Mrs L Stevens v Department for Work and Pensions: 1303000/2022

EMPLOYMENT TRIBUNALS

Case No 1303000/2022

Between

Mrs L StevensClaimant

Department for Work and PensionsRespondent

Before

Employment Judge Flood

In person for claimant

Ms Gardiner (instructed by Counsel) for respondent

Date 14 January 2025

JUDGMENT

The unanimous judgment of the Tribunal is that the complaints of discrimination because of something arising in consequence of disability and a failure to comply with a duty to make reasonable adjustments (contrary to ss 15, 20 and 21 of the Equality Act 2010 (“EQA”)) do not succeed and are dismissed.

REASONS

[1]By a claim form presented on 20 June 2022 (following a period of early conciliation between 24 and 26 May 2022), the claimant brought a complaint of disability discrimination against the respondent, identifying allegations of unfavourable treatment because of something arising from disability and a failure to make reasonable adjustments. The respondent defended the claim by a response presented on 20 July 2022.

[2]There was a preliminary hearing for case management before Employment Judge McCluggage on 5 January 2023 where particulars of the complaints the claimant wished to bring which were not clear from the claim form, we were discussed and clarified. There was some discussion at the hearing about the health conditions that the claimant was relying upon, orders made already regarding medical evidence and the claimant’s compliance with them. Further orders were made in this regard requiring the claimant to supply a statement setting out the impact her various health conditions had on her. The claimant was also given permission to add a complaint of discrimination because of something arising from disability in relation to the removal of her Disability Employment Adviser (‘DEA’) role in December 2022. A list of issues (‘LOI’) was appended to the order sent to the parties following that hearing which was shown at page 51-53 and is also set out below.

[3]The claimant provided further information about her health and the respondent set out its position on whether she met the legal test for being a disabled person under section 6 EQA on 9 February 2023. Disability was conceded in respect of 4 of the 7 health conditions relied upon but not the conditions of Fibromyalgia, Osteoarthritis and Hearing impairment/tinnitus. The respondent presented an amended grounds of resistance on 24 February 2023.

[4]A further preliminary hearing for case management took place on before Employment Judge Dimbylow on 12 December 2023. This recorded that a previous application made by the respondent to strike out the claim was withdrawn and unless orders were made requiring the claimant to comply with case management orders. A timetable for the hearing was agreed and it was recorded that the claimant would require regular breaks of at least 15 minutes every 45 minutes during the hearing. At the outset of the hearing the LOI was discussed and the respondent agreed that in relation to definition of disability, although 3 of the 7 conditions relied upon were not conceded as meeting the statutory test, it did not believe anything turned on this as it did accept the claimant was disabled in relation to the other conditions which affected her ability to attend work. In relation to the reasonable adjustments claim, the only issues in dispute were those identified at 3.5 to 3.7 of the LOI, namely whether the adjustments sought removed the disadvantage; whether they were reasonable and whether the respondent failed to take those steps. Ms Gardiner also clarified that in relation to the section 15 EQA claim, that the only issues remaining in dispute were those identified at paragraphs 4.4 and 4.5 of the LOI namely whether the unfavourable treatment was a proportionate means of achieving a legitimate aim.

[5]The hearing proceeded without incident, save that due to issues with Tribunal listing, the Tribunal was unable to sit on day 6, Wednesday 13 November. Regular breaks were taken during the hearing as planned. The Tribunal was able to complete evidence and submissions within the 5 days and day 7 was then used for the Tribunal to make its decision. The Tribunal agreed to the claimant’s request for a written judgment and reasons to be provided but unfortunately due to an exceptionally heavy caseload in the Tribunal and then a period of leave, it has not been possible for the written judgment and reasons to be completed until now. The Tribunal apologises to the parties for this delay. Documents before the Tribunal

[6]We had before us the following documents by the time we were making submissions:6.1 An agreed bundle of documents (‘Bundle’) running to (where page numbers are referred to below, these are references to the printed page numbers in the Bundle);

6.2 Agreed Chronology;

6.3 Written submissions prepared by the claimant;

6.4 Written submissions prepared by Ms Gardiner on behalf of the respondent.

The Issues

[7]The issues to be determined by the Tribunal (‘LOI’) were as follows: 1. Time limits The ACAS early conciliation period commenced on 24 May 2022 and so any events that took place prior to 25 February 2022 are out of time.1.1 Does the Claimant rely on any events which took place prior to 25 February 2022?

1.2 If so, were any acts done prior to 25 February 2022 part of conduct extending over a period with the parts of the claim that are in-time or were there discrete acts/omissions?

1.3 Are there any allegations within these causes of action that do not form part of conduct extending over a period ending within the relevant time limit?

1.4 If so, is it just and equitable to extend time in respect of any allegations that are out of time? Disability Discrimination 2. Disability

2.1 Did the Claimant experience any of the following impairments:

a. Depression

b. Fibromyalgia

c. Osteoarthritis

d. Sjogren’s Syndrome

e. Bowel and urinary issues

f. Hearing issues: hearing loss and tinnitus.

g. Restless leg syndrome

2.2 Did any of these impairments have a substantial adverse effect on her ability to carry out day-to-day activities?

2.3 If not, did the Claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?

2.4 Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures?

2.5 Were the effects of the impairment long-term? The Tribunal will decide:2.5.1 Did they last at least 12 months, or were they likely to last at least 12 months?

2.5.2 If not, were they likely to recur? 3. Reasonable Adjustments (Equality Act 2010 sections 20 & 21)

3.1 Did the Respondent know, or could it reasonably have been expected to know that the Claimant had the disabilities? From what date?

3.2 A “PCP” is a provision, criterion, or practice. Did the Respondent have the following PCP: 3.2.1 Requiring the Disability Employment Adviser job to be entirely or mainly office based

3.3 Did the PCP put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that3.3.1 She was unable to access the office regularly and so could not comply with the requirement;

3.3.2 Regular attendance at the office would aggravate her medical conditions;

3.3.3 She would be unable to perform her work duties adequately if required to attend the office regularly.

3.4 Did the Respondent know, or could it reasonably have been expected to know that the Claimant was likely to be placed at disadvantage?

3.5 What steps could have been taken to avoid the disadvantage/s? The Claimant suggests:3.5.1 Permitting the Disability Employment Advise job to be undertaken wholly or mainly from home.

3.5.2 Giving the Claimant autonomy as to attending the office whenever the role required it.

3.5.3 Giving the Claimant flexibility as to attending the office whenever the role required it.

3.5.4 “Job carving” – changing or adjusting where required the Claimant’s responsibilities

3.5.5 In order to facilitate home working: a. Letting colleagues know that the Claimant was available to deal with issues remotely; b. Allocating clients to the Claimant who did not need to seen face to face; c. Removing desk rota requirements. d. Arranging weekly virtual meetings between the Claimant and her colleagues. e. Arranging co-coaching sessions between the Claimant and her manager f. Arranging a co-coaching session between the Claimant and up to 9 colleagues which would educate them as to how she could be supported.

3.6 Was it reasonable for the Respondent to have to take those steps?

3.7 Did the Respondent fail to take those steps? 4. Discrimination arising from disability (Equality Act 2010 section 15)

4.1 Did the Respondent treat the Claimant unfavourably by: 4.1.1 Removing the Claimant from the Disability Employment Adviser role in December 2022

4.2 Did the following things arise in consequence of the Claimant’s disability:4.2.1 Difficulty with travelling into work;

4.2.2 Difficulty with working in the office for various reasons relating to her health;

4.2.3 Aggravation of health conditions through working in the office.

4.3 Did the unfavourable treatment arise because of the Claimant’s disability?

4.4 Was the treatment a proportionate means of achieving a legitimate aim? The Respondent says that its aims were to have operational efficiency and/or continuity and alignment of operatives in the undertaking.

4.5 The Tribunal will decide in particular:4.5.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;

4.5.2 could something less discriminatory have been done instead;

4.5.3 how should the needs of the Claimant and the Respondent be balanced?

4.6 Did the Respondent know, or could it reasonably have been expected to know that the Claimant had the disability? From what date?

Findings of Fact

[8]In the judgment, the Tribunal has used initials to identify the people listed below rather than their full names in the interests of brevity. Other terms used may also be defined in a similar manner through the judgment. Witnesses and other individuals

[9]The following people attended to give evidence on behalf of the claimant:9.1.1 The claimant (’C’);

9.1.2 Mr I Salmon (‘IC’), C’s trade union representative, employed by the respondent in its debt management function;

9.1.3 Mr D Nicholson (‘DN’), a Disability Employment Adviser, employed by the respondent at its Chelmsley Wood Jobcentre.

[10]The following people attended to give evidence on behalf of the respondent (‘R’):10.1.1 Ms T O’Borne (‘TO’), a Disability Employment Adviser Leader employed by R and C’s manager between May 2019 and December 2022;

10.1.2 Mr P Sydall, (‘PS’); a Senior Leader employed by R and TO’s manager at the relevant time;

10.1.3 Ms G Wilson, (‘GW’), a Disability Employment Adviser at R’s South West Birmingham Job Centre from July 2020 until September 2022; and

10.1.4 Ms L Peres (‘LP’), a Disability Employment Adviser at R’s South West Birmingham Job Centre from August 2021 onwards.

[11]In order to determine the issues, it was not necessary to make findings on all the matters heard in evidence. We have made findings though not only on allegations made as legal complaints but on other relevant matters raised as background. We made the following findings of fact on the balance of probability:11.1 C is civil servant who has worked for R since 4 May 1999 and has carried out various roles including Benefit Processor, Work Coach, Employer Adviser and DEA. She began working as a DEA at R’s Job Centre in South West Birmingham in December 2018. She worked Monday to Thursday each week, and one Saturday every four weeks, predominantly during school term time. From May 2019 her line manager whilst in the DEA role was TO who was employed as a Disability Employment Advisor Lead (‘DEAL’) at the time. DEA role

11.2 The DEA was an Executive Officer (‘EO’) grade. The role of a DEA was to work alongside R’s Work Coaches (who managed their own caseload of benefit claimants (‘customers’) to assist them to find employment) to support those customers with a disability or health condition causing them difficulties with finding employment, to get back into work. The scope of the DEA role had changed over time. When C first carried it out in 2009 it involved managing a caseload of customers with health conditions and disabilities, coaching them face to face in the Job Centre to identify suitable and sustainable employment and training. When C carried out the DEA role from December 2018 the remit had changed and a DEA no longer held a caseload of customers, but the predominant role was to coach, upskill and support Work Coaches so that the Work Coaches could support customers with health conditions into suitable work and training.

11.3 C referred us to the Job Centre Operating Model for the DEA role (’JOM’) at page 574 onwards. This was a document issued in January 2017 and set out detailed information as to how the DEA role would work with the introduction of Universal Credit. It set out processes for how Work Coaches would get the support of DEAs (who would no longer have a direct caseload) stating that each full time DEA would work with a cohort of up to 30 Work Coaches to directly support them which would include holding monthly (at a minimum) group case conferences and three way interventions as agreed, as well as training, upskilling and liaising with other internal and external partners. The process in this document where a Work Coach required additional support was that the Work Coach set up a referral for support by a DEA by e mail and there was then a triage process by the DEA before deciding what action should be taken. We accepted the evidence of TO that this document was now a general outline of the base principles of the role and that DEAs in each Job Centre were given autonomy as to how they delivered support. In fact, whilst requests for support could be done by e mail, they were predominantly not done this way and referrals were generally done by phone calls, Teams message or Job Coaches walking up to the desk of the DEA and asking for support in person. C acknowledged that Work Coaches may prefer and find it easier to seek on site assistance than to do so by sending an e mail or other remote ways of contact.

11.4 At page 367 to 369 we were taken to the quality assurance (‘QA’) standards for the DEA role from May 2019 onwards which was used by the DEAL to quality assure the work of their DEAs. This set out tasks in supporting Work Coaches which included leading regular group case conferences; individual coaching; and three-way conversations with the Work Coach and customer (where required by the Work Coach). It clarified that no direct caseload was held. DEAs were also required to share knowledge and information about health and disability local provision, services, training and employment opportunities and support a cohort of Work Coaches to improve job broking skills and better identify which customers would benefit from additional support. A DEA was also required to collaborate with partners and stakeholders in the community and across the district to seek support for customers with complex barriers to employment.

11.5 At some point after 2019 the scope of the DEA role changed again and at page 645 we were taken to a DEA job role description dated 21 May 2021 which again clarified that the DEA was again to act as an “enabler” to support Work Coaches and other colleagues when working with customers with health and disability needs. However the DEA was stated to specifically include a responsibility to: “provide DEA Direct Support to a number of claimants that require additional support to move into or closer to work” This Direct Support was voluntary in the sense that the customer had to agree to receive direct DEA intervention (whereas attendance at Work Coach appointments was compulsory for customers). A DEA could support up to 10 Direct Support customers at any one time attending regular meetings with that customer for a period of up to 13 weeks.

11.6 Up to March 2020, the DEA role was carried out wholly from the Job Centre office with customers attending in person for appointments with Work Coaches and DEAs as relevant.

11.7 In addition to these duties, C was a trade union representative and branch Health and Safety representative. We accepted TO’s evidence that in business-as-usual times, C would be permitted to spend about 10% of her time on such duties which would equate to around 4 hours each working week. It was acknowledged that C carried out such duties in an efficient and professional manner. Relevant policies

11.8 The parties made reference to a number of relevant policies in place at R at the time. We heard about discussions under the ‘Equality Act moves process’ and we noted the following key extracts from a document titled “How to: Manage Moves as a Reasonable Adjustment under the Equality Act” (pages 410-414): “ This process applies only to disabled employees who are likely to be covered by the Equality Act 2010 and who are no longer able to continue working in their current role and/or current location even with reasonable adjustments in place.” and “1.3 Our first option is always to retain an employee in their current role. Managers have a duty to ensure that all reasonable and workplace adjustments to an employee’s current role, equipment and/or workplace are considered before seeking to redeploy them outside of their current team. 1.4 ..... The Department is not required to create a job role where none is identified but, subject to business needs, you may consider ‘job carving’ – this is where existing work that does need to be done is packaged differently for a disabled colleague to undertake it. However, if there is a re-organisation where roles are being redefined or designed, there can be a requirement to design a role that suits the employee. 1.5. A move can only be arranged where a suitable vacancy exists. The role change is intended to support the employee to remain in the organisation rather than a career change or accommodating a role preference.”

11.9 It appeared to be agreed between the parties that the employee's permission to pursue an ‘Equality Act move’ out of the current role and at this stage a line manager would search more widely than their area of responsibility of the line manager, either within R more generally or within other government departments. The process stated that managers should get occupational health (‘OH’) advice on what duties the employee can carry out and what location may be suitable as a reasonable adjustment. On receipt of OH advice the manager should seek advice from a senior manager within their business and the Civil Service HR Casework. Work Trials in any new role found can be discussed if “the suitability of the new role needs to be tested”. The process goes on to provide that if no suitable role can be found within a period (3 months is suggested) that the case is referred back to the HR Casework team. We make an assumption that at this stage some form of capability process may have to be considered.

11.10 We also heard about managed moves and were referred to page 437 which was part of the Guide to Transferring employees within DWP (page 432-439). This provides as follows: Managed moves 7.1. Businesses can carry out managed moves (or a series of managed moves) to accommodate for example, employees with caring responsibilities who don’t meet the supported move criteria or to provide employees with development opportunities to develop their careers by broadening their skills and experience and help build the longer term capability of the business to retain, attract and develop a diverse talent base. They normally take place within a business but can be across businesses. 7.2. Where a job vacancy has been identified, businesses can carry out managed moves (or possibly a series of managed moves) in order to identify if and where final vacancy exists. These can be done on a compulsory or voluntary transfer basis. Managed moves can be done ahead of priority moves as long as a vacancy remains at the end of the process. 7.3. Managed moves can be implemented as either a voluntary or a compulsory transfer. 7.4. Employees who would like a managed move should discuss it with their line manager. Line managers should discuss within their business areas and with their HRBP. 7.5. Employees requesting a managed move must not tick the ‘Priority mover’ box on CS Jobs.

11.11 The Contractual Home Working Procedures (pages 390 - 405) were also referred to. The issues that the manager has to consider with regards to homeworking under a contractual request are listed in the extract below “- Is the job role suitable for home working? Some jobs such as those which are peripatetic and involve constant and remote travel may be more suitable for home working than others. Consider for example, if the employee has line management responsibilities, how will these be managed? It may be helpful to break the job down into the different elements to consider separately how each could be managed in a home working role - Impact on the business - the Department will support requests for home working where possible, but DWP is an employer fulfilling a crucial public service role and the vast majority of roles require face to face customer contact. Therefore, a request will only be accepted where:

• Business delivery will be maintained or improved

• There will be no unduly detrimental effect on business delivery, for example on your team’s ability to meet customer demand

• There will be no unduly detrimental impact on team colleagues

• Any future demands on the team, for example, proposed restructuring, the need to accommodate employees returning from maternity leave or employees requiring reasonable adjustments have been taken into account. - The employee's home environment. From discussion with the employee you should be satisfied that their home environment is suitable as a working environment and conducive to the efficient conduct of business, for example:

• Does the employee have somewhere quiet to work?

• Is there adequate secure storage space? - Are you satisfied that the employee has the necessary personal skills to work independently, for example self discipline, self sufficiency, effective communication and time management skills? Although it can be mitigated to an extent by regular telephone contact and occasional attendance at the designated office, reduced face-to-face contact can cause a feeling of isolation from life in the office which may affect a home worker’s health. - Reasons for request - is the reason for the employee’s request merely a question of personal convenience, or would refusal seriously impact on their ability to do the job? Is there an underlying reason which might be connected to a particular characteristic such as a disability? If their request cannot be accommodated, is there a feasible alternative which might be helpful to them? - Cost effectiveness - the Department may incur significant additional expense if home working is agreed, for example on installing equipment, housing-related costs and travel expenses from home to the designated office/ other locations. - Is home working a cost effective way to fulfil the job role? Have more cost effective alternatives to home working such as a change in working patterns been considered? Working from home is not a substitute for formal childcare or other care arrangements. Care arrangements must be in place for the duration of the working day on the same basis as if the employee was office- based. Will the employee be able to accommodate any caring or other responsibilities without a detrimental impact on work undertaken from home? - Will any reasonable adjustments be required? - Can Health and Safety requirements for working from home be met? - Can DWP Security requirements for working from home be met?”

11.12 It goes on to set out the process for dealing with a request in that following initial consideration managers had to arrange a meeting with the employee, to take place within 20 working days of receiving the application, to discuss the application and any other potential alternatives in more detail. An outcome is to be provided, and the employee had the right to appeal.

11.13 We were also referred to the Hybrid Working Guidance at pages 365-6 and in particular the following provisions, “Sickness Absence 23.7. Employees working from home or on a hybrid working arrangement should inform their manager in the usual way if they are unable to work due to sickness. 23.8. Managers should ensure that sick leave is recorded in a consistent way by those in the workplace and those working from home. Employees working from home should therefore be discouraged from working around an incapacitating illness by making up the hours later. This will not be an option for those in the workplace and risks these workers reaching absence trigger points more quickly. Managers should also ensure that employees do not work in any capacity when they are not fit to work, that people do not feel pressured into working when they are not well enough and that working from home is not being used to mask sickness absence. 23.9. There may be situations where an employee has a condition that prevents them travelling to work (e.g. foot injury) but does not prevent them working and they want to work from home. Instead, they may have light symptoms and want to be away from the office to avoid infecting colleagues but can still work. In these types of cases, the manager may agree to working from home for any employee on the basis that they are fit to undertake work, including those who are predominantly office based, if the facility to work from home is possible, providing working would not hinder the employee’s recovery, impact on their own or business performance. It may be considered as a one off for up to a week. After that, if the employee is still ill they may be required to take sick leave to concentrate fully on their recovery: It can be a longer term temporary adjustment, if appropriate, only as part of a back to work plan for long-term sickness as the employee builds up to their normal working arrangement. This applies to both colleagues in workplace-based roles and hybrid roles.” C’s Health

11.14 C has a number of health conditions listed in the LOI above. At pages 57 to 58 we saw information from her GP about the treatment and medication received for such conditions and at pages 59 to 67 C provided a statement setting out the impact of her disabilities on her ability to carry out day to day activities. Much of the evidence given by C is not disputed and R admits that 4 out of 7 of the conditions identified meant that she was a disabled person under section 6 EQA. Therefore we were not required to make many additional findings of fact other than to note that C’s disabilities impact her mood, concentration and ability to interact with others; caused her chronic pain (at times very severe), discomfort and fatigue and affect her mobility and continence. She takes medication for a number of her conditions which do help and has coping strategies including temperature regulation, using heat pads and taking showers, resting, using mobility aids and varying her seating arrangements. At times C’s symptoms can be so severe that she is unable to get out of bed, dress and go downstairs in her home. The only condition that C did not provide significant evidence about its impact upon her was the conditions related to hearing loss and tinnitus, although we note from various pieces of medical evidence that tinnitus had been diagnosed in 2007 and hearing loss was recorded from 2009 (with C using a hearing aid).

11.15 A number of adjustments have been made by R in her current and previous roles to assist C to manage her health conditions at work including a dedicated work area with heating control; adjustable desk and chair; ergonomic mouse and keyboard; access to disabled toilets and the use of a shower at work; access to microwaves to heat up pain relief pads and flexibility as to start, finish and break times. She was able to take a paid for taxi to attend external events if required, although this was not utilised. Period of Covid restrictions March 2020 onwards

11.16 On 26 March 2020 the first national lockdown in the UK came into effect. This required people to work from home if this was possible. There was no instruction from R that its Job Centre staff should work from home at this time as the work was predominantly front facing. There was a dispute of fact between C and TO about what took place when this lockdown was announced with TO stating that C decided herself to go home immediately but with C stating that she believed a conversation between the two took place before she did this. Nothing turns on this as in any event shortly after this date, C was identified as vulnerable (along with other employees with certain health conditions) by R and placed on special leave and instructed to work from home.

11.17 Although the Job Centres did not close during lockdown, arrangements were put in place for limited onsite attendance and face to face (‘F2F’) appointments and employees worked at least some of their time from home conducting predominantly telephone appointments. TO agreed that over half the workforce in the South Birmingham Job Centre were working at least some of their time at home. It is not in dispute that R’s employees were never officially permitted to conduct customer appointments by video from home not just at the early stages and during the pandemic but for the entire duration of time we were considering in this claim. There were a number of reasons why this was the case, some technical and also related to security but also the recognised trade unions of R objected to employees being required to conduct video appointments from home and for all of these reasons this practice was never implemented.

11.18 Along with other employees, C was provided with equipment to enable her to work at home (although there were some delays) but by September 2020 she had a laptop provided. Other ergonomic equipment was sourced by C and funded by R by November 2020. When C and the other DEAs were working at home during this period, we accepted TO’s evidence that they were doing “base level” DEA work providing remote reactive support to Work Coaches but were also asked to pick up other tasks to fill their time and any resourcing gaps. C did less DEA work during this time and her time supporting staff and other representatives as a branch trade union and health and safety representative increased as such support was in high demand. She was heavily involved in the Covid risk assessments taking place and advice on arrangements for vulnerable customers and employees. First Occupational Health (‘OH’) report

11.19 On 9 November 2020 an OH report was obtained (page 125) which advised that “no support in employment is required”. A referral for counselling was made and management advice was provided that the claimant should “refrain from working on site at this time”. Lifting of Covid restrictions and R response

11.20 Although Covid restrictions started to be lifted from 1 June 2020 onwards, by July 2020 some local lockdowns had been introduced and by September 2020 further restrictions had been re-introduced. A second national lockdown in England took place for a period of 4 weeks from 5 November 2020 and a third national lockdown from 6 January 2021. Restrictions started to be lifted again from March 2021 onwards with schools reopening from 8 March 2021 and outdoor gatherings of 6 people/ 2 households allowed and the stay at home order being lifted from 29 March 2021, but people encouraged to stay local (This was Step 1 of the Roadmap for lifting the lockdown - from 29th March).

11.21 On 30 March 2021, R’s service leader announced to staff by e mail (page 442-3) that R intended to return its Job Centres to normal working hours confirming: “from Monday 12 April we will return to normal working hours….Work coaches will be empowered to book mandatory face-to-face appointments again and decide which of their customers to see in person with a priority on existing JSA, new claimants and young people.” This communication made reference to remote working having been in place on a temporary basis and stated that managers would be arranging 1:1 meetings to discuss how employees felt about returning to the office. It went on state that a “measured risk based approach” would be taken and reiterated that the offices were “COVID-secure” as risk assessments had been carried out and social distancing was in place.

11.22 C was off sick between 1 and 15 March 2021 and during a return-to-work discussion between her and TO on 16 March 2021 (notes at page 130- 1), it was agreed that she could take extra breaks and change her working pattern throughout the day on a temporary basis. On or around 19 March 2021, C and TO had a discussion about a return to site and C told TO that she felt she was more productive at home (see e mail at page 440). During a discussion between C and TO in early April about a possible return to work, C told TO she was not comfortable in returning because of concerns with Covid 19 and her own and her mother’s health. TO agreed that home working could continue on an interim basis and on 6 April 2021 she e mailed C asking when C and her mother we due to receive their second Covid 19 vaccinations stating that she would then “look at what we can accommodate with regards to you returning to site”.

11.23 Step 2 of the Roadmap came into place on 12 April 2021. This allowed non-essential retail, hairdressers, public buildings (e.g. libraries and museums) to reopen. Outdoor venues such as pubs restaurants, and indoor leisure facilities (gyms) could reopen, and self-contained holiday accommodation. Wider social contact rules applied in all settings which stated that there should be no indoor mixing between different households.

11.24 On 26 April 2021 R issued an update to managers confirming F2F appointments were increasing (page 442-3). It went on to instruct managers to continue to engage with employees at home to support them in returning to the workplace. Step 3 of the Roadmap came into place on 17 May 2021. This had a limit of 30 people allowed to mix outdoors; the "Rule of six” or two households allowed indoors; indoor venues open (pubs, restaurants, cinemas etc.) and up to 10,000 allowed to attend large outdoor seated venues.

11.25 On 4 May 2021, C e mailed TO with her views on returning to the office (pages 135-9). This stated that C had “no issue attending the office and have no major concerns” but further stating that government guidance was that people should carry on working from home where possible and travel as little as possible. She went on to state that her health conditions meant it was not suitable for her to return mentioning a need for immediate access to toilet facilities and difficulties with this due to the need for social distancing. She also stated: “The DEA responsibilities are delivering front facing work coach training and support. Whilst I understand once social distancing is withdrawn, everyone will be expected to primarily work from an office, this has not yet come to fruition” She went on to state that interaction for the direct support could be by digital means and that she wanted autonomy in how this support was provided. C also mentioned that her trade union and health and safety roles were taking up significant time and could be done by digital methods. She further described her mother’s severe and escalating health problems. She finished by stating that she did not “deem it necessary” for her to have a phased return to office working but that she should decide when a F2F intervention was required. TO replied asking C when she felt a return might be possible and C responded that she did not want to commit at this time. It was agreed that a further OH referral would be made and TO informed C that her workspace POD would be available for her each week on Monday & Tuesday. C continued to work solely from home.

11.26 Step 4 of the Roadmap was announced on 14 June 2021 to come into effect on 19 July 2021 (delayed by 4 weeks from the initially proposed date to allow for the vaccination programme to be accelerated). On 6 July 2021 R’s permanent secretary sent an update confirming the announcement to allow a greater number of staff to attend the office (page 452). On 16 June 2021 R’s service leader issued a further update confirming the need to increase F2F appointments (page 447-8). On 14 July 2021 he sent a further internal communications update about the easing of restrictions and how of Stage 4 of the Roadmap (coming into effect on 19 July 2021 which removed most legal limits on social contact removed in England and allow final closed sectors of the economy e.g. Nightclubs to reopen) would allow staff to return to the office (page 454). It stated: “We are already seeing the positive impact from restoring face-to-face services for our customers. As I have said before, for customers, the positive routine of visiting a jobcentre supports the behaviours necessary for them to thrive in work. More colleagues in jobcentres has allowed us to support even more people into work.” This also confirmed its approach that front of house service delivery roles would be “largely be workplace-based, but remaining enabled to work remotely when agreed with their line manager”. C acknowledged in cross examination that at this stage there was a clear direction from senior management that employees were to be encouraged to return to the office to deliver F2F services as before. She acknowledged that R’s management were of the view that F2F interaction was preferable although she disagreed with their conclusion on this. Increase in Work Coaches and changing nature of DEA role.

11.27 We accepted TO’s evidence that at this time R was increasing a sharp increase in demand as a result of the pandemic and its effects. Between 20 and 30 new Work Coaches were recruited (an increase of 50%) who were inexperienced in the role and required additional support from DEAs to deal with the increased number of customers who were struggling with health, in particular mental health issues. From March 2022 onwards almost all appointments were held F2F with a very tiny majority taking place by telephone. TO was becoming concerned that the other DEAs were picking up the majority of F2F work as a result of C’s non attendance at the Job Centre and that this was having an adverse effect on them. She acknowledged that at this time there may have been queries coming to the DEAs that were not strictly within the remit of their role as many Job Coaches were new and she left it to each DEA as to how they wanted to respond to queries in terms of the level of support they felt they could offer. In TO’s view it was not always appropriate to direct the Work Coach to send an e mail for support if it was better dealt with there and then as part of the process of building rapport and relationships with that Work Coach. She acknowledged that the on-site DEAs were having to deal with more ad hoc queries but did not attribute this to them not following the correct process for DEA referrals as she felt the on-site DEAs were responding appropriately to a need that was arising there and then.

11.28 TO communicated to the Work Coaches that as well as the on-site DEAs that C was available to support them working from home. TO agreed that there was no written communication contained in the Bundle to this effect but that she and the other DEAs communicated to Work Coaches that C was available. We accepted TO’s evidence that she recalls discussing this in her weekly meetings with other team leaders and that she regularly walked around the floors and did much of her communication with colleagues during this time. Discussions with C and Project Role

11.29 C attended a health and attendance improvement meeting on 12 July 2021 (scheduled to discuss her March absence which was a trigger point under R’s attendance management procedures requiring such a meeting). A further OH referral was agreed, and no formal warning was issued under the attendance management procedures in respect of the particular absence (see page 140). Around August 2021, C applied for and was successful in obtaining a short-term Disability Confidence DEA Advocate Project role (‘Project Role’) which could be carried out remotely and was due to last 3 months from September 2021. This was designed to be carried out on top of an individual’s main role. C agreed with TO that the Project Role could be carried out over 2 days at home and she could spend the remaining 2 days on DEA duties and her trade union and health and safety representative duties. Her DEA workload was reduced by TO, and her cohort of Work Coaches was reduced to 7 work coaches from approximately 16. C’s Direct Support caseload was reduced from 7 to 4 with no F2F Direct Support customers booked for C. We accepted TO’s oral evidence that at this time C was only spending about 12% of her working time carrying out DEA duties. It was also agreed that C would return to site on a phased basis with a combination of office and home-based work (attending the office on Mondays and on her Saturday rotations) with effect from 13 September 2021 (pages 162 and 462).

11.30 On 9 August 2021 R issued a further communications update confirming its plan to bring employees back into the office stating that this would be done in a “controlled and considered way with the “immediate focus is our front of house, customer-facing colleagues, given the importance of face-to-face support to help people looking for work.” (page 250) The DEA role in practice in 2021 and 2022

11.31 We accepted the convincing evidence from GW that the DEA role when she was performing it from September 2020 onwards was “very reactive” with most of the role being made up of reactive/ad hoc work. She explained that from the summer of 2021 onwards the workload and in particular the F2F and reactive support increased significantly as the number of Work Coaches increased. We accepted her evidence that some Work Coaches told her they were unaware of C being available to support them and they preferred to seek onsite support. From later on in 2021, LP was an additional DEA and was responsible for 2 cohorts each containing 16 Work Coaches and a Direct Support Case Load of 12-14 customers who she saw fortnightly in the Job Centre. We accepted LP’s evidence that she had around 5 F2F appointments each day and had regular ad hoc queries from Work Coaches requiring support there and then (mentioning that 1 Work Coach would approach her around 13 times a day), sometimes with the customer present. LP reminded Work Coaches that C was also available to support them but felt that she and GW received all the F2F and ad hoc queries. We accepted the evidence of TO that at this time there were 2 DEAs doing the on-site work that 3 DEAs should have been doing which created pressure for the team as well as some delay for customers. It is not disputed that C attended the Job Centre on just three occasions between March 2020 and her move away from the DEA role.

11.32 C gave evidence that even at this time her view was that the DEA role was not or should not be reactive and it was the choice of her colleagues who were DEAs to perform the role in this way which was outside the job specification and process which required a triage service for DEA support (referred to above). She suggested that Work Coaches were not following the correct process if they were requesting that DEAs provide that ad hoc support and that the DEAs should effectively ‘push back’ on this. Whilst C has strong views about this matter and such views may have some validity, we find as a fact that the DEA role at this particular time in practice was much more reactive than it had been pre pandemic not least because of the increased demand for DEA services from a large number of inexperienced Work Coaches dealing with a huge demand from the public .

11.33 The pressures on workload being experienced by the on site DEAs were raised by each of them with TO during this period but this was not raised as a formal complaint, nor were GW or LP making a complaint against C. TO asked GW and LP to put their concerns in writing but they were reluctant to do so in the early stages but did in the end submit concerns in writing later in 2022 (see below). C’s application for contractual homeworking and outcome

11.34 On 31 August 2021 C applied to be a contractual homeworker based on health grounds stating that her health had deteriorated during the pandemic (page 142-5). C and TO discussed this the same day and C advised TO that as her symptoms varied each day, she could not predict on any given day whether she would be able to attend the office or not. C then provided further information supporting her request on 1 September 2021 (page 146-151). A meeting to discuss this request was scheduled for 13 September 2021 and an OH referral was made on 7 September 2021. On 8 September 2021, TO wrote to C to confirm that pending the outcome of her application, she was still expected to return to the office as agreed each Monday and on one Saturday per month (page 162). C responded stating she did not think this was appropriate and suggested that her return be postponed, albeit she would return on the Saturdays scheduled as there would be less employees on site those days (page 161). On 13 September 2021, TO agreed that this could be implemented, “as a reasonable adjustment while we await completion of your OHS along with the outcome of your Contractual Home Working request” (page 160).

11.35 The meeting to discuss homeworking was rescheduled and took place on 12 October 2021 between C and TOB with IS attending to support C and J McDonald as note taker. C stated that the adjustments already in place remained suitable but that her health had worsened, and it was a major issue if she could not access the disabled toilet. C’s use of the shower on site as a means of controlling pain was discussed and C stated that she did not have to use the shower all the time but that this would be easier to manage at home particular given her continence issues. She was asked whether she had considered other options such as a change in working patterns and C stated that she could not gauge her pain or tiredness on any given day and she could manage her symptoms better at home. When asked what had changed from earlier that year when she agreed to return to the workplace on Mondays and Saturdays, C said she felt there was a directive from senior leadership to return and felt pressured. She was asked what the benefits to R were of C working from home and C sated that she felt she was able to be more productive in a quiet environment with less distractions and that she could manage her pain as she did not have to be “physically present to others”. She stated that she had all the required equipment at home and if unable to work at home it would seriously impact her ability to do her job, explaining that she struggled with the expectation to be accessible, that sickness absence would be impacted (and she did not like having absence on her record) and she was struggling with noise and concentration levels. She raised that as a disability confident employer, she felt her health was not being given priority over the work. When asked if her request was turned down, whether another alternative might work, C expressed her view that she had fulfilled her role for the previous 14 months and could “continue to manage this way”. C was asked about the impact on colleagues, and she stated that she did not think they would be affected. She mentioned that direct support did not have to be F2F, and she could deliver the other aspects of her role from home. TOB made the point that the vast majority of roles in R required F2F contact which would increase as society opened up again.

11.36 A detailed discussion took place as to how various aspects of the DEA role would be conducted from home. C stated that she could book in appointments and deal with Work Coaches via teams stating that historically not much was needed F2F. She stated that 3-way conversations could take place via the phone or teams if pre booked and when asked how she would address ad hoc support she stated that traditionally this was not regular, and she would expect a booked appointment. We accepted the evidence of TO that this proposal did not reflect the reality of the situation on the ground as only 20% of customers pre booked three-way conversations and 80% of customers were “walk ins” who were often distressed and vulnerable and required ad hoc F2F support. C stated that she could complete observations of Work Coaches via Teams video and could attend the office for short, planned periods. She said that her health did not support a rigid set prescribed period of time to attend the workplace and suggested that she did not expect colleagues to pick up more work than her but wanted to work with them to cover all aspects of the role. There was then a discussion about more practical aspects of homeworking including the need for home visits.

11.37 On 16 November 2021 a further OH Report confirmed that C was fit for her role but would benefit from working from home on a permanent basis.

11.38 TO considered the OH advice, the homeworking policy referred to above and the requirements of the DEA role. She noted that homeworking could be used for disabled employees if adjustments to allow office working could not be made but that this was subject to their role being suitable for homeworking and it not having a detrimental impact on the work undertaken. TO concluded that the DEA role had now become mostly a reactive role, and it was not possible to know in advance when a DEA would be required on site to give support. Her view was that although C had undertaken this role from home during the pandemic this was because there were no other options and very few F2F appointments were happening. She concluded that this did not allow for the same amount of interaction, reading of body language or indeed making the reasonable adjustments needed for some customers’ disabilities. She concluded that this led to a “much lower standard of service and experience” for R’s customers and was an emergency model and not something R wanted to adopt for business as usual.

11.39 On 25 November 2021 TO sent C an e mail refusing C's application to be a contractual homeworker (pages 184-9). This stated that the request had been refused because of a detrimental effect on ability to meet customer demand, a detrimental impact on quality and a detrimental impact on performance. It included a statement of reasons which expanded on these grounds for refusal. This stated that DEA resourcing was based on 3 DEAs completing all the role activities and if part of that was removed from on-site engagement with Work Coaches and customers, then those customers may have to wait longer to get the support they need impacting that customer and the reputation of R. It referred to the need for ad hoc support during times of concern and distress and it being vital to have a DEA on site to offer F2F support when a customer was present. It also referred to putting pressure on DEA colleagues to undertake extra F2F work. When addressing impact on quality and performance, the statement of reasons set out that it would not be a “quality service” for a 3 way conversation to take place with the customer and Work Coach on site and a DEA at home, stating that it would be of greater value to the customer to have all parties on site together. It stated that Direct Support customers were better supported F2F as rapport and trust could be built and noting that not all customers could use technology. It also mentioned the benefit of F2F interactions for Work Coaches during coaching sessions to improve their performance. It made references to the ability to observe body language and facial expressions and that not observing Work Coaches F2F could mean that limit the support for technical and soft skills coaching with the lack of physical presence acting as a barrier. TO noted that having a DEA physically on site and seen an increase in Work Coaches seeking support and guidance as having availability only by teams could be seen as a barrier.

11.40 The statement of reasons then went on to make suggestions as to how C’s health conditions could be managed in the workplace listing the adjustments in place such as amended start and end times, increase in break times, travel support, adapted equipment, the use of an individual private pod, heat pads and a shower. It went on to suggest that a meeting could take place to arrange further adjustments around the provision of ice and the relocation of C’s desk to allow access to light and air. On 7 December 2021 C appealed the decision (pages 190-2) and on 21 December 2021 an appeal meeting was held chaired by Mr M Gray as the appeal officer (notes at pages 196-7). C explained that she felt that her health was not the major factor in the decision making on her application but that it was role driven. She stated that she felt that in the 18 months working from home, she had never been told her performance was substandard and she believed her productivity had improved and that OH advice had been ignored. She further made the point that R should be an inclusive employer, and it was part of her own role to coach Work Coaches on disability and was disappointed with R. On 11 January 2022, C was informed that her appeal had not been upheld (pages 199 – 200). This outcome emphasised the F2F nature of C’s role and its importance in delivering economic recovery and getting people back to work. Extension of Project Role and return to work discussions.

11.41 In December 2021 C’s Project role was extended (primarily to allow C’s appeal against the homeworking decision to be completed). On 10 February 2022 a meeting was held between C and TO (notes at pages 202-210). As C’s homeworking application had been turned down, she was at this time contractually obliged to attend the workplace but was unable to say when this could take place. An ‘Equality Act move’ was discussed but C did not want to sign the paperwork required to instigate thus. TO said she would look out for any hybrid roles that may become available which would mean that the requirement to attend the office could be waived to accommodate C’s requirement for homeworking. C continued to express her concern about the workplace being Covid safe. It was agreed that C would attend the office one Saturday per month for half a day to be reviewed in three months. In February 2022 C’s Project role was extended again and we accepted the evidence of TO that this was done to ensure that C had sufficient work to do at home as TO did not believe there was sufficient DEA work to occupy C’s working hours at home.

11.42 On 16 February 2022, TO called C at C’s request on teams and C was in bed lying down unable to move very much and explaining that she was in discomfort. C told TO that she was unable to move from bed due to her Musco skeletal issues. TO asked C if she wanted to take a sick day or a ‘network day’ but C said she could work “this way and take calls”. TP expressed her concern about this and that if C was unable to work, she should get in touch and that TO could come to her if she needed anything (page 258). It is our view that despite what C was telling TO, she was clearly not in a position to work on this day due to her health issues as demonstrated by her inability to leave her bed and really should have reported as being sick.

11.43 On 19 February 2022 C was due to attend the office as this was the first Saturday she was due to work. C sent a text message to TO stating that she was unable to attend as she had “barely been downstairs this week at all” and although her pain was manageable, she could not walk very well and had symptoms on her left as well as right side and could not move her arm (page 216). TO replied stating that she was sorry C’s health had got worse and informed C that she would have to go on sick leave as it was a day she was due to attend the workplace (page 217). C responded stating that it had not got worse and that she would not have been able to get into the office on any day that week but had been working all week. She stated that she was ready to work from her bedroom and asked TO not to call her as she knew the reason C was off and that she was “appalled the way the dept discriminate against disabled staff in this way” stating that it was “ridiculous”. She told TO she would see her on return from leave. C was on pre booked leave from 21 February 2022. We accepted TO’s evidence that she was surprised at the response and felt she had acted appropriately by suggesting sick leave as C was so unwell. As it was half term, and the team was busy, TO did not feel it correct to authorise a “network day”. Although TO did not consider the tone of C’s response to be appropriate but took no action as she knew C was in pain.

11.44 C’s position on this day and how it should be treated was that she should have been permitted to work from home in line with guidance on Hybrid Working (see paragraph 11.13 above) applicable to someone who was prevented from travelling to work, or light symptoms but were otherwise well and in such circumstances could instead work from home for up to a week. TO’s decision was that this was not applicable as C was in a significant amount of pain and had limited mobility and that her recovery would be impacted if she continued to work. TO also felt that C could not carry out her role and take appointments whilst lying horizontal in bed. We concurred with TO’s view that C was not well enough to work from bed and she should be placed on sick leave (in fact perhaps should have been placed on sick leave earlier that week in accordance with R’s policy). On 9 October 2022 C raised a grievance against the decision to place her on sick leave on this day and TO’s decision was later overturned

11.45 On 3 March 2022, TO shared a Social Media role she had seen advertised with C as she felt C would be suited to it as she had a keen interest in social media. C responded that as it was a maternity cover role she was not interested but thanked TO. C also shared some feedback she had received from a colleague praising TO as an excellent leader (page 233). R instruction to resume office working

11.46 On 9 March 2022 R’s Service Leaders issued an update that all Job Centre staff were to resume normal office working by 4 April 2022 (page 504). It mentioned that managers would be having discussions with staff about barriers to returning to the workplace and that where appropriate employees with health condition would be supported with the assistance of OH and “business as usual reasonable adjustments”. OH Report and Specialist Needs Assessment

11.47 On the suggestion of R’s Workplace Adjustments team, C was referred to OH for a specialist workplace assessment (which C agreed to) on 6 March 2022 (page 231 & 234-240).On 14 March 2022 an OH Specialist Needs Assessment took place with the report produced after this (pages 241-248) suggesting a number of adjustments. This included the provision of additional equipment; that C permanently work from home; that she have flexible hours and breaks; that she have regular weekly or bi weekly meetings with her manager. C-coaching sessions with manager and disability awareness sessions

11.48 The OH report further suggested that there be 2 co-coaching sessions between C and her manager to enable the manager to “understand her condition and specific needs for them to work together” to improve productivity. We accepted TO’s evidence that she requested OH to set these sessions up but that these did not ever take place. It is clear that TO was anticipating that these would take place as on 17 May 2022 she wrote in an e mail that these were outstanding and enquired with C as to whether she had heard anything further about these as TO had not (page 277). In October 2022, C and TO were contacted about a failure to attend a session that had been booked for them but neither had been notified of this session and it was unclear what actually had been arranged. TO responded explaining the situation and it became apparent that there had been some confusion as to what appointments were required and when.

11.49 The report further recommended that a disability awareness session was delivered to C and up to 9 of her colleagues “to understand the principles of disabilities and use this to extend into workplace practices”. TO spoke to C’s direct colleagues, the other two DEAs at the time GW and LP and asked them if they would be prepared to attend such sessions. We accepted TO’s evidence that both GW and LP told her they did not want to attend as they felt that they were already doing everything that they could to support C and her health condition and knew about how these affected C as she had been “vocal” about such matters with them. TO explained that she could not ‘force’ her team to attend if they did not wish to and that their role already required them to have disability awareness. We accepted GW’s evidence that she felt “a bit offended” that she had been asked to attend as she could not think of anything more she could do to support C and was struggling with her own health conditions at the time. She also explained that she was due to start a new role very shortly after and would be leaving her role in any event.

11.50 During cross examination C agreed that had either of these co coaching or awareness sessions taken place they would not have alleviated the disadvantage she had of not being able to attend the office for work but would have made her feel included. Weekly meetings with colleagues

11.51 In April 2022, following a suggestion from TO when C mentioned she was not in contact much with the other DEAs, C arranged weekly meetings with them so that she could be brought up to speed with what was happening in the Job Centre. We accepted the evidence of GW that she attended a few of these meetings but felt that they were dominated by C talking about things she was unhappy with, questioning her and LP about what they were doing and being negative about TO. GW explained that as she was struggling with her own health issues and increased workload at the time, she found the meetings were beginning to negatively affect her wellbeing. GW tried to attend the meetings if time permitted but that she did miss a number as they were scheduled when she was in the middle of assisting a Work Coach. LP attended most of the meetings if she could unless she was on leave or had a last-minute drop-in appointment to deal with but felt these were not work related. C raised with TO that her colleagues were missing the weekly meetings, and she felt these should take priority over other tasks. TO raised this with both GW and LP so that she could understand why they were not attending and satisfied herself that all non-attendance was necessary as the DEAs on site were dealing with urgent queries and their workloads for F2F customer meetings were increased and they were both stretched. OH Report and discussion about next steps.

11.52 On 6 April 2022 a further OH report confirmed that C was fit for work but is “unlikely to cope with demands of office based working” and recommends “working from home if practically feasible” Pages 256-257– Around this time TO reviewed the OH reports and Workplace Needs assessment and considered that C would not be able to continue in the DEA role due to her requirement for permanent home working. She discussed this with her manager, PS and sought HR advice and they advised her that it was at the stage where alternative roles would have to be sought via the ‘Equality Act move’ policy. On 28 April 2022 TO met with C (Meeting notes at pages 267-274) and discussed those reports with her starting by going through the physical adaptations suggested. She then went on to suggest that given that recommendation of permanent home working and that current arrangements could not continue much longer and that the ‘Equality Act move’ process would be the next step. C reacted badly to the suggestion and said she did not want to move under this process as she believed the DEA role could be successfully completed from home. The meeting concluded with no agreement being reached about a way forward with C not accepting R’s position on the requirements of the DEA role and the impact her absence was having.

11.53 On 6 May 2022 TO emailed C to confirm the discussions (pages 275- 276) advising that R was fully committed to support the recommendation for permanent homeworking but that this meant she was unable to fully complete the requirements of the DEA role. It set out that the role had been carved already (reduction from 4 to 2 days on DEA activities, a reduced cohort of Work Coaches from 16 to & and a reduction in Direct Support customers) and it was not possible to carve the DEA role any further and that the next step would be to look at alternative roles suitable for homeworking. On 23 May 2022 C wrote to TO again expressing disagreement around suitability of homeworking in her DEA role (Page 279-280) and contending that ‘job carving’ had not been discussed with her. C also mentioned that her trade union duties were extensive, and she had been allocated 222 hours for such work.

11.54 At around this time it was clear that R’s view was that it required its employees generally to resume office-based working and F2F interactions with customers as the default position. In communications for managers in May 2022, it emphasised the following, “For those in workplace-based roles, an important part of that work is engaging directly with our priority group of young people who were significantly impacted by the pandemic, supporting and coaching them so they don’t fall into long-term unemployment, that ultimately can affect their mental health and wellbeing.

• Face to Face interventions provide the right environment to encourage and build people’s confidence so they are inspired to apply for Kickstart opportunities, vacancies and provision, giving them a chance to get on the employment ladder and supporting employers to fill urgent vacancies. Over a thousand new Kickstart placements are going live every day, and if we can fill these, we will not only be ‘kick-starting’ someone’s future, but also playing that critical role in the country’s recovery.

• For customers, the positive routine of regularly visiting a Jobcentre supports the behaviours necessary for them to thrive in work and it means we are getting more people into work.”

11.55 The situation as to C’s working arrangements had reached stalemate and on 11 July 2022 TO sought advice from R’s Policy Team to confirm her understanding that C’s role could not be conducted on a hybrid basis (e mails at pages 505-506 of the bundle). It was explained to TO that the job description for the DEA role stated that it was “front-facing” and that a number of the DEA’s activities can only be effectively delivered in Job Centres or other public premises.

11.56 On 3 August 2022 a meeting was held between PS and C (who was accompanied by IS (notes of meeting at pages 295-299). PS and C had previously had an informal meeting to discuss her situation where PS agreed to go away and investigate possible roles for C. We accepted PS evidence that after that meeting he had reached out to the rest of his senior leadership network in the Black Country, Mercia and Solihull and in particular was investigating whether something could be found for C in the Kick Start project as he was aware of a colleague in a similar situation who had been found a role. However having spoken to the relevant manager, that role had come to an end and a recruitment exercise had just been completed and there were no available vacancies. PS informed C that he had not been able to find a suitable position currently and suggested that the ‘Equality Act move’ process be utilised to allow roles to be searched for in the department but also outside of it. C disputed the need for this as she felt the role could be done solely from home. There was a discussion around this with PS stating that whilst during the pandemic it had been possible to temporarily carry out aspects of the role from home, the situation had now changed, that the pressure on the Job Centre was severe and F2F appointments were even more important as many new Work Coaches had been recruited to deal with increased demand. C then proposed that job carving take place to essentially create a new role for her which meant that the front facing aspects of the DEA role be removed and to fit the job around her needs. She suggested that she kept “part of the DEA role” carrying out case conferences with work coaches, upskilling and doing presentations and she could have a caseload of customers who could be supported digitally.

11.57 There was a discussion about the Managed Moves policy and PS explained that there was a difficulty with business need as from September 2022 with GW leaving, there were only two DEAs remaining. Again C suggested that a role could be created for her geared towards her skills and IP suggested that the “job carving route” needed to be continued a role created that C could carry out fully at home. We accepted PS’s evidence that no progress was being made as neither C nor IP would accept the position of R that the DEA role could not be adjusted any further. He then ended the meeting, and it was agreed that he would look into next steps.

11.58 In September 2022, the Project role that C had been carrying out for 2 days of her 4-day working week came to an end. C continued working from home carrying out some parts of her substantive DEA role remotely, but her caseload remained at a reduced level as there was insufficient work that could be carried out remotely to fill four days a week. We accepted the evidence of TO that there was the equivalent of 1 day a week of DEA duties that could be carried out remotely and it was now impacting the DEAs on site who were picking up additional work that was required to be done. TO stated that GW and LP had been complaining to her for some time about the pressure on them with C undertaking a reduced DEA role stating that the Work Coaches would not contact C for support despite being aware of C’s availability. TO had asked the DEAs to put their concerns in writing to her but they did not do so until 10 November 2022 when LP sent an email to TO (see page 331-333). LP stated in her e mail that this was GW and her putting their thoughts down before GW left and that it was “confidential” and that she should check with LP before sending further. This set out concerns about C questioning what GW and LP were doing and that staff in the Job Centre had fed back to them that they would not reach out to C because she was not visible, and they had never met her. It further stated that C did not book regular caseload reviews with her Work Coach cohort, and this led to them being regularly asked for support from this cohort. Concerns were also raised that GW and LP’s health concerns were not accommodated and that they were expected to cover for C’s lack of presence which impacted their own workload. Decision Maker role and meeting about this

11.59 In November 2022, TO became aware of a hybrid Decision Maker role becoming available which she felt could be suitable for C as it required no external customer interaction and could be completed at C’s own pace. TO understood that despite being labelled as a hybrid working role, that this could be done entirely from home due to C’s health needs being considered a reasonable adjustment to the on-site working to this particular role. We accepted PS evidence that he believed that this would be a suitable role for C with her health needs being paramount in his consideration in that not only could it be performed from home but that C’s other adjustments in terms of having flexibility with start and finish times and breaks could be accommodated. On 24 November 2022 a meeting was held between C (accompanied by IS), TO and PS to discuss that role (meeting notes at pages 334-335). The situation was summarised from R’s perspective that C could not fulfil the requirements of the DEA role, and the Project role had come to an end therefore R had to look for another role to accommodate her needs. PS explained that the Decision Maker role could commence on 5 December 2022, with C’s current DEA role ending on 4 December 2022. C became upset during this meeting and asked what would happen if she decided to take the role with PS confirming that HR advice would then be sought. When C asked about an ‘Equality Act move’ (which had previously been refused) PS explained that in effect this was what was being carried out. C was asked to consider the new role and to raise any concerns about the role by 30 November 2022.

11.60 On 24 November 2022 C e mailed TO to request further information regarding the Decision Maker role (page 338). She asked for clarification about the nature of the role and who her line manager would be so that she could arrange a meeting to discuss accommodating her reasonable adjustments. She also asked for a written account of how the decision had been made that she would no longer be a DEA, stating that she was concerned that if she agreed to the move, she may suffer detriment and be indirectly discriminated against. On 25 November 2022 TO responded (pages 336-337) stating that since the outcome of C’s homeworking application, R had been trying to source a suitable role for her to accommodate her health needs and disabilities. TO explained that there had been a period of change and roles had become available which had identified the Decision Maker role as suitable as it could take into account her needs. TO further stated that this meant that “completion of a managed move as a reasonable adjustment under the Equality Act” was not required referring to R’s policy that such a move would only be considered if the employee was unable to remain in their current role or an alternative role within the current line of business (which had now been found). TO confirmed that, “..the expectation is that you commence within the Decision Makers role wef 5th December 2022 to allow time for a hand over of your DEA work and allocation of your Work Coach cohort to other members of the team.” It went on to explain that the DEA role was one where F2F customer contact was a requirement and thus would end for C on 4 December 2022. The letter explained that if C had any concerns around the job move that she needed to communicate these to TO by the close of play on 30 November 2022. TO stated that she did not yet know who C’s line manager would be and suggested that C and she attend a handover meeting with the new team leader, “to discuss all current reasonable adjustments that have been implemented for these to continue in the new role” TO referred C to the hybrid working policy and some case studies explaining that individual experiences would be different when taking into account different personal and business circumstances. She gave some basic information about the new role and suggested that C speak to a current DM to discuss it further. The letter concluded by stating, “The department can no longer support you in the DEA role as you are unable to fully complete all the elements required within the role. Therefore, to still support you remain within the business there is no alternative but to seek a different job role for you . Now all the FTA staff have been fully placed across the business this has allowed for roles to be made available. Thus, I have been able to source the DM role for you I feel that the DM role will be able to accommodate your needs & still allow you to use the great skills that you have with advice & guidance and ensure that our most vulnerable customers are considered when making decisions by use of your vast health and disability knowledge ensuring customers welfare remains at the heart of what we do. With regards to what next if you reject the job role allocated to you and refuse to transfer to this role without appropriate justification your fitness for work would have to be considered.”

11.61 On 29 November 2022 C notified TO that she was not able to work due to being unwell and confirmed that she did not feel it appropriate to hold a 1-1 discussion without a Trade Union Representative present (page 340). On 30 November 2022 C reported a mental health incident in respect of the e mail from TO (see pages 344-346). On 08 December 2022 IS notified TO that C was off work with work related stress and that she had concerns that the Decision Maker role was not suitable (pages 347-348) to which TO responded on 13 December 2022 that as C did not express concerns about the new role, she had been transferred to it on 5 December and suggested that any concerns be discussed with her new manager (page 349).

11.62 On 13 December 2022 TO e mailed N Aspin, C’s new line manager email confirming her required adjustments in the role (pages 351-352). It had previously been clarified that full time homeworking in this role could be implemented as a viable reasonable adjustment for C. C remained on sick leave until 14 February 2023. She took up the Decision Maker role on return from sick leave and remains in it.

The Relevant Law

[12]The relevant sections of the EQA applicable to this claim are as follows: 4 The protected characteristics The following characteristics are protected characteristics: … ,…disability;” `

[15]Discrimination arising from disability “(1) a person(a) (A) discriminates against a disabled person

(b) (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”.

[20]Duty to make adjustments(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

[21]Failure to comply with duty(1) A failure to comply with the first, second or third 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.

(3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise. 13. The Equality and Human Rights Commission Code of Practice on Employment (“the Code”) gives the following description of unfavourable treatment at paragraph 5.7: “For discrimination arising from disability to occur, a disabled person must have been treated ‘unfavourably’. This means that he or she must have been put at a disadvantage. Often, the disadvantage will be obvious and it will be clear that the treatment has been unfavourable; for example, a person may have been refused a job, denied a work opportunity or dismissed from their employment. But sometimes unfavourable treatment may be less obvious. Even if an employer thinks that they are acting in the best interests of a disabled person, they may still treat that person unfavourably.” 14. The Code addresses disadvantage at paragraph 4.9 as follows: “‘Disadvantage’ is not defined by the Act. It could include denial of an opportunity or choice, deterrence, rejection or exclusion. The courts have found that ‘detriment’, a similar concept, is something that a reasonable person would complain about – so an unjustified sense of grievance would not qualify. A disadvantage does not have to be quantifiable and the worker does not have to experience actual loss (economic or otherwise). It is enough that the worker can reasonably say that they would have preferred to be treated differently.” 15. In relation to the complaint of a failure to make reasonable adjustments, the obligation to take such steps as it is reasonable to have to take to avoid the disadvantage is considered in the Code. A list of factors which might be taken into account appears at paragraph 6.28, namely: “• The extent to which the adjustment would have ameliorated the

• The extent to which the adjustment was practicable.

• The financial and other costs of making the adjustment, and the extent to which the step would have disrupted the employer's activities.

• The financial and other resources available to the employer.

• The availability of external financial or other assistance.

• The nature of the employer's activities and the size of the undertaking.” but (as paragraph 6.29 makes clear) ultimately the test of reasonableness of any step is an objective one depending on the circumstances of the case. 16. The Code addresses the issue of ‘objective justification’ at paragraphs 4.25 to 4.32, clarifying that this be approached in two stages: firstly determining whether the aim is legitimate by considering whether it is legal and non-discriminatory, and one that represents a real, objective consideration; and secondly considering whether the means of achieving that aim is proportionate – that is, appropriate and necessary in all the circumstances. 17. Basildon & Thurrock NHS Foundation Trust v Weerasinghe

[2016] ICR 305

clarified the position on what is required for section 15 claims as follows: ''The current statute requires two steps. There are two links in the chain, both of which are causal, though the causative relationship is differently expressed in respect of each of them. The Tribunal has first to focus upon the words “because of something”, and therefore has to identify “something” – and second upon the fact that that “something” must be “something arising in consequence of B's disability”, which constitutes a second causative (consequential) link. These are two separate stages.'' 18. In Gray v University of Portsmouth EAT 0242/20 the EAT made it clear that, in the context of a S.15 claim, a tribunal must demonstrate that it caried out a critical evaluation on the question of objective justification adopting the same approach as applies generally to justification in indirect discrimination claims. Eady J cited Hardy & Hansons plc v Lax

2005 ICR 1565

, CA, to the effect that a critical evaluation of the evidence is required, entailing a weighing of the needs of the employer against the discriminatory impact on the employee. 19. The case of Smith v Churchill's Stairlifts plc

[2006] IRLR 41

confirmed that the test as to reasonableness is objective and must be determined by the Tribunal. 20. In Griffiths v Secretary of State for Work and Pensions

2017 ICR 160

, the Court of Appeal determined that the nature of the comparison exercise under s.20 was to ask whether the PCP put the disabled person at a substantial disadvantage compared with a non-disabled person. The fact that they were treated equally and might both be subject to the same disadvantage when absent for the same period of time did not eliminate the disadvantage if the PCP had a more substantial effect on disabled employees than on their non-disabled colleagues. In addition, in relation to whether an adjustment is effective the Court of Appeal said ‘So far as efficacy is concerned, it may be that it is not clear whether the step proposed will be effective or not. It may still be reasonable to take the step notwithstanding that success is not guaranteed; the uncertainty is one of the factors to weigh up when assessing the question of reasonableness.’ 21. Tribunals must consider the essential question whether a particular adjustment would or could have removed the disadvantage experienced by the claimant Romec Ltd v Rudham EAT 0069/07. However as stated in Noor v Foreign & Commonwealth Office

UKEAT/0470/10

, “although the purpose of a reasonable adjustment is to prevent a disabled person from being at a substantial disadvantage, it is certainly not the law that an adjustment will only be reasonable if it is completely effective". As per Leeds Teaching Hospital NHS Trust v Foster

UKEAT/0552/10

[2011] EqLR 1075 there has to be a “prospect” of the adjustment removing the . Conclusion

[22]The issues between the parties which fell to be determined by the Tribunal were set out in the LOI above. The Tribunal also had to determine whether the allegations were presented within the time limits set out in 123(1)(a) & (b) of the EQA and if not whether time should be extended on a “just and equitable” basis (Issue 1). The substance of the complaints have been considered first, before returning to the issue of time limits and jurisdiction. The issues have been approached in a different order but the conclusions on each issue are below: Issue 2 Disability

[23]R conceded that C was a disabled person in relation to 4 of the 7 impairments relied upon and that it had knowledge of disability in relation to these impairments at the time of the alleged discrimination. As referred to at paragraph 4 above, the Tribunal also concluded that nothing in the claim turned on whether C was also disabled as a result of the remaining 3 impairments, given that the key effects of such impairments on day-today activities were the same as the admitted disabilities. Therefore it was not necessary or proportionate for us to determine in relation to the three remaining pleaded impairments whether they met the definition of disability set out in section 6 EQA or address issues 2.1 to 2.5 further. It is clear that C was and is disabled and that R was aware of this at all relevant times. Issue 3 - Reasonable Adjustments

[24]When looking at the complaint under sections 20 and 21 EQA, R was aware that C was a disabled person at all relevant times (issue 3.1).

[25]R accepted that the PCP identified as issue 3.2.1 of requiring the DEA role to be entirely or mainly office based and relied on by C was applied to her. R also admitted that the application of that PCP put C at a substantial disadvantage compared to someone without C’s disability (as set out at paragraph 3.2.1 to 3.3.3). The Tribunal also conclude that R knew that C was placed at this substantial disadvantage at the relevant time. It is therefore the case that R was under a duty to make reasonable adjustments (our emphasis) to avoid the disadvantages caused by the application of that PCP. As identified at the outset at paragraph 4 above, the remaining questions to determine were whether there were steps that could be taken to avoid the disadvantage (issue 3.5); whether such steps were reasonable (issue 3.6) and whether R failed to take those steps (issue 3.7). C identified a number of steps at paragraph 3.5 of the LOI that she alleges would have removed the substantial disadvantage. Dealing with each in turn: Issue 3.5.1 - Permitting the Disability Employment Adviser job to be undertaken wholly or mainly from home.

[26]Firstly as C herself acknowledged this step would only remove the disadvantage to C if R permitted the DEA role to be undertaken wholly from home. The medical evidence available to R from its OH advisers from at least November 2021 right up until April 2022 was that C needed to work from home on a permanent basis (see paragraphs 11.37 and 11.47 stating that was unable to cope with the demands of office-based working). If the DEA job was only done mainly from home then there would still have been a requirement for some office attendance which was against the available medical advice and given the issues set out at paragraph 28 below this would have given no prospect that the disadvantages relied upon at paragraphs 3.3.1-3.3.3 would have been alleviated.

[27]The next question was whether looking at this objectively was it reasonable for R to allow C to carry out the DEA role wholly from home. We entirely understand C’s desire to carry on with her role but to do this from home and it is clear that she had given considerable thought to how this might be achieved (paragraphs 11.34-11.36). These were considered and explored during C’s application for contractual homeworking and a balanced and reasonable response refusing this application was provided the conclusions of which this Tribunal concurs with (see paragraphs 11.36 and 11.38-11.40). Whilst C feels very strongly that homeworking was a necessary adjustment for her, she has perhaps placed less significance on the fact that any adjustment, has to be one which is objectively reasonable. For the following reasons the Tribunal’s conclusion is that such an adjustment was not reasonable:27.1 There is no dispute that prior to the pandemic the DEA role was an entirely F2F role carried out from R’s Job Centre (see paragraphs 11.2- 11.6). During the pandemic, C was permitted (alongside many other R staff) to work from home but during this period was only doing base level DEA work and spent much of her time on important and necessary trade union and health and safety representative duties (see paragraph 11.18). However as restrictions eased R took the view that it wanted to revert to the pre pandemic ways of working with the DEAs and other staff carrying out their role F2F in the job centre. C herself acknowledged that this was how the role had worked, and that R would require this in May 2021 (paragraph 11.25). This reversion to F2F started to take full effect from the end of March 2021 (see paragraph 11.21) and by July 2021 R’s view was that F2F interaction with customers was the preference (see paragraph 11.26). The importance of F2F interaction with customers continued to be emphasised in communications up to May 2022 (see paragraph 11.46 and 11.54). R was entitled to treat this mode of interaction as its preferred way of carrying out the DEA role and ask its employees to revert to pre pandemic ways of working that it felt better benefitted its customers.

27.2 In terms of the DEA role itself, we accept R’s submission that it had a significant number of reactive elements to it which required the DEA to be on site and able to respond to ad hoc requests for meetings and appointments with customers (Work Coaches and Direct Support customers). There had always been a reactive element to the role, but this was increased significantly post pandemic. From March 2021, Work Coaches were based in the Job Centre with customers largely attending in person and so these queries arose on site and on an ad hoc basis. C’s main argument that the DEA role could be carried out from home is that this role should not be reactive according to the 2017 JOM and accordingly there would be no need for attendance at the Job Centre as appointments could be scheduled and carried out digitally. C’s view on this issue is largely that her DEA colleagues were not carrying out their roles correctly and should have been in effect refusing to deal with the reactive queries. However we accept the submissions of R that this reflected a view of what the role should be in C’s view rather than what the role actually was at the relevant time with increased workload and much more reactive work (see paragraphs 11.27 and 11.31-11.32). C had not worked on site since March 2020 and was not performing the full scope of the role working from home as it was at the time. The role (whether C agreed with this or not) required on site ad hoc and F2F support which was not possible to be done in the way C proposed. TO checked this position with R’s policy team at the time of considering how to address the issue who also confirmed that a number of required DEA activities could only be delivered in Job Centres or other public premises (see paragraph 11.55)

27.3 C may well have been able to carry out some of the more proactive elements of the role from home but there was simply not enough of that kind of work to fill C’s working hours. When doing the Project role, only about 12% of C’s time was spent on DEA duties (see paragraph 11.29) and when this came to an end, there was only sufficient remote work to fill 1 working day, although C was employed (and paid) to work 4 days each week. Any appointments with customers (by way of three-way conversations of Direct Support) would have had to take place by telephone (as it was not possible for video calls to be carried out at home – see paragraph 11.17). R took the reasonable view that building of rapport and relationships, observing body language and facial expressions during coaching and observations could not be done as effectively by telephone (if at all) - see paragraph 11.39.

27.4 C not being able to fulfil the F2F and reactive duties put additional pressure on the remaining DEAs to perform these tasks as well as their own duties. This was causing additional workload and pressure on the on-site DEAs and could lead to delay in providing service to customers (see paragraphs 11.27, 11.31-11.33 and 11.39).

[28]If R had permitted C to carry out the role mainly from home, but still required an element of office working, there was still a major issue with this as C could not predict on any given day whether she would be well enough to attend the office. She made this very clear to TO at the meeting to discuss the homeworking application (paragraph 11.34). As illustrated by our findings of fact at paragraph 11.42-11.44 the symptoms C suffered from were unpredictable and on some days, she was unable to move or go downstairs. Therefore even if a F2F appointment had been pre booked and C planned to attend, there was every chance on that day she may have been unable due to her health to attend and so such F2F meeting would have to be rearranged. Whilst it is the case that any employee could on any given day be unwell and unable to attend work, given that C’s health conditions were so severe and unpredictable and her planned visits to the Job Centre infrequent, the impact of this occurring would be of greater significance to the ability to fulfil customer needs. Issue 3.5.2 Giving the Claimant autonomy as to attending the office whenever the role required it.

[29]C suggested that she as the DEA should have autonomy in the way she performed the role and decide on which occasions it was necessary for her to attend the Job Centre. Whilst this may have alleviated the disadvantage to some degree as it would have been entirely within the control of C as to when she could attend, we conclude it was still not a reasonable adjustment for R to make. This is largely because as already referred to above the DEA role at the time had a significant reactive element to it with the DEA being required to respond to ad hoc queries arising from Work Coaches and to attend meetings at short notice with Work Coaches and sometimes customers. If this occurred on a day that C had deemed was not a day she was attending the office, this support would not be able to be provided. Moreover even if C had deemed her attendance necessary on a piacular day, given her health issues, it was not always the case that she would be able to attend on that day. It was not reasonable for R to expect its other DEA employees to cover booked F2F appointments or duties on each occasion where C had planned to attend but was unable to due to her symptoms on this day. This is particularly the case when they would have already been covering many other F2F aspects of the role in order to accommodate C’s working mainly at home. In the circumstances this was not a reasonable adjustment for R to have made. Issue 3.5.3 Giving the Claimant flexibility as to attending the office whenever the role required it.

[30]This was not a reasonable adjustment for R to have made for the same reasons as set out above. Issue 3.5.4 “Job carving” – changing or adjusting where required the Claimant’s responsibilities

[31]C was in effect seeking that R create a new role for her made up from the elements of the DEA role she could carry out remotely (see paragraph 11.56). This would have meant that all but a very limited amount of the F2F work (that could be booked in advance to enable C to attend the Job Centre on a planned basis) and none of the reactive F2F work would have been undertaken by her. This would have presumably required her DEA colleagues on site to do more of this type of work to ensure it was covered and that C do only the remote and digital aspects of the role. We conclude that this was not a realistic or reasonable adjustment for R to have made as firstly there was not enough of the remote and digital aspects of the DEA role in order to fill the contracted hours of C (see paragraph 27.3 above). We also note that the reference to job carving in the How to Manage Moves as a Reasonable Adjustment etc policy referred to at paragraph 11.8 makes it clear that R was not required to create a job role but could package differently existing work that needed to be done. In addition, the agreement of the other two DEAs to change their own roles to reduce the non F2F and non-reactive elements of their roles would have been required. It was clear that the other DEAs were feeling the pressure from having to carry out this work when C was based at home (see paragraph 11.31) and that TO was concerned about the effect on their workload and delay (see paragraphs 11.27, 11.39). In her questioning of TO, it became clear that C had an expectation that her colleagues should be required to carry out their role in a different manner and for certain aspects of the DEA role to be removed from them in order that she be able to carry out those aspects fully remotely. We do not conclude it was objectively reasonable for R to have enforced such a change on the other DEAs in order to accommodate C’s needs, in particular where there was such demand for the services of the DEA to be carried out in the way they currently were. C may have disagreed with the way in which the DEA role was at that time being performed but that was the reality of the situation (see paragraph 11.32).

[32]In any event, albeit this may not have been badged or identified as ‘job carving’ at the time, during the period of time when C was carrying out the Project role, this was precisely what was being done by R to accommodate C;’s requirement for home working (see paragraph 11.29). Together with the two days carrying out the Project Role and time allocated to her union duties, C was in effect carrying out just a small part of the DEA role at this time as her cohort of Work Coaches had been reduced as was her Direct Support case load. The Project role was extended on two occasions (see paragraph 11.41) primarily to try and fill C’s time working at home whilst the arrangements for her future working were resolved. However when this Project role came to an end, there was simply insufficient amounts of remote work in order to fill C’s contractual hours and it would not have been a reasonable adjustment for R to permit C to continue working at such a reduced level in the longer term (see paragraphs 11.53 and 11.56). Issue 3.5.5 In order to facilitate home working: a. Letting colleagues know that the Claimant was available to deal with issues remotely.

[33]We refer to paragraphs 11.28 and 11.31 and conclude that R did inform Work Coaches that C was available to provide DEA support on a remote basis. However it is clear, and C acknowledged (see paragraph 11.3) that the Work Coaches preferred to seek ad hoc assistance from the DEAs who were on site. This adjustment did occur and ultimately it did not and would not have removed the disadvantage in any event. Issue 3.5.5 In order to facilitate home working: b. Allocating clients to the Claimant who did not need to be seen face to face.

[34]We conclude that R did in fact allocate those customers that it could to C so that some appointments could take place by telephone and C could conduct them. The issue with this approach was that there were insufficient numbers of such customers in order for C to adequately fill her working time (see paragraphs 11.27, 11.29, 11.31, 11.38 and 11.58). By September 2022, there was only the equivalent of 1 day’s work a week of the DEA role that could validly be completed remotely (see paragraph 11.58). Issue 3.5.5 In order to facilitate home working: c. Removing desk rota requirements.

[35]It is not clear how C suggests that R removing the desk rota requirements would facilitate home working. We conclude that in any event C was not subject to the desk rota as she had access to her own workspace pod which was being made exclusively available to her on the days she was due to attend the office (see paragraph 11.25 and 11.40). There was therefore no failure to take the steps contended and no failure to comply with a duty to make reasonable adjustments in this regard. Issue 3.5.5 In order to facilitate home working: d. Arranging weekly virtual meetings between the Claimant and her colleagues.

[36]Our findings of fact about the weekly meetings are at paragraph 11.51 above. Firstly we conclude that as beneficial as the weekly meetings may have been for C to make her feel included and part of the team, in reality, the meetings did not avoid the disadvantage set out at paragraph 3.3 of the List of Issues, in particular the disadvantages that regular office attendance aggravated her medical conditions and she was unable to perform her duties if she was required. However even if such meetings went in some way to alleviate the disadvantage suffered by C being unable to access the office regularly, we also conclude that the meetings were in fact arranged at the suggestion of TO and a significant number of such meetings took place. To the extent that they were able both LP and GW attended such meetings. However given the significant work pressures that they were both under, it was not possible for both to attend every week, and we accepted that GW found that the meetings negatively impacted her own mental wellbeing. When C drew TO’s attention to the fact that her colleagues were not attending off of these meetings, TO looked into this and satisfied herself that there were genuine and justifiable reasons for such non-attendance and the DEAs spoke regularly by telephone and in wider team meetings in any event. We conclude that there was no failure by R to implement the step of arranging such meetings and the attendance when it was possible by the other DEAs also took place. We conclude there was no failure to comply with a duty to make reasonable adjustments in this regard. Issue 3.5.5 In order to facilitate home working: e. Arranging cocoaching sessions between the Claimant and her manager

[37]We refer to our findings of fact at paragraph 11.48 and 11.49. These sessions did not take place albeit that TO did take steps to arrange them. C admitted that even if such co-coaching sessions had taken place, the disadvantage caused by the application of the PCP would not have been alleviated. Therefore on this basis alone there was no failure to make a reasonable adjustment in this regard. It also appears to the Tribunal that TO was very much aware of the issues relating to C’s health and was fully supportive of her requirement to work from home. The issue with that requirement was the inability of the particular role C was carrying out to be carried out in this manner. Issue 3.5.5 In order to facilitate home working: f. Arranging a cocoaching session between the Claimant and up to 9 colleagues which would educate them as to how she could be supported.

[38]We refer to our findings of fact at paragraph 11.48 and 11.49. For very similar reasons as set out above in relation to line management sessions, there was no failure to make a reasonable adjustment in this regard. Taking this step would not have alleviated the disadvantage. We were also satisfied that C’s colleagues in the DEA team were aware from direct conversations with her what her health limitations were and indeed what was required to support her. They had taken steps to support C working from home whilst the issue was being resolved for a considerable period but ultimately this was not a reasonable adjustment for R to have taken in the long term for the same reasons as set out in our conclusions relating to job carving.

[39]None of C’s complaints of a failure to make reasonable adjustments have succeeded and we conclude that C has looked at this issue solely in terms of what adjustments she felt were required in order for her to be able to perform the DEA role without necessarily considering whether such an adjustment was a reasonable adjustment to make. Just because an adjustment is needed it does not mean that it is reasonable in every case for it to be made. That is an objective rather than a subjective question and C’s viewpoint has been focused on her own requirements in terms of her significant health issues and perhaps has lost sight of the requirements of the DEA role and the way that R quite reasonably requires it to be carried out rather than the role she wanted to do. A balancing exercise was required, and the Tribunal was satisfied that R acted reasonably and appropriately in considering the adjustments it could feasibly take. The complaints under sections 20 and 21 are dismissed. Discrimination because of something arising in consequence of a disability (section 15 EQA)

[40]R admits that it knew that C was disabled at all relevant times (issue 4.6). C relies on just one act that she says amounts to unfavourable treatment because of something arising in consequence of her disability and that is R removing her from the DEA role in December 2022 (issue 4.1.1). R admits that this took place and that this amounted to unfavourable treatment. It also admits that the matters set out at issue 4.2 were something arising in consequence of C’s disability and that the unfavourable treatment was because of this something arising (issue 4.3). The only remaining issue is that identified at paragraph 4.4 of the LOI which is whether this unfavourable treatment was a proportionate means of achieving a legitimate aim? R says that its aims were providing an effective service to its customers, protecting public funds and ensuring the efficient running of the department.

[41]Firstly we were entirely satisfied that R was acting in pursuance of the aims of providing an effective service to its customers, protecting public fund and ensuring the efficient running of the department when it took steps to move C to the Decision Maker role in December 2021. Those aims are all legitimate and were satisfied that R’s decision to move C from the DEA role was an appropriate and reasonably necessary way to achieve those aims for very similar reasons to those we have set out in the rest of this judgment. At this stage C was employed to perform the DEA role over 4 days but only had sufficient work on a remote basis to fill her time on 1 day a week (see paragraph 11.58). It was clearly not appropriate or cost effective to continue this arrangement long term. In addition the DEA services being delivered in this manner were not effective given R’s clear preference for DEA support to be carried on a F2F and the reactive nature of the DEA role (for the same reason as set out at paragraphs27.1 and

27.2 above. Cs absence on site was negatively impacting the workload of the two other DEAs who were expected to deal with all the reactive, ad hoc and on site F2F issues that arose as we have already set out at paragraph

27.3 above.

[42]We have considered whether could something less discriminatory could have been done instead considering how the needs of R and C could be balanced and conclude that there was nothing less discriminatory that could have taken place at that time. The needs of R were that the DEA role be carried out on a F2F manner in the way that it required and taking into account the clear direction from senior management that F2F interactions was the best way of delivering this service. There was a significant uplift in demand for DEA services during the unprecedented period of time as the pandemic came to an end and R was tasked with assisting people back into employment to get the economy moving again. In terms of C’s needs then she clearly had a strong desire to remain in the DEA role, she was very good at it and had invested significant time and effort in supporting her colleagues and clients to assist those with disabilities to get back into work. Unfortunately due to her own health reasons, there were significant parts of the DEA role that she was no longer able to fulfil.

[43]We conclude that R acted reasonably in trying to find a suitable position for C that she could undertake entirely from home as a way of avoiding a potential capability dismissal at some point in the future. C’s project role was extended on two occasions (see paragraph 32 above). TO and PS took steps to look for other possible roles (see paragraphs 11.45 and 11.56). A number of discussions took place with C and her trade union representatives (see paragraphs 11.52, 11.56 and 11.59) to explore alternative options but no resolution could be found with C refusing to accept R’s position on what the requirements of the role were. Matters had reached stalemate so R considered carefully what role could be performed by C and reasonably concluded that C’s considerable skills in the field of employment and disability awareness and support could be utilised in the new role whilst being able to also fulfil her requirement to be based at home and have all the other adjustments remain in place (see paragraph 11.59). C did not agree to move to a formal ‘Equality Act move process’ when it was raised earlier in the process (see paragraph 11.41, 11.52 and 11.56) and this limited the options that R had at the time to try and find suitable role for her. In any event, when C raised the possibility of this being used (paragraph 11.59) we conclude as communicated by PS at the time that all the preliminary steps outlined in R’s “How to: Manage Moves as a Reasonable Adjustment under the Equality Act (including job carving) had been exhausted and R was in effect putting into operation a managed move under its Managed Moves process (see paragraph 11.10).

[44]The Tribunal concludes that matters had by this stage reached a stage that a suitable role did need to be found for C as she was not able (through no fault of her own) to fulfil all the requirements of the DEA role to be performed the way R reasonably required it to be. It was not possible to accede to C’s request that the role be carried out from home with complete autonomy as this would have had significant effects on the ability of R to deliver the service it needed and impacted detrimentally on colleagues. The discriminatory impact of the decision it took was lessened to some extent by the fact that it was able to offer C an alternative role on the same pay, grade and conditions with a complete ability to work from home and all other adjustments in place. C remains in this role, and it has meant that R has been able to retain the services of a valued and respected employee in meaningful employment. Whilst C has been disappointed and upset to have been unable to carry out the role she wanted in the way she wanted; her health needs have now been accommodated and we conclude that R has not breached the requirements of section 15 EQA. That claim is dismissed. Time limits

[45]Given that none of the complaints have succeeded, we do not need to go on to consider whether, the claims were made in time, whether there was conduct extending over a period and if not, whether the claims were made within a further period that the Tribunal thinks is just and equitable as set out at paragraph 1 of the List of Issues. All the claims failed having been considered fully on their merits.