training. This claim was of discrimination because of something arising in consequence of disability. Section 15 EQA provides: 15 Discrimination arising from disability (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.[emphasis added][77]Any failure to afford access to or opportunities for training must also be shown to amount to unfavourable treatment. There was no error of law in the Employment Tribunal concluding that there was no unfavourable treatment at the relevant time because the claimant was going to be off work for a significant period. 2017 mid-year review[78]The Employment Tribunal held:334. The claimant was on an appraisal cycle meaning that she had an end of year review in the middle of each calendar year, and a mid year review towards the end of the year. Ms Fish recorded at page 535 that having consulted HR she decided to convert the June 2017 end of year review into a mid year review, because the claimant had not had a mid year review in November 2016 due to only just having returned from her post surgery absence. The end of year review was to be delayed for three months. It was arranged for 29 September 2017.335. It is clear that the reason for postponing the end of year review and converting it to a mid year review was something which arose in consequence of the claimant's disability. Her disability caused her absence from surgery, and that absence caused the mid year review in November 2016 to be omitted, and that in turn resulted in the decision in June 2017.336. The first question for us, therefore, was whether that was unfavourable treatment. On the face of it an employee who had missed a mid year review could not reasonably regard it as detrimental to have an end of year review delayed by three months so that the mid year review could be done first. Mr Matovu sought to deal with this by drawing a link with the pay increment. At pages 506-508 in the bundle there was an exchange of emails between Ms Fish and HR confirming that the claimant was not due to have her pay increment due in June 2017. However, that documentation showed that the reason for the manager not authorising pay progression was that the claimant had had 175 days off sick. It was not that the claimant had not had an end of year review. Although those two factors were linked, in that the absence through disability was part of the cause of both the lack of pay progression and the conversion of the end of year review to a mid year review, there was no causal link between the position on the review and the position on pay. In those circumstances we considered that the claimant could not reasonably regard this as unfavourable treatment. The withholding of the pay increment certainly was, even though it was reinstated in November 2018, but this complaint was not about the pay increment itself. This complaint failed and was dismissed. [emphasis added][79]The complaint in the list of issues was specifically identified as the “postponement of the end of year review meeting”. I do not consider that the Employment Tribunal erred in law in holding that the postponing of the midyear review was not of itself unfavourable treatment. Further, the Employment Tribunal permissibly held that the reason that the claimant did not receive a pay increment was not the delay of the year-end review but resulted from the claimant’s absence. The claimant might have brought a complaint that the decision not to grant a pay increment because of ill health absence was itself discrimination because of something arising in consequence of disability but that was not the complaint before the Employment Tribunal. Furthermore, the complaint verges on the academic because subsequently a decision was taken to grant and backdate the pay increment. Dismissal[80]The Employment Tribunal held:430. We next considered the complaint that the decision to dismiss contravened section 15. It was common ground that it amounted to unfavourable treatment, and that the reason for dismissal (as we found it to be) arose in consequence of disability. The sole question was whether the dismissal was justified as a proportionate means of achieving a legitimate aim.431. The legitimate aim was formulated in the List of Issues based upon page 333 of the bundle, which was a letter from the Trust’s solicitors in March 2021. The legitimate aim was said to be ensuring that its employees could perform their contractual duties, with reasonable adjustments as required, and that they could do so safely. Mr Matovu did not suggest that this aim was not a legitimate one.432. The only issue for us to decide, therefore, was whether the Trust had established that dismissing the claimant was a proportionate means of achieving that aim. We reminded ourselves of the balancing exercise required by Hampson and the provisions of the Code. If that aim could have been achieved in a less discriminatory way (i.e. without dismissing the claimant), the dismissal would not be justified.433. Both advocates recognised that this issue was at least in part linked to the question of reasonable adjustments. Mr Matovu argued (paragraph 121 onwards in his written submission) that the justification defence could not be maintained if there had been a failure to make reasonable adjustments. However, for reasons set out above we concluded that there had been no breach of that duty by the respondent. Insofar as the decision to dismiss was based on the view that the Trust could not reasonably make the adjustments sought by the claimant in relation to working hours, a high chair with castors and/or provision of an alternative microscope, it was on a sound foundation.434. However, Mr Matovu also relied on what the claimant was saying by the time of the final decision, which appeared in the table (first supplied as at page 1022) where she identified roles she said she could perform without any adjustments.435. There were no notes kept of the final LTS hearing on 14 November before Ms Elliott and Ms Chadwick, although there was an outcome letter at pages 1031-1032 which confirmed that no decision would be taken but instead there would be questions put to OH. Ms Chadwick suggested in her evidence that the claimant performed a “U-turn” at the end of the meeting: it began with discussion of the adjustments needed for the claimant to return to work, but it was suggested that the claimant changed her position and said towards the end that she could return without any adjustments. That was recorded in the outcome letter at page 1032 by saying the claimant presented new information about her current health and wellbeing and that she may be able to undertake restricted duties at her Band 6 role without the adjustments. Reference was made to the table prepared by the claimant.436. That resulted in the question being put by Ms Elliott to Dr Mijares on whether the position had changed on the adjustments relating to the chair etc., and whether returning to work without those adjustments would cause a risk to the health of the claimant. In his draft reply Dr Mijares declined to provide any such confirmation. He did not formally provide that advice to Ms Elliott because he understood that the claimant had declined consent to release it. However, the claimant did provide Ms Elliott with the draft reply she had received from Dr Mijares, so his position was known to Ms Elliott.437. That resulted in the email correspondence in January 2020 where the claimant was asked to clarify if she wanted adjustments to return to her substantive position or not. The claimant’s initial response was of 27 January at page 1046. Her position was that she could work on most of the lab benches without the adjustments recommended by the doctors and Access to Work.438. The position was still not clear enough to management and Katie Chadwick emailed the claimant on 29 January 2020 (page 1045) asking the claimant to confirm what adjustments she felt were required to return to work to her substantive role. The reply of 31 January 2020 at page 1045 identified a number of adjustments which had previously been considered, including an ergonomic chair “ideally with lockable castors”, digital microscopy and working at an adjustable or low height bench. The claimant submitted an updated copy of the table (Page 1051) in which she listed as requested all the lab sections that could be worked on without adjustments.439. The claimant’s position was that although adjustments would be required to return to work on some sections, for other sections they would not be required and her view was that working on those sections would amount to fulfilling the duties of her substantive role at Band 6. That is why in her email of 31 January she made the point that she would be “as productive as my colleagues” who did not always have to cover all the benches themselves.440. In response Ms Elliott explained in the dismissal letter, if briefly, that the range of duties the claimant felt she could undertake without adjustments did not amount to a substantive role of a Band 6 BMS. These duties had been discussed at the hearing and she recorded that Ms Ryan had said that the reception duties on the low bench there were essentially a Band 2 role, with the Band 6 BMS role being only supervisory. Further, some of the matters in the left-hand column in the table (benches at which the claimant said she could work without adjustments) were high benches where the same issues would be encountered about a chair with castors and use of the microscope.441. Putting these matters together we were satisfied that, short of replacing the claimant, there was no way of achieving the legitimate aim of having the postholder perform the contractual duties of a Band 6 BMS in a safe manner. The adjustments the claimant would need to perform the role in its entirety went beyond what would be reasonable, and the parts of the role which she maintained she could perform without adjustments fell short of amounting to a Band 6 role. Although the impact on the claimant of dismissal from her Band 6 role was extremely significant, in the absence of a suitable role for redeployment the aim could not be achieved by keeping her in employment with such limitations. There was no less discriminatory way of achieving the aim.442. We were satisfied that the decision to dismiss her was a proportionate means of achieving the legitimate aim, and therefore the complaint under section 15 failed. [emphasis added][81]The claimant contended that if “the grounds relied upon with regard to reasonable adjustments were upheld, this would inevitably affect the justification issue”. However, the appeal in respect of reasonable adjustments has failed. The remainder of the challenge asserts that the decision of the Employment Tribunal was perverse. I do not consider that the claimant comes close to meeting the high threshold for establishing perversity. The Employment Tribunal clearly explained its reasoning and reached a decision that was open to it on the evidence. Harassment related to disability Conversation with Kate Ryan on 8 March 2018[82]The Employment Tribunal held: 377. Before applying the law to this we had to make a factual finding on the discussion in question. 378. We had the benefit of the claimant's log at page 637. This was a difficult discussion.The claimant believed that she had been overloaded with work since December 2017 (a perception which in our view was correct – see above). Ms Ryan had a different view, and this was the first proper discussion between them about the workload position. Although Ms Ryan did not address this matter in her witness statement, which would have been prepared before she saw the claimant’s statement, she was cross examined on this point by Mr Matovu and readily accepted that she had told the claimant that the work she was doing accounted for no more than 2% of the laboratory work. She explained that she was referring only to the laboratory work expected of a BMS, and not to the additional tasks which the claimant had been given to make up her non laboratory work. In response to questions from the Tribunal she clarified that this was just an estimate. We found as a fact that Ms Ryan did tell the claimant on 8 March 2018 that she was only doing up to 2% of the work of a BMS.379. We then turned to apply the law. This comment amounted to unwanted conduct. The claimant did not want to be told that her contribution to laboratory work was viewed in such a limited way.380. The comment was also related to her disability. It was a comment about the restrictions on her capabilities resulting from her disabling condition.381. We concluded that the comment was not made with the purpose of creating a humiliating or offensive environment. This was a difficult discussion between an employee and a manager who had different views of the workload issue. We were satisfied that Ms Ryan was not intending to cause any offence or hurt to the claimant: she was attempting to explain the management perspective on the effect on the department of the restrictions under which the claimant was working.382. We then considered whether this comment had the effect of creating that environment. In deciding that we had to take into account the claimant's perception, the other circumstances of the case, and whether it was reasonable for the conduct to have that effect.383. The perception of the claimant was not as clear as it might have been. Her witness statement described this comment as “hurtful”. However, the log she made at the time (page 637) did not record that comment being made.Nor was there any evidence at the time of the claimant having raised a concern about this comment informally by email, let alone by any formal grievance. We considered that if the comment had been as hurtful as the claimant said it would have featured in the log, which was otherwise scrupulously detailed.384. The other circumstances of the case included that this was a difficult discussion because the claimant and Ms Ryan had differing views about the workload issue. The claimant was unhappy with how she had been treated since December 2017. Ms Ryan was trying to explain to the claimant the management perspective on the impact that her restrictions were having upon the work of the laboratory.385. Finally, we concluded that it was not reasonable for a comment of this kind to have the proscribed effect. The comment was not saying that the claimant was making a 2% contribution overall, with the implication that 98% of her time was worthless. It was saying that the proportion of BMS laboratory work which she could do was very limited indeed. Nor was Ms Ryan saying that the non laboratory work being done by the claimant was worthless, although it may be that the claimant misunderstood this comment. In any event we were satisfied that it was not reasonable for a comment of this kind, given the circumstances of the discussion, to have the proscribed effect.386. We therefore concluded that this did not amount to a contravention of section 26 and this allegation failed. [emphasis added][83]The claimant asserts that the Employment Tribunal should have held that the treatment constituted harassment. There is no challenge to the approach the Employment Tribunal adopted to the legal test. The ground is a pure assertion of perversity. The Employment Tribunal considered this issue with care and reached a decision that was open to it. Conversation with Sue Fraser on 31 May 2018[84]The Employment Tribunal held:387. Dealing firstly with the factual position, this meeting occurred at the end of May 2018 following receipt of the OH report of 9 May 2018 at pages 689-690. The claimant had been restricted to working on Enterics only at the beginning of April, but in this period believed that she was becoming overloaded with other non laboratory work. The meeting was called by Sue Fraser to discuss the OH report.388. There was no management note of this meeting, nor (unusually) any log completed by the claimant. We did not hear any evidence from Ms Fraser. However, it was plain that a comment was made. The claimant gave an account in paragraph 311 of her witness statement, and the comment was itself confirmed by Ms Fraser in her subsequent letter of 8 June 2018 at page 702. The letter said: “…I explained that the role you were now undertaking meant you were reading only one bench which formed only 1% of your contractual duties and the rest of your hours were used to update SOPs and occasional audits. I reminded you that this wasn’t a long-term arrangement because that job did not exist and there was no job description, or need in microbiology for such a role. I said that your contract was a Band 6 BMS which was the role needed by the service.” 389. Our analysis of this was effectively the same as for the previous matter. The comment was unwanted conduct and it was related to disability, but it was not made with the purpose or effect of creating the proscribed environment. Although the claimant took issue with it in her witness statement, there was no evidence of any complaint at the time even though the comment had been confirmed in writing to her. Paragraph 315 of her witness statement showed that she had misunderstood the comment in any event: it was not a comment about the full day work of 7.5 hours which she was doing at the time, but a comment about the proportion of her work which was the laboratory work required of a Band 6 BMS. We were therefore satisfied that this comment either did not have the proscribed effect, or if it did it was not reasonable for it to have done so. This allegation of harassment failed as well. [emphasis added][85]This is also challenged on perversity grounds. As with the previous comment I do not accept that it can be said that the analysis of the Employment Tribunal was perverse. Sam Fish chasing the Claimant for completion of tasks April-July 2018[86]The Employment Tribunal held:391. The thrust of this allegation was contained in paragraph 349 of the claimant's witness statement. This was a period when the claimant considered that she was being overloaded with additional tasks, something which was discussed at the end of year review meeting on 29 June 2018. Some of the items in question had a deadline of 20 July. The claimant thought that the appraisal discussion had resulted in Ms Fish understanding that the claimant needed to be left alone to get on with the outstanding tasks, but she then found that she was being chased up over them.392. For example, on 3 July (page 775) Ms Fish sent the claimant (and others) a spreadsheet showing all the outstanding SOPs that needed to be reviewed. On 4 July (page 803) Ms Fish emailed the claimant alone to ask for an update with progress on the MSDS and kit inserts. On 6 July Ms Fish spoke to the claimant about a Datix matter, and after discussion they agreed to meet on 20 July. On 16 July (page 817) Ms Fish emailed the claimant about the MSDS sheets again. The claimant thought that this was premature given the agreement to meet four days later, and indeed this email immediately preceded the discussion on 16 July which formed the final allegation of harassment.393. It appeared to us that these exchanges reflected the difference in perception between the claimant and her managers. She thought she was being overloaded with too many additional tasks and put under undue pressure to complete them. Managers did not consider that she was overloaded and were keen to make sure that she got through the work in accordance with the timescales with which they had to comply.394. Viewed in that light, we were satisfied that this did not amount to harassment related to disability. The emails and verbal chasing of the claimant were plainly unwanted conduct, but we were satisfied it was not related to her disability. The tasks which the claimant had to do were tasks of the kind that were also allocated to other BMSs, as it evident from the fact that the email with the spreadsheet of 4 July was sent to a number of different people, not solely the claimant. This was just an example of management checking that matters were in hand in accordance with the relevant timescales.395. Further, even if it was related to the claimant's disability, insofar as the claimant had been allocated some of those tasks because she was restricted in lab work, we were satisfied that it was not reasonable for it to have the proscribed effect, taking into account all the circumstances. The emails were not inappropriate in tone. They did not seek to upbraid the claimant or take her to task for not having done the work. They were requests for updates on progress. By this stage the claimant’s perception of the interventions of her managers was coloured by the fact that she felt under undue stress and pressure because of the workload, and therefore she was liable to react to well-intentioned interventions in a way which others might not have done. From the claimant's perspective one can understand how she saw this as inappropriate, unnecessary and tending to create an intimidating environment for her. However, section 26(4) required us to take an objective view looking at all the circumstances, not simply the claimant's subjective perception. This allegation therefore failed. [emphasis added][87]The decision of the Employment Tribunal was properly reasoned on the evidence. I do not consider that on a fair reading of the judgment the Employment Tribunal misunderstood the factual situation as asserted by the claimant. The Employment Tribunal clearly considered a number of emails and there is nothing to suggest that the Employment Tribunal overlooked that one of the emails was sent to the claimant alone as is asserted in the ground of appeal. Unfair dismissal[88]The Employment Tribunal held: 444. The first matter in dispute was the reason for dismissal. The respondent had pleaded that it was a potentially fair reason relating to the capability of the claimant, namely her long-term ill health absence. Mr Matovu argued that this was not the real or genuine reason for the dismissal, saying in paragraph 170 of his written submissions that the real or principal reason was “the lack of adjustments which the employer was unwilling to make”. He suggested that this would, if potentially fair, amount to “some other substantial reason” rather than a reason relating to capability. 445. As indicated in dealing with the preliminary point about dismissal above, we rejected this as a matter of fact and of law. We found as a fact that the reason for dismissal was that set out in the dismissal letter. It was that the claimant was on long-term sick leave, that the adjustments she needed to return to her full role were beyond what it would be reasonable to make, and that the parts of the role to which she could return without adjustments did not amount to the role of a Band 6 BMS. There was no prospect of a return to full Band 6 BMS duties in the foreseeable future. That was a reason which related to the capability of the employee, and it was a potentially fair reason. We therefore moved to consider the question of fairness. 446. The legal framework for most dismissals for long-term sickness absence was summarised above. The three points of importance in most cases are whether the employer can reasonably be expected to wait any longer for the employee to recover, whether the employee has been consulted, and whether reasonable steps have been taken to identify the medical position. On the face of it these three elements were all present in this case. The claimant had been on sick leave since April 2018, almost two years by the time of the decision to dismiss her, and more than two years at the time of the appeal decision in May 2020. She had been consulted during the LTS procedure meetings and had had a fair opportunity to have her say and argue her case to avoid dismissal. The medical information available to the employer included up-to-date information from OH as well as the information from the GP on which the claimant placed great store. The decision to dismiss was delayed in late 2019 whilst a further query was put to OH. 447. Even so, Mr Matovu argued that the dismissal should be regarded as unfair because of nine points which were set out in paragraph 175 of his written submission. We addressed each in turn:(a) The first argument was that dismissal was not by reason of ill health and therefore a reason related to capability. We rejected that for the reasons set out above.(b) The second argument was that it was wrong of the respondent to apply the LTS policy to the claimant when it was not applicable. We rejected that for the reasons set out above. Applying the LTS policy to the claimant was within the band of reasonable responses.(c) The third argument was that the LTS policy had been used as a pretext for terminating employment when the respondent did not have an honest or reasonable belief that the claimant was incapable by reason of her health. We rejected that argument. We were satisfied there was a genuine belief that the claimant was not capable of the full range of contractual duties of a Band 6 BMS without adjustments which went beyond what it would be reasonable to implement, and that the remainder of the role which could be done without adjustments did not amount to a Band 6 role. Further, we were satisfied that both of those conclusions were reached on reasonable grounds. This was not a case where management dismissed the claimant's proposals out of hand: this dismissal was the culmination of a period extending over several years where the adjustments sought by the claimant were investigated and explored, and where management took account not only of the claimant's desired adjustments but also of the impact of such adjustments on the proper functioning of the laboratory.(d) The fourth argument was that the dismissal was in breach of the Equality Act 2010, but we rejected that for the reasons set out above.(e) The fifth argument was the admission by Ms Elliott that the disability policy was not taken into account. It is right to say that there was a failure by the respondent to make express reference to that policy in its decision making, although the LTS policy itself (unlike the Flexible Working Policy) expressly acknowledged the need to take account of disability in clause 5 on page 1414. But as far as the unfair dismissal complaint was concerned, part of the issue for managers to decide at the dismissal stage related to the adjustments, and the OH advice consistently said that the claimant was a person disabled under the Equality Act. It was within the band of reasonable responses to conclude that the adjustments sought by the claimant went beyond what was reasonable even without making reference to the disability policy.(f) The sixth argument was that dismissal could have been avoided by making reasonable adjustments. We rejected the contention that there was any failure to make reasonable adjustments in this case.(g) The seventh argument was that the fault for not making the adjustments lay with the respondent, and that this could not be a potentially fair reason for dismissal. As explained above, this contention was flawed on two points: firstly, there was no “fault” in not making the adjustments as they went beyond what was reasonable, and secondly the reason for dismissal was not that failure in any event.(h) The eighth point was that the appeal failed to cure the substantive flaws in the dismissal because it was only a review, rather than a re-hearing. The problem with that argument for the claimant was that the original decision to dismiss her was not, in our judgment, flawed. The decision of Ms Elliott at the dismissal stage to terminate employment on the basis that the adjustments sought by the claimant went beyond what was reasonable was within the band of reasonable responses, and the decision of Mr Sleight to uphold that decision on appeal was also within the band of reasonable responses. The points of detail about the adjustments sought, and the trial of the digital microscope, were attempts to re-run arguments about reasonable adjustments which we have already rejected.(i) The ninth and final reason given was effectively a summary of the previous points and did not take the matter any further. 448. We noted that Mr Matovu did not pursue any argument about the failure to find an alternative role for the claimant on redeployment. It is certainly correct that the redeployment exercise was bedevilled by poor communication on the part of the respondent. The claimant was not kept up to date about what was happening and the fact that she was still left “in the dark” at the end of July when her extended notice period expired was regrettable. Even after termination there was still a lack of clarity as to what had happened as far as redeployment was concerned. 449. Those, however, were points which did not undermine the fact that the decision to dismiss the claimant fell within the band of reasonable responses. The substantive significance of the redeployment process was that there was no trace of an alternative role as a Band 6 BMS which the claimant could perform. For perfectly understandable reasons she wanted to maintain her professional qualification and HCPC registration and was not pursuing vacancies which did not enable her to do that. There was no evidence from which we could conclude that an employer acting within the band of reasonable responses could have found the claimant an alternative role. 450. It therefore followed that the dismissal was fair; the complaint of unfair dismissal failed and was dismissed. [emphasis added][89]The claimant asserts that had the disability discrimination complaints succeeded this would have had consequences for the unfair dismissal complaint. As the grounds of appeal challenging those decisions have failed that argument cannot succeed. The other elements of this ground are an attempt to re-argue the challenges to the fairness of the dismissal. The decision of the Employment Tribunal was one that was open to it and was the subject of careful and rational consideration. Equality Act Time Limits[90]The claimant stated that this ground is “parasitic upon the potential success of other grounds”. As they have failed this ground also fails. Failure to provide written statement of reasons for dismissal[91]The Employment Tribunal held:459. Section 92(1) gives an employee the right to be provided with a written statement giving particulars of the reason for dismissal within 14 days of making a request. The claimant made such a request on 17 September 2020 (page 1143) and did not receive a reply within 14 days (or at all).460. Was this a failure to provide a written statement? We concluded it was, in the sense that the right to a statement is triggered by the request, to which there was no reply.461. However, we were satisfied it was not an unreasonable failure within section 93(1)(a). The claimant had been given written reasons for her dismissal in the letter of 21 February 2020 at pages 1053-1054. The extension to the termination date to enable redeployment to be explored was confirmed in the letter of 14 May 2020 at pages 1084-1086. Although communication during the redeployment period was poor, by letter of 7 September 2020 it was confirmed that employment had ended on 31 July 2020 as the Trust had been unable to find a suitable alternative. There was nothing more that could have been said about the reasons for dismissal, and the failure to comply with section 92 was not unreasonable. [emphasis added]462. This complaint was not well-founded and was dismissed.[92]Sections 92 and 93 Employment Rights Act 1996 (“ERA”) provide so far as is relevant: 92(1) An employee is entitled to be provided by his employer with a written statement giving particulars of the reasons for the employee's dismissal—(a) if the employee is given by the employer notice of termination of his contract of employment,(b) if the employee's contract of employment is terminated by the employer without notice, or(c) if the employee is employed under a limited-term contract and the contract terminates by virtue of the limiting event without being renewed under the same contract. (2) Subject to subsections 4 and 4A, an employee is entitled to a written statement under this section only if he makes a request for one; and a statement shall be provided within fourteen days of such a request. … (5) A written statement under this section is admissible in evidence in any proceedings. … 93(1) A complaint may be presented to an employment tribunal by an employee on the ground that— (a) the employer unreasonably failed to provide a written statement under section 92, or (b) the particulars of reasons given in purported compliance with that section are inadequate or untrue. [emphasis added][93]Prior to 1993 the predecessor provision to section 93 ERA allowed a complaint where an employer “unreasonably refused” to provide a statement. The provision was amended to allow a complaint where the employer “unreasonably failed” to provide the statement. In Ladbroke Entertainment Ltd v Clark [1987] ICR 585 EAT, a case under the old wording. it was held that there was no unreasonable refusal where an employer forgot to send a statement, having previously agreed to do so, because “mere failure cannot be equated with refusal”. The learned editors of Harvey suggest that: the amended wording allows a complaint where the employer 'unreasonably failed' to provide the statement. It is suggested that 'unreasonable failure' is a considerably wider (and more purely objective) test than 'unreasonable refusal'[94]The claimant relied on Daynecourt Insurance Brokers Ltd v Iles [1978] IRLR 335, an authority under the previous iteration of the provision, in which it was held that an Employment Tribunal had been entitled to find that an employer that had been asked by the Police not to communicate with a former employee who was subject to criminal investigation had unreasonably refused to provide a statement of reasons for dismissal because the employer should have explained to the employee that they were not able to respond to the request. The claimant asserts that Daynecourt establishes that any request for a statement of reasons for dismissal must be considered properly, so that failure to provide a statement by oversight is bound to be unreasonable. I do not accept that Daynecourt is authority for that proposition. The Employment Appeal Tribunal stressed that “this is a very simple question of fact entrusted to the decision of the Industrial Tribunal” and that the test is “objective”.[95]It was open to the Employment Tribunal in this case to conclude that although the respondent failed to respond by oversight it was not unreasonable because all of the information had already been provided.[96]A written statement provided in response to a section 92 ERA request is admissible in evidence. That may be of some significance to a claimant, although a dismissal letter could also be relied upon in evidence. The fact that the statement can be admitted into evidence does not appear to prevent an employer later asserting that there was a different reason for dismissal although that will be likely to result in a breach of section 93 ERA. Any person who is not provided with a written statement giving particulars of the reason for dismissal loses the opportunity to have such a statement admitted into evidence. If that, of itself, meant that a complaint under section 93 ERA must be upheld, the section would prohibit a “failure to provide a written statement” rather than sanctioning an employer that “unreasonably failed to provide a written statement”.[97]The core purpose of the provision is to ensure that an employee is informed of the reason for dismissal, which had been done in this case in the dismissal letter. While it may be very difficult for an employer to establish that a failure to provide a statement is not unreasonable if the employer by oversight has not given any reasons for the dismissal, it was open to the Employment Tribunal to hold that the failure to provide the statement was not unreasonable because the reason for dismissal had already been provided. The Employment Tribunal did not err in law in dismissing this complaint. Embargoed Judgment[98]Where parties are represented judgments are usually sent to the representatives under embargo to allow an opportunity to point out any typographical errors and any similar uncontroversial mistakes such incorrect dates. This is not an opportunity to re-argue the case. Unfortunately, the claimant sought to do so. There was one point of substance that did require clarification: I accept that the Employment Tribunal decided to consider each adjustment separately and this was not challenged by the respondent in its response. That said it is unrealistic to completely ignore the finding that the claimant was unable to use a microscope which was an important part of her job. That could have been relevant to weather making other adjustments was reasonable I accept that is not a point that the Employment Tribunal took or the respondent relied upon in its response. In any event, it would have been of considerable relevance to remedy had any of the complaints succeeded.