Ms H O’Connell v Coventry Rape and Sexual Abuse Centre: 1305570/2024

EMPLOYMENT TRIBUNALS

Case No 1305570/2024

Between

Ms H O’ConnellClaimant

Coventry Rape and Sexual Abuse CentreRespondent

Before

Employment Judge Flood

Ms Loutfi (instructed by Counsel) for claimant

Mrs Singh (instructed by Solicitor) for respondent

Date 10 October 2025

JUDGMENT

[1]The complaint of unfair dismissal (contrary to section 94 Employment Rights Act (‘ERA’) is well founded. The claimant was unfairly dismissed. No reductions for ‘Polkey’ are appropriate.

[2]The complaint of discrimination because of something arising in consequence of disability (contrary to section 15 of the Equality Act 2010 (‘EQA’)) is well founded and succeeds;

[3]The complaints of direct sex discrimination, direct age discrimination; and a failure to comply with a duty to make reasonable adjustments (contrary to sections 13, 20 and 21 of the EQA are not well founded and are dismissed.

[4]The Tribunal will decide the remedy at a further hearing (if required), the date of which will be notified to the parties separately. Case No: 1305570/2024

REASONS

[1]By a claim form presented on 21 May 2024, the claimant brought complaints of unfair dismissal, disability discrimination and sex discrimination. The claimant also applied to amend her claim on 9 October 2024 to add a claim of age discrimination.

[2]There was a preliminary hearing for case management before Employment Judge Boyle on 9 October 2024 where particulars of the complaints the claimant wished to bring were discussed. The claimant was given permission to amend her claim to add a complaint of direct sex discrimination and all the particulars of complaint were recorded in a list of issues. Orders were also made for the disclosure of medical evidence and the production of a disability impact statement from the claimant. This was provided and on 2 January 2025, the respondent conceded that the claimant was a disabled person as defined in section 6 EQA at all relevant times. The updated issues to be determined by the Tribunal following this concession (“List of Issues”) is set out below and referred to throughout the hearing with strike out text, where appropriate. Documents before the Tribunal

[3]An agreed bundle of documents running to 264 pages was produced for the hearing (‘Bundle’) and where page numbers are referred to below, these are references to page numbers in the Bundle. At the beginning of the hearing the respondent applied to add 214 additional pages of documents to the Bundle including the claimant’s medical records, labelled as ‘Binder 1’. Other than pointing out that this was a late application, there was no objection to the admission of such documents by the claimant. During the Tribunal’s reading, it noted that several documents referred to in witness statements and relevant e mails had not been included in the bundle and asked the parties to liaise with each other to see if these could be found. On day 2 of the hearing, the respondent provided some of these documents including the respondent’s menopause policy and a number of e mails. These were included as a document labelled ‘Binder 3’ running to 12 pages. Pages 10 and 11 of ‘Binder 3’ contained without prejudice correspondence which the Tribunal has not considered or referred to. The respondent also provided a separate copy of an e mail from CMcK to the claimant dated 4 October 2023. The claimant then provided copies separately of 5 e mails, namely:3.1 An email from CMcK to the claimant dated 4 October 2023 (a duplicate of the document disclosed by the respondent above);

3.2 An e mail exchange between CMcK and the claimant dated 14 November 2023;

3.3 An e mail (date obscured) from the claimant to CMcK stated as being in response to a communication of 2 January 2024;

3.4 An e mail from the claimant to CMcK dated 5 January 2024;

3.5 An e mail from JM to the claimant confirming termination of employment dated 27 February 2024.

[4]All additional documents were combined into a pdf document running to 237 pages (which was paginated with numbers starting with page 265 to 501). A Chronology was also produced.

[5]On the afternoon of day 5 of the hearing (10 October 2025), oral judgment was given. The complaint of unfair dismissal (contrary to section 94 Employment Rights Act (‘ERA’) was well founded and the Tribunal concluded that the claimant was unfairly dismissed. It confirmed that no reductions for Polkey would be made in relation to any remedy. The complaint of discrimination because of something arising in consequence of disability(contrary to s 15 of the Equality Act 2010 (‘EQA’)) was also held to be well founded. The complaints of direct sex discrimination, direct age discrimination; and a failure to comply with a duty to make reasonable adjustments (contrary to ss 13, 20 and 21 of the EQA’) were not well founded and were dismissed. The written judgment was sent to the parties on 18 October 2025. The parties were ordered to write to the parties within 14 days to confirm whether a remedy hearing was required to be listed and asked to provide dates of unavailability to attend such a hearing.

[6]On 23 October 2025, the respondent’s representative requested written reasons. On 3 November 2025 the claimant’s representative wrote to the Tribunal asking it to list a remedy hearing in the matter. There is no record of any dates of unavailability being provided as at the date of drafting these reasons. The Tribunal will list for a remedy hearing on the first available date that the Tribunal can sit.

The Issues

[7]The issues to be determined by the Tribual were as follows:

The Issues

[1]Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, some parts of the claim may not have been brought in time.

1.2 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

1.2.2 If not, was there conduct extending over a period?

1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?

1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?

1.2.5 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?

[2]Unfair dismissal2.1 What was the reason or principal reason for dismissal? The respondent says the reason was capability (long term absence)

2.2 If the reason was capability, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whether:2.2.1 The respondent genuinely believed the claimant was no longer capable of performing their duties;

2.2.2 The respondent adequately consulted the claimant;

2.2.3 The respondent carried out a reasonable investigation, including finding out about the up-to-date medical position;

2.2.4 Whether the respondent could reasonably be expected to wait longer before dismissing the claimant;

2.2.5 Dismissal was within the range of reasonable responses.

[3]Remedy for unfair dismissal3.1 If there is a compensatory award, how much should it be? The Tribunal will decide:3.1.1 What financial losses has the dismissal caused the claimant?

3.1.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?

3.1.3 If not, for what period of loss should the claimant be compensated?

3.1.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

3.1.5 If so, should the claimant’s compensation be reduced? By how much?

3.1.6 If the claimant was unfairly dismissed, did s/he cause or contribute to dismissal by blameworthy conduct?

3.1.7 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?

3.1.8 Does the statutory cap of fifty-two weeks’ pay or relevant statutory cap apply?

3.2 What basic award is payable to the claimant, if any?

3.3 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent?

[4]Disability 4.1 Did the claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide:4.1.1 Did s/he have a physical or mental impairment: menopause?

4.1.2 Did it have a substantial adverse effect on her ability to carry out day-to-day activities?

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

4.1.4 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?

4.1.5 Were the effects of the impairment long-term? The Tribunal will decide:4.1.5.1 did they last at least 12 months, or were they likely to last at least 12 months?

4.1.5.2 if not, were they likely to recur?

[5]Direct sex discrimination (Equality Act 2010 section 13)5.1 The claimant is female.

5.2 Did the respondent do the following things: 5.2.1 Dismiss the claimant on 1 March 2024

5.3 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether s/he was treated worse than someone else would have been treated. The claimant has not named anyone in particular who s/he says was treated better than s/he was.

5.4 If so, was it because of sex?

[6]Direct age discrimination (Equality Act 2010 section 13)6.1 The claimant’s age group is in her 50s and s/he compares herself with people in a younger age group

6.2 Did the respondent do the following things: 6.2.1 Dismissing the claimant on 1 March 2024.

6.3 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether s/he was treated worse than someone else would have been treated. [The claimant says s/he was treated worse than [names of comparators] or The claimant has not named anyone in particular who s/he says was treated better than s/he was.

6.4 If so, was it because of age?

6.5 Was the treatment a proportionate means of achieving a legitimate aim? The respondent says that its aims were: 6.5.1 [ respondent to provide further information if using this defence] The Tribunal will decide in particular:

6.6.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;

6.6.2 could something less discriminatory have been done instead;

6.6.3 how should the needs of the claimant and the respondent be balanced?

[7]Discrimination arising from disability (Equality Act 2010 section 15)7.1 Did the respondent treat the claimant unfavourably by: 7.1.1 Dismissing the claimant on 1 March 2024.

7.2 Did the following things arise in consequence of the claimant’s disability:7.2.1 the claimant’s sickness absence;

7.2.2 her ability to work without adjustments or support;

7.3 Was the unfavourable treatment because of any of those things? / Did the respondent [e.g.] dismiss the claimant because of [e.g.] that sickness absence]?

7.4 Was the treatment a proportionate means of achieving a legitimate aim? The respondent says that its aims were: 7.4.1 [respondent to provide additional information]

7.5 The Tribunal will decide in particular:7.5.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;

7.5.2 could something less discriminatory have been done instead;

7.5.3 how should the needs of the claimant and the respondent be balanced?

7.6 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?

[8]Reasonable Adjustments (Equality Act 2010 sections 20 & 21)8.1 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?

8.2 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs:8.2.1 The respondent’s working practices which required her to return to work on her normal hours; work for consistent periods of time without break.

8.2.2 The requirement for the claimant to complete duties within time restraints.

8.3 Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that8.3.1 She was at higher risk of capability/disciplinary proceedings

8.3.2 She was unable to carry out her normal hours without microbreaks

8.3.3 Increased stress

8.3.4 Greater risk of health-related problems

8.3.5 Greater likelihood of having to take time off work through illness.

8.4 Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?

8.5 What steps could have been taken to avoid the disadvantage? The claimant suggests:8.5.1 Phased return to work

8.5.2 Microbreaks

8.5.3 Additional time to complete her tasks

8.5.4 Display Screen Equipment (DSE) assessment

8.5.5 Regular management contact.

8.6 Was it reasonable for the respondent to have to take those steps and when?

8.7 Did the respondent fail to take those steps?

[9]Remedy for discrimination9.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

9.2 What financial losses has the discrimination caused the claimant?

9.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

9.4 If not, for what period of loss should the claimant be compensated?

9.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?

9.6 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?

9.7 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

9.8 Should interest be awarded? How much? 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 The claimant (‘C’)

Findings of Fact

[10]The following people attended to give evidence on behalf of the respondent (‘R’):10.1 Ms C McKay (‘CMcK’), Counselling team leader at R and C’s line manager from April 2023 onwards; and

10.2 Ms J Muskett (‘JM’), Deputy CEO and CMcK’s line manager, dismissing officer.

[11]The respondent also admitted a written statements from: 11.1 Ms C Brookes (‘CB’), Therapeutic Services Manager and C’s line manager for 6 months up to April 2023.

[12]The following individuals were referred to during the evidence:12.1 Ms N Thompson (‘NT’), CEO.

12.2 Mr D Dolan (‘DD’), external consultant at Peninsula Face2Face, instructed by R to conduct C’s appeal against dismissal.

[13]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 specific discrimination complaints but on other relevant matters raised as background. These findings may have been relevant to drawing inferences and conclusions. We made the following findings of fact on the balance of probability:13.1 C is a 52 year old woman and it is accepted that at all relevant times she is a disabled person for the purposes of section 6 EQA as a result of the symptoms of menopause.

13.2 R provides support for adults and children who have been impacted by sexual violence or abuse at any time in their lives. It has a small staff of 36 employees and 10 volunteers and we accept that as a charity it was under funded and struggled with resources Contracts and relevant policies

13.3 C was employed as a Counsellor from 7 March 2020, having started as a volunteer and then trainee Counsellor. Her contract of employment was shown at pages 127 to 132. C worked 18.5 hours a week on Tuesday, Wednesday and Thursday with one evening shift working until 8pm each week. R had a Menopause policy which was introduced in November 2022 (page 479). This stated that R was “committed to providing an inclusive and supportive working environment for all its workers and recognises that women may need additional consideration, support and adjustments before (perimenopause), during and after the menopause.” The policy stated that there was no ‘one-size-fits-all’ solution and made reference to offering adjustments where necessary. It included provisions about normalising conversations about menopause in the workplace to remove stigma and to encourage employees to be supportive of each other. In relation to possible adjustments, the policy stated that these would be explored with the line manager with the aim of reducing the effect that the menopause was having. The policy stated that no adjustment would be made without fully discussing it with the employee. It listed some of the adjustments that may be made as including: a change of working location, further temperature control, assessing the allocation of work in particular at different times in the day, providing a quiet place to work and relax, allowing additional rest breaks, changing start and finish times and considering flexible or home working. It further stated: “You are not expected to come to work if you are unwell because of menopausal symptoms. If you are unwell, you should tell your manager and follow our usual sickness reporting procedure.”

13.4 C’s role involved supporting people to cope and recover from trauma following rape or sexual abuse. C’s job description and person specification for the role was shown at page 133 to 136. A core Counsellor was allocated 10 cases/clients to provide services to during working hours. Each counselling session was 50 minutes long with a 10 minute period then being allocated to update the client’s records. There was a dispute of fact as to the extent that breaks were provided. We find that as well as the gaps between appointments, there was time during the working day when breaks could be taken in addition to these gaps between sessions The counselling was provided in therapy rooms and additional work was done at each Counsellor’s work station located in an open plan area called the hub. C agreed that her role in providing face to face counselling and support for clients aged 11 and over (male and female) who have experienced sexual abuse and/or rape and/or their parents and carers meant she was dealing with vulnerable people. Each client was assigned a 26 week period of therapy provision and C agreed that building a rapport was important and that R tried to ensure continuity in provision of a particular Counsellor to a client. C’s menopausal symptoms

13.5 In her witness statement C stated that since June 2022 she had been experiencing the symptoms of menopause. In her earlier disability impact statement (page 86-89) she stated that she had been in fact suffering from symptoms since 2020 to include bloating, general aches and pains and night sweats and had attended her GP at this time. We accepted this evidence and noted that at pages 289 and 286 there was mention of discussion of menopausal symptoms at a GP consultation on 29 April 2020 and 30 September 2021. C was ‘diagnosed’ with menopause in June 2022 and we note that in June 2022 her medical records show discussions about menopausal symptoms with her GP and various test being carried out (pages 284-5). C experiences brain fog, memory loss and difficulty concentrating as well as hot flushes, sleepless nights, low self-esteem and discomfort.

13.6 C contended that R was aware of her menopausal symptoms from around December 2022/January 2023. She contended she discussed this with NT in 2022 at the time that R was introducing its Menopause policy. In her impact statement C mentioned a meeting held in January 2023 when JM noticed and acknowledged C was having a hot flush and opened a window. CMcK acknowledged that she had been aware that C was having flushes before she became her line manager in April 2023 as she had noted that C had asked for windows to be open in meetings, and that in the hub where the counsellors sat together between consultations, there were discussions involving C and other colleagues about the menopause and their experiences.

13.7 C’s previous line manager, CB explained that towards the end of 2022, C informed R that she was intending to leave and move away and as a result of this, new clients were not allocated to C leading to a reduced caseload of 7 clients. There was reference to these plans to leave being raised in a supervision C attended with CMcK on 18 April 2023. CB also arranged for the chairs in the therapy room being used by C to be changed after C complained that these were uncomfortable due to an ongoing issue with her shoulder.

13.8 In May 2023, C was selected along with three other Counsellors to prepare and deliver a presentation for R’s development day on 23 May 2023. C was unhappy with being allocated this task and told the Tribunal that she felt she had insufficient time for her to do this and it caused her to feel under pressure. She also said she felt that the task had been badly organised as hardly any of the 4 selected to carry out the presentation were there at the same time. JM told us she believed that the task was reasonable and that C had sufficient time to carry it out within her working hours and that she had 7-8 weeks to prepare it. We did not need to decide whether or not the task was reasonable in general but it is clear that C was experiencing difficulties doing it. Meeting on 31 May 2023

13.9 During a supervision meeting held between C and CMcK on 31 May 2023 (notes at page 150-153), C raised during a discussion about wellbeing that she was feeling tired. CMcK recorded the following in her notes: “HC is not sure what is causing the tiredness and she is getting bloods done, awareness that she is going through the menopausal phase” C also raised her concerns about the forthcoming presentation to CMcK complaining about not being allocated specific time to do it and the difficulties with arranging get-togethers with those involved. She further raised that she felt this was more within the role of the manager. CMcK offered some suggestions including setting a date for a meeting and a room booking and sending some powerpoint slides to C. Sickness absence

13.10 C’s menopausal symptoms worsened around this time and she was experiencing a wide range of debilitating menopausal symptoms including hot flushes, severe headaches and migraines, abdominal bloating, unpredictable mood swings, chronic fatigue, heightened anxiety, agitation, episodes of anger, heart palpitations, brain fog, dizzy spells, nausea, generalised body aches and persistent joint pain. These symptoms had a significant and distressing impact on her physical and mental well-being and C found it difficult to maintain her usual work standards because her body and mind were under immense strain. She felt overwhelmed, isolated and anxious about how her health was affecting her work. C visited her GP and raised these issues on 16 June 2023 (see pages 282-3 supplementary bundle) and was signed off work from 26 June 2023 onwards (see sick note at pages 154). This signed C off for an initial period of 3 weeks with the reason given being “Multiple symptoms including fatigue”. When asked in cross examination whether R was suggesting that the reason C had gone off sick was because of her reluctance to do the presentation, CMcK said she was not suggesting this. However JM said that she felt this was a possibility stating that the respondent was unaware of the severity of C’s symptoms and it seemed at odds to her that the severity of the symptoms would be bad so that she had to go off work. C’s sick leave was subsequently extended to 7 August 2023 (page 156).

13.11 On 31 July 2023, C had a telephone call with CMcK. C said that during this conversation she explained in detail her current medical condition and that she was having tests in relation to her menopausal symptoms. CMcK made a note of the conversation at page 157-8. At this time C and CMcK were having weekly phone calls and we noted that it is recorded that C said her symptoms were the ‘same as last week’. It is also noted that C mentioned that her blood pressure was being monitored and explored. The note further records C questioning the need for weekly calls and expressing a concern about disclosing personal and private information to CMcK. C was asked a number of questions by CMcK and when asked what symptoms she was experiencing, she said her symptoms were “still the same, not better, same”. She told CMcK that she was unsure how long she would be off work and that if she was well enough she felt “fine” about coming back to work. When asked by CMcK what support R could offer, the C said it was “to early to say” but asked for calls to take place fortnightly which was agreed to. CMcK also informed C that her pay would be reducing to half pay from 8 August and then to statutory sick pay from 3 October. She explained that she did this in order that C would not be shocked when she was paid less than she might be expecting.

13.12 There was much discussion at the hearing as to the extent to which C gave CMcK information about her symptoms during this and other weekly (and then fortnightly) conversations that took place. CMcK told us that there was not much information forthcoming from C during these conversations and that C mainly mentioned that she was feeling fatigued and had mentioned no specific symptoms other than high blood pressure, high cholesterol, and cystitis and that this information was provided gradually. CMcK acknowledged that C described her symptoms as being hormonal and that she understood that to be a reference to the menopause. C said in response to cross examination that she was not evasive and she was very detailed in some of the things she and CMcK spoke about. C said that they discussed how she was feeling in her menopause and that she had discussed being prescribed HRT by her GP during a conversation on 24 July 2023. C acknowledged that her response to the questions during the discussion on 31 July 2023 that were recorded at page 157 were not detailed but this was because she had already told CMcK about these symptoms in earlier calls and the position had not changed. We were satisfied that C did provide some detailed information to CMcK about the symptoms she was experiencing and did connect these symptoms to her going through the menopause. We also find that as the conversations continued, C did not continue to provide this information in the same level of detail. C continued to be signed off sick for the reasons of “Multiple symptoms including fatigue”. During a conversation on 21 August 2023, C told CMcK that her symptoms were the same and asked that the welfare check calls take place monthly rather than fortnightly which was agreed to.

13.13 On 4 September 2023, CMcK e mailed C (page 160) to let her know that she would be away the following week for two weeks and stated that if C was signed off again during that time, that she should e mail the sick note to CB or another manager, Ms Dodd. She added that if C was returning to work when her sick note expired on 18 September, that she should contact those managers that day. CMcK then told us she called C on 18 September 2023 but was unable to speak to her. There was a question as to whether a call was made by CMcK on this day as she would have been on annual leave and CMcK acknowledged that it may not have been her that called C, but perhaps another manager. Nothing in particular turned on this, so we have not considered it further. Occuational Health (‘OH’) referral

13.14 On 27 September 2023 CMcK raised with C the possibility of a referral to OH during one of the catch up telephone calls. CMcK followed this up with an e mail and asked C to reply by close of play that Friday (29 September) (see page 161). This was not done by that date but C does appear to have e mailed CMcK at some time after, because on 4 October 2023, CMcK sent an e mail to C headed “Occupational Health Assessment” (page 491). This referred to C having sent a response to her last e mail (presumably the e mail of 27 September 2023). It made reference to C having requested to discuss OH at the next scheduled catch up at the end of October. It went on to say that R needed C to provide her consent sooner than this, stating: “As you know, consent for a referral to Occupational Health for an assessment was discussed with you during our last telephone meeting on 25/09/23. I know that you have indicated that you would like to discuss this at our meeting at the end of October, however after seeking advice from our HR Specialist Provider, we do need to request that you need to decide on consenting to this sooner. The purpose of the occupational health assessment is to assess your current health in relation to your role at Crasac and seeking advice and suggestions for how we can offer support and/or make any necessary adjustments to enable a return to work. This is preferable to a medical report from your GP, as it will speciﬁcally address your needs in relation to your role at CRASAC, however if you would prefer a medical report from your GP, then it’s entirely your choice and we can progress down this route.” CMcK asked C to let R know of her decision by 11 October and that they would be in touch about next steps (either to refer to OH or to contact the claimant’s GP). The letter went on to state: “Please be aware that if your decision is not to consent to either of the above options, then our next meeting at the end of the month will be to discuss a medical review meeting and obtaining a GP report, for which we will issue you a letter. You will be required to attend this in person.”

13.15 C sent her completed consent to undertake an OH referral on 23 October 2023 (see pages 170-172). CMcK and JM both mentioned delays in obtaining consent from C, referring to missed deadlines and that various e mails were sent although copies of such correspondence was not included in the bundle. In any event it was clear that consent had been received by R by 23 October 2023, albeit that this appears to have been after the deadline initially set by R of 11 October 2023.

13.16 A further sick note was submitted by C signing her off for six weeks from 30 October 2023. CMcK and C spoke on this day and C informed CMcK that her symptoms were worse than before. CMcK also submitted the OH referral form to R’s providers on 30 October 2023 (see pages 165-169). This included the following description of the issue that prompted the referral: “We have not been provided with any information about a specific medial conditions up to this point, other than the employee is experiencing multiple symptoms including fatigue. Therefore we are unable to comment on how this may impact the employee's ability to undertake their duties and how we can support her. Due to this we felt it was necessary to refer for an occupational health assessment to support us to support the employee when she returns to work. In welfare telephone calls the employee has mentioned she has had a blood test, blood pressure monitored and HRT explored.”

13.17 On 14 November 2023 CMcK contacted C by e mal and stated that she had left two voicemail messages which had not been responded to. She stated that the OH team had been trying to contact C without success to schedule an assessment. She informed C to call her to discuss this or e mail “by 5pm on Thursday 16/11/23”. C responded the same day stating that she felt there must have been a “cross over in communications” as she was currently in touch with OH (page 493).

13.18 C attended an appointment with OH on 30 November 2023 and the report produced following that appointment was at pages 176-180. This was a lengthy document and started by discussing the background to the referral and C’s role. It went on to state that C had begun to experience perimenopausal symptoms mentioning general symptoms at this point. It stated that C had mentioned “burnout” from her work and was finding it difficult to retain her emotions. There was then mention of C having found the presentation she was asked to do difficult stating that C, “felt empty as she had no more energy but also full up with too much work and not being able to take a proper break”, going on to mention C saying she was supposed to have a 20 minute break but that this was normally broken up and there was no proper break room.

13.19 The report then went on to set out a list of the specific symptoms being experienced by C, being: “high blood pressure, high cholesterol, headaches/migraines, abdominal bloating, mood swings associated with her hormonal cycle, hot flushes, fatigue, anxiety, agitation, anger, palpitations, foggy head, dizzy spells, frozen shoulder, generalised aches, joint paints such as in her elbow, back and hips.” The report listed the contact that had taken place between the R and C and noted that C felt she was being asked inappropriate questions about when she was coming back to work, being told her salary was being reduced and that her cases were being redistributed. The report noted that C felt anxious and had a further 6 weeks off work. The report recorded the claimant saying she had “18 phone calls, 8 e mails, 4 voicemails and 2 Whatsapp messages”.It went on to state that C had explored HRT but stopped it as it had made her feel unwell and was currently managing her symptoms with holistic treatment, walking and meditating and that she felt better. In response to the question posed as to whether C was fit for normal hours and duties required for the post and if not when they would be able to return the following statement was included: “In my view, [C] is not fit for work unless the work related issues can be addressed to reduce her stressors. Then she could be considered fit for work with adjustments and for her normal hours and duties following a successful phased return to work plan.” The report listed some of the sources of support that the OH adviser had provided to C including apps and websites that C could access. In response to the question as to whether C was able to provide regular and effective service in the future, it noted that the past record of the employee should be reviewed and stated that there appeared to be a “good likelihood” of this albeit that a recurrence of symptoms could not be ruled out. In response to the question as to whether the employee was covered by the EQA it made the point that this was for a tribunal to determine and this was a legal not medical question but state to provide guidance that: “it is my opinion having considered the definition of disability that [C] is likely to be covered within the scope of the Act in relation to the menopause symptoms.”

13.20 There was a lengthy section on possible adjustments and support which stated by suggesting that the “perceived issues of concern are effectively addressed if her mental health is to be optimised on her return to work” and recommended an “informal meeting “ with line management or a neutral party before C return to work which would be to update her on any changes and to “discuss the work arrangements if it would help to expedite the process and smooth transition to the workplace”.

13.21 It went on to recommend a stress risk assessment be carried out and recommended a phased return to week with an example being given of a 4 week period starting at 25% increasing by that amount every week up to 100% on week 4. It stated that consideration should be given to extending it “by a further week or two” if there were issues with progress and that C should remain on the week which is most comfortable and consistent before moving to the next stage. It also recommended micro breaks are taken and that C paced her work activity and given extra time to complete her tasks. It also recommended a DSE and work station assessment be carried out due to musculoskeletal symptoms. Finally it recommended regular management contact to ensure that C was coping.

13.22 When asked whether C was fit to participate in a formal meeting it suggested that she was but that if C was unable to attend in person that it be conducted by phone or video and suggested that C may require a “representative to support her or act on her behalf and/or extra time or written explanation to allow her to engage in the management process”. It then included the following statement: “Current occupational health thinking is that unless [C] and/or her advocate and management are able to engage with each other and draw a line under the perceived current workplace issues, it is unlikely that she will be able to move forward from a psychological perspective and this cannot be medically resolved. Therefore, a resolution at the earliest possible convenience is desirable so she can focus on her recovery and all parties can move forward.” It concluded by stating that the information was provided as advice only and that implementing any of the suggestions was a decision of the employer and that any adjustments would have to be agreed by that employer “considering the needs of the organisation and any constraints within the work environment”

13.23 On 4 December 2023, CMcK contacted C by e mail and informed her that she had been away from the office for a “couple of weeks” and asked for a catch up by telephone that coming Thursday 7 December (page 173). C must have responded in some manner as on 5 December 2023 CMcK e mailed again thanking C for her e mail mentioning that OH had been trying to contact C following her assessment stating that it looked from C’s e mail (that we did not see) that C was in contact with OH again. CMcK went on to ask C to let her know by 6 December 2023 whether C would remain on sick leave or would be returning to work. She went on to inform C that if she was sick beyond 11 January, she would need to claim SSP herself.

13.24 The Tribunal were not shown or referred to any further e mails between the parties until an e mail from CMcK to C on 21 December 2023 (page 175). R’s witnesses suggested that there were other communications between them and C during this period relating to the release of the OH report and questions and issues raised by C about this report. However we were unable to make any findings about this save to say we accept that C appears to have been in communication about potential amendments to the report. The e mail sent by CMcK on 21 December 2023 was headed “Medical capability meeting” and stated that it attached a meeting invitation and would be grateful if C could confirm that she was able to attend the meeting. It was unclear whether there was an attachment to this e mail. JM explained that R was advised at this time to invite C to a medical capability meeting as there had been a number of missed deadlines and at this stage, there had been no consent to release the OH report. She described C as having a history of missed deadlines and a pattern of delay and this is why the invitation was sent at this time. We accepted C’s evidence that she was dealing with ongoing challenges of managing her menopause symptoms at this time and it left her feeling anxious and uncertain about her future in the organisation, although acknowledged that there was sufficient notice for the meeting itself.

13.25 C saw the final version of the report on or around 29 December 2023 which is the date of the report we have seen. She saw earlier versions before this and had requested some changes on 5 and 11 December 2023. We accepted C’s evidence that she felt a mixture of emotions having processed the information in the report and felt unsupported by R and that they had lacked empathy. She felt that she had been sidelined with her voice unheard and her condition insufficiently understood. Capability process

13.26 The next communication between the parties appeared to be an e mail sent by the C to CMcK on 3 January 2024 (page 494). This e mail stated that it was responding to a communication of 2 January 2024 (which we did not see). C stated that she was surprised have received the e mail of 21 December 2023 (mentioned above) which referred to a medical capability meeting, stating that this was before the OH report had been filed. It went on to state: “In light of and in accordance with the Occupational Health Report, your request for a medical capability meeting seems therefore not the appropriate meeting, as the report suggests that I am indeed capable to fulfil my job role as an adult counsellor at CRASAC” C went on to stated that the report suggested she was suitable for her role and suggested a phased return to work with some adjustments. She then requested a meeting with CMcK as her line manager to discuss the report. C explained that she felt this was a fair and necessary step to aid her recovery.

13.27 It is not in dispute that R received the OH report on 4 January 2024. CMcK also wrote to C on 4 January 2024 responding to her e mail the previous day. She stated that having taken advice, she had been assured that the medical capability meeting was the “normal procedure” following an OH assessment taking place and gave the opportunity to discuss a number of things. It informed C that the meeting was to be held on 9 January at the CRASAC premises and that the purpose of the meeting was to discuss her absence from work, the OH report, the likelihood of C returning to work, whether any reasonable adjustments could be made and whether alternative employment was suitable. It went on to state: “I have to inform you that if the meeting indicates that there is little likelihood of a return to work within a reasonable timescale and there are no reasonable adjustments that can be made or alternative employment available, then the outcome may be notice of the termination of your employment on the grounds of ill health. I sincerely hope that this will not prove to be the case, and for this reason if there is any relevant information which you believe we ought to consider, then it is in your own interests to make it available to us for the meeting.” The e mail informed C that she was entitled to be accompanied by a trade union representative or a colleague and it was stated that no decision would be taken at the meeting but that C would be “informed of the outcome” as soon as all the information had been considered.

13.28 C said this response left her feeling disregarded and added to a growing sense that her health needs were being overshadowed. She felt that the refusal to delay the meeting was disheartening and unnecessary. She responded to this on 5 January 2024 (page 183). She referred back to the e mail she had been sent on 4 October 2023 where she had been informed that a medical review meeting would take place if C had not agreed to either an OH report or a GP report. She stated that as she had had an OH assessment, that, “in line with the OH report, it seems only reasonable that an informal meeting will be facilitated with my line manager, at a convenient location to review my current status, any changes, and to discuss work arrangements in order to help me with a smooth transition to the work place”. C also enclosed a copy of the OH report.

13.29 The next e mail we saw was an e mail from JM to C on 8 January 2024 which was sent on JM’s return to work from annual leave. It was in reply to C’s request that an informal meeting take place. It explained that R had been informed that following requests for changes to be made to the OH report, a deadline had been given for C to return and consent for the report to be released to R by 18 December. JM went on to state that as R had not received the report by 21 December, C had been invited to a medical capability meeting on 9 January to allow time for the report to be released or for C to decide not to consent to its release. JM disputed the interpretation of the 4 October e mail and stated that it had communicated to C that if she did not consent to a medical report then the respondent would move straight to a medical review meeting. She went on to state, “It is still appropriate for us to hold a review meeting following receipt of the report. There will be time within the meeting to discuss the report in detail with you” It went on to state that C was still required to attend the meeting in person and reminded her of her right to be accompanied. During cross examination JM said she felt that C asking to attend an informal meeting with CMcK was “another delaying tactic”. She added that if C was happy to come back to work this could have been explored at the medical capability meeting, which although a formal meeting, did not mean that the outcome was dismissal. When asked what consideration was given to changing this meeting to an informal meeting, JM explained that things had become incredibly difficult and that the feeling was that C was being unco-operative and was not engaging with the process. After consulting with their HR advisers, JM said R decided it was best to proceed with medical capability although the issues of return to work and adjustments could be considered there as well.

13.30 C responded on the same day (page 185) stating that she had not been given a deadline by OH to respond and that delays were due to errors in the report she needed to correct. She stated that she was happy to attend a meeting to explore return to work options but could not attend the next day due to a medical appointment. She proposed an alternative date of 17 January. JM then responded again the same day (page 186) stating that the OH report had said that the claimant’s next GP appointment was 12 January 2024 and asked C for proof of the medical appointment that was scheduled for the next day. She informed C that the meeting had to take place within the next two working days and proposed 11 January 2024 as an alternative. C wrote again on 9 January 2024 (page 187) and again proposed 17 January and asked to bring a friend to accompany her, referring to this being mentioned in the OH report.

13.31 JM responded on 10 January (page 188) stating that the meeting needed to take place within 2 working days of the original meeting and informing C that she was required to attend on 11 January 2024. She stated that as this was a formal meeting, C was not allowed to bring a friend, but could bring a colleague or trade union representative. It repeated the information about the purpose of the meeting as set out in CMcK’s letter of 4 January and reminded C that if the meeting indicated little likelihood of a return to work within a reasonable timescale and if no reasonable adjustments or alternative employment were made or found that the outcome may be termination of employment on the grounds of ill health. She stated that if C did not attend the meeting it would proceed in her absence and she would be informed of the outcome. It also reminded C that she had to bring proof of the medical appointment that took place on 9 January 2024. The Tribunal found this to be a particularly aggressive letter which focussed on the possibility of dismissal, rather than other alternative outcomes.

13.32 C told us that she was unable to attend the meeting as she was having episodes of panic attacks. On 11 January 2024, she e mailed (page 190) to state she could not attend the meeting that day “due to unforeseen health issues”. She apologised for her absence and said that her current state of health made it impossible for her to actively participate and engage in the discussions. She asked for understanding and that the meeting be postponed to a date when she was in better health and could contribute. She requested copies of her contract, SSP1 form and personnel file. C subsequently submitted a further sick note signing her off work until 8 February 2024 (pages 190-1).

13.33 JM sent an e mail to C on 15 January 2024 (page 193) attaching a document which contained the questions which R said it would have explored with her in the face to face meeting. JM told us that it was not her choice to send written questions but felt she was left with no option as C had failed to attend the meetings scheduled. She said this was done on advice and also felt that doing this was a reasonable adjustment in itself. C was not asked in advance about her views about taking this approach. The e mail stated that R wanted to give the claimant “one last opportunity to feed into this process. It gave C 4 days until 19 January 2024 to respond. The document attached was a 3 page document containing 25 questions (pages 194-6). The questions asked C initially to be specific about her symptoms stating that the sick notes described multiple symptoms including fatigue. The Tribunal found both the content and tone of many of these questions to be adversarial in nature focussing on what steps C had taken to manage her symptoms at work and whether she raised this with her management or other sources, including asking C to inform R whether she had raised any issues in her clinical supervision. It asked C to explain how she could cope with her caseload if she was experiencing burnout and asked a number of questions about the burnout matter. It challenged C on what training she had attended pointing out that no safeguarding concerns had been raised by her. Rather than being a document which tried to elicit genuine responses, this document read more like a list of cross examination questions for a Tribunal hearing. In particular questions at 12 (which disputed what C said about the presentation and the difficulties she was having with it and set out R’s view that this was not a difficult task), at 13 (which challenged C on whether she was correct about break times), at 14 (which disputed what C said about break rooms) were particularly confrontational. C described this document as being cold and procedural and that she felt she was being reduced to a checklist with no compassion or human consideration. The Tribunal shared this view and found that this was an inappropriate document to have sent (without prior discussion) to an employee signed off work and effectively required C to justify the statements that had been included in the OH report that R itself commissioned and challenged the facts the OH report included. It is hard to see how this could have been received as anything other than a direct challenge to what C was saying about her own health and how it impacted her at work. As pointed out by C, there was no mention of the word menopause in the document.

13.34 C responded to the questions on 29 January 2024 (pages 197-205), perhaps unsurprisingly in many cases in an equally adversarial manner. In relation to the questions about being specific about symptoms, C referred back to the OH report. In terms of the questions relating to what steps she had taken at work to manage her symptoms she suggested that it would make more sense for R to consider what reasonable adjustments it could make to assist her to work. She expressed her concern that R was asking her to inform them what had been raised in her own clinical supervision on ethical grounds. She also responded on the burnout issue stating that she had compared some of her symptoms in her discussion with OH as being like burnout rather than stating that she experienced burnout. She also stated that her menopausal symptoms had been “exacerbated by poor management”. In her response to question 7 about how she could cope with her C stated, “With regards to managing a full caseload, as discussed in the OH report, there may be adjustments that you can implement to protect breaks and there is adequate time between clients to do notes, admin tasks and safeguarding”.

13.35 In relation to the presentation, C stated that she had raised her concerns with CMcK and felt that she was not listened to, valued or respected and CMCK did not accept that she did not want to do the task. She also set out her position on breaks and a place to take these and explained some of the comments about being sidetracked between appointments. C made comments about being unhappy with the content of some of the calls with CMcK when she was off sick stating that she felt that CMcK was not empathetic or supportive and focused solely on the organisation’s needs. C listed the contact she had during her absence and stated her view that these had a pressurised and intrusive tone and were not to support her.

13.36 In response to the question about what the work related issues were that needed to be resolved before C could return, C gave some detail of these at her response to question 21. She stated that the management approach, style and practice was a contributing factor to exacerbating her menopausal symptoms. She reported feeling pressured, not valued, chased and harassed and that the way her sickness had been dealt with showed little concern for her welfare or needs. She raised the presentation in particular and then went on to state examples of work related issues being bullying by management, health and safety concerns, poor management, lack of flexibility and ethical concerns.

13.37 In response to this, JM wrote to C on 9 February 2024 (page 206) reminding C of the importance of airing her concerns and resolving matters through a formal grievance process if she wished. The e mail asked C to raise a formal grievance within 5 days so that a formal grievance hearing could be held. That e mail attached a copy of R’s grievance procedure. C initially took this as a sign her concerns were being taken seriously but then reached the view that this was more of a formality rather than a genuine attempt to address the concerns. On 16 February 2024 C responded stated she felt the policies were lacking in certain areas and did not make her feel heard. She also raised a concern that JM was still in touch with her (rather than the CEO and JM’s line manager) given that some of the issues she had raised related to JM herself. She also asked for a response to the medical capability review. When asked whether at this point R had considered any other way of resolving the perceived workplace issues, other than through the formal grievance process, JM said she felt the tone of this response was hostile and they decided at this stage to proceed with the medical capability decision making.

13.38 On 26 February 2024, JM responded stating her view that the work related concerns set out in C’s responses to the questions would be deemed a grievance and would need to be raised with NT. She said she had hoped that these matters could be dealt with outside the medical capability process she was conducting but as C had chosen not to raise a grievance , JM “had to make a decision based on the information in front of” her. C told us she felt ‘blindsided’ by this response as she had already set out her concerns in writing; that she was unwell and struggling and had trusted that the organisation would act in good faith. She told us she believed that a technicality was being used to invalidate her concerns and to move forward and dismiss her. C replied stating that although she had raised concerns in her responses to the medical review process, she had, “not opted yet to formally raise my concerns in a formal grievance process, but may choose to do so, in due course”. She asked that JM notify her of the decision that had been made. Decision to dismiss

13.39 JM gave evidence in her witness statement that R terminated C’s employment on the grounds of “medical incapability to be able to continue in her job”. On 27 February 2024, JM e mailed C stating that she had reviewed the documents sent by C and taken into account the OH report, further stating: “You have been absent since the 22nd June 2023 and there is currently no clear return to work date. Therefore, we feel the only option presented to us is to terminate your employment due to medical capability”. We accepted C’s evidence that the “shock and devastation” felt in that moment were hard to put into words. She told us the decision felt cruel and unjust that she was not being supported and that she was being pushed out whilst struggling with a serious and life impacting health condition.

13.40 This e mail was followed by an outcome letter (pages 207-8) setting out the basis for the decision. This set out the history to C’s absence and referred to the OH report stating: “Colleen felt you were not fit to return to work unless the work-related issues could be addressed to reduce your stressors. You would then be considered fit for work with adjustments and for normal duties following a successful phased return to work plan.”

13.41 It went on to state that C was “then” booked into a medical capability meeting which was described in this letter as being “to discuss the occupational health report and put the necessary steps in place to ensure you felt comfortable returning to work”. It stated that when C said she was unfit to attend, that she understood this and requested a response to some written questions. It further explained that on receipt of these she offered C the opportunity to raise a grievance with NT so that these matters could be investigated. It then went on to state: “As you have not contacted [NT] or myself with an alternative route to rectify your concerns with work, and given what is stated in your occupational health report, I feel it is unlikely that you will be able to return to work in the foreseeable future. Under these circumstances and taking into account the fact we need to find a permanent replacement for you, I have regretfully been left with no alternative other than to terminate your employment on the grounds of ill health.” During cross examination, JM was asked about the rationale which led to dismissal and she explained that she had focused on the above provision in the OH report which stated that C would not be fit to return to work unless her perceived work concerns were addressed. She explained that C was given the opportunity to do this by being invited to raise the grievance but she chose not to. Therefore JM felt that as the issues were not addressed, she concluded C was not fit to return to work. She stated that she felt this needed to be resolved before any discussion about reasonable adjustments could take place. When asked why the issue of reasonable adjustments could not have been considered alongside an attempt to resolve the grievance, JM told us that she did not believe this was possible because R was unaware of the issues that were causing the claimant to be mentally unwell. When it was put to JM that she was linking C’s failure to pursue a grievance with her inability to return to work, she denied this but stated that she was following the recommendation in the OH report and legal advice that the way to resolve the workplace issues was to give C an opportunity to raise a grievance. She felt that as C did not then raise a grievance, her concerns could not be investigated and R had no way to proceed and went on the information in the OH report that C was therefore not fit to work.

13.42 The letter informed C that she would be paid 2 months in lieu of notice and of her right to appeal.

13.43 C appealed against her dismissal on 6 March 2024 (page 201-11) claiming that her dismissal was unfair as it did not take into account her disability as a result of menopause and was linked to her raising concerns. Her appeal was acknowledged by NT on 8 March and she was informed that R was hoping to use an external consultant to carry out the appeal to ensure impartiality (page 213). There was then an exchange of correspondence about a suitable date for the appeal and the return of property. On 20 March 2024, C was notified that the appeal hearing would take place on 26 March 2024 (page 219-20) would be conducted by “an impartial consultant from Peninsula Face2Face” and that the consultant would contact her on the date of the hearing with the video conference link for her to join the meeting. It summarised C’s grounds of appeal. It informed C that she should contact NT in advance of the meeting if anything was incorrect or if there was anything further that she wished the consultant to consider. It also stated that she should bring any paperwork or other evidence with her that they would like the consultant to consider. She was informed of her right to be accompanied and the letter also stated: “As this is your medical capability appeal you are expected to make every effort to attend this meeting because if you fail to attend the meeting without good reason or fail to notify us of the good reason for your non-attendance in advance of the meeting, the Peninsula Face2Face Consultant will proceed with the investigation of your medical capability appeal in your absence. In such circumstances, the Peninsula Face2Face Consultant will make their recommendations based upon the information available to them at the time of the meeting. However, in this event, you may provide written submissions to the Peninsula Face2Face Consultant by 5pm on the scheduled date of the meeting should you wish to do so.”

13.44 C e mailed NT on 25 March 2024 attaching some documents to be considered at appeal. On 26 March 2024 C was e mailed by DD, the Peninsula Face2Face consultant allocated to her hearing. He included a link to the video conference meeting (page 224). C explained that she was not familiar with Peninsula and felt uncomfortable as she did not know the identity of the person holding her appeal in advance which flared up her anxiety. C responded just before the meeting was due to start stating that as she had no way of verifying DD’s identity and suggesting that he contact the organisation that had instructed him and ask them to forward the details to reassure C that she was speaking to a verified person (page 226). She proposed that the meeting be rescheduled for 8 April 2024. DD responded stating that C was aware that a consultant from Peninsula Face2Face would be contacting her even if his particular name had not been provided. He referred to the paragraph in the letter inviting C to the appeal meeting relating to non attendance and asked her to provide him with further evidence to be considered before 5pm that day if she wanted her views to be considered (page 227). C once again e mailed expressing her concerns about DD’s identity not being verified and referred to cyber security risks (page 228). C told us that the refusal to reschedule the meeting to allow her to fully participate felt punitive and unnecessary.

13.45 The appeal was considered in C’s absence. Her submissions sent to NT on 25 March 2024 were not considered by DD. JM was asked to respond to a number of questions in writing as part of the appeal (shown at pages 239-235). This set out the rationale and matters which JM said she considered in making her decision to dismiss. It stated that JM considered C’s menopausal symptoms but stated it was unclear which of these C needed support with. It was noted that the suggested open ended flexible phased return was considered but that this could not be implemented whilst balancing the needs of clients ethically and safely.. JM stated that the vulnerable clients that the counsellors worked with required a weekly appointment on the same day at the same time for 6 months and this would be difficult to maintain with an open ended plan. JM noted that R had not discussed this with C as she had not attended the capability meetings. However we accepted JM’s evidence that a phased return that was not open ended would have been offered to C (as such arrangements had been in place for other employees returning from sick leave) had there been a discussion about this. It further referred to that the “perceived workplace issues” and the raising of work related stress noting the part of the OH report stating that if these were not resolved that C could not return to work. When asked what reasonable adjustments were considered, JM stated that as the OH report was unclear as to which symptoms C needed support with and because C did not attend her medical capability meeting and was not clear in her written submissions, it was “difficult to offer solutions” She went on to state what was currently offered by R including chilled water coolers, fans etc. JM addressed the issue of breaks noting that the working day already included provision for these to be taken and made the point that C was already working with a reduced caseload. She stated that a workstation assessment could be carried out. She pointed out that the recommendation of regular management support was in place but C did not want to take this up whilst on sick leave.

13.46 JM also noted that she felt that from early on in C’s sickness, C had been hostile towards her manager, taking offence to later e mails from JM and NT. She described C as being uncooperative and that she had repeatedly not responded to deadlines and not responded to OH. She further mentioned that C had not attended meetings and refused to provide evidence of her medical appointment and then did not participate in the appeal hearing. She further added, “I believe that she became quite vexatious throughout this process and it was never her intention to return to work”

13.47 DD prepared a report dated 4 April 2024 setting out his findings (pages 236-249). He recommended that the appeal be dismissed. C was notified on the outcome in an e mail and letter from NT dated 8 April 2024 (pages 249-253). NT rejected the appeal and confirmed that the original decision be upheld.

13.48 C commenced early conciliation in these proceedings on 13 March 2024 and an early conciliation certificate was issued by ACAS on 24 April 2024. She presented a claim form on 21 May 2024 and there is no question of the claim or any part of it being presented out of time.

The Relevant Law

[14]The relevant sections of the ERA we considered were as follows: 94. The right(1) An employee has the right not to be unfairly dismissed by his employer. 95. Circumstances in which an employee is dismissed. (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) only if)— (a) the contract under which he is employed is terminated by the employer (whether with or without notice), (b) he is employed under a limited-term contract and that contract terminates by virtue of the limiting event without being renewed under the same contract, or] (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct. 98 General (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. …… (4) Where] the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.

[15]In the leading case of East Lindsey District Council v Daubney

1977 ICR 566

, EAT, Mr Justice Phillips stated: ‘Unless there are wholly exceptional circumstances, before an employee is dismissed on the ground of ill health it is necessary that he should be consulted and the matter discussed with him, and that in one way or another steps should be taken by the employer to discover the true medical position. We do not propose to lay down detailed principles to be applied in such cases, for what will be necessary in one case may not be appropriate in another. But if in every case employers take such steps as are sensible according to the circumstances to consult the employee and to discuss the matter with him, and to inform themselves upon the true medical position, it will be found in practice that all that is necessary has been done. Discussions and consultation will often bring to light facts and circumstances of which the employers were unaware, and which will throw new light on the problem. Or the employee may wish to seek medical advice on his own account, which, brought to the notice of the employers’ medical advisers, will cause them to change their opinion. There are many possibilities. Only one thing is certain, and that is that if the employee is not consulted, and given an opportunity to state his case, an injustice may be done.’

[16]Where an employee has been absent from work for some time, a Tribunal must consider whether the employer can be expected to wait any longer for the employee to return — Spencer v Paragon Wallpapers Ltd

1977 ICR 301

, EAT

[17]In BS v Dundee City Council

2014 IRLR 131

, it was confirmed that a tribunal must address this question, balancing the relevant factors in all the circumstances of the individual case which may include whether other staff are available to carry out the absent employee’s work; the nature of the employee’s illness; the likely length of his or her absence; the cost of continuing to employ the employee; the size of the employing organisation; and(balanced against those considerations), the unsatisfactory situation of having an employee on very lengthy sick leave. In relation to an employee who has been on long-term sickness absence:(i) the critical question is whether in all the circumstances of the case any reasonable employer would have waited longer before dismissing the employee;

(ii) there is a need to consult the employee and take their views into account;

(iii) there is a need to take steps to discover the employee's medical condition and their likely prognosis, but this merely requires the obtaining of proper medical advice; it does not require the employer to pursue detailed medical examination; all that the employer is required to do is to ensure that the correct question is asked and answered.

[18]Where dismissal has been the outcome of a decision based on incapacity, the question for the Tribunal is whether the employer reasonably believed the employee to be incapable (Alidair Ltd v Taylor

[1978] ICR 445

, sub nom Taylor v Alidair Ltd

[1978] IRLR 82

, CA).

[19]In Monmouthshire County Council v Harris EAT 0332/14 it was observed that in an absence-related capability case, the employment tribunal’s reasoning ‘needed to demonstrate that it had considered whether the respondent could have been expected to wait longer, as well as the question of the adequacy of any consultation with the claimant and the obtaining of proper medical advice’.

[20]If a dismissal is asserted to be on the grounds of conduct, then the test laid down in British Home Stores –v- Burchell

[1978] IRLR 379

requires an employer to show that:-20.1 it believed the employee was guilty of misconduct;

20.2 had reasonable grounds to hold that belief;

20.3 it formed that belief having carried out a reasonable investigation, given the circumstances.

[21]In determining the question of reasonableness it was not for the Tribunal to impose its standards and decide whether the employer should have behaved differently. Instead it had to ask whether “the dismissal lay within the range of conduct which a reasonable employer could have adopted” as set out in the case of Iceland Frozen Foods v Jones

[1982] IRLR 439

[22]The “range of reasonable responses” test applies not only to the actual decision to dismiss, but also to the procedure adopted by the employer in putting the dismissal into effect - Sainsburys Supermarkets Ltd v Hitt

[2003] IRLR 23

[23]In DB Schenker Rail (UK) Ltd v Doolan [2010]

UKEAT/0053/09

, the EAT invoked the relevance of the Burchell test to ill-health dismissals, since the employer must show it had a genuine belief that ill-health was the reason for dismissal; it had reasonable grounds for its belief; and carried out a reasonable investigation. As with misconduct cases, an employer is to be judged by whether it acted within the range of reasonable responses and Tribunals must, in such circumstances, resist the temptation to test matters according to what they would have decided if they had been in the employer's shoes.

[24]In Bugden v Royal Mail Group Ltd

[2024] EAT 80

, the EAT held that whether an employer has considered redeployment was one of the issues identified by Underhill LJ in Small v Shrewsbury and Telford NHS Trust

[2017] EWCA Civ 882

that a tribunal should consider for itself "as a matter of course", irrespective of whether it is raised by the parties. For unfair dismissal law purposes, the question of whether or not it is reasonable for an employer to waive or otherwise modify a certain aspect of the job so as to avoid dismissal will be a question of fact and degree - Garricks (Caterers) Ltd v Nolan

[1980] IRLR 259

[25]Polkey v A E Dayton Services Ltd

[1987] IRLR 503

HL, the chances of whether or not the employee would have been retained must be taken into account when calculating the compensation to be paid to the employee. Tribunals are required to take a common-sense approach when assessing whether a Polkey reduction is appropriate - Software 2000 Limited v Andrews

[2007] IRLR 568

; the nature of the exercise is necessarily “broad brush” - Croydon Healthcare Services v Beatt

[2017] IRLR 274

; and the assessment is of what the actual employer would have done had matters been dealt with fairly not how a hypothetical fair employer would have acted (Hill v Governing Body of Great Tey Primary School

[2013] IRLR 274

[26]The relevant sections of the EQA applicable to this claim are as follows: 4 The protected characteristics The following characteristics are protected characteristics: … Age,…disability…sex;” 13 Direct discrimination(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”. 15 Discrimination arising from disability “(1) a person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(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”. 23 Comparison by reference to circumstances (1) On a comparison of cases for the purposes of section 13....there must be no material difference between the circumstances relating to each case.” 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 disadvantage. 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. 123 Time limits (1) [Subject to [sections 140A and 140B],] proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. 136 Burden of proof (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. Paragraph 20 (1) (b) of Schedule 8 provides that an employer is not subject to a duty to make reasonable adjustments if the employer does not know and could not reasonably be expected to know that the employee had a disability and was likely to be placed at the relevant disadvantage.

[27]The relevant authorities which we have considered on the direct discrimination claims are as follows: Burrett v West Birmingham Health Authority

1994 IRLR 7

, EAT is an example of the proposition that it is for the tribunal to decide as a matter of fact what is less favourable treatment and the test posed by the legislation is an objective one. The fact that a claimant believes that he or she has been treated less favourably does not of itself establish that there has been less favourable treatment, although the claimant’s perception of the effect of treatment is likely to be relevant as to whether, objectively, that treatment was less favourable. Anya v University of Oxford & Another

[2001] IRLR 377

- it is necessary for the employment tribunal to look beyond any act in question to the general background evidence in order to consider whether prohibited factors have played a part in the employer’s judgment. This is particularly so when establishing unconscious factors. Igen v Wong and Others

[2005] IRLR 258

The employment tribunal should go through a two-stage process, the first stage of which requires the claimant to prove facts which could establish that the respondent has committed an act of discrimination, after which, and only if the claimant has proved such facts, the respondent is required to establish on the balance of probabilities that it did not commit the unlawful act of discrimination. In concluding as to whether the claimant had established a prima facie case, the tribunal is to examine all the evidence provided by the respondent and the claimant. Madarrassy vNomura International Ltd

2007 ICR 867

- the bare facts of the difference in protected characteristic and less favourable treatment is not “without more, sufficient material from which a tribunal could conclude, on balance of probabilities that the respondent” committed an act of unlawful discrimination”. There must be “something more”. Nagarajan v London Regional Transport

[1999] IRLR 572

, HL,-The crucial question in every case was, 'why the complainant received less favourable treatment … Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job?' Chief Constable of West Yorkshire Police v Khan

[2001] UKHL 48

[2001] IRLR 830

[2001] ICR 1065

, HL, - The test is what was the reason why the alleged discriminator acted as they did? What, consciously or unconsciously was their reason? Looked at as a question of causation ('but for …'), it was an objective test. The anti-discrimination legislation required something different; the test should be subjective: 'Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.' Bahl v Law Society

[2003] IRLR 640

– “where the alleged discriminator acts unreasonably then a tribunal will want to know why he has acted in that way. If he gives a non-discriminatory explanation which the tribunal considers to be honestly given, then that is likely to be a full answer to any discrimination claim. It need not be, because it is possible that he is subconsciously influenced by unlawful discriminatory considerations. But again, there should be proper evidence from which such an inference can be drawn. It cannot be enough merely that the victim is a member of a minority group. This would be to commit the error identified above in connection with the Zafar case: the inference of discrimination would be based on no more than the fact that others sometimes discriminate unlawfully against minority groups.”

[28]In relation to section 15 EqA, the case of Pnaiser v NHS England and Coventry City Council EAT /0137/15 confirmed as follows:(a) A Tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises.

(b) The Tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a section 15 case. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.

(c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A’s motive in acting as he or she did is simply irrelevant ......

(d) The Tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is “something arising in consequence of B’s disability”. That expression ‘arising in consequence of’ could describe a range of causal links ...[and] may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability.

(e) ..... However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact.

(f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.

(g) .....

(h) Moreover, the statutory language of section 15(2) makes clear .... that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the ‘something’ leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so.” City of York Council v Grosset [2018] WLR(D) 296 also confirmed that section 15 (1) (a): “requires an investigation of two distinct causative issues:

(i) did A treat B unfavourably because of an (identified) "something"? and (ii) did that "something" arise in consequence of B's disability”. This case also established that there is no requirement in section 15(1)(a) that the alleged discriminator be aware that the “something” arises in consequence of the disability. That is an objective test South Warwickshire NHS Foundation Trust v Mrs S Lee and Others:

UKEAT/0287/17/DA

illustrates how the question of causation is approached in terms of the decision in Pnaiser above and the application of the burden of proof provisions in s 36 EQA. Hardys & Hansons plc v Lax

[2005] EWCA Civ 846

a Tribunal must reach its own decision as to whether the treatment was justified, without allowing the employer a ‘margin of discretion’ or applying a ‘band of reasonable responses’ test as found in unfair dismissal cases Allonby v Accrington & Rossendale College and others

[2001] IRLR 364

(CA)).The key question at the heart of the balancing exercise is whether the employer's aims could reasonably be achieved by less discriminatory methods ( Department for Work and Pensions v Boyers

[2022] EAT 76

, a procedurally unfair dismissal should also be taken into account when assessing proportionality in respect of a s15 EqA claim.

[29]In relation to a claim for failure to make reasonable adjustments under sections 20 and 21 EQA, the importance of a Tribunal going through each of the parts of that provision was emphasised by the EAT in Environment Agency –v- Rowan

[2008] IRLR 20

[30]The Equality and Human Rights Commission Code of Practice on Employment (“the Code”) paragraph 6.10 says the phrase “provision, criterion or practice” (“PCP”) is not defined by EqA but “should be construed widely so as to include for example any formal or informal policy, rules, practices, arrangements or qualifications including one off decisions and actions”. 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, 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.

[31]The duty to make reasonable adjustments arises when a disabled person is placed at a substantial disadvantage by the application of a PCP etc. Abertawe Bro Morgannwg University Local Health Board v Morgan

2018 ICR 1194

, CA, -the duty to comply with the reasonable adjustments requirement under S.20 begins as soon as the employer can take reasonable steps to avoid the relevant disadvantage.

[32]Griffiths v Secretary of State for Work and Pensions

2017 ICR 160

, CA - 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 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.’

[33]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.

[34]The claimant also referred us to the following authority which addressed in particular direct discrimination complaints relating to the menopause: Merchant v. BT plc [2012] 1 WLUK 683 in relation to discrimination on the grounds of sex and unfair dismissal for a woman experiencing menopausal symptoms. The claimant here was dismissed on capability grounds having disclosed to her employer that she was experiencing menopausal symptoms and had indicated that this was having an adverse impact on her capabilities. There was no referral to occupational health and one manager compared the claimant’s case with his own wife’s menopause, leading the Tribunal to hold that the manager had made ‘improper generalised assumptions about menopause’ and this manager would never have adopted ‘this bizarre and irrational approach’ with other non-female-related conditions. We were also referred to a number of first instance decisions including Mrs M Lynskey v Direct Line Insurance Services Ltd: 1802204/2022 and 1802386/2022; Miss J. Donachie v Telent Technology Services Ltd: 1300005/2020 and Davies v Scottish Courts and Tribunal Services S/4104575/2017.

Conclusion

[35]The issues between the parties which fell to be determined by the Tribunal were set out above. We have approached the issues in a different order than as set out above, but our conclusions on each of the matters in dispute is set out below. Unfair dismissal Issue 2.1 What was the reason or principal reason for dismissal?

[36]R says the reason was capability (long term absence) and the first question we have to determine is whether R genuinely believed that C was no longer capable of performing her duties (issue 2.2.1) . We refer to our findings of fact above and in particular paragraphs 13.39-13.41 which deals with the decision of JM. We accept the submissions of C that there was a lack of clarity as to the real reason why C was dismissed. Despite the pleaded reference to medical incapability, in deciding to dismiss, R did not in fact apply its mind to whether C was in fact capable of performing her duties. The reason for the C’s dismissal was because as matter of fact she had been absent from work since 22 June 2023 with no clear return date (as per the e mail of 27 February 2024) and (significantly) that R had determined that she would be unable to return to work until her concerns with management were formally addressed by way of a grievance. R reached the conclusion that because C had not raised a grievance, it had no alternative but to terminate her employment. C’s actual capability for work by reference to her ability to perform work of the kind she was employed to do (as required by section 98 (2) (a) ERA), was not really considered by R at all.

[37]Therefore we conclude that R cannot have genuinely (and reasonably) believed she was incapable because it never got to the stage of considering this issue. JM and R focused exclusively on one part of the OH report which stated that C was not fit for work until work related issues be addressed (see paragraph 13.19). R did not consider perhaps the key issue here being that C could be fit for work with adjustments following a phased return to work. C herself had informed R that she believed she was fit to return to work as per her e mail of 3 January 2024 (see paragraph 13.26) . There was no suggestion that C being able to return to work depended on her issues being resolved via a formal grievance process. In fact the OH report itself suggests that an informal meeting be held to address the perceive issues of concern (see paragraph 13.20). Before C had been dismissed, whilst she had informed R that she did not want to raise a grievance at this time, she said may choose to do so in due course (see paragraph 13.38)). R appears to have taken the blinkered approach that because C had not taken its option to resolve the perceived workplace issues (a formal grievance), there was no other way to resolve these and that therefore a return to work was impossible. This is not the same as saying that C was incapable of performing her duties and so we conclude R has not established a genuine belief in capability as the reason for dismissal.

[38]We have nonetheless gone on to decide whether R acted reasonably in all the circumstances in treating its reason as a sufficient reason to dismiss the claimant. In particular we have considered the issues raised at paragraphs 2.22 to 2.25 of the List of Issues. Issue 2.2.2 Did the respondent adequately consult the claimant?

[39]Mrs Singh on behalf of R submitted that it did adequately consult and refers to the many communications whilst C was off sick (see paragraphs 13.11 to 13.17) and the many e mails throughout December and January (see paragraphs 13.23 to 13.36). Ms Loutfi for C submitted that the approach to consultation with her was irrational, pointing out that there was initially a delay in referring her to OH and during that time the discussions were informal and relaxed. She pointed out that on 21 December 2023 and from them on there was a sudden conversion of all communications with C to a formal medical capability process with the possibility of dismissal (see paragraph 13.24). Ms Loutfi contends that R would not change its approach back to an informal meeting despite advice from OH and requests from C and that this was plainly unreasonable. It is alleged that R was then hostile to C reluctantly agreeing to postpone the meeting but only by 2 days and demanding proof of the medical appointment. It was submitted that proceeding in this manner was not within the band of reasonable responses especially in light of C’s physical and psychological symptoms that R at this point was aware of. Ms Loutfi submitted that R never engaged with C about her symptoms and their effect, or discussed what adjustments could be put in place determining that what was already there was sufficient. It was also submitted that the decision to progress to the appeal without any input from C was also procedurally unfair, in light of C’s health. She pointed out that C did not say she would not attend the meeting, but expressed her concern about the verification of who was holding it. Mrs Singh submitted that a fair procedure was followed at all times.

[40]We were not satisfied that C was adequately consulted with before her employment was terminated and accept the majority of submissions made by Ms Loutfi for C (albeit we did not find that waiting until September to seek OH input was unreasonable). In particular the decision not to hold an informal meeting as recommended by the OH report but to pursue the medical capability process with the risk of dismissal was outside the range of reasonable responses. We have considered whether the fact that R communicated with C in writing with the ‘25 questions’ document was an indication of adequate consultation (see paragraph 13.33), but we found that this step of itself was outside the range of reasonable responses that an employer might take faced with the scenario of C informing them she was unable to attend the meeting due to health issues. A reasonable employer might have considered rescheduling the meeting for another time or at least getting some indication from C as to when she might be able to attend. If it was clear that there was no prospect of C being able to attend a meeting for a foreseeable period of time, then the possibility of communicating in writing might have been an appropriate and reasonable way to proceed. However we considered that it was outside the range of reasonable responses for this document to be sent without advance discussion as to whether this approach might be suitable. Moreover the amount and tenor of the questions and the fact that C was required to respond so quickly was well outside the range of reasonable responses. For these reasons we were satisfied that there had been inadequate consultation before the decision was made to dismiss. Issue 2.2.3 Did the respondent carry out a reasonable investigation, including finding out about the up-to-date medical position?

[41]Whilst we acknowledged Mrs Singh’s submissions that there were regular calls with C to elicit information and that R got up to date medical advice from its OH providers, and asked follow up questions, we were not satisfied that the extent of the investigation carried out was reasonable.

[42]We conclude this largely because although OH advice was sought, it does not appear to have been considered in any material respect in relation to the reasons and causes for C’s absence from work. R never applied its mind properly to this question, having concluded that the work related issues not being resolved through the grievance meant that C could not return to work (see paragraph 13.42). The questions asked by R were adversarial, not supportive (see paragraph 13.33) and again we conclude that this approach was outside the range of reasonable responses in the circumstances C was in at this particular time. There were insufficient attempts to try and ensure that some face to face discussion took place with the failure to hold an informal meeting but to proceed straight to a medical capability meeting with dismissal as a possible outcome being outside the range of reasonable responses. R went so far in obtaining an OH report, but unreasonably did not engage with the main substance and purpose of the report in relation to C’s ill health. Its focus on addressing just the work related issues and only by using the manner it suggested (formal grievance), and then moving straight to dismissal without considering the substance of the report and whether any adjustments to working practices might be appropriate was outside the range of reasonable responses. The investigation it did carry out was not a reasonable one in all the circumstances. Issue 2.2.4 Could the respondent reasonably be expected to wait longer before dismissing the claimant?

[43]R points out that it could not have been reasonably expected to wait longer before dismissing C given that she had been absent from 22 June 2023. It relies on what it perceived to be unreasonable delays on Cs part and lack of cooperation from C in its OH process. It points out that R is a charity that is oversubscribed and under resourced and suffered a budget cut in January 2024. It has a small staff and has to provide a service to extremely vulnerable service users and try to provide consistency of service.

[44]We were sympathetic to the demands placed on R and the fact that it provides a valuable service to vulnerable people under difficult financial and other circumstances. However we conclude that R unreasonably rushed to dismiss C from December 2023 onwards and we conclude that R could reasonably have been expected to wait longer before it took this drastic action. R’s management was able to display initial patience until September before starting the OH process. It is clear that R was incredibly frustrated by the length of time this was taking and started to conclude that C was trying to delay the process and perhaps did not ever intend to return to work. We conclude this led them to rush the final stages of the process to dismissal before adequately and reasonably considering what alternatives there might have been including C returning to work by the making of what appeared to be relatively minor adjustments to her working practices. R has referred to them being able to support other employees with health difficulties and their general ethos of being a supportive organisation where women are heard. However this was not extended to C from December 2023 onwards. A reasonable employer might have considered postponing the formal medical capability process to enable the informal discussions that had been recommended by OH and requested by C to have taken place. This may have resulted in C being able to return to work. It was outside the range of reasonable responses not to have delayed dismissal to enable this process to play out. Issue 2.2.5 Was dismissal within the range of reasonable responses?

[45]For the above reasons, we were unable to conclude that dismissing C was within the range of reasonable responses. It is clear that there were still alternatives to dismissal which could have been explored and it was unreasonable not to have done this. These might have included the informal meeting recommended or that C returned to work on a phased return basis. Whilst the Tribunal accepts that R may have been unable to operate an open ended phased return with no end date in sight given its obligations and requirements, there was never any real discussion about what sort of phased return it might be able to offer. Both JM and CMcK accepted that some form of phased return was likely to have been possible. Had the informal discussion been allowed to occur, a solution may very well have been found to this issue.

[46]The complaint of unfair dismissal therefore succeeds. No evidence was considered, nor were any submissions made by R on whether there was a chance that C would have been dismissed anyway if a fair procedure had been followed or for some other reason (Polkey) or whether C contributed to her dismissal by blameworthy conduct (which we conclude would not be of relevance in any event in the circumstances outlined above). Therefore no Polkey reductions will be made when considering the appropriate level of compensatory award for unfair dismissal. A separate remedy hearing will be listed to determine the remaining issues of remedy as set out in the list of issues above. Discrimination arising from disability (Equality Act 2010 section 15)

[47]In considering the claims under section 15 EQA, dismissing C on 1 March 2024 was unfavourable treatment (issue 7.1.1) . Issue 7.2 Did the following things arise in consequence of the claimant’s disability?

[48]C contended two matters which we have considered in turn. Issue 7.2.1 did the claimant’s sickness absence arise in consequence of her disability?

[49]R submits that C was in fact absent because she did not want to do the presentation that she was asked to do, pointing out that this was raised and that C went off sick just before it was due to be delivered. It also points out that the matters raised in her answers to questions on 29 January 2024 show this was the case (paragraphs 13.34 to 13.37). We do not accept this submission. It is abundantly clear to us that C was signed off sick and remained of sick from 22 June 2024 as a result of unusually severe menopausal symptoms (see paragraphs 13.10 to 13.13). The medical evidence supports this as does what is set out in the OH report which lists very many debilitating symptoms (see paragraph 13.19). The presentation issue appears to be acknowledged by C as one of the triggers to her symptoms becoming worse, due to the stress she felt about this (see paragraph 13.8-13.10), but we are in no doubt that C was off sick for this period because of her menopausal symptoms. Issue 7.2.2 did the claimant’s ability to work without adjustments or support arise in consequence of her disability?

[50]Ms Loutfi suggested that this could be seen as being C’s need for tailored adjustments and support in particular the need for an informal discussion to discuss the two main adjustments she sought of real breaks and allowing C additional time to prepare for additional tasks, arose from her disability. R suggested that most of the adjustments were already in place and that the one that had been suggested of an open ended phased return was simply not feasible. We were just about satisfied that C’s requirement to have adjustments and support did arise in consequence of her disability in that due to her menopausal symptoms, she was struggling to cope with her duties and found it overwhelming (see paragraph 13.10). Issue 7.3 was the unfavourable treatment because of any of those things?

[51]The next question was whether R dismissed C because of her absence from work and/or because she needed adjustments that they could not implement.

[52]We have already concluded that part of the reason for C’s dismissal as expressed in the email sent to her on 27 February 2025 was her absence from work and not having a return date (see paragraph 36 above). The other part of the reasoning was that R concluded that C would not be able to return to work as she had not resolved her perceived work related issues through its formal grievance procedure. We do not conclude that C was in fact dismissed because she needed adjustments that they could not implement. As we have explained already in relation to the unfair dismissal complaint (see paragraphs 42 to 45) this was not something that R really ever addressed its mind to.

[53]Therefore C’s absence did play a part in the decision to dismiss and certainly absence was more than a trivial reason for dismissal. We have applied the case of Pnaiser above and note the provisions on the burden of proof at section 136 EQA. We conclude that the burden of proof to explain the reason for dismissal had passed to R. It was notable that the e mail of dismissal itself referred to the period of sickness absence (see paragraph 13.39) and this alone would be sufficient to shift the burden of proof to R. This burden having been shifted; R has not been able to show that absence had nothing whatsoever to do with the dismissal. We concluded as per our reasons above that the decision to dismiss was at least in part influenced by the fact that C had been off for 6 months and there was no fixed return date. It is not possible to say that absence had nothing whatsoever to do with the decision to dismiss. Issue 7.4 Was the treatment a proportionate means of achieving a legitimate aim?

[54]R advances a justification defence under section 15 (1)(b) EQA. It relies on the legitimate aim of being able to continue to provide a service to vulnerable clients who were male and female aged 11 or over who had suffered rape and/or sexual abuse. It is clear that this was a legitimate aim of itself. However that only takes the respondent so far. Again it points out that the service was underfunded and oversubscribed and that C’s long term absence was unsustainable given the massive waiting lists for therapy. R contends that it could not keep her job open indefinitely and could not accommodate all the reasonable adjustments sought as she was already on a reduced caseload. We have gone on to consider the sub issues to this question as follows: Issue 7.5.1 - Was the treatment an appropriate and reasonably necessary way to achieve those aims?

[55]When considering whether dismissing C was an appropriate and reasonably necessary way to achieve the legitimate aim in question, we were not satisfied that this was the case for all the same reasons we have already set out at paragraph 44 and 45 above. R could have taken entirely different and more reasonable steps to try and see if C could return to work before even considering dismissal. The OH report suggested an informal meeting as a first step. We conclude that the draconian step of dismissing C was neither appropriate or reasonably necessary in order for R to continue to meet its obligations to its clients. Issue 7.5.2 - Could something less discriminatory have been done instead?

[56]We have also considered whether something less discriminatory have been done instead and we conclude that this was the case. R did not invite C to an informal meeting to discuss how a return to work could be accommodated; it did not really address its mind to whether any adjustments as recommended in the OH report might be accommodated. It simply rejected the proposal of an open ended phased return without even discussing whether C actually required this. It did not consider whether there might be another way of resolving the perceived work related issues other than a formal grievance being raised. It refused to alter its course of moving straight to a medical capability review and we conclude that this was entirely unreasonable in all the circumstances. Issue 7.5.3 – How should the needs of the claimant and respondent be balanced?

[57]Lastly we were not satisfied that R considered how the needs of C and R could be balanced in its decision making. We sympathetic to the demands placed on R, but conclude it focused solely on the problems that C’s absence and any adjustments might cause without really focusing on C’s actual needs. We accept the submission of C that despite what it asserted in its own policy (see paragraph 13.3) there was a ‘one size fits all’ approach being adopted. R was really refusing to move beyond what was already in place in its menopause policy or to consider that C’s exceptionally serious menopausal symptoms meant a different approach might be needed. This led to C having a perception she was not being heard and a lack of empathy was being shown. This is unfortunate in particular given the nature of R and the no doubt very strong values it demonstrates in terms of its service to clients. Issue 7.6 - Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?

[58]The remaining issue is therefore whether R knew of C’s disability when it dismissed her 1 March 2024. We conclude that at this date R knew C was disabled. This is so particularly, given that R had been in receipt of the OH report since January 2024 (see paragraph 13.27), and this gave a clear indication that in the view of the OH practitioner, C’s impairment would be covered by section 6 EQA. C had been off sick for over six months with symptoms which they were aware were related to her menopause and in light of the information provided in her responses to the questions (see paragraphs 13.34-36), we conclude that R can have been in no doubt that C was disabled as a result of her unusually severe menopausal symptoms.

[59]Therefore C succeeds in her complaint that she has been subject to discrimination arising from her disability in that she was dismissed because of a matter arising as a consequence of her disability (namely absence from 22 June 2023). The claim made under section 15 EQA therefore succeeds. Reasonable Adjustments (Equality Act 2010 sections 20 & 21) Issue 8.1 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?

[60]Under paragraph 20 of Schedule 8 to the EQA 2010, an employer is not under a duty to make reasonable adjustments if it does not know, and could not reasonably be expected to know that the individual concerned has a disability. We refer to our conclusions above and conclude that R was aware of C’s disability on 1 March 2024 and would have reasonably been expected to know this from 4 January 2024 when it received the OH report. We have therefore gone on to consider whether the PCPs identified and relied on by C were applied and, if so, when this took place (issue 8.2). Dealing with each in turn: Issue 8.2.1 The respondent’s working practices which required her to return to work on her normal hours; work for consistent periods of time without break.

[61]There are two aspects of this alleged PCP which we have considered in turn. The first aspect is a PCP of being required to return to work on normal hours. The reference here is clearly a reference to C returning to work i.e. after her period of sickness, not what arrangements applied before. The issue of what arrangements applied to C upon return to work was not actually addressed with C. In fact we conclude that some sort of phased return (albeit not open ended) would have been possible and implemented had the discussions got this far (see our findings of fact at paragraph 13.45). This had been done in the past. Therefore we cannot conclude that requiring a return to work on normal hours was practice that R applied nor that it was actually applied to C in this situation.

[62]The second aspect of this alleged PCP is the suggestion that there was a practice of requiring employees to work ‘without break’. C tried to reframe this PCP in submissions as being required to take time without ‘proper’ breaks away from tasks. However, the PCP as it is pleaded and which has been in the list of issues since the case management order of 9 October 2024 is clearly stated as ‘being required to return to work on normal hours, work for consistent periods of time without break’. C has not shown in her evidence that this is a practice that operated. R denied that this PCP was in existence and we found as a fact that there were breaks during the working day as well as gaps between appointments (see paragraph 13.4 above). In addition at the time before her absence from work, C’s caseload was reduced (see paragraph 13.7). We further accepted what JM said during the appeal process about the position around C and breaks (see paragraph13.45).

[63]It may well have been that because of the unusually severe symptoms suffered by C before her absence from work, she was finding that the breaks that were provided were insufficient for her needs. However we cannot conclude that R operated a PCP of a requirement to work without a break at all or applied this to C.

[64]On that basis the claimant’s complaint for a failure to comply with a duty to make reasonable adjustments in relation to this PCP fails and we do not need to consider the remaining questions set out at paragraphs 8.3 to 8.7 of the list of issues above. Issue 8.2.2 The requirement for the claimant to complete duties within time restraints.

[65]R accepted that his PCP was applied and made reference to its requirements to provide therapy sessions for 50 minutes each session and for notes to be prepared in the 10 minutes thereafter. It was not clear that this was actually the issue that C was referring to and she seems in this complaint be directing her focus to the issues that arose around the presentation in June 2023. Nonetheless, given the concession by R, we have gone on to consider whether the PCP of requiring C to complete duties within time restraints put her at a substantial disadvantage compared to someone without her disability. The claimant relies on 5 matters namely that:8.3.1 She was at higher risk of capability/disciplinary proceedings

8.3.2 She was unable to carry out her normal hours without microbreaks

8.3.3 Increased stress

8.3.4 Greater risk of health-related problems

8.3.5 Greater likelihood of having to take time off work through illness.

[66]We were not satisfied that C has shown to the Tribunal that the PCP in question put her to this disadvantage nor satisfactorily addressed the issue of comparison to someone without C’s disability. It is not open to the Tribunal to simply accept the assertions made of substantial disadvantage, it has to make findings of fact to support this. C was feeling stressed about the requirement to do the presentation and her belief that she needed proper breaks away from work (which is supported by the OH report). However we were unable to assess whether the PCP had a particular impact on C compared to someone without her disability. The other matters pleaded we were unable to make any findings about at all as no evidence addressing such points was provided. Therefore as C has been unable to show that this PCP put her as someone with her disability at the substantial disadvantage pleaded, then this claim can go no further and is dismissed. We do not need to go on to consider the remaining issues at paragraphs 8.4 to 8.7 above. EQA, section 13: direct discrimination on the grounds of sex and age

[67]In order to decide the complaints of direct discrimination, we had to determine whether dismissing C amounted to less favourable treatment, (i.e. did R treat C as alleged less favourably than it treated or would have treated others (“comparators”) in not materially different circumstances). We had to decide whether any such less favourable treatment was because of C’s sex or age

[68]We applied the two-stage burden of proof referred to above. We first considered whether C had proved facts from which, if unexplained, we could conclude that the treatment was because of sex or age. The next stage would be to consider whether R had proved that the treatment was in no sense whatsoever because of those factors.

[69]C’s submissions on the section 13 EQA claims appear to be based on the contention that the unusually severe and long lasting menopausal symptoms were the reason why C was dismissed. She submits that a male or a younger hypothetical comparator who had raised severe symptoms of this nature not connected to the menopause would not have had the medical capability process being instigated resulting in dismissal. It is therefore submitted ed that the dismissal is because of sex and or age as it was because of her menopausal symptoms.

[70]We do not accept the submission and refer in particular to our conclusions above on the reasons why the claimant was dismissed as part of the complaints of unfair dismissal and section 15 EQA claims. We concluded that C was dismissed because she had been absent from work since 22 June 2023 with no clear return date (as per the e mail of 27 February 2024) and (significantly) that R had determined that she would be unable to return to work until her concerns with management were formally addressed by way of a grievance. There is no evidence to suggest that a hypothetical male or someone younger in otherwise the same circumstances as C (except for fact that her symptoms were connected to the menopause, a condition affected women usually at a similar type of age) would have been treated differently. R had become frustrated with their perception of delay and avoidance from C (see paragraphs 13.41 and 13.45-46). R moved to a medical capability and then refused to change track despite what the OH report said. We can see no basis for inferring that the situation would have been any different had the reason for the absence been something other than menopausal symptoms.

[71]Ms Loutfi referred us to the case of Merchant v BT plc above in support of her submissions but we conclude that this is entirely distinguishable from the present circumstances. The Tribunal there had made findings that the manager involved had made improper generalised assumptions about menopause and would not have acted in the same way with other non female related conditions. We did not make such findings and conclude that rather, R would have acted in precisely the same way with any other condition not related to sex or age that had similar symptoms, led to the period of absence it did and where the other circumstances of the case including the perceived difficulties with cooperation were in place.

[72]C has been unable to show any facts which if unexplained could lead the Tribunal to conclude that her dismissal was because of sex or age. The burden of proof does not pass to R therefore to explain that the dismissal was in no sense whatsoever because of sex and age. These complaints of direct sex and age discrimination both fail and are dismissed.