M Painter v The Council of the City and County of Swansea: 1604112/2024
EMPLOYMENT TRIBUNALS
Case No 1604112/2024
Between
M PainterClaimantThe Council of the City and County of SwanseaRespondent
Before
Employment Judge S PoveyMR LEWIS-BALE (instructed by COUNSEL) for respondentDate 25 July 2025
JUDGMENT
The unanimous judgment of the Tribunal is as follows:[1]The complaints of discrimination were presented in time and the Tribunal has jurisdiction to determine them.[2]The complaint of discrimination arising from disability is not made out and is dismissed.[3]The complaint of breach of the duty to make reasonable adjustments is not made out and is dismissed Order posted to the parties on Approved by: 11 August 2025 JUDGMENT having been sent to the parties on 11 August 2025 and written reasons having been requested in accordance with Rule 60(4) of The Employment Tribunal Procedure Rules 2024, the following reasons are provided:
REASONS
[1]These are the reasons of the whole Tribunal, contributed to by all members of the Tribunal and are unanimous in all aspects. Background & introduction[2]This is a claim by Matthew Painter (‘the Claimant’) against his former employer, The Council of the City and County of Swansea (‘the Respondent’). ACAS Early Conciliation began on 14 July 2024 and ended on 25 August 2024. The Claimant presented his claim to the Tribunal on 28 August 2024.[3]The Claimant brings complaints of discrimination arising from disability and breaches of the duty to make reasonable adjustments. - 1 -[4]At a preliminary hearing on 4 December 2024, before Employment Judge Moore, a List of Issues was agreed and directions were made to prepare the case for final hearing. An updated and revised List of Issues was further agreed by the parties and relied upon throughout the hearing (save that the complaint of direct discrimination was not pursued, as we explain below). The final hearing was conducted before over five days from 21 to 25 July 2025.[5]During the hearing, we heard evidence from the Claimant and from his wife, Louise Painter. For the Respondent, we heard from: 5.1. Simon Lydiard (Senior Contracts Manager, who managed the Claimant’s absences and referred him to the Stage 3 Management of Absence Policy). 5.2. Leanna Evans (HR & OD Business Partner, who provided HR support). 5.3. Matthew Perkins (Group Leader – Waste Management, who conducted the Stage 3 process and made the decision to dismiss the Claimant).[6]Nigel Williams (Head of Corporate Building Services & Waste, who undertook and decided the Claimant’s appeal against dismissal) also provided a witness statement. He was not called by the Respondent to give evidence at he was on leave. It remained a matter for the Tribunal to determine what weight to attach to those parts of his statement that were in dispute, as his evidence was not tested. We had regard to that in reaching our findings.[7]Each witness we did hear from adopted their written statement. We were provided with a paginated and indexed bundle of docs (‘the Bundle’), to which we were referred. We also received oral and written subs from Mr Lewis-Bale for the Respondent and written submissions from the Claimant.[8]Prior to the hearing, the Claimant had applied to amend his claim to include a compliant of direct discrimination. It had been agreed to determine the application at the outset of this hearing. However, upon further discussion with the Claimant and Mrs Painter, the application to amend was withdrawn and not pursued. In reality, it was actually further information regarding the existing complaint of breaches of the duty to make reasonable adjustments and could be addressed within that complaint.[9]The Claimant was a litigant in person and supported and represented by his wife. Indeed, the Claimant did not attend the hearing after the first day (as he was unable to get further time off work). The judge explained the process and procedures to the Claimant and Mrs Painter, checked their understanding, encouraged them to ask questions and gave guidance throughout. Mrs Painter conducted the cross-examination of - 2 - the Respondent’s witnesses 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 her written submissions on behalf of the Claimant and, more generally, how she engaged with and presented the case on behalf of her husband. As such, we were satisfied that the Claimant, with his wife’s assistance and input, was able to fully engage in the process and present his claim to the best of his abilities.[10]The Tribunal was grateful to the Claimant, to Mrs Painter, 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 witnesses, including the Claimant, who attended and answered the questions asked of them to the best of their recollections.[11]In reaching our findings and conclusions, we had full regard to all the evidence seen and heard and the submissions we received.
Applicable law
[12]The applicable legal provisions and tests were not in dispute and were helpfully summarised in Mr Lewis-Bale’s written submissions. It was not necessary to recite them in our oral reasons. We have included the relevant extracts from Mr Lewis-Bale’s submissions as an annex to these written reasons (at Appendix 1).
Findings of fact
[13]To a great extent, the relevant facts in the case were not in dispute.[14]The Claimant has Type 1 diabetes. It was not in dispute that at the relevant time, the Claimant was disabled by reason of his diabetes. He was initially employed by the Respondent as a seasonal gardener from 23 May 2022 and became a permanent gardener with effect from November 2022. The Claimant’s line manager was David Phillips, (the Respondent’s Operational Area Manager). Mr Phillips’ line manager was Mr Lydiard. The Management of Absence Policy[15]The Respondent had a Management of Absence Policy (at [121] – [153] of the Bundle) So far as relevant, it had the following features: 15.1. The procedures for managing absences were triggered by certain criteria including (but not limited to) five days or more sickness absence in a period of six months or less (per Paragraph 6.1 at [124] – [125]). An immediate procedure when one of the trigger criteria were met was to hold an interview with the employee and take necessary action (per Paragraph 6.3 at [125]). - 3 - 15.2. At Section 9.2, the policy addressed disability-related absences, utilising the statutory definition of disability contained within Section 6 of the Equality Act 2010 (at [127]). That included provisions for managers to consider whether any adjustments could be made to enable employees to attend and carry out their work (per Paragraph 9.2.5) and that an increased level of sickness absence could, in itself, be accommodated as a reasonable adjustment (per Paragraph 9.2.6). 15.3. The policy included an intermittent absence procedure (as well, and in contrast to, a long-term sickness procedure), wherein there was an informal stage, a Stage 1 process, a Stage 2 process and a final Stage 3 process, a form of escalation where the criteria to trigger the policy continued, notwithstanding the various interventions by the Respondent (at [132] – [138]). Stage 3 hearings were conducted in the same manner as disciplinary hearings1 and could include the following outcome (per Paragraph 18.9 at [137]): Unless there are extenuating circumstances and, in the judgment of the Responsible Officer, the employee is incapable of fulfilling the contract of employment, the employee will be dismissed with immediate effect on grounds of health capability with pay in lieu of notice given in accordance with contractual provisions. 15.4. The policy provided details of how long any warnings remained in force (Section 19 at [138] – [139]) and included guidance on the reviews and appeal process (Section 20 at [139], the appeal process also following the same procedure as for disciplinary hearings2).[16]So far as relevant, and in respect of the Stage 3 and the appeal processes, the Disciplinary Policy included the following provisions (at [102] and [107] of the Bundle respectively): 15. Timescales All matters within this policy should be completed in as short a time scale as possible. The timescales within this policy should be adhered to unless there are compelling reasons not to do so. 15.2 If it is not possible to respond within these timescales, the parties involved must be informed and the Investigating/Responsible Officer, in conjunction with Human Resources, will decide whether an extension is appropriate. … 23.2 The disciplinary hearing [Stage 3 hearing] will normally take place within a 4 week period from the date the employee is informed that further 1 The Respondent’s Disciplinary Policy was in evidence at [91] of the Bundle. 2 The Respondent’s Appeals Procedure Policy was in evidence at [114] of the Bundle. - 4 - action may be taken. However this may be longer depending on the circumstances and complexity of the case.[17]The Appeals Procedure Policy included the following (at [119] of the Bundle, emphasis retained): 15.12 The Appeals Officer may give their decision orally at the time of the hearing or may adjourn the hearing if it is considered appropriate to do so, for example, for further enquiries to be made, or for other new matters that have come to light to be investigated. The Appeals Officer's decision is final on this issue. 15.13 This decision need not be taken immediately and may be adjourned for further consideration or in order to gain additional information. However any adjournment should not be unnecessarily prolonged and the hearing should be reconvened as soon as practicable. Absences and absence management[18]The first relevant event occurred at the start of January 2023.[19]From 6 January 2023 until 30 January 2023, the Claimant was absent from work due to Diabetic Ketoacidosis (‘DKA’), which had included hospital attendance and treatment. The total absence was 16 days.[20]On 1 February 2023, the Claimant attended a return to work meeting with Mr Phillips (at [218] of the Bundle). The Claimant confirmed that he was feeling lot better, was asked if he had any problems within the workplace and stated ‘no’. He was told that a sickness interview would be arranged (as the trigger point under the Management of Absence Policy had been reached).[21]The Claimant was absent from work due to his diabetes from 16 February 2023 until 28 February 2023.[22]On 1 March 2023, the Claimant attended another return to work meeting with Mr Phillips (at [220] of the Bundle). The Claimant said that he was feeling better but was unsure if his symptoms would reoccur. He reported no problems in workplace. The absence constituted another breach of the trigger points under the Management of Absence Policy. The Claimant reported that he was awaiting an occupational health (‘OH’) referral meeting. Mr Phillips issued the Claimant with an initial warning, related to his absences in January and February 2023.[23]By a letter dated 3 March 2023, Karolina Kokott-Ratajczak of the Respondent’s Workforce Team informed the Claimant of the following (at [222] of the Bundle): I would also confirm that as this was an Informal Initial Sickness Interview no action would be taken on this occasion. However, it was discussed that your sickness record would be monitored in line with the Management of Absence policy. - 5 - Please note that if you breach one or more of the parameters within the next 12 months, it could result in you progressing to the first formal stage of the Management of Absence Policy.[24]In other words, no formal action was taken against the Claimant but a warning was issued and his attendance would be kept under review.[25]On 16 March 2023, the Claimant had a consultation with OH. The subsequent reported included the following (at [225] of the Bundle, emphasis retained): Is there any underlying reason for this attendance record? Vomiting and Diabetes. Is the medical condition defined under the Equality Act 2010 at this time? (Where disability is defined as a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day to day activities). Potentially, associated with chronic health conditions such as diabetes, although this is usually a legal decision. This is to be considered when making adjustments and allowances for support at work. Is there a risk of any recurrence? Associated with potential remitting and recurring symptoms. Current ongoing treatment plans and wait for specialist assessment.[26]The OH report included two suggested adjustments, namely flexibility to attend medical appointments and regular breaks to help the Claimant manage his health condition.[27]OH also recorded that the Claimant was waiting to see a specialist via the NHS but was also arranging a private consultation because of NHS waiting times. The Claimant reported to OH that he enjoyed his role, was able to take breaks to manage his health condition and highlighted no work-related concerns.[28]The Claimant was absent from work from 7 June 2023 until 18 June 2023, due to recurring vomiting episodes.[29]On 26 June 2023, the Claimant attended a return to work meeting with Mr Phillips (at [230] of the Bundle). The Claimant reported that he had been diagnosed with cyclical vomiting syndrome (‘CVS’) and was going through a series of tests to get the associated medication correct. He also reported no problems within the workplace. The Respondent referred the Claimant back to OH so they could be kept up to date.[30]On 20 July 2023, Stage 1 of the Management of Absence Policy was implemented. The Claimant was issued with warning under Stage 1 - 6 - regarding his absences, which remained in force for for six months (per policy at [133] – [134], and [311] - [312] of the Bundle).[31]The Claimant was absent from work because of low blood sugar from 24 July 2023 to 28 July 2023.[32]On 31 July 2023, Andrea Young (Support Officer) emailed Mr Phillips, Mr Lydiard and Natalie Ghose (Management of Absence Advisor), which included the following (at [235] of the Bundle, emphasis retained): I have cause for concern over the sickness levels of [the Claimant] – they are all diabetes related. Natalie - would this come under an illness that is covered under the recognised illness that do not come under [the Management of Absence Policy] for breaches?[33]On 1 August 2023, Mr Ghose replied, as follows (at [235] of the Bundle): I would still be issuing warnings for these periods of absence. It is a legal decision as to whether his illness falls under the Equalities Act [sic]. I would continue as usual, he has the opportunity to appeal should he wish.[34]The Claimant was absent from work from 21 September 2023 to 28 September 2023 due to vomiting and DKA. He had a return to work meeting with Mr Phillips on 5 October 2023 (at [238] – [239] of the Bundle), wherein he reported feeling fine but was taking anti-sickness and anti-depression medication. The Claimant again reported no workplace issues but he did request a stress referral. Mr Phillips made the decision to refer the Claimant’s case to Mr Lydiard under Stage 2 of the Management of Absence Policy.[35]On 19 October 2023, the Claimant met with Mr Lydiard under the Stage 2 process, relating to his absences in July 2023 and September 2023 (at [240] – [241] of the Bundle). The Claimant reported that he was well at present, taking anti-sickness medication and awaiting an appointment with the consultant about the vomiting. He expressed a wish for additional support because his health issues were causing him stress. The Claimant reported no workplace issues and commented that the Respondent had been supportive.[36]The Claimant was absent due to a positive COVID-19 diagnosis from 8 to 11 December 2023.[37]On 11 December 2023, the Claimant was invited by Mr Lydiard to an absence review meeting, scheduled for 20 December 2023. The invitation included the following (at [244] of the Bundle): … - 7 - This is a meeting to discuss your welfare and most recent period of sickness absence. I would advise that you have the right to be accompanied at this meeting by a Trade Union representative or an employee of the Authority; although this is for you to arrange…[38]The Claimant attended a return to work meeting with Mr Phillips on 15 December 2023 regard his Covid-related absence (at [245] of the Bundle). The Claimant reported that he was still feeling unwell but didn’t want to miss any more work. Mr Phillips was recorded as commenting as follows: In my opinion [the Claimant] should not be in work but fears he may lose his job if goes on sick leave again, I will speak to Simon Lydiard about this.[39]The Claimant was absent from work from 18 to 20 December 2023 due to recurring vomiting episodes. At a return to work meeting with Mr Phillips on 20 December 2023, the Claimant reported that he had started vomiting again (at [252] of the Bundle).[40]Later on 20 December 2023, the Claimant met with Mr Lydiard, as arranged, for the Stage 2 absence meeting (at [250] – [251] of the Bundle). The Claimant reported that the anti-sickness medication was not helping, he was still awaiting the appointment with the consultant and reiterated that the Respondent was being supportive. Mr Lydiard agreed to chase up the OH stress referral and decided to reissue the Stage 2 warning (rather than escalate the matter to Stage 3, as he was permitted to do under the policy). Mr Lydiard explained that decision further in his witness statement (at Paragraph 15): The reason I made this decision to reissue the Stage 2 warning was in recognition of the fact that the Claimant had suffered a number of periods of ill-health due to conditions for which it may be necessary to try and accommodate some adjustment to the Management of Absence Policy. Although it would not be possible to continue to indefinitely absorb the levels of absence due to impact on the service, I considered that it represented a reasonable adjustment in the circumstances not to escalate the matter to the latter stages of the Management of Absence Policy at that stage.[41]In his oral evidence, Mr Lydiard said that when he reissued the Stage 2 warning, he did his best to take the Claimant’s medical conditions into account.[42]On 11 January 2024, the Claimant had a first appointment with OH regarding his personal stress (at [255] of the Bundle). During the appointment, the Claimant confirmed that he was well and that there were no restrictions on his life or his job role. A report was subsequently issued by OH regarding the Claimant’s stress (at [258]).[43]The Claimant was absent from work from 29 January 2024 until 5 February 2024, due to recurring vomiting episodes. He attended a return - 8 - to work meeting with Mr Phillips on 5 February 2024 (at [265] of the Bundle). He reported no issues reported within the workplace and Mr Phillips referred the matter to Mr Lydiard for further action.[44]On 8 February 2024, the Claimant was invited by Mr Lydiard to an absence review meeting, scheduled for 16 February 2024 (at [267] of the Bundle). The Claimant was again informed that he could be accompanied by a work colleague or trade union representative, and the purpose of the meeting was to discuss the Claimant’s welfare and sickness absence. The Claimant was informed that this was now a Stage 3 procedure (at [273]).[45]In line with the Management of Absence Policy, Mr Lydiard referred the Claimant to OH for a report ahead of the Stage 3 hearing (to provide further advice of the Claimant’s fitness to carry out his normal duties).[46]The Claimant met with Mr Lydiard on 16 February 2024 (at [276] – [278] of the Bundle). As a consequence of the review meeting, a Stage 3 hearing was to be arranged. The meeting also recorded that the Claimant had started stress counselling, following his referral to OH about his personal stress.[47]A letter of the same date confirmed that the matter was being escalated to a Stage 3 hearing and included the following (at [274] of the Bundle): … The meeting will be chaired by a senior manager who will act as a Responsible Officer and will be accompanied by Leanne Evans, HR and OD Business partner. The meeting is to discuss your overall sickness absence and the Responsible Officer will be reviewing your continued employment with the Authority under the management of Absence Policy. I would advise you that the outcome of the meeting could result in your dismissal from Swansea Council on the grounds of health capability. You will be sent a copy of the report in due course, which will also be represented at the meeting. You have the right to be accompanied at the meeting by either your Trade Union Representative or an employee of the Authority, although this is for you to arrange. …[48]A further OH report was issued on 27 March 2024 (at [283] of the Bundle). The Claimant reported to OH that he was still waiting to be assessed by the consultant. As before, when symptom free, he reported being fit and able to undertake his duties. The only adjustments recommended by OH related to support and breaks for formal meetings. There were not suggested adjustments in respect of the Claimant’s substantive duties. - 9 -[49]The Claimant was absent again on 24 April 2024 (at [287] of the Bundle).[50]The Stage 3 hearing was eventually arranged for 8 May 2024. On 26 April 2024, the Respondent sent to the Claimant all the information ahead of the meeting (at [288] of the Bundle), namely a report setting out the Claimant’s absence record, evidence of the absence management procedures undertaken to date and the OH reports. The absence management report included the following (at [291] & [293] respectively): 2.2 Throughout this time the department has maintained regular contact with [the Claimant] during his periods of sickness absence, this has been through telephone conversations, welfare meetings, and formal sickness interviews and have supported him throughout these times. … 3.2 Since starting his employment role [the Claimant] has equated a total of 51 days sickness and whilst [the Claimant’s] sickness is not in question, there are concerns with his ability to fulfil his full-time employment role long term within the Parks Department. [The Claimant’s] inability to attend work on a regular basis has had an effect on both the departments service delivery and staffing resources.[51]The Stage 3 hearing on 8 May 2024 was chaired by Mr Perkins. In addition to the Claimant, Mr Lydiard attended, along with Ms Evans and Cerys Smith, the Respondent’s note-taker. The minutes of the hearing were in evidence (at [460] – [463] of the Bundle). Mr Perkins heard from Mr Lydiard about the history of the Claimant’s absences and he also provided a summary of the absence management report. Thereafter, Mr Perkins and Ms Evans asked Mr Lydiard some questions, as follows (at [460] – [461]): [Mr Perkins]: I don’t have many questions for you, but one was had you considered any potential adjustments to the job role? [Mr Lydiard]: We had some discussions, and I was comfortable that nothing in [the Claimant’s] daily duties was causing him issues, and he was happy where he was based. I saw nothing to be gained from that and was concerned that it would have had a negative effect. [Ms Evans]: In terms of working pattern, did you consider any reduction in hours? [Mr Lydiard]: I had nothing from [the Claimant] to indicate that would have made a difference to his levels of sickness. The condition he has to live with is challenging but I have not been able to establish if a change of hours would have any bearing on his health[52]The Claimant was then asked if he had any questions for Mr Lydiard. The Claimant replied that he did not and that he agreed with everything Mr Lydiard had said. Mr Perkins asked the Claimant if he had considered - 10 - medical redeployment, to a different role with more flexibility, to which the Claimant replied (at [461] of the Bundle): Not really. I believe I have the ability to do my job. I haven’t really given it much thought. I’d rather do my job because it’s what I love to do. I’d love to do a foreman’s job in the future but I know I need to sort my health out. I don’t think I’ve had a thought to be redeployed somewhere else. I am contracted to Morriston Cemetery but I’ve been covering in Tir Canol, so I don’t mind moving around. But to change my role? I haven’t really thought of it.[53]The Claimant was asked about his current treatment and he reported that was still waiting to see the NHS consultant and was trying to arrange finances to see a consultant privately.[54]The meeting adjourned for an hour to consider its decision. Upon its return, Mr Perkins informed the Claimant of the following (at [463] of the Bundle): Having considered the report and the information presented today, I have concluded the following. You have been absent for a significant number of days which has resulted in numerous breaches of absence triggers. These absences result in a significant cost to the service and in turn impacts on colleagues and the delivery of the service provided. You acknowledge that the service area has been supportive, and there are no adjustments which could be made which would lead to lower absence. As you are still awaiting appointments from the NHS or private treatment for your condition, there is currently no foreseeable date for treatment which would result in lower absences. As there are unfortunately no extenuating circumstances which have convinced me that you will be able to fulfil your full-time contract of employment, I have therefore decided to dismiss you on the grounds of health capability. This takes place with immediate effect with pay in lieu of notice in accordance with contractual provisions.[55]That decision was confirmed in a letter from Mr Perkins, dated 15 May 2024, which included the following (at [464] of the Bundle): In determining a [sic] decision, I considered the following:• You have been absent for a significant number of days which has resulted in numerous breaches of absence triggers. These absences result in a significant cost to the Service and in turn impacts on colleagues and the delivery of the service provided.• You acknowledged that the service area has been supportive, and there are no adjustments which could be made which would lead to lower absence.• As you are still awaiting appointments from the NHS or private treatment for your condition, there is currently no foreseeable date for treatment which would result in lower absences.• I did not consider that there have been any extenuating circumstances surrounding your absences and having considered all of the information - 11 - presented at the Hearing, it was evident that the amount of sickness absence you have taken has been excessive. Therefore, having considered all of the information presented I determined that you are incapable of attending work regularly due to health reasons and as such unable to fulfil your contract of employment in your role of Gardener. Therefore, my decision was to dismiss you immediately on the grounds of Ill Health Capability i.e. from the date of the Hearing, 8th May 2024.[56]The Claimant was also informed that he had a right of appeal against the decision, which he exercised on 19 May 2024 by sending a detailed letter of appeal, which included 31 questions asked of the Respondent (at [466] – [472] of the Bundle).[57]The appeal hearing was arranged for 2 August 2024 (at [474] of the Bundle), and was to be heard by Mr Williams (at [475]). The Claimant was permitted to be accompanied by Mrs Painter (following a request by the Claimant on 31 July 2024 that she attend as a witness, at [491] – [492]). In advance of the hearing, the Respondent provided answers to the questions posed by the Claimant within his letter of appeal (at [423] – [425]).[58]The appeal went ahead as planned on 2 August 2024. It was attended by the Claimant, Mrs Painter, Mr Perkins, Mr Lydiard, along with the Respondent’s HR and legal advisers and a note taker. The minutes of the hearing were in evidence (at [476] – [488] of the Bundle). Mrs Painter was allowed to ask questions of Mr Lydiard and Mr Perkins. Mr Williams asked questions of Mr Lydiard, Mr Perkins and the Claimant.[59]Mrs Painter was allowed to make submissions and representations on behalf of the Claimant. There was then a lengthy adjournment for Mr Williams to consider his decision, after which the meeting was reconvened and Mr Williams informed the Claimant, as follows (at [488] of the Bundle): [Mr Williams] Thank you for coming back. Apologies that it’s taken so long. I haven’t been able to make a decision today. I need to look, in more detail, into some of the pertinent points on both sides, which I need to consider further. I’m not ready to rush the decision, which I’m sure you can appreciate. Unfortunately, I finish today to go on leave for two weeks. I’ll be returning on Monday 19th August. We’ll get a response out to you and let you know when a decision has been made. I won’t be making that decision today. It will be at some point upon my return, where I’ll be in touch. I know this is causing you anxiety, but I want to give it due consideration. [Mrs Painter] Is there anything I can give you to help? [Mr Williams] I’ll look into things based on what you’ve said today. [Wyn Matthews (HR)] - 12 - We’re sorry for the added delay, but it’s very important that we make the right decision. [The Claimant] Of course. [Ms Painter] That’s absolutely fair. Thank you.[60]On 23 August 2024, Mr Williams issued his appeal outcome letter (at [504] – [505] of the Bundle). The Tribunal paused to note that, allowing for his leave (which started immediately after the appeal hearing), Mr Williams provided the decision within four days of his return to work. The appeal was not upheld and Mr Williams set out his conclusions in some detail, as follows: You acknowledged during the Appeal Hearing (the hearing) that you had felt supported by your colleagues on a personal level but were disappointed that your request, for unpaid leave during those periods when you were unable to attend work as a result of Cyclical Vomiting Syndrome, had not been granted. It was explained by Simon Lydiard (Team Leader, Parks & Ground Maintenance) at the hearing that your request could not be accommodated from a service provision perspective as your absences were irregular, intermittent and unplanned and such absences inevitably had a detrimental impact on operational requirements. You will recall that, by way of example, Simon explained that the loss of one man from a team of 5 would result in 20% of the planned work for that day not being achieved, which also had a financial impact on the service area. In order to be able to plan work and meet operational requirements, the service area needed to be in a position whereby it could allocate sufficient manpower to complete the task in hand. A lack of available resources at the required time would inevitably lead to disruption and impact service levels. Your ill-health absences could not be compared to periods when colleagues were on annual leave, as advance notice of these planned absences was received and work scheduled accordingly. I noted at the hearing that some adjustment had been made to the steps and trigger points set out in the Council’s Management of Absence Policy at the Stage 2 warning stage, when this was repeated rather than management proceeding to Stage 3 at the earliest opportunity. You conceded at the hearing that 46 days’ absence in 12 months was not acceptable. You acknowledged that there were no other adjustments that could have been implemented by the Council at work which would have either stopped the episodes of Cyclical Vomiting Syndrome from occurring or alleviated its symptoms sufficiently to enable you to attend work either in your current role or in an alternative position. I noted from the report of the Occupational Health Assessment undertaken on 11th January 2024 that the severity and frequency of your vomiting episodes were said to be “unpredictable” and that the medication you have been prescribed is stated to have been largely ineffective in managing your symptoms. You also confirmed, upon questioning, that the episodes of vomiting are still re- occurring every 4 to 6 weeks and that nothing can be done to control and/or ameliorate the symptoms until medical - 13 - intervention/treatment takes place, by which you indicated that an appointment with your medical consultant was the required first step. At present, you stated that you are on a waiting list for such a consultation and you have no indication of when this is likely to take place. I have given due consideration to the submissions made by you and on your behalf and also those made on behalf of the Council. I also recognize the impact that your condition is having on you and note how keen you are to be in work. In my view, your employment with the Council came to an end on the basis of your inability to maintain regular attendance at work. Given the operational requirements of the Parks Service and the inevitable impact that your absence from work at short notice has on service delivery, your level of repeated absence could not be accommodated. Regrettably, the Council does not have the financial resources to employ additional, surplus staff to cover such intermittent absences. In my view, there is no evidence that any reasonable adjustment on the Council’s part would have improved your ability to attend work regularly, such is the irregular nature of your condition. I have concluded that the Council did not discriminate against you as you have alleged nor has the Council treated you unfairly. You have referred to being kept waiting prior to the commencement of the Stage 3 Sickness Hearing without explanation, which is regrettable and I would like to take this opportunity to apologise for any stress and upset that this may have caused you. In summary, it is my determination that, for the reasons stated above, your appeal is not upheld. Analysis & conclusions: preliminary issues Time limits[61]We received nothing in submissions from either party on time limits, but it is an issue that went to our jurisdiction, so we had to determine it.[62]To the extent required, we found that the acts complained of formed an on-going and continuous act, conduct extending over a period (as defined by Section123(3) Equality Act 2010). That conduct was the Management of Absence Policy followed by the Respondent and the associated procedure. That began with the Stage 1 procedure in June/July 2023 and ended with the Claimant’s dismissal on 8 May 2024. As the last of these acts was in time (the dismissal), the whole of process was brought in time (per section 123 of the Equality Act 2010).[63]The issue of time limits regarding direct discrimination because of disability fell away as the application to amend the claim to include it was not pursued by the Claimant (as explained above). Disability status - 14 -[64]As referred to above, the Respondent did not dispute that the Claimant was disabled, by reason of diabetes (as defined by Section 6 of the Equality Act 2010). It did not, however, concede that he was also disabled by reason of CVS.[65]As detailed in our findings of fact, the Claimant’s CVS was managed and treated by the Respondent at the time as a symptom of, and/or related to, his diabetes.[66]By the end of July 2023, the Respondent was of view that the Claimant’s absences to date (from January 2023) were diabetes-related, which included by reason of CVS (at [235] of the Bundle). It must be right that the Respondent implicitly accepted that vomiting-ralated absences were also diabetes-related (of October 2023, December 2023 and February 2024, per [293]). There was nothing in evidence which suggested that the view held by the Respondent in July 2023 as to the link between the Claimant’s CVS and his diabetes changed at any time thereafter.[67]We found that the Respondent managed the Claimant’s vomitingabsences as being diabetes-related. It was not in issue that the Claimant was disabled by reason of diabetes, and his CVS absences were managed and treated at the time as a symptom of or related to his diabetes.[68]It follows that it was not treated as a separate, stand-alone disability, but as a symptom of diabetes. On that basis, it was not necessary to determine whether the Claimant’s CVS was a disability in its own right. Rather, it was a symptom of a disability (i.e. the Claimant’s diabetes) and absences for CVS were therefore absences because of the Claimant’s disability of diabetes.[69]In alternative (and as it is in the List of Issues), we went on to consider whether CVS was a disability in its own right, at the relevant time.[70]We found that it was a physical impairment that had a substantial impact on the Claimant’s ability to undertake day-to-day activities. It was not in dispute that the Claimant was unable to work and was bed-bound or house-bound when he had episodes of vomiting. These were not constant symptoms, so the appropriate test to consider was whether those symptoms were likely to recur.[71]In our judgment, at the time of the alleged discrimination, the answer must be yes, since it was the recurrent nature of the vomiting which gave rise to the absences from work and which triggered the Respondent’s policy regarding intermittent absences. On the Claimant’s evidence (per his disability impact statement, at [73] – [75] of the Bundle), he continued to suffer these recurrent episodes of vomiting until July/August 2024 (i.e. after his employment had ended). The Claimant reported that he had found and was taking supplements which, since July/August 2024, had been effective against the episodes of vomiting. - 15 -[72]It was not in dispute that the vomiting episodes began in January 2023 (per the Claimant’s GP record of 12 January 2023, at [533] of the Bundle). On the Claimant’s evidence, it then relented from July/August 2024. The Claimant was, in between, referred to consultant neurologists and also prescribed medications, which were ineffective.[73]The Respondent said that the fact that the vomiting appeared to have been resolved by the use of supplements, which were not prescribed to the Claimant but which he had, in effect, self-prescribed, was an example of modifying behaviour to reduce the symptoms of vomiting and reduce the impact on day-to-day activities. The logic appeared to be that if the Claimant could manage his vomiting from July/August 2024 onward, he could reasonably have managed it in a similar way during the relevant period, such that the vomiting would have been alleviated, it would no longer have a substantial adverse effect on his ability to undertake day-to-day activities and did not therefore meet definition of disability.[74]The issue for us was whether it was reasonable for the Claimant to modify his behaviour in that way, at that time. He was awaiting a referral for specialist treatment (with a consultant neurologist). He was eventually prescribed medication. He was under the care of his GP. He had a pre-existing condition of Type 1 diabetes.[75]On the basis of the Claimant’s unchallenged evidence (per his disability impact statement, his witness statement and his oral evidence), he explored alternatives to prescribed medication, in part because the prescribed treatment was ineffective and came with side-effects. It was reasonable for the Claimant to engage with medical treatment following his hospitalisation in January 2023, when the vomiting began. It was reasonable for him to follow the guidance and advice of his doctors and to take the treatments prescribed by them. As such, it was by contrast not unreasonable for the Claimant not to explore alternative treatments at that stage, a period which incorporated the alleged discriminatory treatment being relied upon. It was only after his employment ended that the Claimant began to benefit from the switch from prescribed medication to supplements.[76]It was reasonable for the Claimant to adhere to the treatment being provided to him by his doctors from January 2023 until May 2024 (when his employment ended). That treatment failed to address the symptoms of vomiting, sufficiently or at all. The CVS continued to have a substantial impact on the Claimant’s ability to undertake day-to-day activities. Whilst it was intermittent, it was likely to reoccur (and did reoccur). This was the state of affairs for a period in excess of 12 months.[77]For all those reasons, and in the alternative, we found that the Claimant was disabled by reason of CVS at the relevant time. Procedural issues raised by the Claimant - 16 -[78]The Claimant criticised the procedures adopted and followed by the Respondent in how it managed his absences and his dismissal. This was raised in the course of the Claimant’s questioning of the Respondent’s witnesses and in his closing submissions. In the circumstances, we agreed that we needed to address those criticisms.[79]The Claimant said there was delay in the Stage 3 hearing from the start of process, a delay in the start of the Stage 3 hearing on 8 May 2024, delays in the appeal process and no notes of the Record of Action meetings.[80]Whatever the Claimant’s criticisms of the procedures undertaken by the Respondent in the Management of Absence Policy, none of them were presented as acts of discrimination. It was not explained what detriment or unfavourable treatment arose from any alleged delays or flaws in the procedure. A flaw or a delay is not enough in itself to make out a complaint of discrimination. There must be some consequential, adverse effect on the Claimant, and that adverse effect must because of or related to his disabilities. That was not part of the case put by the Claimant nor was it in the List of Issues.[81]In addition, any flaws in the procedure could not be raised in the ways claimed as there was no compliant of unfair dismissal (since the Claimant did not have the requisite length of service).[82]We also had regard to the following: 82.1. This was a capability process, not a disciplinary process. The Respondent followed its Management of Absence Policy, not its disciplinary policy or procedure, save that the disciplinary procedures were the same at the Stage 3 formal hearing and appeal stages. As such, it was unlikely that the ACAS Code of Practice on Disciplinary & Grievance Procedures applied in part or full to the procedures followed by the Respondent. 82.2. Mr Lydiard did not say there were no notes of the Record of Action meetings (as alleged by the Claimant). His evidence was that the Record of Action form was where the notes of the meetings were recorded (rather than in a separate document). Those forms were completed and in evidence. 82.3. Any delays were not in breach of the Respondent’s policy and procedures. The time frames included were indicative, not strict or compulsory. The Claimant was also made aware of the reason for any delays in adhering to those indicative time frames.[83]For all those reasons, we did not find that the criticisms raised by the Claimant in these regards to be either made out or relevant to the issues we had to decide. - 17 - Analysis & conclusions: substantive issues[84]We considered and determined the issues as per the agreed List of Issues. The substantive complaints were of discrimination arising from disability and breaches of the duty to make reasonable adjustments. Discrimination arising from disability[85]The unfavourable treatment relied upon by the Claimant was of the Respondent: 85.1. Issuing a series of trigger warnings under the Management of Absence Policy; and 85.2. Dismissing the Claimant on 8 May 2024.[86]It was not in dispute that the Respondent issued a series of trigger warnings under the Management of Absence Policy (as detailed above) or that it dismissed the Claimant with effect from 8 May 2024.[87]The Claimant relied upon his record of sickness absence from January 2023 until May 2024 as the something arising in consequence of his disability.[88]It was not in dispute that the Claimant had periods of sickness absence, as we have detailed. On the evidence presented and the findings we made, the absences (save for the one because of Covid) were a consequence of the Claimant’s disabilities, whether because the vomiting was intrinsically linked to, or was a symptom of his Type 1 diabetes (which the Respondent itself appeared to accept at the time, characterised as diabetes-related absences) or because, as explained, we concluded that the Claimant’s vomiting met the definition of disability at the relevant time.[89]We also found that the application and escalation of the Management of Absence Policy and the decision to dismiss the Claimant was because of those absences, which, as we have explained, arose from his disabilities.[90]Being subjected to the Management of Absence Policy in that way and being dismissed were intrinsically unfavourable treatment, as follows: 90.1. The Claimant was being warned that if he had future absences, matters could and would escalate and he was warned prior to the Stage 3 hearing that dismissal was a potential outcome. That falls within the rubric of unfavourable treatment (notwithstanding that it did not render the policy itself as unfavourable). To that end, it was properly characterised as adverse as opposed to beneficial. 90.2. It is also undoubtedly the case that dismissal was unfavourable treatment, being objectively adverse as oppose to beneficial. - 18 -[91]As such, we concluded that the Claimant was subjected to unfavourable treatment because of something arising from his disabilities. However, and as entitled by law, the Respondent relied on the so-called justification defence, namely that the application of the Management of Absence Policy and the Claimant’s dismissal were proportionate means of achieving a legitimate aims.[92]The starting point were the Respondent’s alleged legitimate aims. They were as follows (per Paragraph 20 of its amended Grounds of Resistance, at [86] of the Bundle):20.1 To ensure the ability of the Respondent to deliver the required, strictly scheduled services in an efficient, safe and cost-effective manner.20.2 Maintaining appropriate standards of attendance in the workplace.20.3 Ensuring the health and safety of the Respondent’s staff (including the Claimant).20.4 Ensuring the integrity of and/or ensuring consistent application of the Respondent’s own policies and procedures.20.5 Ensuring an effective use of public money; and/or20.6 Ensuring consistency of treatment with other members of staff.[93]These were, in our judgment, clearly legitimate aims for an employer, especially one, like the Respondent, that is publicly funded.[94]Was the treatment complained of (namely, the application to the Claimant of the Management of Absence Policy and dismissing the Claimant on 8 May 2024 for the reasons it did) proportionate means of achieving those legitimate aims? In other words, was it possible for something less discriminatory to have been done to achieve those aims?[95]At the heart of this was the nature and cause of the Claimant’s absences. They were all short-notice (the Claimant notified the Respondent on the day that the absence began and was unable to predict when he would be absent) and short-term. They recurred, they were intermittent and they were unpredictable.[96]The cause of the absences were such that when the Claimant was struck down by the vomiting, he was wholly and completely unable to work. When they passed and he was symptom-free again, he was wholly and completely fit and able to work. There was no middle ground. As characterised by Mr Lewis-Bale, the Claimant was either all in or all out.[97]That had two important consequences: 97.1. It made it very difficult for the Respondent to manage, cope and adjust to the consequences of the Claimant’s absences. It was - 19 - wholly different from long-term absences. The Respondent was unable to bring in cover as the absences were of short duration and unpredictable, with little notice. It simply had to deal with being one worker down in what we were told was usually a team of five (so in effect a 20% reduction in its workforce for the team of which the Claimant was part). That impacted on the work that could be planned and completed. There was a material and significant impact on the Respondent (and its fulfilment of a number of its legitimate aims) as a result of the nature of the Claimant’s absences. 97.2. The cause of the absences had a profound impact on how the Respondent was able to manage the Claimant’s absences over time. As we explain later (under reasonable adjustments), there were no adjustments that could be made to the Claimant’s job, his role, his hours or his employment more generally that, at the time, would have had any material impact on the cause of his absences. The CVS was in no way work-related, as the Claimant acknowledged time and again. He did not propose any changes or adjustments to his employment. OH did not proposed any measures that could be taken to facilitate a return to work. In all of his fit notes, the Claimant’s GP never suggested any changes or adjustments that would facilitate or benefit the Claimant returning to work. And the reason for that was clear – nothing at that time could prevent the unpredictable, debilitating and intermittent bouts of vomiting, which rendered the Claimant unable to work.[98]Those factors were further compounded by the fact that during this time, and despite his best endeavours, the Claimant was having no success in being seen by consultants and specialists, and the medication he was prescribed was having no material effect. In short, there was nothing coming over the horizon that suggested that the pattern of short-term, intermittent, unpredictable absences was about to change.[99]There is always a balance in the workplace between supporting those who are unwell and being able to deliver services with sufficient staff. The Respondent could not be expected to dismiss the Claimant straight away but also could not be expected to wait indefinitely for the issues causing the Claimant to be intermittently off work to resolve. In this case, the Respondent had waited 16 months (from January 2023 until May 2024) with no indication that the causes of the Claimant’s unpredictable, short-term, short-notice absences would be resolved in the foreseeable future. The Respondent was being told that there were no adjustments that could be made that would address the causes, since the vomiting was unpredictable and debilitating.[100]Given that clear and stark context, there was, in our judgment and when faced with those circumstances, nothing, whether less discriminatory or otherwise, that the Respondent could have done to reasonably achieve its legitimate aims in respect of managing the Claimant’s absences. We concluded that the Respondent’s application of the Management of - 20 - Absence Policy, in the manner it did, and the ultimate decision to end the Claimant’s employment on 8 May 2024 were proportionate means of achieving its legitimate aims.[101]It follows that the Respondent’s application of the Management of Absence Policy to the Claimant, and the decision to dismiss the Claimant, were not unlawful and the unfavourable treatment was justified in law. As such, complaint was not made out and is dismissed. Breach of the duty to make reasonable adjustments[102]The Claimant relied upon the Management of Absence Policy as the applicable provision, criterion or practice (‘PCP’). It was not in dispute that the Respondent had the policy or that it was a PCP or that it was applied to the Claimant.[103]Did the PCP put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that due to his impairments the Claimant was more likely to have absences from work?[104]We found that the application of the PCP to the Claimant did put him at a substantial disadvantage compared to someone without the Claimant’s disabilities, because, as we have found, a consequence of the Claimant’s disabilities were intermittent, unpredictable, short-term absences, which triggered the application and escalation of the PCP, up to and including dismissal.[105]However, we acknowledge that the application of the PCP was moderated and adjusted by the Respondent of its own volition in respect of the Claimant, in that a decision was taken to reissue the Stage 2 process on 20 December 2023.[106]Did the Respondent know or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage?[107]Given the repetitive nature of the short-term, short-notice absences, the Respondent know or ought reasonably to have known that the application of the PCP was likely to place the Claimant at a disadvantage because of his disabilities. The PCP was specifically designed to manage such a pattern of absences and that management included escalation and ultimately dismissal.[108]What steps could have been taken to avoid the disadvantage? The Claimant suggested the following (per the List of Issues at [65] – [66] of the Bundle): 108.1. Withold pay from the Claimant for the absence so that agency or other temporary employees could be employed to cover is absence; 108.2. Engage and discuss with the Claimant what steps could be - 21 - taken to avoid the absences such as infection control/lone working; 108.3. Provide more leeway in adjusting the trigger warnings; 108.4. Treat the Claimant as a disabled person where any relevant section for the Management of Absence Policy would have applied; 108.5. Not move the Claimant from his regular place of employment; 108.6. Waited longer to see if the medication settled the Claimant’s conditions and/or the shortage of insulin was resolved; and 108.7. Enable the strategies the Claimant had gained from stress counselling to have embedded to see if this improved attendance instead of dismissing him soon after the counselling had finished.[109]In determining whether it would have been reasonable for the Respondent to have made the suggested adjustments, we reached the following overarching conclusions: 109.1. We reminded ourselves that the purpose of a reasonable adjustment was to alleviate the substantial disadvantage caused by the PCP and enable the Claimant to remain in employment. As we have already noted, a feature of the Claimant’s illness was that it was wholly unconnected with his employment, was unpredictable and at the relevant time, it was uncontrolled. 109.2. At the time we are considering, the Claimant was not raising any adjustment that he believed could be implemented by the Respondent to enable him to avoid the pattern of absences. OH were not suggesting any adjustments that could be implemented to reduce or avoid further absences. The Claimant’s GP was not suggesting any measures which would enable to the Claimant to return to work any sooner when he was off ill. We do not criticise the Claimant, OH or his GP for that. Rather, it was compelling and forceful evidence that the reason no adjustments, reasonable or otherwise, were being presented to the Respondent at the time was because there were no adjustments, reasonable or otherwise, which would have prevented the Claimant’s bouts of vomiting and, by extension his sickness absences. 109.3. To be fair to the Respondent, it did consider and explore a number of potential adjustments, be it moving the Claimant’s work location or reducing his hours or treating his absences as unpaid leave. But as we have noted, and for understandable reasons, those adjustments and measures would not have had - 22 - any impact on the cause of the absences, namely the unpredictable and debilitating periods of vomiting. 109.4. We also noted that when the Claimant did raise an issue which the Respondent could assist with (his personal stress levels), the Respondent arranged for the Claimant to be referred to OH and then for stress counselling. This was not an employer who was not trying to find solutions to the issues facing the Claimant. Unfortunately for the Claimant and the Respondent, the reality was that there was simply no solution at this time to the causes of the Claimant’s intermittent, unpredictable, repetitive, shortterm absences.[110]For all those reasons, the Respondent was under no duty to make any reasonable adjustments because there were not any adjustments available to it which would or could alleviate the impact of the PCP on the Claimant. In addition, it did adjust the PCP of its own volition, by reissuing the 2nd Stage process.[111]However, and for the avoidance of doubt, it would not in our judgment have been reasonable for the Respondent to simply disapply the Management of Absence Policy in respect of the Claimant. That appeared to be the only adjustment available to the Respondent that could have alleviated or prevented the application of the PCP and associated disadvantage to the Claimant. To be fair to the Claimant, he never contended that the Respondent should have done that. Rather, we make the point to highlight that there was simply nothing else the Respondent could do, given the cause and nature of the Claimant’s absences over the relevant period.[112]For the sake of completeness, we addressed the reasonable adjustments proposed by the Claimant in this litigation (and recorded above).[113]Withold pay from the Claimant for the absences so that agency or other temporary employees could be employed to cover is absence. 113.1. This was considered by the Respondent but as explained, it would not have addressed the level and nature of the absences, which was what was triggering the application of the PCP to the Claimant, nor would it have changed the manner of the absences, being inherently unpredictable with little or no notice (such that the Respondent would not have been reasonably able to find cover in the form of agency staff, even it was able to).[114]Engage and discuss with the Claimant what steps could be taken to avoid the absences such as infection control/lone working. 114.1. This was never raised by the Claimant at the time and it would not, on the evidence presented, have addressed the cause of the absences from vomiting. To the extent it related to the - 23 - absence because of Covid, that was not an absence related to the Claimant’s disabilities.[115]Provide more leeway in adjusting the trigger warnings. 115.1. The Respondent did that, by reissuing Stage 2 in December 2023. On the facts facing the Respondent, it was not reasonable for the Respondent to have made any other adjustments to the application of the Management of Absence Policy. What they were presented with was that the level and nature of absences were continuing and there was no foreseeable change coming into view. They sought to manage the Claimant’s absences from January 2023 until May 2024. They were entitled to wait no longer for any improvement.[116]Treat the Claimant as a disabled person where any relevant section for the Management of Absence Policy would have applied. 116.1. Section 9.2 of the Management of Absence Policy (at [127] of the Bundle) did not disapply the policy to those with disabilities. Rather, and so far as relevant, it stated as follows: 9.2.5 The Act places a duty on employers to make reasonable adjustments for staff to help them overcome disadvantage resulting from an impairment (eg by providing assuasive technologies to help visually impaired staff use computers effectively). As part of the absence review process, managers should consider whether any adjustments can be made to enable employees to attend and carry out their work. Where appropriate, guidance should be sought from the Occupational Health and Well Being Unit. 9.2.6 Absence due to disability should be recorded using the Council's absence recording process. There may be circumstances however, where an increased level of sickness absence is accommodated as a reasonable adjustment. This will be used for monitoring purposes. 116.2. In our judgment, the Respondent did adhere to those parts of the Management of Absence Policy in manging the Claimant’s absences. For reasons already explained, there were no reasonable adjustments which would have either addressed the Claimant’s absences or the application of the PCP to him. The Respondent did accommodate the Claimant’s absences over a period of 16 months. It was reasonable for it to not accommodate those absences any further, given that there were no reasonable adjustments available to address the level of absences or enable the Claimant to remain in work, and no evidence that matters were likely to improve in the foreseeable future.[117]Not move the Claimant from his regular place of employment. - 24 - 117.1. This was discussed and considered by the Respondent but it was entitled to conclude that location would have had no bearing whatsoever on the causes of the Claimant’s absences. Rather, there were concerns that relocation might, counterproductively, increase his levels of stress.[118]Waited longer to see if the medication settled the Claimant’s conditions and/or the shortage of insulin was resolved. 118.1. As detailed above, the Respondent had already managed the Claimant’s absence for 16 months, without any indication that the pattern or nature of those absences would change. It was not be reasonable for the Respondent to wait any further, in circumstances where it was being told that nothing work-related could address or alleviate the vomiting and by extension the absences, and in circumstances where the treatment which the Claimant was receiving was not working.[119]Enable the strategies the Claimant had gained from stress counselling to have embedded to see if this improved attendance instead of dismissing the Claimant soon after the counselling had finished. 119.1. This was never raised by the Claimant with the Respondent at time. There was no evidence before us that, at the time, there was any feasible connection between Claimant’s stress levels and his vomiting, or that the stress counselling would have reduced or ceased his vomiting. That was all the more so where, despite this litigation taking place over a year after the dismissal, the Claimant had not provided any evidence to support that contention. In reality, the Claimant was saying that switching to supplements had the best results, not the stress counselling.[120]As such, it was not reasonable for the Respondent to have taken any of the steps suggested by the Claimant.[121]Drawing all that together, and for all those reasons, the Respondent was under no duty to make reasonable adjustments. As there was no duty, the Respondent could not have been in breach of any duty, the complaint was not made out and it is dismissed.
Conclusion
[122]The Tribunal can only begin to imagine how challenging and frustrating it must have been for the Claimant during those periods when he was unable to work for the Respondent as result of his diabetes and, in particular, his bouts of vomiting. He clearly enjoyed his job and was good at it, a fact consistently acknowledged by the Respondent. We are glad to note that he has secured alternative employment in the same profession and that his vomiting symptoms appear to be under control. - 25 -[123]We fully understood that the Claimant may have felt a sense of frustration and unfairness at what happened to him as a result of health conditions over which he had, at the time, little, if any, control.[124]However, such understandable emotions did not, without more, mean that what happened at his place of work as a result of his ill-health was discrimination. For the reasons explained, it was not. The evidence showed that the Respondent acted appropriately and lawfully. Perhaps more pertinently, Mr Phillips, Mr Lydiard, Mr Perkins, Ms Williams and Ms Evans (to name just some of those involved in the management of the Claimant’s absences) did all they could to support and assist the Claimant in maintaining his employment.[125]However, those officers, and the Respondent more generally, could not and was not required to wait indefinitely, or to unreasonably jeopardise or undermine the provision of its services, its management of other staff or its financial and budgetary responsibilities.[126]It is important to reflect this in our reasoning. It is right that the Respondent in general, and its staff 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 and his family. Order posted to the parties on Approved by: 25/11/2025