Mr G M Colfer v The Secretary of State for Justice: 1403745/2023
EMPLOYMENT TRIBUNALS
Case No 1403745/2023Venue PlymouthHearing 12 and13 August 2024 (In chambers 14 August 2024)
Between
Mr G M ColferClaimantThe Secretary of State for JusticeRespondent
Before
Employment Judge N J RoperMr M Todd (instructed by Counsel) for claimantMr A Webster (instructed by Counsel) for respondentDate 14 August 2024
JUDGMENT
The unanimous judgment of the tribunal is that the claimant’s claim that the respondent failed to make reasonable adjustments is well-founded and the respondent is ordered to pay the claimant compensation for injury to feelings in the sum of £4,250.00 together with interest of £550.56, which is total compensation of £4,800.56.
REASONS
[1]In this case the claimant Mr Garrett Colfer claims that he has been discriminated against because of a protected characteristic, namely disability. The claim is limited to one of an alleged failure to make adjustments. The respondent concedes that the claimant is disabled, but it otherwise denies the claim.[2]We have heard from the claimant. Mr Mark McKay and Mr Peter Spanner both prepared written statements on his behalf which were not challenged by the respondent, and we therefore accepted their evidence. For the respondent we have heard from Mrs Sarah Heyes, and Miss Victoria Phillips. Mr Richard Luscombe had also prepared a written statement on the respondent’s behalf which was not challenged by the claimant, and we therefore accepted his evidence.[3]There was a degree of conflict on the evidence. We found the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to the factual and legal submissions made by and on behalf of the respective parties.[4]The Facts[5]HM Prison Dartmoor is a Category C prison for adult men, and there are usually between 650 and 700 prisoners at the prison. The claimant Mr Garrett Colfer commenced employment with the Prison Service on 9 October 2017. He was employed as a Band Three Prison Officer at HMP Dartmoor. His immediate line manager was Mrs Sarah Heyes, from whom we have heard. She was one of three Custodial Managers, and they in turn reported to their line manager Governor Kathryn Fry (Head of Residence and Safety). Her Line manager in turn was the Deputy Governor Miss Victoria Phillips, from whom we have also heard. In his role as a Prison Officer the claimant was responsible for supervising and managing prisoners decently, lawfully and securely. He was also responsible for ensuring that Prison routines were complied with and operated effectively, and this included such tasks as conducting searches on prisoners, staff and visitors.[6]The claimant’s contract of employment records that he was based at HM Prison Dartmoor, and that as a Prison Officer he was required to work regular unsocial hours which included working shifts and night shifts. The contract also made clear that he might be required to work more than his normal average weekly hours because of an operational emergency; the need to ensure minimum staffing levels; or other unavoidable or unforeseen operational reasons.[7]The claimant is a disabled person by reason of Attention Deficit Hyperactive Disorder (“ADHD”). This was first formally diagnosed in 2018. He suffers from symptoms including executive dysfunction. This leads to difficulties with focusing, attention to detail, continually starting new tasks before finishing existing tasks, poor organisational skills, constantly changing activities or tasks, and inability to concentrate, focus or prioritise matters. The claimant has suffered from these symptoms for a number of years, which includes during the period which is relevant to this claim, namely from April 2022 to November 2023. The respondent concedes that the claimant was a disabled person during this relevant period, and that it knew that the claimant was disabled.[8]As a result of his disability the claimant says that he struggled to undertake some aspects of his role. This included the possibility of Detached Duty, namely the requirement to move between different prison locations for operational reasons. This is because he would have to adapt to new colleagues and environments which caused him to become overwhelmed because he would have to learn how another prison worked. Similarly, a requirement to work late shifts (meaning commencing a shift late in the day, rather than working a full day shift through to the end) would cause the claimant to feel overwhelmed because he had the responsibility of attending work later in the day. In particular this increased his anxiety because forthcoming events at work would be unknown. Thirdly the claimant suggests that the requirement to work in a busy and noisy environment meant that he had difficulty focusing and was easily distracted.[9]The respondent has a number of policies and procedures in place, and this includes an Absence Management Policy. Paragraph4.1 of this policy refers to Disability Leave. It records: “Disability Leave is an example of a reasonable adjustment. It allows reasonable absences during working hours for rehabilitation, assessment and treatment (where this is directly linked to the nature of the person’s disability and is not sick absence in the general sense). If approved as disability leave, absences of a day or more for rehabilitation, treatment and assessment count as leave with pay and must be recorded separately from sick absence.”4.2 provides: “Any disabled employee may apply for Disability Leave …” 4.4 provides: “Disability Leave should not be used to cover periods of sickness absence whether or not the sickness is directly related to the person’s disability.” 4.5 provides: “Disability Leave should usually be applied for in advance. However, it may be applied for retrospectively to cover unpredictable absences.”[10]The respondent also has an Attendance Management Policy, and this policy also refers to Disability Leave, but with different wording. Paragraph 2.116 provides: “Disability Leave is a form of paid special leave that may be offered as a reasonable adjustment under the Equality Act 2010. Employees with a disability can apply for disability leave if they are fit for work but need time off to attend appointments for treatment, rehabilitation or assessment relating to their disability”. Paragraph 2.119 provides: “Disability Leave is recorded separately to sickness absence and does not count towards attendance management or sick pay calculations” …[11]Although the respondent had previously obtained Occupational Health (“OH”) reports to assist in its management of the claimant, for the purpose of these proceedings the first relevant report was dated 11 July 2022. This was obtained at the request of Mrs Heyes. She knew at that stage that the claimant suffered from ADHD, and she wished to ensure that she knew what adjustments or support were then required to assist the claimant at work.[12]This first OH Report confirmed that the claimant: “… struggles without regular routine and finds it hard when working different shift patterns and not knowing what he will be working till the next duty is completed and then changing his morning routine to be able to get to work for different start times … In my opinion Mr Colfer is fit to be in the workplace with the following recommendations - I would recommend that management complete a disability assessment passport to help Mr Colfer within the workplace and ensure any reasonable recommendations are put into place. If management can assist I would recommend Mr Colfer is able to work set shift patterns and days off, this will allow Mr Colfer to have routine and continuity and prevent any anxiety to unknown shift patterns and changes to his routine. I would recommend that as a supportive measure over the course of the next four weeks that weekly meetings take place between Mr Colfer and his manager to ensure he continues to cope with his home/work life balance …” The report also suggested that a stress risk assessment should be undertaken.[13]Mrs Heyes was then unable to continue with the management of the claimant’s case because she had significant periods of absence from work herself because of sickness and some annual leave, but in addition when she did work she was working night shifts and did not have daily contact with the claimant. Her line manager Governor Fry effectively took over the line management of the claimant until it was resumed by Mrs Heyes in early February 2023.[14]Unfortunately, nothing seems to have been done in reply to this First OH Report. We have not heard from Mrs Fry who is no longer employed by the Prison Service. The issues identified continued to concern and upset the claimant, but without redress.[15]The claimant subsequently sent an email dated 1 November 2022 to Mrs Heyes which was headed: “ADHD Reasonable Adjustments and Disability Leave.” The claimant stated that: “I will need to have a meeting with you as soon as possible please as I have now seen a psychologist regarding my ADHD disorder. I have been prescribed medication which needs to be discussed. This needs to be imminent as I may have issues while becoming therapeutic on the medication this is due to mind altering side effects, I have letters from my psychologist which outlines this and will need you to complete the necessary actions from a HMPPS point of view.”[16]The claimant followed this up with an email to Mrs Heyes on 16 November 2022 which attached further information with regard to his medical condition. This included a letter from the NHS dated 2 November 2022 explaining the impact of ADHD and which included the comment: “He would benefit from reasonable adjustments at work such as regular daytime shifts, quiet space with no distractions to complete the paperwork and regular breaks. If the above is implemented, you would see an improvement in his work performance.” He also attached a letter from a clinical ADHD nurse specialist confirming that the claimant had commenced prescribed medication and that there would be a period of titration (which in this instance means experimentation with his medicine in order to arrive at the right dosage). It was noted that during this process: “individuals can struggle with their symptoms and have side effects, I understand you offer leave, to support your employees to deal with such facts. I would appreciate it if you would consider Garrett’s, while he is dealing with the changes in medication. I would expect this to last for a period of six weeks.”[17]It was on 16 November 2022 that the claimant underwent the process of titration, namely adjustment by way of trial and error to seek to ascertain the correct dosage for his medication. This absence would be counted as sickness absence with potential consequences (with regard to the amount of extended sickness absence which the claimant might take before possible Attendance Management consequences) and the claimant wished this to be treated as Disability Leave under the relevant policy. The upshot of this was that his absence appears to have been treated as sickness absence (and not Disability Leave under the policy) but the claimant was subsequently informed that if he provided further details of the time and dates taken for any disability-related treatment, and he applied for Disability Leave, then this could be considered and then approved. The claimant did not pursue that application.[18]In any event the above correspondence seems to have prompted a second OH referral which resulted in a report dated 2 December 2022. There appeared to have been some confusion because the claimant sought guidance about his ADHD medication and the possibility of Disability Leave. The OH practitioner was unable to give this, and the claimant withdrew his consent to continue with a mental health assessment.[19]The claimant was then absent on certified sickness absence from 6 December 2022 until 19 January 2023. His GP’s sickness certificate confirmed that he was not fit for work for four weeks from 9 December 2022 (which was later extended for a further two weeks) with “stress-related problems impacting on underlying ADHD, has started medication which is causing side effects impacting on ability to work presently”. The GP recommended an occupational medical assessment in order to ascertain workplace adjustments.[20]Mrs Fry then arranged for a further OH referral which resulted in the Third OH Report which was dated 13 January 2023. This report suggested that the claimant had a good functional ability in his daily activities and would be fit to return to work on full hours subject to adjustments. The report recommended a referral for a “capability at work assessment” to be completed by an Occupational Therapist (OT). Whilst waiting for this assessment the report suggested that the claimant would “benefit from being permitted to work on the enhanced wing only, on his full-time contractual hours, which are recommended to be full days only. He can undertake overtime as and when available and he feels able to. Structure and routine would be of great benefit to support his ongoing attendance at work. I would recommend Mr Colfer’s routine and schedule is to remain unchanged until the OT assessment has been completed and a full report regarding his capability to work has been advised upon. Structure and routine would be of great benefit to his management of his condition and his ongoing well-being at this time … Mr Colfer to be supplied with the full audio and visual equipment in good working order that he requires to undertake his role as an officer. This will hopefully alleviate his stress and reduce the impact this has on his ADHD. I recommend a stress risk assessment is undertaken with management …”[21]On 20 January 2023 Mrs Fry then carried out a risk assessment on the basis the claimant was returning to work on restricted duties. This noted that the claimant was likely to be considered as disabled under the relevant legislation. The report noted: “it is therefore important he has a work environment that is calm, enables him to remain static and not be redeployed to other areas to fit into gaps with shortfalls. This will only create anxiety and the need to assist and support with the same routine.” It noted that support would be put in place, namely the claimant would be working “on E wing and wherever possible to remain working on there (for this two-week period). Seeing how he can get used that environment will avoid the anxiety he experiences when he is redeployed. The disability passport refers to returning to detailed duties from week 4 (12/02/23)”. That document also attached a table showing the shifts which the claimant had been allocated for the three weeks from 23 January 2023, which were all main day shifts when he was working, and which therefore avoided allocating him to the late shifts.[22]Mrs Fry then prepared a further employee risk assessment because of the claimant’s mental health difficulties which was dated 24 January 2023. This noted that a Disability Passport to accommodate his needs and adjusted work pattern had been agreed although this was subject to the Governor’s approval. It also noted that the parties were awaiting an OT assessment which might recommend further adjustments for the disability passport. This report confirmed that the claimant was to continue with restricted duties and to check in regularly with Mrs Fry. It also noted that he was to be detailed to East Tor wing for the next two weeks on the main shifts only, and not to be detailed to any other wing. Once the period of adjusted duties were completed, they would remain in place because he is affected when he is redeployed which then has an impact on his anxiety. This would only change if there were to be an operational reason why it might be necessary to do so.[23]The claimant was then absent again on certified sickness absence with effect from 8 February 2023, and he was not certified as fit to return to work until around 6 May 2023. During February 2023 Mrs Heyes was able to resume management of the claimant and she made a further referral to OH on 22 February 2023. This resulted in the Fourth OH Report which was dated 9 March 2023. The initial report wrongly referred to the impairment of dyslexia, which was challenged by the claimant, but after that amendment had been made to refer to ADHD the claimant agreed its contents. That Report confirmed that the claimant was unfit for work because of low mood, anxiety and reported work stress but that his ability to work would be facilitated by supported adjustments to his role. It was suggested that these “may include” the following: undertaking a display screen equipment assessment; printed or hard copies of documents; a stress risk assessment; and gradual introduction and explanation for new tasks.[24]Mrs Heyes did not receive this report until 20 March 2023. Meanwhile she was sufficiently concerned to seek support from respondents HR advisers by email dated 16 March 2023. She commented: “I’m doing all I can to support him. However, I feel I need support in this area as Officer Colfer has had a number of OHA’s and does not appear to engage as I feel he should.”[25]On 20 March 2023 the claimant then telephoned Mrs Heyes to say that he was unhappy and that he wished to raise a formal grievance. The grievance process was put in place, and it was heard by Miss Phillips the Deputy Governor from whom we have heard. At the same time Mrs Heyes wished to meet with the claimant by way of an absence review meeting.[26]The grievance process is not relevant to these proceedings, but in short Miss Phillips upheld a complaint that there had been an administrative error in relation to the scheduling of the claimant’s hours (in that he had been scheduled to work more hours than would reasonably be expected for a phased return to work); and that there had been a communication error as to precisely what work he should do. Otherwise, the claimant’s various grievances were rejected. The claimant appealed, and following a review of his grievance by the then Governor of HM Prison Exeter, Mr Richard Luscombe, he reached the same conclusion and the grievance appeal was rejected.[27]During March and April 2023 Mrs Heyes continued to discuss the matter with the claimant. He had raised concerns about his work life balance and Mrs Heyes sent him the relevant form SOP 142 which would enable him to make an application for flexible working to accommodate his concerns. The claimant remained off sick and on 18 May 2023 he presented a certificate which covered absence up to and including 6 June 2023.[28]Mrs Heyes arranged for another OH assessment which was carried out on 24 May 2023. The Fifth OH Report was dated the same day. The report confirmed the claimant was medically fit to commence a return to non-operational duties “as is currently scheduled next week”. The report recommended the completion of a stress risk assessment and commented that the claimant perceived that his ability to function and cope with working would be aided by reducing the possibility as far as practical of any sudden unplanned changes to his work duties. It noted that the claimant had raised concerns that he would experience adapting to new work locations, new colleagues, new working practices, and new equipment, if he were to be required to undertake work duties in other prison locations. The claimant had reported that he might be required to do so because he was classed as being in a “mobile grade”.[29]Following this assessment, the claimant then returned to work on 24 May 2023. The following adjustments were agreed and made to the claimant’s role. In the first place he was removed from frontline duties and allowed to work in the mailroom. He was also removed from the Detached Duty list, meaning that he would not have to carry out duties at prisons other than HMP Dartmoor. This was confirmed in an email from the Governor Mr Mead on 3 July 2023. The claimant was kept on a consistent routine and in familiar surroundings by keeping him on D wing and not requiring him to work in different prisons. He was offered quiet spaces to work as well as hard copy of documents required, and he was given specific hours to work. Mrs Heyes remained in close contact with him and had regular meetings.[30]These adjustments were confirmed in a Workplace Adjustment Passport in July 2023. It noted that the claimant had been back at work for several weeks and conducting his duties in the mailroom, and that on 11 July 2023 the claimant confirmed that he felt ready to return to the wing. It was agreed that he would return for a period with reduced hours in order to regain confidence. He agreed with Mrs Heyes that he would work one week of reduced hours on D wing with effect from 17 July 2023 which would be reviewed later that week. The passport confirmed that he was not to be redeployed and that his detail was to show “restricted duties”.[31]Whilst working on the wing the claimant has asserted that he was at a disadvantage because of the absence of an auxiliary aid, namely a two-way radio with an earpiece. We accept Mrs Heyes’ evidence in this respect. She explained that there are a number of two-way radios available for Prison Officers on each wing. They can be connected to an earpiece if desired. The Prison security department is responsible for their provision and maintenance, and any difficulties have to be recorded and resolved through that department. The claimant says that he was unable to connect his earpiece. Mrs Heyes disputes this and says that she discussed the claimant’s working arrangements repeatedly with him, and that he never raised any difficulty to the effect that his earpiece would not work, or that the equipment was in any way defective. There is no record of any complaint, and no record of the claimant having raised the matter with the relevant security department. On the balance of probabilities we find that the claimant was issued with a two-way radio and an earpiece, and that its operation was satisfactory.[32]On 18 July and 24 July 2023 Mrs Heyes carried out further risk assessments of the claimant which did not identify any new amendments to the arrangements at that time. He did not raise any further issues and Mrs Heyes was of the view that the claimant was able to continue with this work because all matters had been resolved.[33]The claimant subsequently decided to resign his employment in the Prison Service with effect from 9 November 2023 having secured alternative employment with the DWP.[34]Meanwhile these proceedings were already underway. The claimant had commenced the Early Conciliation process with ACAS on 18 April 2023 and ACAS issued the Early Conciliation Certificate on 15 May 2023. The claimant had already presented these proceedings on 15 June 2023.[35]Having established the above facts, we now apply the law.[36]The Law[37]This is a claim alleging discrimination because of the claimant's disability under the provisions of the Equality Act 2010 (“the EqA”). The claimant complains that the respondent has contravened a provision of part 5 (work) of the EqA. The claimant alleges a failure by the respondent to comply with its duty to make adjustments.[38]The protected characteristic relied upon is disability, as set out in section 6 and schedule 1 of the EqA. A person P has a disability if he has a physical or mental impairment that has a substantial and long-term adverse effect on P’s ability to carry out normal day to day activities. A substantial adverse effect is one that is more than minor or trivial, and a long-term effect is one that has lasted or is likely to last for at least 12 months, or is likely to last the rest of the life of the person.[39]The provisions relating to the duty to make reasonable adjustments are to be found in sections 20 and 21 of the EqA. The duty comprises of three requirements, of which the first and third are relevant in this case. The first is that 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, there is a requirement to take such steps as it is reasonable to have to take to avoid that disadvantage. A failure to comply with this requirement is a failure to comply with a duty to make reasonable adjustments. The third requirement in section 20(5) is relevant in this case, namely a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put 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 provide the auxiliary aid.[40]A discriminates against a disabled person if A fails to comply with that duty in relation to that person. However, under paragraph 20(1)(b) of Schedule 8 of the EqA A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know –(a) in the case of an applicant or potential applicant, that an interested disabled person is or may be an applicant for the work in question;(b) … that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.[41]The provisions relating to the burden of proof are to be found in section 136 of the EqA, which provides in section 136(2) that 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. However by virtue of section 136(3) this does not apply if A shows that A did not contravene the provision. A reference to the court includes a reference to an employment tribunal.[42]The remedies available to the tribunal are to be found in section 124 of the EqA. The tribunal may make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate; may order the respondent to pay compensation to the complainant (on a tortious measure, including injury to feelings); and make an appropriate recommendation. In addition, the tribunal may also award interest on any award pursuant to section 139 of the EqA.[43]The interest payable on discrimination awards is to be calculated in accordance with the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 ("the Interest Regulations"). Under regulation 2 the tribunal shall consider whether to award interest, and if it chooses to do so then under regulation 3 the interest is to be calculated as simple interest accruing from day to day. Under regulation 6 the interest on an award for injury to feelings is to be from the period beginning on the date of the act of discrimination complained of and ending on the day of calculation. All other sums are to be calculated for a period beginning with a mid-point date between the act of discrimination and ending on the day of calculation.[44]We have considered the cases of Environment Agency v Rowan [2008] IRLR 20 EAT; Newham Sixth Form College v Sanders EWCA Civ 7 May 2014; Archibald v Fife Council [2004] IRLR 651 HL General Dynamics Information Technology Ltd v Carranza [2015] ICR 169 EAT; Sheikholeslami v University of Edinburgh [2018] IRLR 1090; Ishola v Transport for London [2020] ICR 1024 CA; Nottinghamshire City Transport Ltd v Harvey [2013] EqLR 4 EAT; Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265; Royal Bank of Scotland v Ashton [2011] ICR 632 EAT; Project Management Institute v Latif [2007] IRLR 579 EAT; Nottingham City Transport v Harvey [2013] EqLR 4 EAT. We take these cases as guidance, and not in substitution for the provisions of the relevant statutes.[45]We have also considered section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, and in particular section 207A(2), (referred to as “s. 207A(2)”) and the ACAS Code of Practice 1 on Disciplinary and Grievance Procedures (2015) (“the ACAS Code”).[46]The Agreed List of Issues:[47]The claimant’s claims to be determined by this Tribunal were agreed at a case management preliminary hearing and set out in the Case Management Order of Employment Judge Barton dated 23 April 2024, although one allegation relating to a quiet room was subsequently withdrawn. The claimant’s claims are limited to one of an alleged failure to make adjustments.[48]The Claimant’s Disability:[49]The disability relied upon by the claimant is ADHD. For the reasons explained in findings of fact above, we find that at all material times the claimant suffered from a mental impairment which had a substantial and long-term adverse effect on the claimant’s ability to carry out normal day to day activities, and in particular executive dysfunction including impaired concentration. There was a substantial adverse effect because it was more than minor or trivial, and there was a long-term effect because it lasted for at least 12 months.[50]The respondent has conceded that the claimant was a disabled person by reason of the impairment relied upon at all material times. We agree with that concession, and we so find.[51]Reasonable Adjustments[52]The constituent elements of claims in respect of an alleged failure to make reasonable adjustments are set out in Environment Agency v Rowan. Before considering whether any proposed adjustment is reasonable, the Tribunal must identify:(i) the provision, criterion or practice applied by or on behalf of the employer;(ii) the identity of the nondisabled comparators (where appropriate); and(iii) the nature and extent of the substantial disadvantage suffered by the claimant.[53]Environment Agency v Rowan has been specifically approved by the Court of Appeal in Newham Sixth Form College v Sanders - the authorities make it clear that to find a breach of the duty to make reasonable adjustments, an employment tribunal had first to be satisfied that there was a PCP which placed the disabled person at a substantial disadvantage in comparison with persons who were not disabled. The tribunal had then to consider the nature and extent of the disadvantage which the PCP created by comparison with those who were not disabled, the employer's knowledge of the disadvantage, and the reasonableness of proposed adjustments.[54]It is the essence of the duty to make reasonable adjustments that it requires the disabled person to be treated more favourably (as a result of their disability) than the non-disabled. They may need special assistance to compete on equal terms – per Lady Hale at para 47 of Archibald v Fife Council.[55]As per HHJ Richardson at para 37 of General Dynamics Information Technology Ltd v Carranza UKEAT/0107/14 KN: “The general approach to the duty to make adjustments under section 20(3) is now very well-known. The Employment Tribunal should identify(1) the employer's PCP at issue;(2) the identity of the persons who are not disabled with whom comparison is made; and(3) the nature and extent of the substantial disadvantage suffered by the employee. Without these findings the Employment Tribunal is in no position to find what, if any, step it is reasonable for the employer to have to take to avoid the disadvantage. It is then important to identify the "step". Without identifying the step it is impossible to assess whether it is one which it is reasonable for the employer to have to take”.[56]There is no requirement to show that the disability caused the substantial disadvantage, merely that the PCP caused a substantial disadvantage to the disabled person as compared to those who are not disabled. This comparative aspect of the reasonable adjustments provision was described by Simler J in Sheikholeslami at para 48: “It is well established that the duty to make reasonable adjustments arises where a PCP puts a disabled person at a substantial disadvantage compared with people who are not disabled. The purpose of the comparison exercise with people who are not disabled is to test whether the PCP has the effect of producing the relevant disadvantage as between those who are and those who are not disabled, and whether what causes the disadvantage is the PCP … There is no requirement to identify a comparator or comparator group whose circumstances are the same or nearly the same as the disabled person’s circumstances”[57]In addition, it is clear from Ishola v Transport for London, that although a PCP will not be narrowly construed, nonetheless the concept does not apply to every act of unfair treatment of a particular employee. It must be capable of being applied to others, and it suggests a state of affairs which indicates how similar cases are generally treated or how a similar case will be treated if it occurred again. This is consistent with Nottinghamshire City Transport Ltd v Harvey which states “practice connotes something which occurs more than on a one-off occasion and which has an element of repetition about it”.[58]It is incumbent on a claimant to show the duty to make reasonable adjustments has arisen and there are facts from which it could be reasonably inferred, absent adequate explanation, that it has been breached. That requires(i) the showing of both substantial disadvantage (to show that the duty has arisen), and(ii) evidence of some apparently reasonable adjustment that could have been made (the issue of breach) see Project Management Institute v Latif.[59]The reasonableness of adjustment is an objective question – see Royal Bank of Scotland v Ashton. What is important is that the adjustment(s) chosen by the employer address the disadvantage and not that it is the claimant’s preferred solution. As confirmed by the EAT in Linsley v HMRC: “An employer is not required to select the best or most reasonable of a selection of reasonable adjustments, nor is it required to make the adjustment that is preferred by the disabled person. The test of reasonableness is an objective one: see the case of Smith v Churchill’s Stair Lifts plc [2005] EWCA Civ 1220 at [44] in which it is said that “so long as the particular adjustment selected by the employer is reasonable it will have discharged its duty”.” It is also crucial for the Tribunal to ensure that in making this assessment it keeps in mind the particular disadvantage relied upon given the requirement for there to be correlation between the disadvantage in question and the steps taken to alleviate that disadvantage (Linsley at para 31).[60]The Reasonable Adjustments claim:[61]The claimant relies on four PCPs as follows:[62]PCP 1 is the requirement to move between different locations (detached duty or DD) between the time in 2023 when this became mandatory, and 3 July 2023. The respondent accepts that this PCP was in place, and the parties now agree that this was from late May 2023 until 3 July 2023.[63]PCP 2 is the requirement to work late shifts between April 2022 and 9 November 2023. The respondent also accepts that this PCP was in place.[64]PCP 3 was originally expressed to be the requirement to work in a busy and noisy environment between April 2022 and 9 November 2023. This has been amended slightly to be a requirement to work in a busy environment, and that amended PCP is also accepted by the respondent as having been in place.[65]PCP 4 is the requirement to take sickness leave for titration treatment on 16 November 2022. This last PCP is not admitted by the respondent.[66]The claimant also asserts that between April 2022 and 9 November 2023 the lack of an auxiliary aid, namely a two-way radio with an earpiece, put the claimant at a substantial disadvantage compared to someone without the claimant’s disability.[67]The adjustments which the claimant asserts should have been taken to avoid any substantial disadvantage are as follows:(i) maintaining a fixed establishment and/or location of work and/or a fixed prison wing;(ii) maintaining structure and routine as part of his working day, avoiding last-minute changes to his working plans;(iii) allowing the claimant to work full days only or restricting any half days to the morning shift;(iv) delivering instructions from management to move to different areas with clarity and in writing;(v) giving the claimant regular breaks;(vi) providing disability leave for titration treatment; and(vii) providing a two-way radio with an earpiece.
Decision:
[69]We make the following observations as a simplistic overview of this case. The relevant period with which we are concerned is from April 2022 until 9 November 2023. The respondent was aware that the claimant was disabled by reason of ADHD during this period. The First OH Report on 11 July 2022 confirmed the claimant’s diagnosis of ADHD, and explained in some detail the adverse effect which it was having. It explained clearly that the claimant was put a substantial disadvantage as compared to non-disabled Prison Officers (in the sense that this was more than minor or trivial) by way of different shift patterns without a regular routine. The report recommended a disability assessment passport to discuss reasonable adjustments further; there was a recommendation to work set shift patterns with set days off; allowing continuity to prevent anxiety as to unknown shift patterns and changes to routine; and discussion at four weekly meetings. The difficulty which the respondent faces is that it seems to have done nothing in response to this information. Mrs Heyes no longer had line management duties for the claimant following that report, until she resumed these duties many months later in February 2023. Following her return the respondent then made detailed investigation into the claimant’s circumstances, which included a number of OH Reports; risk assessments; a disability adjustment passport; and a number of agreed adjustments. The adjustments put in place after detailed discussion with the claimant and they succeeded in managing the claimant’s return to working on the prison wing. We are of the view that insufficient action was taken by the respondent between July 2022 and February 2023, but thereafter its approach in investigating the claimant’s difficulties and seeking to reach agreement to resolve matters was exemplary.[70]However, such general observations can only provide background colour when the determination of the claimant’s claims requires a step-by-step analysis of the statutory elements of the claimant’s claims. To this end, we consider each PCP in turn, whether there was substantial disadvantage as compared with non-disabled Prison Officers, whether the statutory duty to make adjustments was engaged, and if it was, whether such adjustments as were reasonable have already been made.[71]The first PCP is that there was a requirement to move between different locations (detached duty or DD) between the point in 2023 when this became mandatory, and 3 July 2023. It is now agreed that this is late May 2023, until the email from Governor Mead on 3 July 2023 which formally confirmed that the claimant was removed from the detached duty list “in line with reasonable adjustments”. We accept in principle that such a PCP would ordinarily put this claimant at a substantial disadvantage when compared to Prison Officers without his disability, as confirmed in the various OH Reports, because of the effect which the disruptive changes at short notice would have on him, by way of a sudden move to a new environment with new procedures and new staff.[72]However, we do not accept that this policy had a substantial adverse effect on this claimant, simply because during the times relied upon he knew that this PCP would not be applied to him. When he returned from work following his extended sick leave he worked in the mail room on restricted duties and did not agree to resume duties on D wing until mid-July, which is after the time relied upon. We find that the claimant effectively knew that despite the existence of this detached duty policy it would not be applied to him.[73]If we are wrong on that point, and the remote possibility of that policy being applied for extreme operational reasons did exist, and that this did cause the claimant substantial disadvantage when compared to non-disabled Prison Officers, then this would mean that the statutory duty to make adjustments was engaged. In that event we find that the respondent did make reasonable adjustments because as a matter of fact throughout this time the claimant was on agreed restricted duties in the mail room and the Detached Duty policy was simply not applied to him.[74]For these reasons we conclude that this claim is not well-founded.[75]The second PCP is the requirement to work late shifts between April 2022 and 9 November 2023 (when the claimant’s employment ended). The respondent accepts that this PCP was in place. The point about the shifts is this. Prison Officers could work an early shift, an all-day shift, a late shift, and a night shift. The concern which the claimant had was commencing a shift late in the day or at night, rather than commencing at the start of the day. As confirmed in the claimant’s evidence and the OH reports, this was because a late shift caused the claimant to feel overwhelmed because of the responsibility of attending work later in the day. This caused a form of ADHD task paralysis and time blindness and he felt that he was unable to do anything at all until he got to work. Starting work later also caused anxiety because he felt that he was walking into the unknown at work.[76]The respondent asserts that the claimant was not put to any substantial disadvantage by reason of this PCP, which relates to late shifts only, because the claimant was able to do late shifts and this concern was never identified in any OH reports nor in the claimant’s grievance.[77]We do not agree with that restrictive interpretation. The first OH Report identifies that the claimant struggled when he had to change his morning routine to get to work for different start times. It also recommended that the respondent should discuss and agree set shift patterns and days off, which simply did not happen. We are satisfied that the respondent’s normal shift routine in place at that time (which included a requirement to work late shifts when rostered) did cause the claimant substantial disadvantage (in the sense that this was more than minor or trivial) when compared with non-disabled Prison Officers. We find that the statutory duty to make adjustments to ameliorate this disadvantage had arisen at that time (from July 2022), and that the respondent failed to act on that First OH Report and failed to make such adjustments as would have been reasonable. This could have included the third adjustment mentioned by the claimant, namely allowing him to work full days only, or restricting any half days to the morning shift.[78]For these reasons we find that the claimant’s claim that the respondent failed to make reasonable adjustments in connection with the second PCP is well-founded. We deal with the appropriate remedy below.[79]The third PCP is that there was a requirement for the claimant to work in a busy environment between April 2022 and 9 November 2023. The respondent accepts that this PCP was in place. However, the respondent asserts that there is simply no evidence that the claimant suffered any substantial disadvantage as a result of the respondent’s working environment being busy. We agree with that assertion. The substantial disadvantage identified by the OH reports and medical evidence related to the regularity and timing of shifts and the need for a regular non-disruptive routine. We have seen nothing to suggest that the undoubtedly busy routine of the prison put the claimant at a substantial disadvantage by reason of his ADHD when compared to nondisabled comparators.[80]For this reason, we conclude that the statutory duty did not arise in respect of this PCP, and this claim is not well-founded.[81]The fourth PCP is the only PCP which is disputed. As drawn in the list of issues it is this: “The requirement to take sickness leave for titration of treatment on 16 November 2022”. It does seem to us odd that there is a Disability Leave policy which in the case of a disabled employee appears to allow the employee to go absent for medical treatment relating to the disability in question which is not then counted for sickness absence, but any absence caused by that treatment (for instance absence caused by the effect of chemotherapy) is not to be so treated.[82]Be that as it may, we agree with the respondent’s assertion that this is not a provision criterion or practice for the following reasons. In the first place by its very nature it is a one-off decision or act. Applying Ishola v Transport for London, for it to be a PCP the act must be capable of being applied to others, and it must suggest a state of affairs which indicates how similar cases are generally treated or how a similar case will be treated if it occurred again. This is consistent with Nottinghamshire City Transport Ltd v Harvey which states “practice connotes something which occurs more than on a oneoff occasion and which has an element of repetition about it”. In this case the claimant asked for the time when he was undertaking the titration to be discounted as sickness absence, and the respondent agreed in his case that if he provided further information of the time and dates that it would consider it. The claimant did not then pursue that invitation.[83]This is linked with the second point, which is that in any event the assertion is factually incorrect. The respondent made it clear that it could well be prepared to treat the time spent receiving titration treatment as Disability Leave, and not count towards sickness absence, to the extent that the claimant wished to apply for the same and could show what time had been taken. He did not do so.[84]For these reasons we find that the claim relating to this final and fourth PCP is not wellfounded.[85]Remedy:[86]The claimant only seeks an award for injury to feelings. He has described his upset and his frustration at the failure to implement the adjustments which he sought. He claims a sum in the lowest Vento band of £4,250.00. The respondent does not oppose that award. Accordingly, we make an award for injury to feelings in that sum.[87]When giving judgment verbally and in summary after this Hearing, we determined that interest should be awarded from the midpoint between say 1 January 2023 and today, which is 296 days. At an annual rate of 8% this is £0.93 per day or £275.28 for 296 days. However, that was a mistake, because the Interest Regulations provide that interest on an award to Injury to Feelings is not limited to a period from the midpoint, but from the date of discrimination, and so the interest award is now amended to be included for the full period, which should instead be £550.56.[88]The respondent is therefore ordered to pay the claimant total compensation including interest of £4,800.56.