Miss B Rees v South Western Ambulance Service NHS Foundation Trust: 1403426/2023
JUDGMENT
[1]The Respondent discriminated against the Claimant arising from her disability when it dismissed her with effect from 21 February 2023.[2]The Respondent failed to make reasonable adjustments for the Claimant when it dismissed her as aforesaid. The reasonable adjustment it should have made was to extend the review period under the sickness absence policy with enhanced targets reasonably taking into account her disability.[3]The Respondent must pay the Claimant the following compensation within 14 days. Financial Loss 6,184.16 Interest thereon 281.25 Injury to Feelings 12,000 Interest thereon 1,091.51 GRAND TOTAL £19,556.92 Case Number: 1403426/2023 JUDGMENT having been sent to the parties on 27 March 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 12 May 2023, the claimant claims disability discrimination. The claimant was employed by the respondent as an Emergency Medical Dispatcher between 1 November 2021 and 21 February 2023 when she was dismissed for capability in terms of attendance. The claimant is disabled with fibromyalgia. This was disclosed by her when she applied for the job.The Issues
[2]These were confirmed at a preliminary hearing on 8 November 2023 before Employment Judge Roper. They are set out in the appendix hereto. Sickness Absence Policy[3]The respondent has a sickness absence policy. References to disability are relatively few. There is reference to the definition of reasonable adjustments. The policy says a reasonable adjustment is a change that must be considered by law to remove or reduce a disadvantage related to a person’s disability when doing their job. A reasonable adjustment may include workplace changes or equipment to support an individual. In determining whether an adjustment is reasonable, an organisation will consider facts such as practicalities, affordability, health and safety and service impacts. When considering reasonable adjustments, it is important to seek HR and occupational health advice. There is a reference to disability in connection with the stage one meeting. There may be more than one informal stage one sickness meeting.[4]Paragraph 4.9 of the policy reads: When an employee has a disability that is confirmed by the Trust Occupational Health department, the line manager may hold more than one informal stage one sickness meeting. This is considered an adjustment to the sickness absence triggers outline within the formal meeting section. This additional meeting should be held to enable further discussions and considerations for suitable alternative employment and/or reasonable adjustments for when a disability may impact on the employee’s ability to fulfil their substantive role. Where it is recommended by occupational health, the line manager may also hold further welfare meetings as employees progress through the sickness absence policy.[5]The central document in the policy is a flowchart. The flowchart covers both short-term sickness and long-term sickness. The ‘triggers’ as they are referred to inform the operation of the policy. Within a twelve-month period - that is a rolling twelve month period - four periods of sickness absence or ten calendar days of sickness absence or twenty-eight days of continuous absence represent the triggers. The latter is regarded as long-term sickness, the former two as short-term. A stage one sickness absence meeting is to be held within a three-week period, this is said to be an informal meeting. For short-term sickness the line manager will consider possible action to offer additional support and set a twelve-month review to improve attendance. If during the first twelve-month review period, four periods of sickness absence in a twelve-month period or two periods of sickness absence in a six-month period or ten calendar days within a twelve month period or five calendar days of sickness absence within a six month period, then the absence management escalates. These are said to be short-term sickness triggers. The long-term trigger is that the employee has not retuned to work following a three-month period.[6]In those events a stage two sickness absence meeting is held within three weeks. This is said to be a formal meeting. There is a right to representation, which there is not at stage one. At that stage two meeting the line manager will consider possible action to offer additional support, reasonable adjustments and set a further twelve-month review to improve on attendance. If during the second formal review meeting, the employee has had four periods of sickness absence in a twelve-month period or two periods of sickness in a six-month period or ten calendar days within a twelve month period or five calendar days of sickness absence within a six month period, there is progression to a stage three meeting.[7]For a long-term sickness the trigger is that the employee has not returned to work for a further four months. A stage three meeting will be held where longterm sickness absence approaches six months or where a target at the formal attendance meeting has not been met. In respect of short-term sickness absence, a stage three meeting will be arranged within five weeks. The stage three meeting will be chaired by a senior manager and possible outcomes may be to extend the review period or to dismiss on ill health capability whilst considering whether suitable alternative employment might be appropriate. There has been no question of suitable alternative employment in this case, a matter therefore that we ignore.[8]Significantly, nowhere in the policy is there any mention of the ability of managers to adjust trigger points for disability for example, to comply with ACAS examples of best practice of reasonable adjustments in respect of disability targets. Very helpfully the ACAS extract has been put in the bundle by the parties. In respect of reasonable adjustments for absence: if someone has had a number of absences related to their disability or they are likely to, they might need reasonable adjustments. By the Equality Act 2010 an employer must make adjustments for someone who is disabled if the adjustments are reasonable. What is considered reasonable depends on the circumstances. Reasonable adjustments are specific to an individual person some adjustments might be around “trigger points” for absence if the organisation uses a trigger point system. This is a system that triggers an absence review if an employee reaches a certain number of absences. Examples of reasonable adjustments could be: Not counting some or all sickness absence related to a disability towards any trigger points. Increasing the number of absences that will trigger a review. Another example of a reasonable adjustment could be recording disability absence separately to other sickness absence. This is sometimes known as disability leave or disability related sickness absence.[9]There is none of that in the respondent’s sickness absence policy. As a result of that it was evident to us from the evidence of all the managers that it did not occur to them that they had any such power by way of reasonable adjustments. This topic was expressly raised at stage three and in the appeal by the claimant’s union. There was no reference at all to it at stage one or stage two. Throughout the proceedings there has been repeated reference to a policy that the trust does not alter the triggers. That also means the Trust does not alter the targets. The claimant’s absences.[10]The totality of the claimant’s absences set out in a table as follows: We will refer to a flare up of fibromyalgia as a disability absence and elsewhere we give the reason for the absence. 17 December 2021 disability 1 day 18 March 2022 disability 2 days 30 April 2022 migraine 3 days 17 June 2022 disability 3 days 25 July 2022 disability 1 day 5 August 2022 disability 2 days 12 August 2022 covid 10 days 4 November 2022 dental 5 or 6 days abscess 6 January 2023 disability 2 days Flexible working requests[11]Parallel to the application of the sickness absence policy, there were applications by the claimant for flexible working.(1) On 25 May 2022 the request was that when working relief shifts she would be rostered to work for no more than 10 hours. This was granted on 15 June 2022.(2) On 23 June 2022 reduction of hours by one shift a week. The application was from the original contractual hours of 42.5 down to 33 hours a week. This was granted as 30 hours a week on 1 September 2022 and came into effect on 26 September 2022.(3) The request number 3 followed closely on from request 2. The request was approved on 21 October 2022 and the request was for a reduction of hours from 30 hours to 25.33 hours per week. This was to make sure her shifts in a relief week were manageable in length. From the start of her employment, then, at 42½ hour a week, she had gone down to 25.33 hours a week, a reduction of 17 hours a week. We acknowledge that this would have had significant financial implications for the claimant.[12]The respondent administers a shift rota over 16 weeks. That is divided into 12 core weeks and 4 relief weeks. Relief weeks are designed to cover annual leave, sickness absence and training absences of colleagues. A dispatcher is allocated 4 relief weeks in the 16-week period. As we understand it, there was a danger of the claimant being asked to work in excess of 10 hour shifts during relief weeks. That was a problem area further addressed by the final position in relation to the hours arranged under the flexible working system. The shift pattern was sorted to the claimant’s satisfaction by 21 October 2022. There was earlier some confusion about what is meant by a 10-hour shift. Is that 10 hours of paid working which attracts 1 hour rest break therefore 11 hours on site or was it 10 hours on site with 9 hours working.[13]To make the claimant’s position work, she had been found what we have called a job share partner and what the respondent calls a line partner, in the sense of a telephone line partner. In the week the claimant did two-thirds of the line allocated. The job share partner one-third. They did not share the same shift. It may be that on the odd day even after the third flexible working request was granted that the claimant worked more than a 10-hour shift. It is accepted that she did for example on 23 October 2022. However, it is also clear that she was satisfied with the shifts that were arranged for her from 21 October 2022 onwards. We acknowledge that the respondent, through its flexible working scheme and the managers overseeing the stage one and stage two sickness absence reviews, worked hard to accommodate the claimant’s needs. The sickness absence meetings[14]On 29 June 2022 the claimant was invited to a stage one meeting. By then she had four periods of absence totalling 9 days, 3 of which were disability related. She had been referred to occupational health following a return to work meeting. Priti Sibanda an Occupational Health Advisor recorded the diagnosis of fibromyalgia since 2017. The claimant was said to be under the care of her GP and was prescribed appropriate medication. She was fit to be at work. She would benefit from working a shorter shift pattern on the relief rota of no more than 10 hours. She was advised to self refer to the Staying Well Service for physiotherapist support. She was advised to take what had been referred to as micro breaks during the course of the working day at least every five minutes, every hour. She was advised to arrange an appointment with her GP to discuss her reduced appetite; she was only eating one meal a day we understand. Ms Sibanda confirmed that the claimant was likely to be covered by the Equality Act as a disabled person and so reasonable adjustments would have to be considered. It was also advised that the claimant would be likely to have further absences related to the condition and the respondent was invited to consider this when managing future sickness absence. It was said that in the absence of change, the best predictor of future sickness absence is to review the past attendance record. Of course, by the end of her employment there had been significant changes to what had been arranged; the reduction of 17 hours a week to her working period.[15]Teresa Basford conducted the stage one meeting and wrote the outcome letter on 18 July 2022. The claimant was not represented at this meeting. It was clarified that three of the absences were flare ups for fibromyalgia and so disability related. At that point the application to reduce her workload by one shift a week was pending. It was recorded that the claimant did not feel a further occupational health referral was required Teresa Basford did not record disagreeing with that. Of course, it is not a matter for the claimant to decide whether there should be an occupational health referral, that is a matter for management but of course the claimant would have to consent.[16]A display screen assessment was recommended, that took place in due course. Teresa Basford recorded that moving forward it was important that the claimant adhered to the attendance targets outlined in the sickness absence policy. If those targets were breached, she would proceed to a stage two hearing.[17]The standard triggers were recorded on the letter. No consideration as we know was given to adjusting triggers or targets because of disability. It had not occurred to Teresa Basford that such was appropriate. Similarly, it was not raised by the claimant who was unrepresented at this meeting.[18]Bearing in mind there was a pending application for flexible working changes, there might have been a basis for keeping the matter at stage one, given that the claimant was a disabled person. That is an express adjustment referred to in the sickness absence policy - that at stage one there is a discretion to keep it at stage one. It did not occur to Ms Basford that this was appropriate. There was no representation made on behalf of the claimant whether by herself or otherwise, that such should be the case. We suspect no one thought about that.[19]We get to a stage two meeting on 31 August 2022. The claimant was invited to a stage two hearing on 13 September 2022. There was a sickness absence report presumably prepared by HR attached to the invitation setting out the relevant absences. The invitation stated “The Trust has a duty of care towards you and the health and wellbeing of our people continues to be our main priority. This meeting has therefore been arranged to understand if there are further supportive measures and/or reasonable adjustments that we can consider alongside a formal monitoring process’.[20]There was throughout this process the usual nod towards the process being supportive. It is to an extent on the one hand; but it is also a process that can lead to a dismissal for capability. There is always those two aspects even if some of the letters perhaps over emphasise the former rather than the latter. Two new absences occurred on 25 July 2022 (1 day) and 5 August 2022 (2 days). A 10-day period of covid related absence was ignored. Throughout the pandemic, and by reason of government guidance, absences for covid were ignored. As the pandemic came to an end there remained of course absences through covid. There was a gradual change to start counting them. Because the claimant’s absence for covid was at a border period between the two policies they decided nonetheless to ignore the covid absence.[21]The claimant was reminded of her right to have representation. She did not take that up. She attended the stage two meeting chaired by Claire Vandenburg. The outcome letter was dated 18 September 2022. It was recorded that the claimant was not represented and the relevant absences were down to the disability of fibromyalgia. It was noted that there was a second flexible working application pending, reducing the workload by one shift a week. Ms Vandenburg picked up the issue of whether the relief shift hours were excessive and wrote an email on behalf of the claimant seeking clarification as to how the relief weeks would be rostered and whether a third application was necessary to deal with potentially onerous relief weeks. We know that this is what happened in the event. Ms Vandenburg recorded that physio had not helped but that the claimant had self referred. The claimant had completed a DSE assessment remotely but was yet to have one with an assessor. We understand this took place in the fullness of time.[22]It was noted that occupational health had suggested the claimant speak with her GP about appetite. The claimant advised that although her GP was providing medication to try to control symptoms, she did not find the GP that supportive. Ms Vandenburg suggested that perhaps another GP in the surgery might be more supportive.[23]An occupational health referral was not felt to be required because adjustments were being attended to through the flexible working request process.[24]Matters were not helped by the claimant’s father receiving treatment for cancer and the stress that had on her and the family. She was asked whether she was receiving support from the Staying Well Service. The claimant advised that she was in touch with the wellbeing supporter. She was advised she could seek the help of health assured.[25]Once again, the usual attendance targets were set out. If she breached them, she would progress to a stage three. Claire Vandenburg followed up on the flexible working request. She did not know, we find, that she could suggest the adjustment to the targets; nor was she asked to by any representation made by or on behalf of the claimant. There was a right of appeal for stage two that was not taken up. That is where we were on 18 September 2022.[26]The claimant was then off for 5 or 6 days with a dental abscess on 4 November 2022. Because that was a 5 days absence, that triggered the stage 3 meeting.[27]On 19 December 2022, she was invited to the meeting on 11 January 2023. In the meantime, she had a 2-day absence on 6 and 7 January 2023 with a flare up of fibromyalgia. This was a formal meeting and this time the claimant was represented by Ms Hodgson of Unison. Ms Hodgson did submit that as a “disability confident employer” the respondent could be flexible as to triggers. Mr Rankin simply replied that “we cannot move triggers”. Other matters were discussed as reflected in the outcome letter.[28]On 24 January 2022, Mr Rankin who is the Head of Emergency Operations Centre, Clinical hubs, dismissed the claimant verbally with four weeks’ notice. This was then confirmed in the outcome letter of 26 January 2023. Mr Rankin accepted there and accepts now that the dental abscess matter was unlikely to be repeated. The outcome letter recorded some of the matters discussed and then recorded the decision to dismiss the claimant on the grounds of incapability. There was no reason by way of justification for the decision to dismiss in the dismissal letter; it was simply recorded. Mr Rankin’s witness statement[29]In an attempt, no doubt, to make up for that, Mr Rankin has made several points in his witness statement.(1) The claimant did not appear to be actively engaging with her GP and had not contacted her GP to inform them of the severity of her current condition.(2) The claimant failed to demonstrate that she was actively engaging other resources available to her, such as pain management clinics or physiotherapy.(3) Despite the claimant’s condition she was only on low level pain management medication at the time and showed no interest in engaging with the respondent’s Staying Well Service to improve her attendance.[30]Therefore, he was not satisfied that her attendance would be likely to improve in the future. Those reasons contained in his witness statement and not in his letter are problematic. Mr Rankin did not refer to occupational health and so purported to make a clinical evaluation for example of the pain relief medication based upon his own interpretation. Whilst of course Mr Rankin as a paramedic has some significant medical knowledge, with respect to him, he is neither an expert in fibromyalgia nor the claimant’s treating clinician. His assessment of the adequacy of the pain relief medication was not something he was either qualified to assess, and it was inappropriate that he should purport to.[31]At the last return to work meeting on 10 January 2023, the line manager stated that reference to occupational health was required. Mr Rankin told us that us in evidence, that had he seen that he would have stayed the stage three process until occupational health reported. However, given that this was a stage three meeting, and given the importance of the decision he was taking, he himself could have referred to occupational health to address those matters that otherwise he had expressed an opinion on. His failure to refer to occupational health deprived him of a source of reasoned evidence.[32]A letter subsequently received from the GP for the purposes of the appeal dated 24 February 2023 is in these terms. “Bethany was diagnosed with fibromyalgia in 2017 and since then has endeavoured to manage her pain whilst continuing to work. She is aware that this resulted at times in her having to take time off sick despite her best efforts. She reduced her hours in September 2022 in order to reduce her stress levels and was pleased that since then she had only needed one day off due to her fibromyalgia. Her other sickness in that time was due to documented dental abscess. [We know it was two days but one episode for fibromyalgia.] Fibromyalgia is a long-term condition which Bethan has lots of information on and is encouraged by the pain team and GP service to manage it herself as best she can. She continues to do this with self help methods such as pacing her exercise and taking nortriptyline regularly at night. Bethany is aware that we as a GP service have very little more to offer her and so she does not trouble us with each of her flares.”[33]This letter and information suggest that Mr Rankin’s criticism of the claimant in respect of her dealings with her own GP were misplaced and unfair.[34]As to engaging with other resources the claimant had visited physiotherapy she was in touch with the EOC wellbeing councillor. Criticisms of her engagement with other resources were not entirely fair either.[35]Fundamentally, Mr Rankin did not note that following the three successful applications for flexible working resulting in a reduction of 17 hours a week in terms of workload that the claimant only had one 2-day absence from a flare up of fibromyalgia since 6 August 2022 a period of five months. That, one might have thought, provided a reason for hoping for continued improvement.[36]The point-blank refusal to consider adjusting the targets notwithstanding the invitation from the union and the reference to best practice is, in our judgment, irrational. The best practice guidance acknowledges that there is an interest in keeping disabled employees in the workplace.[37]We acknowledge that the witnesses before us are also frontline managers and practitioners. It is likely that they were heavily dependent on advice from HR. We have had no-one from HR give evidence as to why it is that the Trust as a matter of policy will not adjust the triggers resulting in inflexibility with targets.[38]The claimant brought a grievance on 23 January 2023 principally about the delay in receiving the outcome but also complaining about the events of the meeting. In truth the grievance does not take us much further. The Appeal[39]There was an appeal to William Lee sent on 2 February 2023. Mr Lee is Assistant Director of Operations of the Emergency Operations Centre. Ms Hodgson from Unison appeared. She submitted that the target should be adjusted, she referred to ACAS best practice. Mr Lee upon advice from his HR officer said that it was something that the Trust does not do. Indeed, we have no information that this Trust has ever adjusted a target in any case for a disabled person and indeed the ability so to do by way of reasonable adjustments is not referred to, as we know, in the policy.[40]On 10 March 2023, the appeal was rejected. There is express reference to the issue of targets being adjusted in Ms Hodgson’s submission in that regard. Mr Lee does refer to someone from HR he wrote - “Erica explained the Trust sickness policy. The Trust does not address triggers but managers ensured that they take all relevant information into account in the management of an individual’s sickness.”[41]In terms of the outcome, he stated the following: “The meeting reconvened on Wednesday 8 March 2023. I outlined that having carefully considered the facts presented and the findings of the stage three panel I am satisfied that the process followed was in line with Trust policy and correctly applied. The reasonable adjustments advised by occupational health were implemented and you confirmed that these had been in place for a significant period of time. Unfortunately, there has been no improvement in your attendance nor were you able to provide the appeal panel with any assurance regarding potential improvements in your attendance moving forwards. As such the appeal panel determined that the action of the stage three panel was reasonable and therefore the decision is to uphold the original decision to dismiss you from the Trust on the grounds of capability due to attendance. Your appeal is not upheld and your last day of employment with the Trust is 21 February 2023 following your four week notice period.”[42]Not only was there a point-blank refusal of considering any adjustments to targets, there was also a failure by Mr Lee himself to note that there had been an improvement in terms of disability-related attendance since August 2022 and since there had been considerable reduction in the claimant’s hours pursuant to her flexible working requests, which very reasonably the respondent had allowed.The Law
[43]Section 15 of the Equality Act 2010 deals with discrimination arising from disability. Subsection (1) provides that: (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. (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. Knowledge of disability is conceded at all material times.[44]Section 20 deals with the duty to make adjustments. Section 20(3) provides that 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 disadvantage.[45]The burden of proof is important in discrimination cases. By section 136(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. Subsection (2) does not apply if A shows that A did not contravene the provision (see subsection 3).[46]What this means is that the claimant must show a prima facie case of breach of the relevant sections. If that prima facie case is shown, the burden transfers to the respondent to show that discrimination played no role whatsoever. Indeed, we have a similar burden under Section 15; the burden is on the respondent to show that the decision to dismiss was a proportionate means of achieving a legitimate aim and in reality that is the central matter in the case.[47]The appropriate approach to this question was considered in the case of Gray v The University of Portsmouth UK EAT/0242/20/00 a decision in the Employment Appeal Tribunal of Mrs Justice Eady on the 24 June 2021. In determining whether the respondent had shown the claimant’s dismissal was a proportionate means of achieving a legitimate aim, the Employment Tribunal was required to demonstrate that it had carried out the necessary critical evaluation. Although in that case the ET had referred to the position as being “obvious”, that was not demonstrated by the Employment Tribunal’s reasoning in this case. In particular, there were no findings as to level of need about the claimant’s role and about the impact of his absence and the evidence that the respondent had provided differing potential explanations for why the claimant’s dismissal was a proportionate measure in this case, but it was unclear which had been accepted by the Employment Tribunal. More generally it was unclear whether and if so how the Employment Tribunal had weighed the needs of the respondent’s undertaking against a discriminatory effect of the dismissal. That failure rendered the Employment Tribunal’s conclusion unsafe.[48]Reference is made to the decision of MacCulloch v ICI [2008] ICR 1334 (EAT) para 95 where the following guidance was given on justification:(1) The burden of proof is on the respondent to establish justification.(2) The Tribunal must be satisfied that the measures must correspond to a real need and are appropriate with a view to achieving the objectives pursued and are reasonably necessary to that end.(3) The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact the more cogent must be the justification for it.(4) It is for the Employment Tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer’s measure and to make its own assessment of whether the format outweigh the latter. There is no range of reasonable responses test. Discussion and Conclusions[49]There is no doubt that the respondent in this case demonstrates the legitimate aims it put forward in the list of issues. It had legitimate aims in ensuring that it had adequate staffing coverage and insuring that employees are able to provide good and regular service and protecting public funds and reducing the strain on the respondent’s other employees caused by the claimant’s absence. We had evidence from Alison Walker who is a Scheduler who has deep knowledge of the way in which the respondent’s rota works and we accept from her that short notice absences can be difficult to accommodate. That is self evident.[50]As against that is the interest in keeping disabled employees in the workforce. In this particular case, at the particular time of the stage three meeting, there had in fact been a significant improvement in the claimant’s disability-related absences. That was a point missed in our finding by Mr Rankin and also by Mr Lee. We acknowledge that all absences are problematic, but it is important to consider their nature. The covid absences were a particular feature of the pandemic and had ongoing albeit reducing effects. No-one suggested that the dental abscess was anything than a one-off. A manager at a sickness absence meeting should be looking to the future and assessing the likelihood of improvement. There had been an improvement in attendance and there was a basis for hope. That was a material omission by both Mr Rankin and Mr Lee to note that fact.[51]Secondly, the failure to refer to occupational health so as to deal with some of the assumptions made by Mr Rankin and not contradicted by Mr Lee was necessary in our judgment to found a reasoned basis for a decision to dismiss.[52]Thirdly and fundamentally, the whole process of managing this claimant’s disability, when there will inevitably be some disability-related absence was undermined by the respondent’s point-blank refusal to adjust targets. An example of best practice not only in the ACAS guidance but is acknowledged in the case of Griffiths v Secretary of State for Work and Pensions (Court of Appeal) [2015] EWCA 1265. The Department for Work of Pensions has an established and considered policy for allowing some extra days absence in a year for disability-related absence. We are not persuaded that the requirements of the Emergency Dispatch Centre are such that that there can be no accommodation for a disabled member of staff. We find that the respondent’s point-blank refusal to entertain this is both irrational and unlawful.[53]It follows then that the respondent does not justify this decision to dismiss as a proportionate means of achieving a legitimate aim. What it should have done before dismissing this claimant was to extend its review period, which is an option it had under the policy. Enhanced targets proportionate and reasonably arrived at, so as to give this disabled employee a chance of holding down a job, cutting her some slack, would not have undermined the efficiency of the operation of the dispatch centre. It is not a blank cheque in terms of the number of absences; there will come a point where a dismissal could be justifiable. In this case, the respondent acted far too prematurely and in the face of demonstrated improvement in relation to disability-related absence. We cannot say that the claimant would have spent the rest of her career working here but that decision to dismiss at that stage was not justified. She suffered the detriment of dismissal arising from the absences caused by her disability. The dismissal was not a proportionate means of achieving the otherwise clear legitimate aims, for the reasons given.[54]There was therefore also a failure to make reasonable adjustments at stage three of the process. The PCP was of course the application of the policy with inelastic targets. That disadvantaged the claimant because she was more likely to have absences than non-disabled people. The adjustment should have been a review period with enhanced targets. In respect of the stage three and appeal decisions there is liability under Section 15 and also under Section 20.[55]We do not think it would be just and equitable to extend our enquiries back to stage one and stage two. It would not be just and equitable because those managers engaged with the claimant as to what was important to the claimant at that time. No representations had been made to the managers to adjust the targets or the triggers. The focus was on the flexible working requests. To the respondent’s credit, they accommodated those flexible working requests. The claimant was happy with that position and those managers played their role. The position became acute in terms of the big decisions the respondent needs to make at Stage three. The stage one and two decisions are out-of-time. There is no liability anyway at stage one and stage two. Similarly, in respect of the shifts she was given the claimant was perfectly happy with the position as from mid October 2022. Any criticism of the position prior thereto is out of time. If there were one or two shifts that were longer than the 10 hours, the claimant did not complain about that at the time.[56]The stage three claims, however, are in time. Accordingly, the claimant wins her claims in respect of the stage three decision. The dismissal.Remedy
[57]In terms of remedy, we have two issues of principle to decide. The first is the length of time for loss of earnings to be said to flow from the act of discrimination. To her credit the claimant did seek to mitigate her losses by finding alternative work. From 12 April 2023 – 20 September 2023, she worked for Practice Plus Group working on the NHS 111 triage number. She decided to leave because she was working open plan and did not feel supported in respect of her disability and found a job at Barnfield Hill Surgery from 25 September 2023, working there in Reception. We understand it is a job she likes and intends to stay in. This is not a case of an employee making unsatisfactory efforts to mitigate her loss. She has made excellent efforts to mitigate her loss and the amount of losses are not as much as they might have been. That she has earned her pay at not entirely dissimilar levels further shows she has made those reasonable efforts. She has sustained actual losses. Fortunately for the respondent not as much as might have been but nonetheless losses have flowed. The respondent does not prove that the claimant had the ability for example to juggle shifts at Practice Plus whereby she might have earned more or the same as previously. The respondent does not show that the claimant has failed to do anything.[58]There does come a point beyond which it is speculation. That point is today in our judgment. We award all losses until today. We acknowledge that today’s judgment will help dissipate the effects of this discrimination.[59]In terms of injury to feelings, we have found rather than having been dismissed, she should have been subject to a review period with enhanced targets. We have little doubt that the experienced of being dismissed for the effects of one’s disability must generate significant injury to feelings particularly when it should not have happened as contended at the time by the claimant and by her union.[60]We note what she says in her witness statement: “The respondent’s decisions to dismiss me from the Ambulance service was incredibly heart breaking for me. I ended up with a massive flare up of my fibromyalgia and became very depressed, isolated and very lonely. It took me until April 2023, to find a job. I had to resort to seeking financial support from universal credit. This made me extremely emotional and anxious. I took a brief period of employment at Practice Plus. The pay that I received from the period is in the schedule. I was anxious and afraid that I was going to lose my job due to having fibromyalgia and not able to control it.”[61]She told us in evidence that she did not feel sufficiently supported there and the environment was not suitable. Since then, Barnfield Hill have assisted. She remains anxious and afraid.[62]The respondent submits towards the top end of the lower bracket £10,000. The claimant submits towards the lower end of the middle bracket. In our judgment it is borderline between the two brackets, but it does get into the middle bracket because it is a dismissal. We think the right figure is £12,000.