Mr D Owston v NHS Business Services Authority: 1403261/2023

EMPLOYMENT TRIBUNALS

Case No 1403261/2023

Between

Mr D OwstonClaimant

NHS Business Services AuthorityRespondent

Before

Employment Judge Ferguson

Members

Mr K Ghotbi-Ravandi

Ms C Monaghan

In person for claimant

Mr R Fitzpatrick (instructed by counsel) for respondent

Date 25 October 2024

JUDGMENT

It is the unanimous judgment of the Tribunal that:

[1]The Claimant was unfairly dismissed.

[2]The complaint of failure to make reasonable adjustments for disability is well-founded and succeeds.

[3]The complaints of direct disability discrimination, indirect disability discrimination and discrimination arising from disability are not wellfounded and are dismissed.

[4]A remedy hearing will take place on 28 March 2025. Notice of the hearing and case management orders are contained in a separate document. 10.2 Judgment - rule 61 Case No: 1403261/2023 JUDGMENT having been sent to the parties on 5 November 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]By a claim form presented on 30 April 2023, following a period of early conciliation between 24 February and 31 March 2023, the Claimant brought complaints of unfair dismissal and disability discrimination.

[2]There have been three case management hearings in order to clarify and finalise the complaints and issues. A final list of issues was agreed at a preliminary hearing on 5 April 2024 and confirmed at the start of the final hearing with some further clarification as reflected in the list of issues below. The issues to be determined are as follows:

[1]Unfair dismissal1.1 The Claimant was dismissed at the expiry of a fixed term contract of employment. Mr Owston had not been employed for long enough to have the right to be treated as a permanent employee.

1.2 What was the reason for dismissal? The Respondent asserts that it was some other substantial reason, because his fixed term contract had, after twice being extended, expired (s. 95(1)(b) ERA) (and that it was fair to allow it to expire without further extension even though the Claimant had not achieved the qualification which the employment was designed to secure for him in order that he might seek and obtain permanent employment elsewhere in the NHS. This is a potentially fair reason for dismissal. They say he simply failed to get the qualification before the employment expired, and that even though his employment ended they arranged with CIPFA for him to be able to carry on and obtain that qualification. They say that this meets the fairness requirement of S98(4) of the Employment Rights Act 1996.

1.3 Was the decision to dismiss a fair sanction, that is, was it within the range of reasonable responses open to a reasonable employer when faced with these facts?

1.4 Did the Respondent adopt a fair procedure? The Claimant has not challenged the fairness of the procedure, but says the outcome was unfair.1.4.1 There were about 3 months when he did not have a placement

1.4.2 The issues with being able to take mandatory exams caused additional time pressure

1.4.3 There were technical problems with doing some exams

1.4.4 They reduced the originally agreed extension from March 2023 to December 2022

1.4.5 He had a physical injury which prevented him from undertaking tasks and fell on an exam date which prevented him from attending.

1.4.6 The impact of the mental health support and counselling took up time, which impacted on his studies.

1.4.7 The occupational health report made recommendations which were not implemented and were dismissed on the basis that a 3-month extension had already been given and did not take into account the other delays.

[2]Disability 2.1 It is not in dispute that the Claimant physical and mental impairments (mobility issues; depression and anxiety) that constituted disabilities as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about.

[3]Direct disability discrimination (Equality Act 2010 section 13)3.1 The Claimant describes himself as disabled by physical and mental health problems.

3.2 Did the Respondent do the following things:3.2.1 Fail to extend his employment?

3.2.2 Fail to get him to be able to take modules required to obtain the CIPFA qualification, by not providing enough time? The Claimant confirmed that this related to the Respondent not approving him taking a module in June 2023, after his employment ended.

3.2.3 Fail to follow the occupational health recommendations? The Claimant confirmed this was the recommendations in the July 2022 report and he alleges they did not follow any of the recommendations correctly.

3.2.4 Fail to support the Claimant appropriately, this was linked to recommendations in the occupational health report which were overlooked and ignored? The Claimant confirmed this allegation was already covered by paragraph 3.2.3.

3.3 Was that less favourable treatment? The Tribunal will have to decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and those of the Claimant. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether he was treated worse than someone else would have been treated. The Claimant has not named anyone in particular who he says was treated better than he was and therefore relies upon a hypothetical comparator.

3.4 If so, was it because of disability?

3.5 If the Claimant proves facts from which discrimination could be inferred is the Respondent able to prove a reason for the treatment occurred for a non-discriminatory reason not connected to disability?

[4]Discrimination arising from disability (Equality Act 2010 section 15)4.1 Did the Respondent treat the Claimant unfavourably in the ways set out above?

4.2 Did the following things arise in consequence of the Claimant’s disability? The Claimant’s case is that mobility issues stopped him from attending one lecture of the Case Study module, and that his mental health was an impediment to timely completion of his course. The Respondent confirmed it does not dispute that the Claimant’s mental health was an impediment to timely completion of his course.

4.3 Was the unfavourable treatment because of any of those things? (Did the Respondent dismiss the Claimant because he did not achieve the qualification)?

4.4 Was the treatment a proportionate means of achieving a legitimate aim? The Respondent will specify its aims in its amended Grounds of Resistance, but is likely to say that its aim is to employ people while they trained as finance managers for the NHS, and that it was proportionate to dismiss the Claimant by allowing his fixed term contract to expire because he had not obtained that qualification although given extra time, and that it was reasonable not to allow him more time.

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

4.5.2 Could something less discriminatory have been done instead;

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

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

[5]Indirect discrimination (Equality Act 2010 s. 19)5.1 A “PCP” is a provision, criterion or practice. Did the Respondent have or apply the following PCP: Not extending fixed term contracts when employees did not obtain the qualification during the fixed term.

5.2 Did the Respondent apply the PCP to the Claimant?

5.3 Did the Respondent apply the PCP to persons with whom the Claimant did not share the same protected characteristic, or would it have done so?

5.4 Did the PCP put persons with whom the Claimant shared the characteristic, at a particular disadvantage when compared with persons with whom he did not share the characteristic?

5.5 Did the PCP put the Claimant at that disadvantage. The Claimant’s case is that mobility issues stopped him from attending one lecture of the Case Study module, and that his mental health was an impediment to timely completion of his course.

5.6 Was the PCP a proportionate means of achieving a legitimate aim? The Respondent will put it case in its amended or new Grounds of Resistance but is likely to say that its aims were the same as above.

5.7 The Tribunal will decide in particular:5.7.1 Was the PCP an appropriate and reasonably necessary way to achieve those aims;

5.7.2 Could something less discriminatory have been done instead;

5.7.3 How should the needs of the Claimant and the Respondent be balanced?

[6]Reasonable Adjustments (Equality Act 2010 ss. 20 & 21)6.1 Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date?

6.2 A “PCP” is a provision, criterion or practice. Did the Respondent have the PCP set out above?

6.3 Did the PCP put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability., The Claimant’s case is that mobility issues stopped him from attending one lecture of the Case Study module, and that his mental health was an impediment to timely completion of his course.

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

6.5 Was the Respondent obliged to make any reasonable adjustments in respect of the Claimant’s mental health?6.5.1 If so what were they?

6.5.2 And did the Respondents adjustments to the qualification requirements meet their obligation to do so (if there was one)?

6.6 What steps (the ‘adjustments’) could have been taken to avoid the disadvantage? The Claimant suggests that if the Respondent had extended his fixed term contract he could have taken and passed all the modules. He says that there was never any difficulty with him passing the modules, but that circumstances precluded him taking them. (The Tribunal will have to separate those assertions of the Claimant that go only to fairness from those that might support his claim for disability discrimination).

6.7 Was it reasonable for the Respondent to have to take those steps and when?

6.8 Did the Respondent fail to take those steps?

[7]Remedy, if successful Unfair dismissal7.1 The Claimant wishes to be reinstated to their previous employment or re-engaged to comparable employment or other suitable employment. Should the Tribunal order reinstatement? The Tribunal will consider, in particular, whether such an order is practicable.

7.2 What basic award is payable to the Claimant, if any?

7.3 If there is a compensatory award, how much should it be? The Tribunal will decide:7.3.1 What financial losses has the dismissal caused the Claimant?

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

7.3.3 If not, for what period of loss should the Claimant be compensated?

7.3.4 Would the Claimant’s mental health have meant that he would not have been employed in any case?

7.3.5 Does the statutory cap of fifty-two weeks’ pay or £93,878 apply? Discrimination

7.4 What financial losses has the discrimination caused the Claimant?

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

7.6 If not, for what period of loss should the Claimant be compensated for?

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

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

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

7.10 Should interest be awarded? How much? 4. It was agreed that issues relating to remedy would not be considered until after our judgment on liability, with the exception of the “Polkey” issues at paragraphs 7.3.4 and 7.9. 5. We made some adjustments to the hearing process to assist the Claimant as a litigant in person and because of his disabilities, including delaying the start of the hearing on two of the days, offering additional breaks and allowing extra time for reading documents. We are grateful to the Respondent’s counsel for his empathetic approach and practical help provided to the Claimant. 6. We heard evidence from the Claimant. On behalf of the Respondent we head evidence from Andrew Spears, Oscar Gicheru, Eleanore Wallace and Ashley Hutchins. 7. We had an agreed bundle of 818 pages.

FACTS

[8]The Respondent acts as a host employer for graduate trainees on the NHS Graduate Management Training Scheme (“GMTS”). The Claimant was employed as a Finance Trainee on the GMTS from 5 September 2019 to 31 December 2022.

[9]The Finance GMTS is usually for a period of two years and six months. During that time, trainees are expected to achieve key competencies and experience in strategic and operational finance, financial and management accounting and leadership. They must also complete a post-graduate Diploma from the Chartered Institute of Public Finance and Accountancy (“CIPFA”). They are engaged in NHS work placements during the scheme in order to gain workplace experience across different strategic and operational areas.

[10]Teaching is delivered during working hours, and trainees are expected to complete coursework and revision in their own time. There is a general requirement and expectation that trainees take responsibility for liaising with CIPFA directly on matters regarding their education, for example, regarding attendance at lectures, academic materials and preparation for and attendance at exams.

[11]The NHS Leadership Academy (“LA”), an operating unit of NHS England, is responsible for all aspects of managing the employment of trainees on the scheme. Each trainee is assigned a Trainee Support Manager (“TSM”) from the LA.

[12]The GMTS is a prestigious and competitive programme. While the scheme does not guarantee a role after completion, alumni are very attractive to NHS employers and usually obtain a substantive post straight away and many rise to senior leadership positions in the NHS.

[13]There is no requirement for trainees to complete all of their exams by the end of the fixed term of employment. The GMTS Scheme Education Policy states: “6.15 Trainees have a year post Scheme to take any outstanding exams. The Scheme will fund one sitting of each module post Scheme. (Please refer to the Leavers Guidance for further details). Trainees are required to book their own exams post Scheme. 6.16 The CIPFA portfolio can also be completed post Scheme and is fully funded if completed within 12 months from trainees’ last day of work on Scheme. 6.17 Trainees who are unable to pass all modules before graduation will have the opportunity to graduate the following year.”

[14]The Claimant was employed by the Respondent from 5 September 2019 pursuant to a fixed term contract which was initially due to expire on 31 March 2022. The contract of employment states: “4.1 This employment is for a fixed term period, to be terminated on completion of the fixed term period stated in Part A, unless terminated earlier by either party giving notice in accordance with clause 22. There will be no extension to this fixed term period except under circumstances relating to maternity or adoption leave.”

[15]A letter sent to the Claimant from the Respondent prior to the start of his employment stated: “Repayment of Scheme Costs: As an NHS Graduate Management Trainee on the Scheme, the NHS and the NHS Leadership Academy have invested a significant amount of time and resources in your development through Scheme training and education to ensure a future talent pipeline for the NHS. The expectation is that all trainees will apply for and secure NHS roles on completion of the Scheme and remain within the NHS for 24 months after completing the Scheme. Trainees that do not take up employment in the NHS will be required to repay a portion of the Scheme costs.”

[16]The Claimant’s first placement was at Yeovil District Hospitals. The normal timetable for placements was 12 months in the first placement and 16 months in the second, with a two-month “flexi-placement” in the middle of the second placement. The flexi-placement is a “trainee-led” placement where they spend 8 weeks in an organisation of their choice, which can be outside the NHS.

[17]There are 12 modules in the CIPFA programme. The Claimant was exempt from taking exams the first 7 modules because of his previous experience.

[18]Pursuant to his original academic timetable the Claimant was due to take exams in the five remaining modules in December 2020 and December 2021. This timetable was designed to enable trainees to complete the qualification by December 2021. Although the Claimant was exempt from the other 7 modules he was still expected to attend the study sessions for them and to take mock exams. The education trajectory was designed for the study and exams to be done in a particular order.

[19]The Claimant’s Trainee Support Manager from September 2019 to November 2020 was Eleanor Wallace.

[20]In October 2019 the Claimant was referred to Occupational Health (“OH”). A report dated 28 October 2019 noted that the Claimant had been suffering from an increase in his symptoms of gout, which can reduce his mobility when it is unstable. It also noted that he had had a very difficult time personally and had developed symptoms of anxiety and low mood. The report advised the Claimant was fit to carry out his role fully, but there was a possibility of sickness absence in the future.

[21]From February 2020 the Claimant worked from home remotely due to the Covid pandemic and lockdowns. He says host organisations were told to use trainees during this time in whatever way best supported the pandemic effort, and that he was given low level administrative work. It is not in dispute that the CIPFA programme effectively paused for around six months.

[22]In around July 2020 the Respondent decided to offer all trainees in the September 2019 cohort the option of a six-month contract extension due to the impact of the Covid pandemic. The Claimant took up the offer and his contract was extended to 30 September 2022.

[23]The Claimant successfully completed his first placement in August 2020. His second placement was at NHS England and was due to continue until May 2021. By the end of 2020 the Claimant was struggling with his mental health, and with his placement and academic study generally. There had been discussions between his manager at NHS England, Ms Wallace and others at the LA about performance concerns.

[24]It is not in dispute that at all material times the Claimant suffered from anxiety and depression and that this constituted a disability. The Covid lockdown had a particularly negative impact on his mental health.

[25]By this time Eleanor Wallace was no longer the Claimant’s TSM because she was promoted to Leadership Development Senior Manager for the GMTS in November 2020. The Claimant’s TSM was Katie Cessford, but Ms Wallace maintained responsibility for supporting the Claimant because it was deemed to be a complex matter.

[26]A further OH referral took place and a report was produced dated 4 January 2021. It states: “On assessment, I can confirm that Dan continues to experience symptoms that appear consistent with a significant episode of depression in my view. He has been supported with counselling, but the effectiveness of this has been impaired by restricted access to strategies and self-management techniques that his counselling has directed him towards. Dan is not currently having any treatment for his symptoms. I have advised Dan that he should see his GP for a further assessment of his symptoms as it is my view that medication should be considered. Dan is currently experiencing symptoms that are affecting his capacity for work in my view and further treatment is required. … It is my view that Dan’s capacity for this role is currently impaired by his mental health symptoms. There may also be a further impairment if he progresses with medication. Please consider a reduction in his workload/work targets over the next 6-8 weeks to allow him time to access this further treatment for his medical condition. I suggested that a 30-40% reduction is considered. If Dan experiences significant side effects from his medication, then his GP may consider a short absence from work while he adjusts to the medication. … It is my opinion that the external factors are predominantly around social isolation that has been created by a combination of moving location, commencing a new role that has become a homeworking role, and the restrictions imposed by Covid. I would expect that these external factors will eventually resolve but it is not currently possible to offer a timescale for this. Dan is aware that his counselling may have been more effective if he were able to access some of the coping strategies that were recommended. This was not possible because of Covid. It may therefore be beneficial for Dan to consider some further counselling when some of these restrictions have been lifted.”

[27]The Claimant had been on annual leave over the Christmas period. On 5 January 2021 it was agreed he would take a further period of leave.

[28]Ms Wallace sent an email to colleagues in the LA on the same date as follows: “Wendy Price and Katie spoke to Dan today regarding his wellbeing and agreed that Dan would have two weeks ‘academic leave’ and would not be working in placement. During this time, we hope to receive his OH report to inform next steps. Katie, Wendy and I spoke to Dan’s host organisation today to discuss options for next steps and all agreed, following a substantial discussion, that for both Dan and the placement team’s wellbeing, it is best that we seek an alternative placement for Dan. There is a breakdown of trust between Dan and his managers and both the immediate team and senior executives have wider concerns about the reputational damage being caused. They believe they have provided Dan with a lot of support already and do not feel able to continue to do so, given they are a small team (they have outlined the support offered previously but I won’t detail that here). They have concerns about Dan’s wellbeing should he continue in the team, and also about the wellbeing of their own team who have reportedly been spending a lot of time supporting Dan.”

[29]The Claimant says he was never told of the reason for being taken off the placement, although he agrees there was tension between him and his line manager. He says this was because of him raising concerns about being told to do work using her login details.

[30]A new placement was not found for the Claimant until February 2021. He started work on 10 March 2021 in the Project Management Office in Yeovil District Hospital NHS Foundation Trust. This was due to continue until September 2021, at which point the Claimant would ordinarily have undertaken a flexi-placement. In a meeting in the week commencing 29 June 2021 the Claimant told Ms Wallace he had not yet secured a flexi-placement and had fallen behind academically. It was agreed he would delay his flexi-placement by 2-3 months to enable him to focus on his studies.

[31]The Claimant says that around this time he attempted to take an exam but it was not available when he logged in, despite him having booked a slot for the exam. He had to spend almost three hours on the phone to resolve it and once it was available at around 3pm he was told he had to take it straight away or wait for the next exam period in three months’ time. The Claimant did not take the exam that day.

[32]Also around this time the Claimant raised a concern about one of the CIPFA tutors. He claimed that they had shared publicly with the group messages that he had sent privately and that this had caused him embarrassment and distress. As a result of the dispute the Claimant did not continue with the course of study for that particular module.

[33]In September 2021 Andrew Spears took over from Katie Cessford as the Claimant’s TSM. Ms Wallace remained indirectly involved in supporting the Claimant.

[34]Discussions took place in September 2021 about the Claimant’s education trajectory because he had fallen behind with his exams. Together with input from CIPFA and Oscar Gicheru, GMTS Education Coordinator at the LA, on or around 16 September 2021 the Claimant and Mr Spears agreed a revised learning trajectory that envisaged the final exams taking place in December 2022, followed by a re-sit period ending in March 2023. Mr Spears had also escalated the issue to Tim Chipperfield, GMTS Education and Experience Senior Manager, who approved the approach. In an email to Alison Sweeting at CIPFA on 27 September 2021, Mr Spears wrote: “As you know and state we share your concerns around Dan’s mental health and well-being and recognise the concerns you have made from observing Dan’s behaviour over recent weeks as discussed with Oscar and I on Monday 20th September. We also appreciate both your concerns about the well-being of your teaching staff and the endeavours you and colleagues have gone to in supporting Dan with a number of issues he has experienced. Oscar and I have escalated this to Tim Chipperfield and have discussed at length, relaying your concerns and sharing with you concerns around Dan’s health and well-being and current state of mind to successfully undertake this study. With your input we agreed a trajectory with Dan on 16th September, following lengthy discussion and consideration of a number of trajectory options and Dan stated that he was happy with the trajectory agreed upon (on the caveat of a further scheme extension to be agreed). On the basis that Dan stated he was happy and comfortable with the revised trajectory Tim, Oscar and I agreed to proceed with the trajectory accompanied with close monitoring of Dan’s progress, conduct and wellbeing over the coming weeks.”

[35]That email is the only contemporaneous document we have seen showing what was agreed in September 2021.

[36]It is the Respondent’s case that although the trajectory was extended to February or March 2023, it was only ever agreed to extend the Claimant’s contract to 31 December 2022, i.e. it was envisaged that he would complete the course after his time on the scheme came to an end, which was not unusual. Mr Spears said in his witness statement: “20. We agreed with CIPFA that Mr Owston's education trajectory would be adjusted to allow him the opportunity to complete the qualification by 31 December 2022. Mr Owston had gaps in his placements and he was concerned of the impact this would have on his ability to pass his competencies, together with the time he would be taking to deal with all of the education elements of the GMTS.21. To alleviate his concerns, I met with Tim Chipperfield (GMTS Head of Education) and Sally Scales (Head of GMTS). As a TSM, I didn’t have the authority to approve a contract extension, I had to seek authorisation from senior management, who in turn had to confirm matters with NHS BSA, as his employer.

22. When speaking with Tim and Sally, it was agreed to offer him support given his absence due to health issues and that his employment contract would be extended until 31 December 2022.”

[37]In his oral evidence, however, Mr Spears said that it was his understanding at the time that the agreement was to extend the Claimant’s contract to February 2023 in line with the revised academic trajectory. That directly contradicts the evidence in his witness statement. What he said in his oral evidence, however, is consistent with a number of contemporaneous documents.

[38]Mr Spears’s notes of a meeting that took place on 9 December 2021 record: “It was confirmed with CIPDA colleagues that DO’s time on the Scheme has been extended to Feb 2023, in line with the proposed academic tractor (sic) agreed in a meeting with AS, Oscar Gicheru, AS, KW and DO on and subsequently agreed by Tim Chipperfield with AS and OG in Sept 21.” (emphasis added)

[39]A later email from Mr Spears dated 20 June 2022, when he handed over the TSM role to Bobbie Petford, states: “When Oscar and I revisited Dan’s CIPFA trajectory in Sept last year we initially requested Dan be extended until for 6 months end Feb 23 as this would cover the Sept-Dec 22 study and exam period and the resit period in Feb 23 though when I met with Tim and Sally in May when Dan was having challenges I was concerned about Tim advised he had been extended to Dec only (covering the CIPFA study and exam period but nothing beyond) and was adamant it would not be anything beyond Dec 22. An oversight on my part is that I don’t have this in writing/email this was all verbal. Chrissie in HR also confirmed that Dan is contracted to Dec 22. I thought I had let Dan know this when I went through his OH referral on 30th May (and it’s stated in the OH referral).” (emphasis added)

[40]We have no evidence at all, whether documentary or from any person involved in the decision-making at the time, of a decision having been made in September 2021, or at any time during this period to the end of 2021, to extend the Claimant’s contract to 31 December 2022.

[41]Neither Mr Chipperfield nor Sally Scales have given evidence to the Tribunal. We were told by counsel for the Respondent that Mr Chipperfield has moved to Canada. We did not have any information about Ms Scales.

[42]Given the common understanding between the Claimant and Mr Spears in late 2021, that the contract would be extended to February 2023, we accept it was the Claimant’s genuine and reasonable belief that that is what had been agreed by Mr Chipperfield and Ms Scales on behalf of the Respondent. Further, the extension of both the academic trajectory and the contract was due to the difficulties in the Claimant’s training that had arisen by September 2021, namely a gap in his placements at the start of the year, a decline in his mental health caused largely by the Covid lockdowns and the fact that he had fallen behind in the original academic trajectory, including not completing a course of study and not being able to complete an exam.

[43]It was later suggested that the revised trajectory and contract extension were because of sickness absence, but the only significant period of sickness absence post-dated the decision to extend. Ms Wallace also confirmed in her oral evidence that the extension did not have anything to do with sickness absence.

[44]In November 2021 the Claimant broke his arm and was off sick for a period. It is not clear if this was two weeks or four weeks, but the Claimant missed a further exam in early December 2021 as a result.

[45]Around this time it was also agreed to postpone the Claimant’s flexi-placement again, to June 2022.

[46]On 9 December 2021 a meeting took place between the Claimant, Mr Spears and two representatives of CIPFA. Some proposals were discussed for revising the Claimant’s academic timetable and it was envisaged that a revised timetable would be agreed in early 2022. Notes of the meeting were then sent to Oscar Gicheru, GMTS Education Coordinator. Mr Gicheru created three options for revised trajectories, which were presented and discussed with the Claimant on 28 January 2022. Mr Gicheru put forward Option 1 as the preferred route, but the Claimant chose Option 2 and it was agreed to proceed with that. All three options envisaged the final exams taking place in December 2022 followed by a re-sit period up to March 2023.

[47]Mr Spears’s evidence was that the focus of these discussions was considering what would be manageable for the Claimant, bearing in mind the mental health issues that he had experienced.

[48]The Claimant started a placement with Somerset CCG in January 2022.

[49]The Respondent relies on a letter in the bundle dated 28 February 2022 from Tracy Malone of HR for the LA, which states: “I refer to your Contract of Employment and any subsequent addenda, concerning your Fixed Term position as a Finance Trainee. I am writing to confirm that, with effect from 21 December 2021, your contract will be extended until 31 December 2022 to be terminated either early by notice or on completion of the period. This letter is an addendum to your contract of employment. All other terms and conditions will continue to apply.”

[50]The Claimant’s case is that this letter was not sent to him on 28 February 2022 or at all before it was shown to him on 28 June 2022.

[51]On 18 February 2022 Tracy Malone emailed the Claimant: “Hello Dan Please find attached an addendum to your Contract of Employment. Please reply to this email stating ‘I acknowledge the receipt of this letter and accept this variation to my contract.’ If you have any queries regarding the above, please reply to this email and our team will be happy to assist you.”

[52]The Claimant says there was no attachment to this email. The print-out in the bundle does not show there was an attachment.

[53]On 28 February 2022 the Claimant emailed Ms Malone: “Hi Tracy, I Just need to run this by Andrew Spears as my CIPFA Trajectory brings me into 2023. I did receive this on 18th Feb as you see here, but without anything attached.”

[54]There was some discussion during the hearing, albeit while the Respondent’s witnesses were being cross-examined, not during the Claimant’s own evidence, about what the Claimant was referring to when he said he needed to run this by Andrew Spears, if there was no attachment. He was not sure, but then later said he thought that he was sent the “covid” extension letter by mistake. That does not seem to be consistent with the emails.

[55]The Respondent has not produced any email from Ms Malone on 28 February 2022 to correspond with the letter, but we find the exchange in the bundle does not make sense on its own and that Ms Malone must have sent a further email to the Claimant which prompted his response, “I just need to run this by Andrew Spears”. It seems likely that she either sent the contract addendum letter on that date or at least made reference to the end date being 31 December 2022, and that that was what the Claimant was referring to when he said he needed to check the position with Mr Spears, i.e. he was querying the end date because the agreed trajectory went into 2023. Confusingly, when he replied he copied the 18 February 2022 email from Ms Malone, which appears in the chain in the bundle, to show that her earlier email failed to attach the letter.

[56]The Claimant forwarded the email chain (confusingly, again, with the emails referring to the lack of an attachment) to Mr Spears on 11 March 2022 and asked “Is this correct?”. This is odd because it would not have been clear from the email chain in the bundle what Mr Spears was being asked about. However, he replied: “Yes, Oscar and I agreed with Tim Chipperfield head of Education and Experience to extend the contract in line with the revised trajectory up until Feb 2023. Was there no contract addendum attached to that email?”

[57]Given Mr Spears’s evidence that at that time he believed there had been a decision to extend the contract until February 2023, we find that this was intended to confirm that decision to the Claimant, and that the Claimant reasonably understood from the email(a) that Mr Spears had authority to confirm the extension to his contract, and

(b) that the extension was to the end of February 2023. Even if the Claimant had received the contract addendum letter which said 31 December 2022, therefore, it was subsequently confirmed that the extension was to February 2023. It is somewhat surprising that the Claimant did not seek to have this confirmed in an amended contract addendum letter, but it is also surprising that the Respondent did not chase the Claimant for confirmation of his agreement to the extension to 31 December 2022. We accept the Claimant’s evidence, there being no evidence from the Respondent to the contrary, that the Claimant never signed the contract addendum or replied by email to confirm his agreement.

[58]In May 2022, the Claimant was experiencing further issues with his mental and physical health. Mr Spears had become very concerned for the Claimant’s welfare and began the process for another OH referral. The Claimant’s issues included anxiety about forthcoming exams and struggling to manage his workload for the period of study. He had made comments to Mr Spears that suggested he was having thoughts of harming himself and others. Mr Spears provided extensive support to the Claimant during this period and discussed the Claimant’s situation with Ms Scales and Mr Chipperfield.

[59]Mr Spears handed over the TSM role to Bobbie Petford in June 2022. By this time Mr Spears had been told by Mr Chipperfield that the Claimant’s contract had only been extended to 31 December 2022. His evidence was that he told the Claimant about this in May 2022, but the Claimant denies that and there is no documentary evidence of him having done so. In fact in the email of 20 June 2022 referred to above, Mr Spears said “I thought I had let Dan know this when I went through his OH referral on 30th May (and it’s stated in the OH referral)”, but there is no mention of it in Mr Spears’s notes of that meeting and we have not seen the OH referral. We find that Mr Spears did not tell the Claimant at any time that the contract would be ending on 31 December 2022.

[60]In a handover note dated 6 June 2022 Mr Spears told Ms Petford that the contract had been extended to December 2022. He also reported that the Claimant’s foot condition was having a significant impact on his mental health and ability to work. He said the Claimant did not feel well enough to work or study for, or undertake, his forthcoming exams. He had missed a mock exam in May and would miss another exam due to be taken on 6 June. He said there would be a need to revisit the trajectory.

[61]On 17 June 2022 Ms Petford emailed Mr Spears because the Claimant had told her he was planning to do his flexi-placement in January and February 2023 as the last two months of the scheme, but her understanding was that his contract ended in December. Mr Spears replied on 20 June 2022 as already mentioned, explaining that he understood it was to February 2023, but Mr Chipperfield and Ms Scales confirmed in May 2022 that he had been extended to December only. Mr Spears continued: “Given the exams he has missed in this period I don’t know what Dan’s revised trajectory is going to look like so I am not sure if there is scope now to extend him beyond December given the recent challenges and the impact of these.”

[62]On 23 June 2022 Mr Chipperfield emailed Ms Petford. He wrote: “I just wanted to provide some clarity and confirmation regarding Dan Owston’s (South West Finance Trainee) scheme trajectory. I have separated this out into the contract extension that has been agreed with him, his commitments within that and his educational trajectory.  A three month contract extension has been agreed for Dan to run concurrently from the end of his original contract of employment (this includes the six month extension that was offered to all trainees to account for the pause of the GMTS during the start of the Covid-19 pandemic.) This will mean that Dan’s final contracted day of employment will be 31st December 2022.  I understand that during Dan’s time on the scheme that he hasn’t been able to undertake a Flexi-placement. Due to the length of time left on the Scheme (including the three month extension) and considering that Dan has undertaken a range of placements during his time within the GMTS (required as part of the criteria for graduation) this will not be possible to accommodate. No further extension is possible to allow for a Flexi-Placement to be considered but, as previously stated, this will not impede Dan’s ability to graduate as long as the other graduation criteria are met.  Dan has a revised and agreed education trajectory with CIPFA that sees him finish the educational components of the scheme in February 2023. This has been agreed and the GMTS education team will continue to support Dan throughout this time. Any remaining education will need to be included within a statement of commitment when Dan leaves the scheme to ensure the support can remain in place and to demonstrate that he is continuing to work towards graduate status. Thank you for supporting Dan and if you have any queries then please do let me know.”

[63]A meeting took place on 28 June 2022 between the Claimant, Ms Petford and Mr Gicheru. It is not in dispute that the Claimant was told during this meeting that his contract extension was until 31 December 2022 only. The Claimant challenged this in the meeting, but afterwards Ms Petford emailed him and others as follows: “I have spoke (sic) with the senior GMTS team and they have confirmed that Dan’s contract extension is indeed until 31.12.22 and will not be extended beyond this. Please see attached letter from NHS BSA sent to Dan in February this year.”

[64]At the meeting a list of actions were agreed. These included the Claimant booking one of his exams for September, which he did, as well as further exams in December 2022. The Claimant was also to focus on achieving his competencies via his placement. At that stage he had achieved around 60-70% of his competencies. The required level for graduation was 90%. Mr Gicheru was to confirm a final agreed CIPFA trajectory. Ms Petford would chase up an OH appointment for the Claimant.

[65]A further OH assessment took place on 11 July 2022 and a report was produced on the same day. The concerns discussed with Mr Spears in the preceding months were noted. The report also states: “He has also discussed increased stress over a combination of exam pressure and mock examinations with his work pressures within the job, and the pressure of needing to evidence competencies by a certain date. He had discussed with me originally this had been extended until February 2023, but he had received notice recently of this pushed forward to end of December 2022.”

[66]The report concludes: “There are clearly issues here which we are not able to help with, but I would reflect that these have had a negative impact on his mental health such as the tooth pain and the access to dental care, and personal stressors such as isolation and living arrangements, as well as his gout and non-compliance with medication. In relation to the mental health impact of the above, again this remains out of our control slightly. Improvement in physical health by accessing treatment may help to improve mental health somewhat and vice versa. In relation to his mental health from workplace / course issues, there may be some adjustments that could be taken into consideration by management, bearing in mind that it is ultimately a management decision rather than a medical one as to whether this can be accommodated: - Work may need to clarify the end date of his course and work, and since he has felt under pressure to the study element and the workplace competencies by the end of December 2022, consideration for an extension of either/both may help to reduce his psychological pressure. - If possible, allowing structure time at work and work duties to be able to balance both workplace competencies and exam pressure will help to improve psychological resilience. - In view of the previous problems with the course tutor, please see above, but where possible, he may benefit from being restricted from doing classes taught by this tutor.”

[67]The Claimant had discussions with CIPFA in early August 2022 and a further revised trajectory was agreed. This involved the Claimant taking his final exam in June 2023. The trajectory was also agreed with Mr Gicheru on 9 August 2022.

[68]On 10 August 2022 Ms Petford wrote to the Claimant as follows: “As we discussed on our call last week, I spoke with the BSA HR team regarding the outcome of your occupational health referral and the recommendations within it. The report suggested an extension to your time on GMTS, and this has already been applied. In addition the education team have worked with you and CIPFA to agree an amended trajectory for your study and exams. The report also suggested ‘structure time at work and work duties to be able to balance both workplace competencies and exam pressure’, and this has been in place for some months and continues, as per previous discussion with your managers. The last recommendation in the report was for you to be able to work with a different CIPFA tutor than the one you had issues with, if this was at all possible. As far as I am aware this has also been resolved. Therefore there are no additional recommendations from the report beyond those already in place, and we have optimised as much as we reasonably can to support your progress on the scheme.”

[69]The Claimant replied on 22 August 2022 as follows: “Thanks for your reply. Apologies for the delay in replying but I’ve needed to seek some advice regarding a couple of points. As already discussed on numerous occasions I disagree with some of the points you have made. The extension that you mention that has been applied has recently been amended to actually reduce my time on the scheme, leaving me far less time to complete certain parts of it, and with no time to complete others, contrary to what has been previously agreed with Placement managers and scheme and education co-ordinators. In addition once again nothing has been mentioned about my period of almost 3 months on the scheme without a placement, causing obvious delays in both learning and experience, plus evidencing this to meet the competencies as required on GENI. This was also to take into account the amended Trajectory which had been agreed. I would also like to point out that some of this was a knock on effect from the issues with CIPFA. Firstly their issues with their online system meaning that my exam which was booked was unavailable, and took nearly 3 hours on calls to CIPFA and another helpdesk to sort, at which point I was then given no option but to start the exam immediately, or defer to the next exam window 3 months away. Secondly the Tutor issue was due to the Tutor failing to keep private and confidential messages sent through a dedicated and supposedly safe method (my only means of communication) private. This again had a severe impact of me learning what was a particularly challenging and long module, and a reason as to why the trajectory was revised. There was also very little support with this issue, and when CIPFA went back on their promise that I wouldn’t be faced with this issue, or this tutor again by enrolling me in her group on the next wave of tuition, there was once again very little support for not only their inability to keep their promise regarding this matter, but also the impact it had on my mental health and wellbeing, and also that of the module I was studying. I appreciate your views as detailed in your email below, but I certainly do not agree with them, some of the factors for this being detailed in above. Also in previous communications you have clarified end date on the scheme, knowing it has recently been amended and reduced in length and called this ‘Great News’ and called it an extension. I would also like to take this opportunity to clarify what has previously been discussed regarding educational commitments once the scheme ends, and how these are fulfilled from December onwards. I also would like to know what is the next step if I’m not satisfied with what I consider to be decisions that have a manipulated version of the truth, and an unsatisfactory outcome from the OH report.”

[70]The email exchange had been copied to Ms Wallace, who then responded directly to the Claimant on 22 August: “Thanks for copying me in. I thought I’d respond now I am caught up on this: To date, you have had two extensions. Firstly, a 6 month extension to mitigate the impact of Covid-19 and the scheme pause, which was applied to all trainees in your cohort. Secondly, an additional 3 month extension on top of this to account for your revised academic trajectory and time out of placement. I understand the attached email from Andy Spears has been referred to as agreeing a potential additional extension until February 2023. Unfortunately I think this was a miscommunication as a further extension was never agreed by the national team or BSA. Where Andy states ‘agreed ….to extend the contract in line with the revised trajectory up until Feb 2023’. I believe what Andy meant by this was ‘agreed ….to extend the contract to Dec 2023 in line with the revised academic trajectory up until Feb 2023’. You can see he refers to the original extension until December 2023 as correct at the start of his email. Regardless – I do apologise on behalf of the team for the confusion this caused but I can confirm that no additional extension beyond December 2023 will be agreed as the current extensions account for the disruption to placements and amended trajectory. You are welcome to choose to sit CIPFA exams after your contract with the Scheme ends – that is not uncommon for trainees and should not affect your overall graduation status (provided you meet other criteria including competencies and performance reviews), but your contract will not be extended further to cover these exams. I understand the other issues you have referred to regarding CIPFA tutor have previously been resolved. I appreciate you had time out of placement; however, having gone through my records, you were out of placement between Mon 21st Dec up until Tues 9th March – 11.5 weeks. However, three weeks of that was annual leave over Christmas/New Year and I believe 2-3 weeks at the start of January we agreed was time out of placement to focus on your EGA and CIPFA submissions and to support your health and wellbeing. I hope that addresses some of the points you have raised.” (emphasis original)

[71]Ms Wallace’s evidence to the Tribunal was that she was “satisfied that the recommendations had been implemented to the extent it was reasonable to do so and the organisation had optimised as much as it reasonably could to support [the Claimant’s] progress on the scheme”. She did not know whether any further decision was taken by senior management (Mr Chipperfield or Ms Scales) following the OH report.

[72]The Claimant took an exam, per the agreed revised trajectory, in September 2022. He says he was unable to complete it because when he got to the final section the raw data needed to answer the questions was not available. He raised this with the invigilator who could not resolve it. The matter was subsequently investigated and the Claimant was offered a free re-sit of the exam. In light of that we accept that the Claimant’s inability to complete the exam was not his fault.

[73]The Claimant would ordinarily have had to do the re-sit in the next exam period (December) but he did not want to do it at the same time as another major exam scheduled to take place then.

[74]In October 2022, a further revision to the trajectory was agreed, involving him taking that missed exam in the March 2023 re-sit period. The overall trajectory, finishing in June 2023, was not affected.

[75]Ms Wallace said in her witness statement: “In October 2022, Mr Owston contacted me directly to seek support as he had concerns about his contract coming to an end (page 448). At this stage, I had a number of discussions with the Senior Management Team to understand what had been communicated to Mr Owston and again, to consider whether or not it was appropriate to be extending his contract beyond 31 December 2022. Mr Owston was notified again in October 2022 that his employment contract would not be extended, but that he could continue with his studies after this date and still graduate.”

[76]There is no other evidence before us of any decision having been made in October 2022 about whether to extend the contract further, nor of the Claimant having been notified of such a decision. When asked questions about this by the panel, Ms Wallace said Mr Chipperfield made the decision, and that she was not party to it but became aware of it afterwards. She could not recall the details. The Claimant put to her that it was an option to extend the contract, i.e. it was something that could have been done. She said “theoretically yes, it’s always an option. It was decided not to.”

[77]By December 2022 the Claimant had achieved his competency target, reaching 92%.

[78]The Claimant took another exam in December 2022, which he failed. He says he believed this was in part due to the pressure he was under at the time to complete the competencies and to apply for a substantive role before the end of his contract.

[79]In the run-up to the end of the Claimant’s contract, Ms Petford asked the Claimant to provide information to enable them “to keep in touch regarding remaining education, and hopefully graduation once education is complete.”

[80]All of the Respondent’s witnesses, with the exception of Mr Hutchins, whose evidence is addressed below, said that the Respondent would have continued to support the Claimant’s completion of the course after the end of his contract. That is consistent with the emails from Ms Petford towards the end of the Claimant’s employment.

[81]On 15 December 2022, Ms Petford wrote to the Claimant and Ryan Garland, the Claimant’s placement manager, as follows: “Thanks for your email – great to hear Dan is now fully up to date and complete with regards to reviews and competencies – well done Dan! And thanks Ryan, for all your support. Ryan – with regard to your questions about Dan’s final review I have amended the review to show a ‘yes’ for academic attainment and ‘graduation recommended’ and added a note to support your comments that these are provisional, and based on successful completion of CIPFA within the current revised trajectory. This is the usual practice for trainees leaving the scheme when all competencies and reviews are complete but there is still some education to finish. You won’t need to do anything further. Dan – your Geni account will remain open for 2 months after your leaving date. Unless you have an NHS role to go to straight after leaving GMTS, your NHS.net email account will close after your leaving date. Therefore please provide CIPFA, Oscar and Grad Enquiries with a personal email address they can use to contact you about CIPFA/education matters. I’ve copied them in so you can just reply all to this email to do so.” (emphasis original)

[82]On 24 January 2023 a grievance meeting took place. It is not in dispute that the Claimant had been trying to raise a grievance about the Respondent’s refusal to honour what he understood to be the agreement to extend his contract to February 2023. As already noted, in the Claimant’s email of 22 August 2022 he had asked how to take the matter further.

[83]The grievance was investigated by Ashley Hutchins, Senior Manager in Finance and Contracting for the GMTS. The notes of the meeting were disclosed late, on the fourth day of the final hearing, after the evidence had concluded. They were provided to the Tribunal by agreement between the parties.

[84]We found Mr Hutchins’s evidence unsatisfactory in a number of respects and inconsistent with the notes, but ultimately it is unnecessary for us to make findings about the grievance because it is not relevant to the claim. We simply note, for completeness, that we reject Mr Hutchins’s evidence that the Claimant was asking for an extension of his contract to June 2023. That has never been the Claimant’s position. We also find that his conclusion in the grievance outcome that the Claimant had not carried out the agreed actions from the 28 June 2022 meeting, and that the agreed trajectory was therefore unachievable, is impossible to understand. The Claimant had demonstrably carried out all of the agreed actions and the timetable had been further revised and was considered to be achievable. We find that Mr Hutchins’s approach to the grievance was superficial at best, and possibly entirely disingenuous.

[85]He also said in his evidence that the Respondent had retracted its offer to support the Claimant’s post-scheme education because of the Claimant’s lack of engagement, and the Claimant had been informed of that. That is also something he said to CIPFA in July 2023. Again, this makes no sense. It is also contrary to all of the other evidence that the Respondent was willing to support the Claimant’s post-scheme completion of the course.

[86]The Claimant alleges that the Respondent did not in fact support his continued study on the CIPFA course after the end of his contract. There is no evidence of any refusal to do so until the email from Mr Hutchins in July 2023. Prior to that, it was clear that the Respondent and/or the LA would support the Claimant continuing with the agreed trajectory. The Claimant says he was unable to access CIPFA with his personal email, but he accepted he did not attempt to register for any exam in March 2023, in line with agreed trajectory. There is also no evidence of the Claimant asking for help or support and getting no response, as he alleges, or being refused support. The evidence suggests the first time the Claimant mentioned to CIPFA that he wanted to continue with his studies was in June 2023.

[87]The Claimant applied for a number of substantive NHS roles towards the end of 2022 and early 2023. He was offered a role in Cardiff in late January 2023 and started in mid-February. He said the employer agreed to support his completion of the course. He resigned after 9 days, however, for personal reasons including because the purchase of a house in Cardiff fell through and it was not possible to commute from Somerset.

THE LAW

[88]The expiry of a fixed-term contract which is not renewed is treated as a dismissal pursuant to section 95(1)(b) of the Employment Rights Act 1996 (“ERA”).

[89]Pursuant to section 98 ERA it is for the employer to show the reason for the dismissal and that it is one of a number of potentially fair reasons, or “some other substantial reason”. Where the reason for a dismissal is the expiry of a fixed-term contract, that may constitute some other substantial reason.

[90]According to section 98(4) the determination of the question whether the dismissal is fair or unfair “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 “shall be determined in accordance with equity and the substantial merits of the case.”

[91]In deciding whether in all the circumstances of the case it is reasonable to dismiss a particular employee, the Tribunal must not substitute its own view for that of the employer. The “range of reasonable responses” test must be applied to all aspects of the question whether an employee was fairly and reasonably dismissed (see, e.g., Post Office v Foley and HSBC Bank v Madden

[2000] IRLR 827

[92]It is well established that compensation for unfair dismissal may be limited to the period between dismissal and the time the employment would have been fairly terminated in any case (e.g. Young’s of Gosport Ltd v Kendell

1977 ICR 907

, EAT). Alternatively the compensatory award may be reduced by a percentage if the Tribunal finds that the Claimant may have been dismissed following a fair procedure (Polkey v AE Dayton Services Ltd

1988 ICR 142

[93]The Equality Act 2010 (“EqA) provides, so far as relevant: 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.

(2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim. … 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. … 19 Indirect discrimination (1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim. … 136 Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act. (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.

[94]Pursuant to section 20 EqA, where an employer has a provision, criterion or practice (“PCP”) that puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, it has a duty to take such steps as it is reasonable to have to take to avoid the disadvantage. The duty does not apply if the employer does not know, and could not reasonably be expected to know that the disabled person has a disability and is likely to be placed at the disadvantage referred to (paragraph 20 of Schedule 8 EqA).

[95]Section 21 provides that an employer discriminates against a disabled person if it fails to comply with a section 20 duty in relation to that person.

[96]As to the “reasonableness” of a particular adjustment, this is a question of fact for the Tribunal to be determined on objective grounds (see, e.g., Smith v Churchills Stairlifts

[2006] ICR 524

, paragraph 45 per Maurice Kay LJ). The EHRC Statutory Code of Practice provides guidance on the type of factors to be considered. The factors listed (at paragraph 6.28) are: 96.1. Whether taking any particular steps would be effective in preventing the substantial disadvantage; 96.2. The practicability of the step; 96.3. The financial and other costs of making the adjustment and the extent of any disruption caused; 96.4. The extent of the employer’s financial or other resources; 96.5. The availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and 96.6. The type and size of the employer.

[97]Although the likelihood of a proposed adjustment being effective is a relevant factor, it is not necessary for the employer (or tribunal) to be certain that a proposed adjustment would be completely effective in order for it to be reasonable (Noor v Foreign and Commonwealth Office

[2011] ICR 695

CONCLUSIONS

[98]We consider first the question of the contractual position as to the end date of the Claimant’s fixed term of employment. It is the Respondent’s position that the Claimant’s employment simply ended on expiry of the fixed term, which had been extended by agreement to 31 December 2022. The Claimant on the other hand says that the contract was extended to 28 February 2023 and that the Respondent unilaterally curtailed the contract by informing him in June 2022 that it would end on 31 December.

[99]There is no dispute that the Claimant was employed initially for a fixed term from 5 September 2019 to 31 March 2022, i.e. a period 31 months, and that his contract was extended by agreement to 30 September 2022.

[100]On the basis of our factual findings we are satisfied that there was no agreed variation, either in late 2021 or in February 2022, to extend the contract to 31 December 2022. Even if the Claimant had seen the letter dated 28 February 2022 around that date, he never accepted the offer to vary the contract. In fact, the offer was superseded by the email exchange between the Claimant and Mr Spears. The question is whether the conduct of Mr Spears constituted agreement on behalf of the Respondent to extend the contract to 28 February 2023.

[101]The Respondent says Mr Spears did not have authority to agree such an extension and therefore there was no valid agreement. We note that Mr Spears was not an employee of the Respondent because he worked for the LA under the auspices of NHS England. He did, however, act on behalf of the Respondent on a day to day basis in terms of managing the Claimant’s and other trainees’ employment. He was the point of contact for the Claimant in any discussions about his employment contract. We consider that arrangement, or “course of dealing”, amounted to a representation that Mr Spears had authority to act on the Respondent’s behalf, at least insofar as he claimed to be conveying decisions of the Respondent’s senior management. He therefore had apparent authority to that extent (see Chitty 22-066). If there was no concluded agreement to extend to the end of February 2023 made in the latter part of 2021, we find that at least on 11 March 2022 there was such an agreement. We do not accept the Respondent’s argument that authority should not be inferred because Mr Spears was “a relatively junior agent acting in a largely administrative role”. He had a managerial role and was directly involved in decision-making about the Claimant’s contract.

[102]The next question is whether there was any further variation of the contract in June 2022. We conclude there was not. The Claimant was informed that his contract would be ending on 31 December 2022, but he never agreed to that and continued to argue right to the end of his employment that the Respondent had failed to honour its earlier agreement to extend the contract to the end of February 2023. We note that the Respondent was entitled to terminate the contract on one month’s notice. We find that it effectively gave the Claimant notice on 28 June 2022 that his contract would be ending earlier than agreed, on 31 December 2022.

[103]Even if we are wrong in the analysis of the contractual position, we do not consider it would affect the outcome of the Claimant’s complaints, in view of our conclusions below. Failure to make reasonable adjustments

[104]We address the reasonable adjustments complaint first because we agree with the Respondent that this is at the heart of the claim.

[105]The PCP is identified in the list of issues as “Not extending fixed term contracts when employees did not obtain the qualification during the fixed term.” The Respondent accepts that that PCP does not properly reflect the Claimant’s complaint. It also does not reflect our findings as to the contractual position.

[106]It seems to us that the PCP the Claimant complains of is either, if the contract was due to expire on 31 December 2022, simply “allowing fixed term contracts to expire at the end of the fixed term or any agreed extension”. Or, if the contract was extended to 28 February 2023, “not honouring extensions to the period of employment where they have been agreed in error”. The Respondent has defended the complaint on that alternative basis, correctly recognising that the Claimant is a litigant in person and the PCP in the list of issues was not accurate, so there is no unfairness in characterising the PCP in those ways.

[107]Either way, we are satisfied that the Respondent had the relevant PCP. There has been no real dispute about that.

[108]The Respondent does not accept, however, that such a PCP put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability. We do not agree. The effect of the PCP on the Claimant was that on 28 June 2022 he was suddenly informed that his contract would be ending in six months as opposed to eight months. We accept that this did not have any direct impact on his educational trajectory because that is entirely separate and was not dependent on the Claimant remaining employed to the end of the exam timetable. We also accept that the Claimant still had six months before his contract would end, and it was certainly still possible for him to graduate. It did, however, have some real practical consequences. The Claimant had a substantial amount to achieve in terms of his competencies, which had to be completed before the end of his employment. He also would not be able to carry out a flexi-placement, which he believed would be beneficial to his career prospects. The Respondent says that this was not a disadvantage because it did not affect the Claimant’s ability to graduate, but we accept that the Claimant reasonably believed it placed him at a disadvantage not to have further experience from work outside the NHS. It also gave him less time to look for and secure a substantive role. The Claimant says that all of that created increased pressure and therefore affected his ability to study for and undertake the exam in December 2022.

[109]The Claimant mentioned to the OH physician the “increased stress” caused by the change to his employment end date. The physician referred to this as “psychological pressure”. It is clear from reading the report as a whole that this caused particular difficulties for the Claimant due to his fragile mental health at the time. We are satisfied that the PCP put the Claimant at a substantial disadvantage compared to someone who was not suffering from depression and anxiety.

[110]The duty to make reasonable adjustments therefore arose. The question is whether there were steps that could have been taken to avoid the disadvantage and whether it was reasonable for the Respondent to have to take those steps. The only adjustment that has been argued for or canvassed during the hearing is the Respondent further extending the contract to 28 February 2023 or, on the alternative PCP, honouring the agreement to extend the contract to 28 February 2023.

[111]We accept that a key factor in considering the question of reasonableness is whether the adjustment would have been effective in preventing the substantial disadvantage. The Respondent has argued that it would not have been effective because the Claimant would still have had outstanding educational components to complete after his employment ended. In our view this misses the point. The Claimant has never said that he wanted or needed his employment to continue until the point at which he could graduate. He says that the extension to February would have alleviated the pressure and therefore put him in a better position to complete the course successfully because, for example, he would have been better able to focus on the exam in December 2022, and to find a favourable substantive role.

[112]There is no evidence to support the Claimant’s argument that he would have obtained a “better” substantive role. He has not produced any evidence of roles that he would have preferred and could have secured if he had had the additional time. Given that the Claimant did find a substantive role which started in mid-February, however, we do accept that he would have been more likely to find a role that could start immediately after the end of his employment with the Respondent.

[113]We also accept that the extension would have alleviated the pressure and put the Claimant in a better position to complete the course. This is supported by the OH report which recommended an extension of “either/both” the study element and the workplace competencies. The fact that an adjustment has been recommended by OH does not of course mean that it will necessarily be reasonable, but it does support our conclusion that based on the information the Respondent had from July 2022 onwards, the adjustment was likely to be effective in preventing the substantial disadvantage. We accept that Ms Wallace and others may have genuinely believed that a further extension would not have made a difference, in that the Claimant was still unlikely to graduate given all of the difficulties that had arisen throughout his training, but that was not a reasonable conclusion. The Claimant had made significant efforts to complete his competencies and of the two exams that he had failed, one was not his fault and the other is likely to have been affected by the increased pressure referred to in the OH report.

[114]The Respondent has also argued that the cost to the public purse of extending the contract further meant that the adjustment was not reasonable. This is not a strong argument. The Respondent had already invested a great deal in training the Claimant. In the context of employing the Claimant in the scheme for 40 months, a further two months would not have entailed a significant additional cost. Further, the purpose of the scheme was that trainees would graduate and carry out important work for the NHS long-term.

[115]We accept that although it is inherently part of the scheme that the fixed term contract will end, there was a strong expectation on all sides that participation in the scheme would result in permanent employment. This is reinforced by the letter to the Claimant which referred to a claw-back of the scheme costs if the trainee did not continue in the NHS for at least 24 months after the end of the scheme. That is extremely unlikely to have been enforceable, but the Claimant could not be expected to have known that, and it is an indication of the commitment made by both parties to work towards the goal of long-term employment in the NHS. This context put an additional obligation on the Respondent to support trainees and help them succeed. There would also be a very significant loss to the NHS as a whole if any trainee did not succeed. It would have been a better way of protecting public funds to extend the contract by two months.

[116]We also take into account Ms Wallace’s evidence that a further extension was “always an option”. There was no particular impediment to the Respondent extending the contract. It simply decided that it done enough. We do accept that the Respondent made very considerable efforts to support the Claimant throughout the scheme. Mr Spears in particular provided a huge amount of support. Again, however, that goes both ways. Having invested all that time and effort in helping the Claimant to succeed, it would have been reasonable to comply with the OH recommendation and allow the further extension of two months.

[117]The reasonable adjustment complaint therefore succeeds. Unfair dismissal

[118]Given our findings, we do not accept that the reason for dismissal was the natural expiry of the fixed term of the contract. The reason for dismissal was the Respondent’s decision to correct an error by Mr Spears in agreeing a longer extension than was intended. We accept, however, that that is equally capable of amounting to “some other substantial reason”, so it does not affect the outcome of the unfair dismissal complaint. The key issue is whether the Respondent acted reasonably.

[119]Given our conclusion that the Respondent failed in its duty to make reasonable adjustments, we also find that it did not act reasonably in treating the reason for dismissal as a sufficient reason to dismiss the Claimant.

[120]In addition to the points already made, we find that it was not reasonable to effectively bring the end date of the Claimant’s contact forward by two months, knowing of the serious mental health problems he was experiencing at the time. Further, there is no evidence of the Respondent giving proper consideration to the matter again after receipt of the OH report. It was not sufficient to say that the recommendations had already been put in place. The report was clearly recommending a further extension of two months. It was necessary for this to be considered by senior management. Ms Wallace’s evidence on this was very unclear and we do not accept that it was properly considered.

[121]We also consider the Respondent failed properly to address the Claimant’s concerns when he raised them with Ms Petford and Ms Wallace. Mr Hutchins’s approach to the grievance was wholly unreasonable.

[122]In all the circumstances we find that the Claimant’s dismissal was unfair.

[123]As for “Polkey”, there was ultimately nothing for us to determine on this issue because it is not in dispute that the Claimant’s employment with the Respondent would have ended on 28 February 2023 in any event. The Respondent does not argue that it would have ended sooner than that.

[124]The points explored to some extent in the evidence about the Claimant leaving the substantive role that he did secure for personal reasons, and failing to complete the course, are all relevant to causation of loss and/or mitigation, so will be considered at a later remedy hearing if required. Direct discrimination / discrimination arising from disability

[125]Both of these complaints depend on the Claimant’s allegation as to the Respondent’s motivation for its conduct at the relevant time, namely in mid2022 when it was decided not to extend the contract further to February 2023 and, he says, they failed to provide more support with his studies for example by advocating for him with CIPFA more strongly when he encountered problems. The Claimant alleges that the Respondent had formed the view he would be a burden on the NHS given his disabilities and additional needs, and therefore they did not want to help him graduate. There is no evidence to support a finding that the Respondent had taken against the Claimant in that way, or that they did not want him to succeed long term. As already mentioned, they made considerable efforts to support the Claimant and help him achieve the criteria necessary for graduation. There is a question-mark over why further consideration was not given after receipt of the OH report to extending the contract by two months, but we accept Ms Wallace’s evidence that she genuinely believed a further extension would not have been reasonable. Further, even if the Respondent had formed the view that the Claimant would be a burden on the NHS, the decision not to extend the contract to February would not necessarily have prevented him from graduating, and indeed he did secure a substantive role. The Claimant has not proved facts from which we could conclude that his disabilities or the fact that his mental health was in impediment to timely completion of the course were the reason why the Respondent acted as it did. The burden of proof does not therefore shift to the Respondent and these complaints fail. Indirect discrimination

[126]It is unclear why this has been pursued because it does not add anything to the complaint of failure to make reasonable adjustments. Again, we will deal with it briefly.

[127]We consider the complaint cannot succeed because the Claimant has not established group disadvantage. i.e. he has not shown that the PCP put people who suffer from anxiety and depression at a particular disadvantage when compared with those who do not. We do not consider it is possible to generalise in this way. It is quite possible that another person with depression and anxiety would not have felt under the same pressure that the Claimant did when informed his contract would be ending at the end of the year.

[128]Further, the alternative PCP that we found was applied, not honouring extensions to contracts that are agreed in error, would not necessarily impact any other person in the way that it impacted the Claimant. It was the particular circumstances that applied to the Claimant and were unlikely to apply to anyone else that led to the disadvantage we have found.

[129]The indirect discrimination complaint also therefore fails.