W Reyneke v The Council of The City and County of Swansea: 1601218/2023

EMPLOYMENT TRIBUNALS

Case No 1601218/2023

Between

W ReynekeClaimant

The Council of The City and County of SwanseaRespondent

Before

Employment Judge S Povey

In person for claimant

MR LEWIS-BALE (instructed by COUNSEL) for respondent

Date 27 August 2024

JUDGMENT

The unanimous judgment of the Tribunal is as follows:

[1]The complaint of discrimination arising from disability is not made out and is dismissed.

[2]The complaint of breach of the duty to make reasonable adjustments is not made out and is dismissed

[3]The complaint of unauthorised deductions form wages is not made out and is dismissed JUDGMENT having been sent to the parties on 30 August 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]The decisions of the Tribunal are unanimous and although it is the Employment Judge providing the decision and reasons to the parties, they are the decisions of all of us and have been contributed to by all members of Tribunal.

Background

[2]This was a claim by Wayne Reyneke (‘the Claimant’) against his current employer, the Council of the City and County of Swansea (‘the Respondent’). The Claimant began ACAS Early Conciliation on 26 April 2023 and it ended on 7 June 2023. The claim was presented to the Tribunal in form ET1 on 28 June 2023. - 1 -

[3]The Claimant brought complaints of discrimination arising from disability, breach of the duty to make reasonable adjustments and unauthorised deductions from wages. All of those complaints were resisted by the Respondent.

[4]At a Case Management Hearing on 12 May 2023 before Employment Judge Ryan, a List of Issues was agreed and case management directions made to prepare the case for the final hearing. An updated and revised List of Issues was provided by the parties and relied upon throughput the final hearing. A copy of the List of Issues, so far as they related to liability, is at Appendix 1.

[5]We heard oral evidence from the Claimant. For the Respondent, we heard from Sue Potter, the Respondent’s Neighbourhood Support Unit Manger.

[6]Each witness we heard from adopted their written statement. We also also had sight of a paginated bundle (‘the Bundle’), a chronology, a cast list and a list of key documents. We received oral and written submissions from Mr Lewis-Bale for the Respondent and written submissions from the Claimant.

[7]In his written submissions, the Claimant raised a number of issues and claims which had not been raised before. As explained, the Tribunal can only decide the complaints as presented in the course of these proceedings and on the basis of the evidence we had seen and heard to date. To the extent that the submissions sought to introduce new evidence or new complaints (for example, there was reference to a compliant of indirect discrimination), we did not have regard to them and did not determined them. Rather, we properly limited ourselves to the evidence we had seen and heard and the complaints as agreed in the List of Issues.

[8]The Claimant is a litigant in person and was supported by his wife. The Employment Judge explained the process and procedures to them, checked their understanding, encouraged them to ask questions and gave guidance throughout. Mrs Reyneke conducted the cross-examination of Ms Potter and did so in a clear, effective and professional manner, for which she is to be commended. We were also impressed by the clarity and cogency of the Claimant’s written submissions. The Tribunal was satisfied that the Claimant was able to fully engage in the process and present his claim to the best of his abilities.

[9]The Tribunal were grateful to the Claimant, Mrs Reyneke, to the Respondent’s solicitors and to Mr Lewis-Bale for the assistance they provided and the work they undoubtedly undertook both before and during the hearing. We were also grateful to the Claimant and Ms Potter who attended and answered the questions asked of them to the best of their recollections.

[10]In reaching our findings and conclusions, the Tribunal had full regard to all the evidence seen and heard and the submissions we received. - 2 -

Applicable Law

[11]The applicable legal provisions and tests were not in dispute and were helpfully summarised in Mr Lewis-Bales’ written submissions. It was not necessary to recite them in our oral reasons.

[12]However, we have included the relevant extracts on the law from Mr Lewis-Bale’s written submissions, at Appendix 2 to these written reasons.

Findings of Fact

[13]Most of the relevant facts were not in dispute. The Neighbourhood Support Unit

[14]The Claimant has been employed by the Respondent since October 2008 and his employment is continuing. So far as relevant, the case focused on the Claimant’s role as a CCTV Monitoring Officer within the Respondent’s Neighbourhood Support Unit (‘NSU’). Since May 2022, the Claimant’s line manager was Ms Potter.

[15]The NSU team provide a 24-hour service for the Respondent’s tenants and residents. Ms Potter explained that there were three roles within the team which provided the 24-hour, 365 days a year service. These were Supervisors, Neighbourhood Support Workers (NSW) and CCTV Monitoring Officers. Supervisors and CCTV Monitoring Officers were office based, NSWs were in the field, responding to issues raised by residents on the ground. The 24-hour team worked the following shifts, in rotation: 15.1. 6am – 2pm (mornings) 15.2. 2pm – 10pm (afternoons) 15.3. 10pm – 6am (nights)

[16]There were also supplementary shifts of 6pm – 2am (evenings) and an additional day shift every 12 weeks of 8.30am – 4.30pm (by which full time staff made up their weekly 37.5 hours).

[17]All staff in the NSU worked shifts and they were paid an enhancement to their salary when they worked nights and evenings shifts, to reflect the unsocial hours required of them (and to encourage prospective employees to apply for the posts). The Claimant’s Health

[18]The Claimant began experiencing blackouts and seizures from October 2016. He was hospitalised at the time and informed the Respondent about his symptoms. At a return to work meeting with his then line manager, Paul Rees, on 10 January 2017, the Claimant provided more details of what had happened and the investigations being undertaken into the cause of the blackouts. The Claimant also reported that he was - 3 - currently cycling into work and that his return to work had been smooth (at [198] of the Bundle).

[19]The Claimant was subsequently diagnosed with epilepsy in or around February 2019, the symptoms being notified to the Respondent at the same time by way of GP fit notes (which reported grand mal seizures on 26 February 2019 and on 11 March 2019, at [550] & [554] of the Bundle). The Respondent arranged for the Claimant to seen by Occupational Health (‘OH’) on 26 February 2019 (when the diagnosis was still unclear, at [547]). The Claimant’s consultant neurologist issued a letter confirming the diagnosis on 11 April 2019 (at [557]).

[20]As a result of his health, the Claimant was absent from work from 8 February to 1 October 2019. As is common in suspected epilepsy cases, the condition and symptoms were reported to the DVLA, which suspended the Claimant’s driving licence from February 2019, whilst investigations were made into his symptoms and treatment. The Claimant’s licence remained suspended for a period of 18 months, until in or around August 2020.

[21]During this time, the Claimant had further appointments with OH (on 12 September 2019 and 5 November 2019). At the start of October 2019, the Claimant commenced a phased return to work which lasted eight weeks. By 26 November 2019, the Claimant was back working full time and on the usual shift pattern. As his driving licence was suspended at this time, the Claimant cycled to work. This had been discussed by the Claimant and Mr Rees and was captured in an email from Mr Rees to OH on 5 August 2019 as follows (at [571]): [The Claimant] said he understood he couldn’t drive so he would cycle in, which I pointed out was probably still prohibited with his condition, and he said he had discussed the nature of his job with the Neurologist and he didn’t have any concerns with [the Claimant] being able to undertake all aspects of his role.

[22]The Claimant continued working full time shift work without further issues until 27 December 2021, when he commenced a further period of sick leave that lasted until 12 July 2022. A further OH report was obtained on 24 June 2022. The Claimant commenced another phased return to work on 12 July 2022 and another OH report was obtained on 19 August 2022.

[23]On 10 January 2023, the Claimant’s GP provided a fit note which, for the first time, indicated that the Claimant was fit for work if it was possible to make the workplace adaptation of a fixed daytime shift pattern (at [631] of the Bundle). A further OH report was obtained by the Respondent on 8 February 2023, which concurred with the GP’s opinion and included the following recommendation (at [641]): I suggest for your consideration if reasonably practicable, to change his shift pattern to one which is suitable for him to gain adequate night sleep, given the risk of seizure precipitation due to sleep deprivation. [The Claimant] - 4 - mentioned during today’s consultation, that he is unable to sleep and on account of this, has become increasingly irritable.

[24]The Claimant subsequently met with Ms Potter in response to his GP’s recommendation. It was explained to the Claimant that it would not be feasible or practical to make the adjustment on a permanent basis, because of the detrimental impact it would have on the operation of the rota and the delivery of the 24-hour service.

[25]The Claimant commenced a further period of sickness absence on 9 February 2023, which continued until 2 May 2023. A further OH report was obtained on 5 April 2023. The Redeployment Proposal

[26]On 25 April 2023, the Claimant attended a return to work meeting with Ms Potter. He was accompanied by his trade union representative. Also in attendance was Natalie Ghose from Human Resources. A summary of the meeting was captured in the Record of Action Form (at [301] – [304] of the Bundle). Ms Potter reiterated that the Respondent was unable to accommodate a permanent change to daytime-only shifts within the Claimant’s current role of CCTV Monitoring Officer within the NSU. As such, it was suggested, and the Claimant agreed, to explore redeployment into a permanent day shift post.

[27]On 26 April 2023, the Claimant commenced ACAS Early Conciliation.

[28]Ms Potter confirmed the discussion and the agreement to explore redeployment in an email to the Claimant on 27 April 2023 (at [309] – [310] of the Bundle). Ms Potter was then on leave until 2 May 2023 and informed C of the same (at [311]).

[29]On 27 April 2023 at 21:10, the Claimant emailed Ms Potter that he had reservations and had changed his mind about redeployment (at [322] of the Bundle). On 28 April 2023, the Claimant told his union representative that he was not engaging in redeployment (at [328]), only to change his mind again and reconfirm on 30 April 2023 that he wished to proceed with redeployment and confirmed that would start in a temporary role which had been arranged for him (at [335]).

[30]The Claimant began a temporary role as a Housing Advisor at the Respondent’s Morriston Housing Office on 2 May 2023. The purpose was to afford the Claimant an opportunity to enhance his existing skills and assist him in securing a suitable permanent new job via redeployment. The Claimant’s salary was protected but he did not receive any enhanced shift payments during this time.

[31]On 15 June 2023, the Respondent informed the Claimant that it would be recovering an overpayment from his salary (at [390] of the Bundle). This related to a shift allowance payment allegedly paid in error. It was agreed - 5 - to initially recover the overpayment in six monthly instalments (which was subsequently extended to 12 monthly instalments).

[32]On 28 June 2023, the Claimant presented his claim to the Tribunal.

[33]On 29 August 2023, the Claimant was placed in a Rent Advisors role on a trial basis, as part of the redeployment process. He was offered the post on a permanent basis, with effect from 10 October 2023. He was not paid any shift enhancements whilst undertaking the trial period in this role or thereafter.

[34]The Claimant continues to be employed by the Respondent on a permanent basis as a Rent Advisor. Analysis & Conclusions

[35]We considered the complaints as set out and the agreed in the List of Issues. Disability

[36]On 4 March 2024, the Respondent conceded that that the Claimant was disabled at the relevant time (as defined by section 6 of the Equality Act 2010), by reason of epilepsy.

[37]However, the date when the Respondent says it had knowledge of the Claimant’s disability was in dispute. There is a difference between being aware of a diagnosis or impairment (that is, of knowing that the Claimant had epilepsy) and being aware that an individual is disabled by reason of that impairment (as per the definition in the Equality Act 2010). The legal test is functional – did the impairment adversely impact on the Claimant’s ability to undertake normal, day-to-day activities? So the question for the Tribunal was when was the Respondent aware or should have reasonably been aware that the symptoms of the Claimant’s epilepsy and the effects upon him met that test?

[38]The Respondent was first made aware of the Claimant’s diagnosis in February 2019. The Respondent referred the Claimant to OH and, as at 2019, OH was not of view that the Claimant met the definition of disability (per the OH report of 5 November 2019, at [584] of the Bundle). However, by 24 June 22, OH were advising the Respondent that the Claimant was likely to be disabled by reason of his epilepsy symptoms (at [614]). This was the first time that OH advised that the Claimant may meet the definition for disability. That remained the view of OH in the report of 19 August 2022 (that the Claimant was likely to be defined as disabled under the Equality Act 2010, at [622]).

[39]The Claimant’s driving licence was suspended as soon as he received his diagnosis. However, without more, that was not, in our judgment, sufficient evidence of disability. Rather, it was a precautionary measure by DVLA to ensure the safety of the Claimant and other road users, in case - 6 - the Claimant suffered a seizure whilst driving. It understandably took time to assess the effects of the Claimant’s epilepsy, to arrange treatment and ensure such treatment (primarily in the form of medication) was effective. It was not sufficient evidence that the Claimant was unable to carry out day to day tasks. In contrast, the Claimant began cycling to work and was performing his role in the usual manner.

[40]The Claimant had three significant periods of absence from work, as follows: 40.1. 8 February – 1 October 2019 40.2. 27 December 2021 – 12 July 2022 40.3. 9 February - 2 May 2023

[41]The Respondent accepted that it had knowledge that the Claimant was disabled from January 2023.

[42]Given that OH modified its position and opinion in its June 2022 report, at a time when the Claimant had been off work for six months, and was in receipt of a diagnosis of epilepsy, we found that the Respondent had knowledge at that point that C was disabled by reason of epilepsy (or should reasonably have had knowledge). As such, the Respondent had knowledge that the Claimant was disabled by reason of epilepsy from June 2022 onwards.

[43]However, we make clear that that is not same as placing the Respondent under any duty to make reasonable adjustments. There was no suggestion, reasonable or otherwise, made to the Respondent that the Claimant should avoid working night shifts until 2023. Discrimination arising from disability

[44]We considered the substantive complaints in the form they were set out in the List of Issues. Did the Respondent treat the Claimant unfavourably by redeploying the Claimant to daytime roles that did not attract shift allowances?

[45]It was not in dispute that the Respondent redeployed the Claimant to a daytime role that did not attract shift allowances.

[46]However, in our judgment, that did not constitute unfavourable treatment.

[47]The Claimant referred to the fact that when he had undertaken phased returns following periods of sick leave previously, he would be paid shift allowances, even when not working shifts. However, as explained by Ms Potter, that was because he was being phased back into his CCTV Monitoring Officer role. In effect, the Claimant would return on less hours and only work day shifts, before building back up to a full time, full shift work pattern. In those circumstances, he was entitled to be paid shift allowances during his phased return. - 7 -

[48]However, and again as explained by Ms Potter, when the Claimant agreed to be considered for redeployment, that was a wholly different situation. From 2 May 2023, the Claimant was placed temporarily in Morriston Housing Office, initially on a phased basis. The purpose of that was not to return him to the NSU or to his CCTV Monitoring Officer role. That could not be done, as it involved night shifts and the medical opinion by that time was that the Claimant should avoid working night shifts. Indeed, as Ms Potter explained, the aim was to give the Claimant the opportunity to develop additional skills which would enhance his chances of being successfully redeployed.

[49]Under the redeployment process, the Claimant’s grade was protected but not any enhancements. That was why he was not paid allowances during the redeployment process, which began from April 2023, when the Claimant agreed to be considered for redeployment.

[50]The Claimant erroneously believed that the phased returns to NSU and the redeployment process were the same. They were not. He accepted that once permanently redeployed, he was not entitled to receive shift allowances, unless he worked an evening or night shift. But the same logic applied to the redeployment process as a whole.

[51]There was no unfavourable treatment because the Claimant was not entitled to shift allowances during the redeployment process unless he was worked night shifts (which he did not). He only received shift allowances previously during his phased returns because he was being phased back into his shift-based CCTV Monitoring Officer role.

[52]In addition, changing his shift pattern and the Respondent’s pay structure have been erroneously conflated by the Claimant. The Respondent was acting on medical advice from the Claimant’s doctors and also responding to a request by the Claimant (i.e. not to work shifts). Both his GP and OH were of the opinion that it was detrimental to the Claimant’s health to work nights. The Respondent was simply responding to those opinions and advice. Had it not done so and instead required the Claimant to continue working nights, that would have been unfavourable treatment. But it did not. It followed the medical advice and acted in the Claimant’s best interests.

[53]By agreeing to change the Claimant’s working pattern to days only, the Respondent was not acting unfavourable, quite the opposite.

[54]The Respondent had a pay structure and policy where it paid enhancements and shift allowances for those working unsocial hours. It would be unfavourable treatment to not pay those allowances to staff who worked unsocial hours. It would not be unfavourable treatment to not pay those allowances to those who did not work unsocial hours.

[55]It was not unfavourable treatment that a consequence of following the medical advice, acting favourably and in the Claimant’s best interests and - 8 - moving him to daytime only shifts, was that he was no longer entitled to shift allowance. To pay him an allowance for something that he was not doing would be unfair to those working the shifts and contrary to the Respondent’s pay structure. Following the pay policy was not unfavourable treatment.

[56]In addition, the reason why the Claimant could not work night shifts was because of his medical condition and the Respondent reacted favourably to that. The consequential loss of the shift allowance was because of the Respondent’s reasonable and fair pay policy, not because of the Claimant’s disability. It was not unfavourable treatment to not pay the Claimant something that he was not entitled to. Did the following things arise in consequence of the Claimant’s disability: Inability to work night shifts, which caused sleep deprivation triggering seizures and exacerbating problems with concentration?

[57]We did not understand it to be in issue or dispute that the Claimant’s inability to work night shifts arose in consequence of his disability. Was the unfavourable treatment because of any of those things?

[58]For the reasons detailed above, the treatment relied upon was not unfavourable.

[59]In the alternative, even if it was, it was because of the effects of the Claimant’s disability (namely, his inability to work nights). In those circumstances, the Respondent argued that its treatment was a proportionate means of achieving a legitimate aim. Was the treatment a proportionate means of achieving a legitimate aim?

[60]The Respondent relied upon the following aims (per the List of Issues): 60.1. to ensure the ability of the Respondent to deliver the required 24 hours service in an efficient, safe and cost-effective manner; 60.2. to avoid increasing the workload of, or over-burdening other member of staff or otherwise causing disruption to the workforce more generally; 60.3. maintaining appropriate standards of attendance in the workplace; 60.4. ensuring the health and safety of the Respondent’s staff (including the Claimant), contractors and/or the general public; 60.5. ensuring the integrity of and/or ensuring consistent application of the Respondent’s own polices and procedures; 60.6. ensuring an effective use of public money; and/or - 9 - 60.7. ensuring consistency of treatment with other members of staff

[61]In our judgment these were legitimate aims for a local housing authority and for an employer. Was the treatment an appropriate and reasonably necessary way to achieve those aims?

[62]In our judgment, it was. As was explained in some detail by Ms Potter, to allow the Claimant to remain in the NSU on a daytime-only basis and to continue paying him the enhanced rates for shifts he was not working would have: 62.1. Fundamentally undermined the operation of the 24-hour NSU service, which utilised a shift pattern which had been in operation for many years and which had worked effectively in delivering the required 24-hour service; 62.2. Had a detrimental impact upon staffing levels and the shift patterns of other members of the team; 62.3. Undermined the inherently flexible nature of the Respondent’s ability to cover gaps in staffing during times of annual leave and other absences; and 62.4. Resulted in doubling or tripling, whereby two or three members of staff were undertaking the same task, with the consequential costs to the Respondent’s budget and ultimately the public purse. Could something less discriminatory have been done instead?

[63]The Claimant suggested that he could have returned on a daytime-only basis to his CCTV Monitoring Officer role. However, that would have caused the problems detailed above and, as the Claimant appeared to accept, would have resulted in him not receiving the shift allowance in any event.

[64]As such, the Claimant’s suggestion was not less discriminatory but would have had the same adverse effects on the Respondent’s ability to deliver the service to its residents, whilst incurring consequential costs to the public purse. How should the needs of the Claimant and the Respondent be balanced?

[65]In our judgment, the balance falls squarely in the Respondent’s favour. If there was unfavourable treatment (which we have found there was not), it was a proportionate means of achieving a legitimate aim.

[66]It follows that there was no discrimination arising from the Claimant’s disability. - 10 - Reasonable Adjustments

[67]The Claimant relied upon the following provision, criterion or practice (‘PCP’), the existence and operation of which was not in dispute, namely the shift pattern adopted by the NSU, as follows: 67.1. 6 am – 2 pm 67.2. 2 pm – 10 pm 67.3. 6 pm – 2 am 67.4. 10pm – 6am

[68]The Claimant alleged that the PCP put him at a substantial disadvantage compared to someone without his disability, in two ways. When his driving licence was suspended because of his diagnosis of epilepsy he had to avail of public transport at unsocial hours

[69]There was no evidence that the Claimant could not have relied on public transport for some, if not all, of his shifts (we would reasonably expect public transport to be available for start and finish of the 2pm – 10pm and 10pm – 6am shifts). The Claimant did not say that he was unable to use public transport. Rather, he cycled to work. That was his choice. In addition, the Claimant was able to cycle and in his oral evidence, whilst it was at times tiring, he recalled how it kept him physically fit.

[70]As such, there was no substantial disadvantage caused to the Claimant by the PCP when his driving licence was suspended because he could make use of public transport and he could cycle, which he chose to do.

[71]In the alternative, if there was substantial disadvantage: 71.1. As found above, the Respondent did not have knowledge that the Claimant was disabled by reason of epilepsy until June 2022 at the earliest. On the Claimant’s written evidence, his driving licence was suspended in February 2019 for a period of 18 months. It followed that his licence was returned to him in or around August 2020. For the period that the Claimant was complaining about, the Respondent was not aware (reasonably or otherwise) that the Claimant was disabled. 71.2. In addition, there was no evidence of the Claimant ever informing the Respondent during that period that he needed or wanted his hours changing. That conclusion was reinforced by the email of Mr Rees to OH on 5 August 2019, which included a record of a conversation Mr Rees had with the Claimant, as follows (at [571] of the Bundle): - 11 - Wayne said he understood he couldn’t drive so he would cycle in, which I pointed out was probably still prohibited with his condition, and he said he had discussed the nature of his job with the Neurologist and he didn’t have any concerns with Wayne being able to undertake all aspects of his role. 71.3. The Claimant was being invited by the Respondent to raise any issue about getting to work without his licence and the Claimant still raised no issues. The Claimant subsequently said in his evidence that he was fearful of losing his job and so would accept or agree to things even if they were not what he wanted. That may be so but the Respondent cannot be criticised for not responding or acting as the Claimant wanted if, when clearly invited to do so, the Claimant failed to tell them what he wanted or needed.

[72]It follows that there was no duty on the Respondent to make any reasonable adjustments, whether as contended for or otherwise, as it did not reasonably know that the Claimant was disabled, did not reasonably know that the rota was placing him at a substantial disadvantage, and did not know that the Claimant wanted his hours changed. The Claimant suffered sleep deprivation and fatigue which triggered seizures and consequential loss of concentration, and further fatigue.

[73]It was not in issue that from January 2023, per the medical advice, night shifts were detrimental to the Claimant’s health and the management of his symptoms.

[74]The Respondent was aware of that from January 2023 (per the medical evidence) and aware that continued shift work would place the Claimant at a substantial disadvantage

[75]The Claimant suggested the following steps to avoid the disadvantage, which we considered in turn. Alteration of his hours to give some additional leeway with different start and finish times 76. .As we have explained, the Claimant never raised this with the Respondent at the time and to the extent that it relates to the period when the Claimant’s licence was suspended, for reasons detailed above, there was no substantial disadvantage to the Claimant and the Respondent was not reasonably aware that the Claimant was disabled.

[77]It follows that no duty to make reasonable adjustments arose. Redeployment to a role without loss of income/shift allowance.

[78]What is proposed by the Claimant does not, in our judgment, address the substantial disadvantage. It is working night shifts which caused the substantial disadvantage. Redeployment to a role which results in no loss - 12 - of shift allowance is redeployment to a role which involves unsocial hours, the very thing which was causing the substantial disadvantage. As pleaded, the proposed reasonable adjustment does not address the problem and so is not reasonable.

[79]In the alternative, and allowing for fact that the Claimant is conducting these proceedings without legal assistance, if what is being contended for is that the Claimant be redeployed to a daytime role but still receive his shift allowance, only the redeployment to a daytime role addresses the substantial disadvantage and that is what the Respondent did.

[80]The substantial disadvantage is the effect of night shifts on the Claimant’s epilepsy. That is what needs to be addressed by any reasonable adjustment. The loss of shift allowance is a financial consequence of the reasonable adjustment, not the basis for the reasonable adjustment itself.

[81]In any event, it would not be a reasonable adjustment to permit the Claimant to remain in his CCTV Monitoring Officer role on daytime shifts and receive shift allowance, for the reasons advanced by the Respondent namely: 81.1. The adverse impact on its ability to deliver a 24-hour service to residents. 81.2. The loss of flexibility in how it managed and deployed its 24-hour service. 81.3. The adverse impact on other employees’ shift patterns. 81.4. The additional, unbudgeted costs, which would be born by the public purse.

[82]In reality, the adjustment reasonably required was the cessation of all night working, an adjustment which the Respondent implemented with immediate effect as soon as it was advised to do so by OH and the Claimant’s doctors. To be fair to the Respondent, it went even further, actively seeking to support and assist the Claimant in the redeployment process (by placing him in other roles to enhance his experience and skill set), an approach which proved successful, with the Claimant successfully securing a permanent role within the housing rents team.

[83]For those reasons, there was no breach of the duty to make reasonable adjustments. Either the Claimant was not placed at any substantial disadvantage or if he was, the adjustments he proposed were not reasonable. In contrast, the actions taken by the Respondent were. Unauthorised deductions

[84]This complaint related to the shift allowance and the employer’s pension contributions attributable to it. - 13 -

[85]As we understood the Claimant’s case, this was in respect of the period from the end of April 2023 until October 2023, when he secured his permanent role in the rents team. The Claimant does not claim that he should be paid any enhancements under his permanent role (as he does not undertake any shift work). Rather, he says that during the periods of temporary redeployment, and prior to taking up his new permanent role in rents, he should have continued to receive his shift allowance, attendant to his role as CCTV Monitoring Officer in the NSU.

[86]It was not in dispute that the Respondent did not paid the Claimant any enhancements during that period. It did pay enhancements in error and has since sought to recoup those from the Claimant’s wages.

[87]The question for the Tribunal was whether or not the Claimant was entitled to shift enhancements during this period.

[88]As we have already alluded to, the Claimant relied on the fact that he had been paid enhancements in the past whilst on phased returns and only working day shifts.

[89]However, as clearly explained by Ms Potter, there was a fundamental change from April 2023 in that the Claimant agreed to be considered for redeployment (as found above, the Claimant agreed to that on 25 April 2023, had reservations and changed his mind on 27 April 2023, telling his union representative on 28 April 2023 that he was not engaging in redeployment, only to reconfirm on reflection that he wished to proceed with redeployment on 30 April 2023).

[90]The Respondent’s redeployment process protected grades but not any enhancements, unless they were worked. A phased return protected both grade and enhancements (such that someone returning on a phased return was not penalised simply because they were not working their full shifts). That was, however, on the expectation that the employee would build up to retuning full time to their substantive role. That was wholly different from redeployment and with respect to the Claimant, he confused the two procedures. Getting paid his enhancements whilst on phased returns to his substantive role as a CCTV Monitoring Officer was not the same as undertaking temporary roles as part of the redeployment process.

[91]As such, the Claimant was not entitled to any enhancements during the redeployment process unless they were worked. It was not in dispute that the Claimant did not work any unsocial hours during the redeployment process. It follows that he was not entitled to be paid any enhancements and there were no unauthorised deductions from his wages. In respect of the overpayment (where the enhancement for shift work was paid to the Claimant in error), the Respondent was entitled by law to recover that amount. It did not require the Claimant’s consent or agreement to do so.

[92]For those reasons the complaint of unauthorised deductions from wages is not made out and is dismissed. - 14 -

Conclusion

[93]The Tribunal can only begin to imagine what the Claimant and his family have experienced in the last eight years, from the first seizures and blackouts in 2016, to being diagnosed with epilepsy in 2019, to the medical advice that he should cease working night shifts and the attendant impact on his CCTV Monitoring Officer role, which he enjoyed and which he was good at. That is all in addition to the day-to-day challenges which result from his condition and the manner in which it is treated.

[94]We fully understand why, as he alluded to in his oral evidence, the Claimant feels a sense of frustration and unfairness at what has happened to him as a result of something, which he stated on more that one occasion, he did not ask for.

[95]However, such understandable emotions do not, without more, mean that what has happened at his place of work as a result of his ill health was discrimination. For the reasons explained, it was not. In fact, the evidence showed, and we have found, that contrary to what the Claimant may believe, the Respondent acted appropriately when required to do so. Indeed, in many ways, it went above and beyond what is required of an employer, not least in assisting and supporting the Claimant to secure permanent redeployment.

[96]We feel it is important to reflect this in our reasoning. It is right that the Respondent in general, and Ms Potter in particular, are clear that they are fully exonerated of the allegations of unlawful discrimination. But we hope that knowing that an impartial panel, reviewing all the evidence, have reached those conclusions will bring some comfort to the Claimant as he continues his employment with the Respondent.

[97]We wish him and his family all the very best for the future.