Mr M Sanders v West Yorkshire Fire and Rescue Authority: 1801160/2024

EMPLOYMENT TRIBUNALS

Case No 1801160/2024

Between

Mr M SandersClaimant

West Yorkshire Fire and Rescue AuthorityRespondent

Before

Employment Judge Armstrong

Mr Ratledge (instructed by counsel) for claimant

Mr Finlay (instructed by counsel) for respondent

Date 23 July 2025

JUDGMENT

[1]The respondent did not fail to make reasonable adjustments for the claimant’s disability under s.20 and s.21 Equality Act 2010. The claim of failure to make reasonable adjustments is dismissed.

[2]The respondent did not harass the claimant under s.26 Equality Act 2010. The claim of harassment is dismissed.

REASONS

Claims

[1]The claimant brings claims of disability related harassment and failure to make reasonable adjustments. The claims were presented on 19 February 2024. Early conciliation started on 8 December 2023 and concluded on 19 January 2024.

[2]The claimant has subsequently brought a claim for unfair dismissal. That claim has been subject to separate case management and is listed for a final hearing in February 2026. The claims have not been consolidated and the parties invited the Tribunal to deal with this claim first. Conduct of the hearing

[3]Both parties were represented by counsel at the hearing, which was an attended hearing at Leeds Employment Tribunal. Adjustments in respect of the claimant’s disability were discussed at the outset of the hearing. Regular breaks were provided for approximately 5-10 minutes every hour, as requested. Issues for the tribunal to decide

[4]The issues for the Tribunal to decide were set out in the order of EJ Bright following a preliminary hearing on 18 December 2024 (87-89). It was agreed at the start of the hearing that the Tribunal would deal with the issue of liability first. The issues for the hearing were therefore: 1. Reasonable Adjustments (Equality Act 2010 sections 20 & 21) 1.1. The respondent accepts that the claimant was disabled for the purposes of the Equality Act 2010 by his: 1.1.1. Dyslexia; 1.1.2. Dyspraxia; and/or 1.1.3. Attention deficit disorder. 1.2. The respondent accepts that it knew that the claimant had the disability at the relevant time. 1.3. A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs: 1.3.1. A practice of requiring employees to complete office based and administrative tasks from the office; 1.3.2. A practice of requiring employees to work from 9am to 5pm without flexibility in those hours; 1.3.3. A practice of not allowing a set period of time for preparation of community-based work and time to write up notes upon conclusion of the working day. 1.4. Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that: 1.4.1. He was often overwhelmed, struggled to concentrate and prepare for his day in a noisy environment; 1.4.2. He required extra time to complete preparation in advance of community work and extra time to write up his notes because his disability caused him to struggle to manage his time and the pressure of working under time constraints would often cause him to be flustered. 1.5. Did the claimant lack the following auxiliary aids: 1.5.1. Noise cancelling headphones; 1.5.2. Subscription to Grammarly; 1.5.3. Coloured overlays and screen covers/masking; 1.5.4. Digital voice recorder; 1.5.5. TextHelp Read and Write software; 1.5.6. Having information read aloud during reading-based tasks; 1.5.7. Ensuring any new information was set out in clear and understandable manner. 1.6. If so, did the lack of that/those auxiliary aid(s) put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that such aids would have assisted the claimant’s concentration, time management, reading and writing? 1.7. Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage? 1.8. What steps could have been taken to avoid the disadvantage? The claimant suggests: 1.8.1. To allow the claimant to work from home with flexibility in hours; 1.8.2. To allow the claimant sufficient time at the beginning of the day to prepare for any community-based work and ample time to write up his notes at the end of the day; 1.8.3. To allow the claimant additional time to read, retain and produce complex information; 1.8.4. To provide the auxiliary aids listed. 1.9. Was it reasonable for the respondent to have to take those steps and when? 1.10. Did the respondent fail to take those steps? 2. Harassment related to disability (Equality Act 2010 section 26) 2.1. Did the respondent do the following things in a meeting with Donna Wagner and Paul Daly on 11 October 2023: 2.1.1. State that the claimant was using ‘buzz words’ in relation to his 2.1.2. State that the claimant was ‘hiding’ behind his disability; 2.1.3. State that the claimant ‘clearly had an agenda’ regarding his 2.1.4. State that the claimant was ‘nit picking’ regarding the reasonable adjustments for his disability; 2.1.5. State ‘your disability doesn’t stop you from coming to work 9 to 5’ when discussing flexible working; 2.1.6. State that the claimant was ‘looking for loop holes’ when discussing his disability; and 2.1.7. Conduct a meeting with the claimant using unpleasant language and tone. 2.2. If so, was that unwanted conduct? 2.3. Did it relate to disability? 2.4. Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? 2.5. If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Evidence

[5]The Tribunal was provided with a bundle of documents comprising 1803 pages. Page references in bold are to the page numbers in this bundle.

[6]It was not practicable or proportionate to read the entire bundle in this four day hearing. We read the documents referred to in the parties’ witness statements and the documents we were taken to in the course of evidence and submissions. We should not be taken to have read other documents within the bundle.

[7]The Tribunal was also provided with covert recordings of three meetings between the claimant and respondent. There was no issue taken as to the admissibility of these recordings. We listened to the recording of the meeting on 11 October 2023 in its entirety. We also listened to the parts of the recording on the 7 July 2023 which were relevant to our deliberations.

[8]Transcripts of these meetings were provided. Both parties agreed that these were not complete, or entirely accurate. Having been covertly recorded, the audio files are also not entirely clear and parts are inaudible or indecipherable. We therefore approached our findings regarding these meetings by considering the evidence as a whole.

[9]Witness statements were provided by the following individuals, who all attended the hearing and gave oral evidence: The claimant; and on behalf of the respondent: Nick Smith (assistant Chief Fire Officer, grievance appeal officer); Toby May (area manager, grievance officer); Donna Wagner (Ossett district prevention manager, claimant’s direct line manager); Paul Daly (district commander, claimant’s district manager); Gill Cockburn (diversity equality and inclusion manager); Naomi Hirst (Leeds district prevention manager).

Background

[10]The claimant commenced employment with the respondent on 20 September 2015. He worked as a fire prevention officer. An occupational health assessment on 11 May 2023 by the Kade Consultancy found that the claimant ‘presents a profile indicative of a neurodiverse condition.’ He has traits and tendencies consistent with dyslexia, dyspraxia and attention deficit disorder (ADHD). The claimant has since received a diagnosis of ADHD, in February 2025. The respondent accepts that the claimant is disabled for the purposes of s.6 Equality Act 2010 as a result of these impairments.

[11]The May 2023 report and a subsequent Access to Work report of October 2023 recommended a number of adjustments and auxiliary aids to support the claimant in the workplace. The claimant claims that reasonable adjustments were not made and auxiliary aids were not provided within a reasonable timescale. He also claims that he was subject to harassment related to his disability by Mr Daly and Ms Wagner during a meeting on 11 October 2023 at which workplace adjustments were discussed.

Findings of fact

[12]The Tribunal notes that the chronology in this case is somewhat unclear. We were not assisted by the voluminous bundle of documents, which is not in chronological order. We have limited our findings to the key facts which are relevant to our findings in this claim. We are mindful that there are concurrent unfair dismissal proceedings and we have endeavoured not to stray into factual matters which are properly issues for those proceedings.

[13]The claimant’s employment commenced on 20 September 2015. He received an updated contract of employment on 12 July 2017 for the post of Fire Prevention Assistant (Wakefield) (126-138). However, throughout the proceedings before us he was referred to as a Fire Prevention Officer.

[14]This role involves attending locations within the community and keeping records and reports of those visits. These could include visiting vulnerable people who are at risk of a fire within their home (for example we heard that visits have to be carried out to those who have oxygen tanks stored within their home for health reasons). They also include community education exercises such as visits to schools. He was based at Ossett fire station.

[15]His hours of work as set out in his contract were (137): ‘Hours – 37 per week […] Standard full time hours are 37, Monday – Friday, average 7.24 hours. Standard hours 0845-1720, Fri 1630, but flexi scheme in operation with core hours 10 until 12, 2 until 4; start time 0800-1000, finish 1600-1800 hours. Allows to accrue time, take flexi time off maximum 2 days per 4 week period.’

[16]His terms and conditions excluded some alternative flexi-time provisions in the national and/or local conditions of service (137).

[17]We return to the issue of working hours below.

[18]The claimant was subject to disciplinary proceedings in 2018 including in respect of his behaviour towards colleagues and customers. As a result of these proceedings he was placed on a personal improvement action plan (PIAP) on 9 November 2018. This came to an end on 24 December 2018 (103).

[19]During the lockdowns imposed due to the covid-19 pandemic, the claimant worked from home.

[20]In 2021 when the lockdown period came to an end the claimant was required to return to working from Ossett fire station. He expressed dissatisfaction about this arrangement and stated that he wished to continue working from home ‘to assist with childcare’. It was reiterated to the claimant that he had to return to work at the fire station during a meeting on 21 September 2021 between the claimant, District commander Lee Miller and Donna Wagner (1634-1637). It appears from the minutes that this was a tense meeting and the issue was left to be reviewed at a later stage.

[21]It is the respondent’s case that from this point onwards the claimant consistently pursued an agenda of wanting to work from home to suit his own domestic arrangements. Their position is that the request for home working as a reasonable adjustment was not reasonable or genuine, and was part of this continuing pattern. We return to this in our conclusions.

[22]On 11 October 2021 the respondent issued the conclusions of its district consultation for hybrid working. The purpose of the consultation was to explore which roles might be appropriate for continued home working after the covid-19 pandemic lockdowns had been lifted. The respondent concluded that the claimant’s role was not suitable for home working, because (213): ‘The purpose of the post is to reduce risk to our community and vulnerable individuals by providing high risk interventions, advice and working closely with partners. For the role to be effective officers have to be visible and active within the community, engaging with vulnerable and high-risk individuals and providing interventions cannot be achieved from home. Preventions Officers can work flexibly and from home on an Ad-hoc basis with line manager approval as part of existing normal working practices’

[23]On 12 October 2021 the claimant contacted Mr Miller and Ms Wagner to follow up on his working from home request. He acknowledges that his role did not fit the criteria for hybrid working and stated he wanted to make a request for flexible working, to be agreed locally with management. He requests a meeting either to be treated as a grievance or to resolve the situation (220-221).

[24]It appears that this was not resolved, seemingly because of subsequent events.

[25]On 20 October 2021 the claimant received an informal warning regarding his conduct and appearance. He was offered time management training (103). He was off sick from 22 October 2021 until 26 November 2021, and again from 8 December 2021 until 4 January 2022 (100)

[26]On 15 December 2021 the claimant was examined by a Dr Smith (consultant in occupational health). Dr Smith concluded that he was not currently fit for work due to stress and anxiety (224).

[27]Tensions between the claimant and Ms Wagner were high at this stage, culminating in her raising a grievance against him in January 2022. He was placed under investigation on 7 January 2022, on his return to work after sickness absence (103).

[28]In January 2022 the claimant was transferred to the Leeds fire station under the management of Naomi Hirst as a result of the grievance raised by Ms Wagner. We accept that this was the reason for the transfer as it is consistent with the documents and the chronology. This was temporary, for a period lasting around four months.

[29]Whilst the claimant was based in Leeds the claimant says that he was permitted to work from home. This was put to Ms Hirst in crossexamination. We found Ms Hirst to be a straightforward witness and we accept her evidence that she permitted all her team, including Mr Sanders, to start after 9.00am and work a little later, to allow them to drop children at school before coming to the office. She was clear that she did not permit him to do administrative work from home in the morning and that it would not have been reasonable to allow him to do this whilst he was simultaneously looking after his children. She was clear that this was the basis on which he informally made the request to her and that he ‘reluctantly’ accepted her decision. She stated that there was no practical benefit to working from home as early as 7.00am because clients and stakeholders would not have been available to liaise with.

[30]On 5 April 2022 the claimant issued a claim for disability discrimination (failure to make reasonable adjustments) against the respondent. At a case management hearing on 8 June 2022 Employment Judge Wade did not feel able to identify the issues in the claim because they were unclear. The claimant was directed to provide further information by 6 July 2022 (1493). The claimant subsequently withdrew his claim and a judgment dismissing the claim on withdrawal was issued on 16 September 2022 (1479).

[31]The present claim relates to incidents which post-date those proceedings so no res judicata issue was raised.

[32]On 15 April 2022 the claimant commenced a period of sick leave which lasted until 12 June 2022 (106). The evidence is unclear but it appears that when he returned to work in June 2022 this was at the Ossett fire station, because Ms Hirst’s evidence was that the claimant was based at Leeds for around four months, and because it is clear from the documents that he was transferred to Castleford the following January.

[33]Ms Wagner commenced a period of sickness absence on 21 June 2022. On 28 June 2022 the claimant received a six month written warning regarding standards of dress, attitude towards his line manager and completion of allocated tasks. On 25 August 2022, following an appeal, this sanction was amended to a personal improvement plan (226-7).

[34]On 30 September 2022 a further disciplinary process was instigated regarding alleged bullying of female colleagues (as set out in Ms Wagner’s witness statement). We make no findings regarding these proceedings, but it is important to note for the chronology in these proceedings that an investigation was commenced.

[35]On 21 October 2022 the claimant commenced a period of sickness absence. He returned to work on 4 January 2023 (99).

[36]On 9 January 2023 a stress risk assessment was carried out on the claimant’s return to work, by Paul Daly (229). This document was subsequently reviewed on 26 April 2023 and 11 October 2023 and we return to this below.

[37]In terms of workload, it is recorded in the stress risk assessment on 9 January 2023 that ‘Martin has complete control of his queues and can book these to suit his calendar. Martin has flexibility in his role and is currently happy with that if that continues.’(231).

[38]On 9 January 2023 the claimant’s base office was moved to the Castleford station. In his witness statement the claimant stated this was because it was a quieter location. This is disputed by the respondent. Mr Daly states it was because of the ongoing investigation, and that he was moved ‘to separate the claimant and his line manager DW whose relationship had broken down’ (PD witness statement p26).

[39]Having heard evidence from the respondent’s witnesses and the claimant about the layout and use of rooms at Ossett station we find the following: The site was divided into two, the operational fire station occupying one half of the building and the Wakefield district command office in the other half. The only internal route between the two was through a meeting room. This had doors which could be closed when the room was in use and a sign would be put on the door when it was in use so people would not walk through. In these circumstances staff would use an external route if they needed to pass between the two sides.

[40]Within the office side of the building there is an open plan office area of approximately 80 square metres with desks which people would use as required in a ‘hot-desking’ type arrangement. There is also a small office used by the district commander. Within the fire station area there is a community room (used for meetings) and another small meeting room. The other meeting room was used by the watch manager as their office. We accept that the meeting rooms were unoccupied for the majority of the time and that the watch manager and district commander were not in their offices for the majority of the time, given the nature of their roles.

[41]The respondent’s case is that the claimant could have used any one of these four smaller rooms at any point if he needed a smaller quieter area to work in without being disturbed, and he could book out the meeting rooms for this purpose. The claimant’s evidence was that this was not the case, although when pressed on this in cross-examination, he said this was because it was not facilitated for him by his line management.

[42]We accept that the claimant could have used either the meeting room or the community room to work in if required, and that one of these spaces would generally have been available during the working day. He may have been able to use the district commander’s office or the watch manager’s office for occasional short periods of working if the meeting rooms were occupied and they were not being used by those individuals, but this would have been a less satisfactory arrangement as it may have caused tension if these individuals returned to the office and wanted to use their rooms.

[43]Both parties agree that the number of people present would vary depending on the time of day. The claimant contended that there could be 10-15 people present. Ms Wagner’s evidence was that there would be at most six people in the office at any one time.

[44]We prefer Ms Wagner’s evidence regarding the number of people present in the building. Firstly because it is consistent with the number of people who worked from the main office. The claimant’s own team comprised just him and Ms Wagner, and on occasions one additional fire prevention officer. Secondly, Ms Wagner was more specific in her oral evidence about which individuals would be in the office, and when, throughout the day. Finally, we note that the author of the access to work report commented on how quiet the (open plan) office was when she visited, which supports Ms Wagner’s evidence. We accept, however, that this means that there would have been background noise, such as conversations and people entering and leaving the premises.

[45]We therefore accept Mr Daly’s evidence that the reason for the move to Castleford was because of tensions between the claimant and other staff, not because the site was quieter. This is consistent with the stress risk assessment. For example at 245 the risk assessment records ‘The work environment within the district office is uncomfortable at the moment due to the strained relationships with certain members of staff.’ None of the contemporary documents refer to noise levels in the Ossett office or a quieter environment in Castleford.

[46]During this period, the claimant was also permitted ‘to work remotely from the Castleford Office’ and ‘to do a small amount of admin time first thing on a morning and late afternoon if required’ (248). We understand this to mean that while he was based at Castleford, the claimant was permitted to do a small amount of administrative work from home at the beginning and end of the day. Again, we accept that this was because of tensions around the ongoing investigation, not on the basis of an adjustment to accommodate his disability. The respondent was not aware of the claimant’s disability at this point in time, and it pre-dates the Kade assessment in May 2023.

[47]As of 3 February 2023 the claimant was still suffering with anxiety, and we have seen a letter from his GP to that effect (261). However he does not appear to have been off work (106). On 21 February 2023 he received a final written warning of 18 months for bullying a co-worker (103).

[48]The following day, 22 February 2023, the claimant met with Paul Daly to discuss the outcome of the investigation, welfare support and expectations moving forward (262).

[49]On 2 March 2023 the claimant’s performance improvement action plan was revised (769).

[50]On 26 April 2023 the claimant met with Paul Daly to review the stress risk assessment (229). The claimant states in his witness statement that during this meeting he was told to return to the Ossett office and he was also ‘informed that I would no longer be able to work flexibly and would need to work core 9am-5pm working hours. The 0900-1700hrs was something I had never done before and no other prevention staff was doing those hours. I had a flexi-contract between 0700-1900hrs.’

[51]We accept Mr Daly’s evidence that this is not an accurate representation of the discussion. Mr Daly’s evidence is consistent with the notes of the meeting, which were agreed with the claimant. At 231-232 the notes record: ‘I [Paul Daly] discussed at length today Martins roles and responsibilities regarding his working practice. I explained that I had offered Martin many flexibilities whilst undergoing discipline procedures, this included ability to carry out admin work from home, working from Castleford all to prevent conflict between parties. Martin agreed he had been looked after. I now explained that normal working arrangements must resume following the conclusion of the investigation. Debbie Richardson and I explained that FPO’s don’t fall under hybrid working conditions and he must now return to working from Ossett alongside his team under his normal 9-5. Martin queried the bandwidth , again Debbie and I explained that this 7-7 bandwidth provided flexibility to carry out the role, not to be used as a permanent choice as Martin would like so he can drop off and pick up his son from school.’

[52]The respondent points to this meeting as being another example of the claimant repeatedly requesting working from home, in various contexts and on various bases.

[53]The practice regarding the claimant’s normal working hours and location is a key issue in this case. We pause at this point to set out our findings on this point:

[54]The position regarding the claimant’s hours as set out in the minutes of this meeting is consistent with the claimant’s contractual position and the evidence of the respondent’s witnesses, including Ms Hirst who was not his direct manager and whom we found to be a straightforward and neutral witness.

[55]The respondent’s witnesses gave consistent evidence that the practice was that the claimant, and others employed in the same post, would normally work from 9.00am to 5.00pm. This was within a ‘bandwidth’ of 7.00am7.00pm, such that if staff had to start work early for example to carry out a school assembly, or finish late (we heard of an example where the claimant was involved with an individual with complex mental health needs), they could ‘shift’ their working day within that bandwidth. We accept this evidence, and that this practice applied to the claimant.

[56]The respondent’s witnesses also consistently gave evidence that the fire prevention officers are in control of their own diaries. The claimant did not dispute this and it is consistent with the documents (see e.g. at 231). We accept that the claimant could arrange his own work diary on a day-to-day basis. Though there were no specific performance criteria then, there was an expectation that he would carry out around two community visits per day. He was responsible for arranging the timing of these, and ensuring that he had sufficient time around the visits for administration tasks.

[57]There was no real dispute between the parties and we find that administration (or non-visiting) tasks comprised: liaising with clients to arrange visits and preparing for them, finalising reports and records, and ensuring that the claimant was up to date with relevant policies and guidance. We accept that these tasks comprised something in the order of 25% of a fire prevention officer’s working time, as Ms Wagner stated. The claimant contended that it was slightly more but he was not specific and did not break down the tasks in any more detail than Ms Wagner. We accept that this proportion varied from day to day, and that some fire prevention officers are able to complete these tasks more efficiently and therefore a smaller proportion of their time is spent on them.

[58]Ms Wagner stated and we accept that the usual model for a day would be for the fire prevention officer to attend their base office at the start of the day to prepare for the day, collect their work vehicle and any equipment required. They would then make one visit in the morning, generally return to the base for any writing up or administrative work, and then make a second visit in the afternoon, before returning to the base to return their vehicle and equipment and complete any outstanding administration. She told us that all officers are provided with an electronic tablet and that a large proportion of the report writing can and should be completed on site, using forms available on that tablet.

[59]A key part of the claimant’s case is whether a reasonable adjustment would have been to allow him to carry out these ‘administration’ tasks from home at the beginning and end of the day and we return to this below in our conclusions.

[60]As part of the conclusion of the disciplinary proceedings, and preliminary to the claimant returning to the Ossett office, mediation took place between the claimant and Ms Wagner on 25 April 2023 (266-7). This also supports the conclusion that the purpose of the move to the Castleford Office was to avoid tensions between the claimant and Ms Wagner.

[61]We accept that Mr Daly directed the claimant to return to his normal and contractual working practice of working from 9-5, based at the Ossett office, with some flexibility for early starts and late finishes between 7am7pm. We accept that some additional flexibility in this respect was put in place whilst he was working at Castleford because of the ongoing investigation. The timing is consistent with normal working practices resuming on the conclusion of the investigation and mediation taking place between the claimant and Ms Wagner.

[62]The direction to return to the Ossett Office was not to be implemented until 29 May 2025, to allow the claimant to make childcare arrangements (248).

[63]On 11 May 2023 a workplace diagnostic assessment report was produced on the respondent’s instruction by Ms Jones-Davies, a psychologist from The Kade Consultancy (‘the Kade report’) (268-289). We accept the claimant’s unchallenged evidence that Ms Jones-Davies was instructed after he raised with Gill Cockburn during neurodiversity awareness week in March 2023 that he was struggling to maintain focus at work (claimant witness statement paras 3 and 6).

[64]In her summary of findings, Ms Jones-Davies sets out (269): ‘Martin presents a profile indicative of a neurodiverse condition. He shows specific weakness with regards to working memory and visual processing when compared to his underlying general abilities, consistent with dyslexia. He also shows dyspraxic tendencies and traits associated with attention deficit disorder. These weaknesses appear to have negatively impacted on Martin‘s literacy skill attainments, in relation to aspects of reading, the production of written work, along with concentration and the planning and organisation of his work.’

[65]The respondent accepts that it had knowledge of the claimant’s disability from the date of receipt of this report. The claims for failure to make reasonable adjustments relate to the period subsequent to this report.

[66]The Kade report concludes that Mr Sanders is likely to benefit from workplace adjustments. It provides a ‘menu’ of suggested adjustments towards the end of the report (277-280). Ms Jones-Davies prefaces these proposals by stating: ‘The recommendations below could support Martin to improve his performance. They can be selected or adapted depending upon preferences. It is important that any recommendations implemented are done so in a phased approach over a period of time to monitor and recognize improvements in Martin’s performance. This will also make Martin less likely to become overloaded as changes are introduced.’

[67]The recommendations relevant to the adjustments which Mr Sanders relies on in these proceedings are: Speech to text software (278); Read and Write Gold or Dragon software (279) (issue 1.5.2. and 1.5.5.); Use of coloured overlays (277) (issue 1.5.3.); Use of a voice recorder as an aide memoire (279); A recording device for training events or meetings (278) (issue 1.5.4.); Text to speech software (277) (issue 1.5.6.); Written information to be clearly spaced out and in straightforward short sentences (277); procedures to be presented in a visual format; instructions written down in a staged process (278) (issue 1.5.7.); More time to assimilate written text (277) and extra time for the preparation of work tasks or to conduct tasks (25% extra time is suggested) (280) (issue 1.8.3.)

[68]The report makes no recommendation for working from home or flexibility in hours (issue 1.8.1.), or time at the beginning of the day to prepare for community-based work and at the end of the day to write up his notes (issue 1.8.2.). It also does not explicitly recommend noise cancelling headphones (issue 1.5.1.). However, the report does recommend ‘a quiet area in which to work that is free of distractions’ whenever possible (280), and additional time to prepare for tasks (280).

[69]On 17 May 2023 Gill Cockburn received the Kade report (witness statement page 41). We accept her oral evidence that TextHelp software was available for the claimant to use as soon as this was received as the respondent already had a site licence for this.

[70]On 18 May 2023 Ms Cockburn contacted Ms Wagner by email. She summarises the report’s conclusions regarding the claimant’s needs and the adjustments recommended. She states that a reasonable adjustment plan (RAP) would be needed, to be formulated by Mr Sanders and his line manager (Ms Wagner) with input from Ms Cockburn. She also states that the assistive equipment recommended would be provided by Access to Work and she had asked Mr Sanders to start the application process for this (290). Ms Wagner told us (paragraph 43) that the Kade report was attached to this email.

[71]The claimant stated in his witness statement that he contacted Access to Work promptly after he was told to do so by Ms Cockburn on 22 May 2023 (paragraph 11). He was not challenged on this and we accept that he did so. Access to Work are an agency of the Department of Work and Pensions, whose role is to assess the requirement for auxiliary aids and thereafter to provide funding for relevant support.

[72]The claimant states in his witness statement that he returned to work at Ossett on 5 June 2023 (paragraph 9). This is consistent with the agreement that this arrangement would recommence on 29 May 2023 (248), taking into account that this would have been around the time of a bank holiday.

[73]A period of some weeks passed between the Kade report and the meeting to discuss a subsequent reasonable adjustments plan. It was initially arranged for 12 June 2023 but this was cancelled. The claimant, Ms Wagner and Ms Cockburn’s recollections in oral evidence were all slightly unclear as to why this was but they broadly agreed, and we find, that it was postponed due to Ms Cockburn’s ill health.

[74]The reasonable adjustments meeting took place on 7 July 2023. In oral evidence, Ms Cockburn stated that a period of around 6 weeks from the report until a reasonable adjustments plan (RAP) being put in place was in her experience fairly usual. Again, none of the witnesses had a clear recollection as to why it did not take place earlier than 7 July 2023 but Ms Cockburn thought it was likely to be because of difficulties finding a date all three of them were available.

[75]The RAP meeting took place on 7 July 2023. We accept that the RAP produced at 294 is an accurate reflection of the meeting. It is consistent with the note of the meeting at 293, the transcript at 1497 and the audio recording we listened to.

[76]The RAP sets out adjustments in columns, identifying the suggested adjustment from the Kade report, the effectiveness of the adjustment and how it could be supported. We can see that adjustments were made to: ‘Structure [the claimant’s] diary to include reflection time and preparation. Quiet spaces are available to facilitate lone working. Discussion will be taken forward to evaluate if home working is an option.’ Use of TextHelp Read and Write was available via a site licence, and training was to be provided by Access to Work. Printing on coloured paper or a coloured overlay were to be provided. A digital voice recorder was noted – and it was recorded that the claimant would advise others when he would like to record. New information and processes would be set out in a clear manner by Ms Wagner when needed. Colour categories in Outlook would be used by the claimant (for his diary and tasks). The claimant would be given flexibility and clear guidance on deadline and timescale expectations, facilitated by Ms Wagner.

[77]None of the witnesses, including the claimant, were able to recall when coloured overlays were provided. However Mr Sanders accepted that he had tried them and found that they did not help him. There is no evidence that a voice recorder was ever provided to the claimant. The respondent’s position is that the claimant was able to record meetings using either his iPhone or the tablet provided to him by the respondent. He did in fact use his phone to record the meetings we have referred to. Ms Wagner told us that the claimant would have been able to record meetings and visits using the tablet.

[78]On listening to the recording of the meeting on 7 July 2023, we accept the respondent’s evidence that in this meeting, the claimant repeatedly returned to the issue of working from home as a reasonable adjustment if hybrid working was not suitable for his role. Despite a large number of other recommendations being set out in the Kade report, Mr Sanders kept returning to this particular request. This was dealt with courteously by Ms Cockburn and Ms Wagner and it was agreed, as recorded in the RAP, that this would be ‘taken forward.’ It was discussed that the decision would one for the claimant’s line manager. As set out in the transcript at 1516 Ms Cockburn suggested that the claimant should put down in writing why he felt home working was required and Ms Wagner agreed that she would then take that further

[79]Unfortunately the claimant was taken seriously ill only a day or two after this meeting. He had emergency surgery on 10 July 2023 and was then absent on sick leave for three months.

[80]On 10 October 2023 he returned to work (99). We accept that, as per the 7 July 2023 meeting, at this stage some of the adjustments set out in the RAP would have been available to him. The additional Grammarly subscription, voice recorder, and noise cancelling headphones were not yet in place, pending the Access to Work assessment.

[81]On 11 October 2023 a meeting took place between the claimant, Ms Wagner and Mr Daly. This was to discuss the stress risk assessment again on the claimant’s return to work. The RAP was not the topic of discussion for this meeting and the focus was on the questions on the stress risk assessment form (337-343).

[82]We have listened to the entirety of the recording of this meeting, which was recorded covertly by the claimant. Some parts of the recording are unclear or inaudible, as the meeting was recorded on the claimant’s phone, which was in his pocket throughout.

[83]We accept that the context of the whole meeting is important, particularly as the claimant seeks a finding about the language and tone of the meeting. We find that, as with the earlier meeting, the claimant repeatedly drew the discussion back to the question of working from home. Ms Wagner and Mr Daly for the majority of the meeting carefully and thoroughly worked through the stress risk assessment questions, and discussed various adjustments and strategies to support the claimant, such as managing his workload and giving him time to focus on familiarising himself with all the updated advice and procedures before recommencing visits. At times the discussion became heated and the tone impatient. This is apparent from the fact that all three individuals spoke over each other on several occasions. There is also a sense that at times Ms Wagner and Mr Daly are seeking to ‘shut down’ or ‘cut off’ any further discussion of the claimant working from home. Again, the context of this is significant and we return to this below. Mr Daly at times uses a very firm tone when dealing with the claimant.

[84]Turning to the specific words alleged:

[85]Mr Daly did state that the claimant was using ‘buzz words’ (1750) (issue 2.1.1.). Following a discussion regarding the claimant’s request to work from home for a period of time at the start of the working day, and whether he was able to come to the Ossett station or not, Ms Wagner states ‘for me this has to be serious consideration for you, looking at your role and whether you can fulfil it.’ The claimant states ‘Of course I can fulfil it, but what you’re saying there you’re discriminating against the disabled... you are’. The three individuals then speak over each other slightly but Mr Daly can be heard stating ‘you’re using buzz words there Martin.’

[86]The conversation continues in a similar vein, developing from Ms Wagner’s comment about whether the claimant can fulfil his role. The claimant states ‘I’ve got a disability and I’ve just said I’ve got...’ Ms Wagner cuts in and states ‘You don’t, you can’t hide behind that.’ (1750)(issue 2.1.2.) Before she can finish, the claimant states ‘I can’t hide behind me disability?’ Ms Wagner stated in oral evidence that she was going to go on to say, ‘you can’t hide behind that phrase.’

[87]Issues 2.1.3., 2,1,5, and 2.1.6. refer to an exchange slightly earlier in the conversation, at 1743-1744. Following a discussion regarding hybrid working, and whether this was a reasonable adjustment or not, Mr Daly states: ‘[a/your] disability doesn’t stop you from coming to work at nine o’clock in the morning and finishing at 5.’ In the list of issues, this comment is reported as ‘Your disability.’ The transcript records this as ‘A disability’. The recording is not clear enough to distinguish whether Mr Daly said ‘a’ or ‘your’.

[88]The claimant then states that in the meeting on 7 July 2023 he asked for a couple of hours working from home at the start or end of the day, but that Ms Cockburn said it would be more reasonable to take a full day working grom home. The claimant states that he said in that meeting that he would put his suggestion in writing (which is a correct reflection of the outcome of that meeting).

[89]Mr Daly then states: ‘You can put it in writing but what I’m telling you now is to save you some time, you seem to spend a lot more time looking for loopholes out of what the role is. It’s not a loophole because you know, when you say reasonable adjustments and the Equality Act, the Equality Act doesn’t give you special dispensation to have your role changed […] I can tell by your demeanour and the way you’re sat and your face today that you’ve got an agenda already going back to work, and I don’t understand why.’

[90]Mr Daly then goes on to make clear that he would not approve any request for hybrid working or time spent working from home for the claimant (e.g. 1748)

[91]The discussion moves on to focus on the remaining questions on the stress risk assessment before Mr Sanders returned to the issue of home working again at around one hour 15 minutes into the meeting. At this point Mr Daly states: ‘Martin take ownership for once in your life, right? You’ve brought up the hybrid working and the agenda that you’re trying to get in the background… you have some agenda because you are trying to change your working arrangement. That’s your agenda […] whether you’ve got a disability or not, that’s your agenda.’

[92]Towards the final minutes of the meeting, around one hour 34 minutes, again discussing hybrid or home working, Mr Daly states ‘If something comes to light which suggests that I have to give you a day off at home and then the organization make that decision, that’s what will happen.’ (1799). Mr Sanders picks up on Mr Daly’s terminology and states ‘It’s not a day off is it?’ Mr Daly responds ‘Well it’s a day working from home [unclear] this is where you need to have an adult conversation. You need to stop nitpicking on the way that the word is said right? I’m not saying the day off works out as a day’s leave. I’m saying a day off. You want a day off here; you can do the job at home right? So this is why it’s really frustrating Martin because you know, I have to be so careful with the language I use otherwise you’re gonna go speak to your union rep.’ (issue 2.1.4).

[93]At the conclusion of the meeting, there is a discussion about the RAP. The claimant says that he has booked the access to work assessment, and Ms Wagner and Mr Daly are apparently not aware that this has been done. Ms Wagner and Mr Daly are clear with the claimant that the RAP is to continue pending the access to work assessment. Mr Daly agreed to speak with Ms Cockburn after the meeting to discuss the RAP, including how the situation was left regarding any element of working from home following the 7 July 2023 meeting.

[94]On 13 October 2023 Mr Daly met with Debbie Richardson (human resources business partner) and Ms Cockburn to discuss the claimant’s working pattern and the RAP (339). He sought to confirm with Ms Cockburn whether she had approved a reasonable adjustment for another individual involving working from home (as the claimant had said), and whether she had suggested this might be open to the claimant. Ms Cockburn stated that she had not, although there was an individual many years ago in another district who trialled an element of home working as a reasonable adjustment. It was clear that Ms Cockburn did not consider that she had made any decisions regarding home working and that this would be a matter for Mr Daly as the claimant’s line manager.

[95]After the meeting, Mr Daly contacted the claimant by telephone call to confirm that he did not consider that the request for home working was reasonable (340). It is therefore clear that by 13 October 2023 at the latest the decision had been made to refuse any element of working from home as a reasonable adjustment to the claimant’s role.

[96]The respondent’s case is that an element of working from home is not a reasonable adjustment to the claimant’s role. Ms Wagner and Ms Hirst spoke in oral evidence about the important benefits of working in the office for all staff, including the availability of formal and informal support from colleagues, the sharing of expertise, and improved communication. Ms Wagner also gave evidence that this was particularly important to allow her to support the claimant with time management, given his particular difficulties. The respondent also points to the reasons set out in the 2021 assessment of the claimant’s role as not suitable for hybrid working (see above). Further, the respondent highlights that elements of the claimant’s job description require attendance in the office, for example establishing and maintaining productive working relationships with colleagues and supporting the communication of new working practices to colleagues (153-154).

[97]On 23 October 2023 Mr Sanders raised a grievance, arising from this meeting (355-358). The grievance alleges harassment during the meeting of 11 October 2023. He seeks an apology for this, as well as: ‘reasonable adjustments with regards to some working from home, to help with planning, organizing my workload and minimizing stress and anxiety’ and to ‘Allow me to use the flexi time for what its designed for and not robustly managing me in to an uncomfortable 0900-1700 hrs office culture when no one else is required to do that.’

[98]In respect of home working, he states in the grievance that failure to provide reasonable adjustments has put him at a substantial disadvantage because ‘This has caused childcare issues, financial issues, disruption to family life and has caused me stress and anxiety.’

[99]The claimant also raises the meeting of 26 April 2023 with Mr Daly, and that following this meeting he was told to return to district office from the end of May. He states he was told he would be required to work from the office at 0900. He then states ‘I explained the impact of having to be in the office at 0900hrs this would have on my family. I explained I would have no childcare and notwithstanding the financial impact it would have as I would need to put him in breakfast club as his school times are 0845. I was told this wasn’t his problem and I am employed to work.’ The claimant then refers to being on a flexi contract and parent and carer support policies. He then goes on to discuss the Kade assessment and the subsequent meetings.

[100]On 24 October 2023 the claimant signed the RAP (100).

[101]On Monday 30 October 2023 an Access to Work assessment was carried out by Reed in Partnership (399-410). The claimant’s difficulties are briefly summarized at the beginning of the report (401) and reflect those in the Kade report. The report makes recommendations for specific auxiliary aids to be funded by Access to Work, namely: neurodiversity awareness training to provide guidance to the claimant’s line manager and colleagues, five hours of workplace coaching for the claimant himself, a co-coaching session for the claimant and his managers, a 3-year subscription for TextHelp Read and Write, half day technical training for this, Bose Noise cancelling Headphones and a 3 year Grammarly Premium Subscription (404-406).

[102]These recommendations for auxiliary aids were not acted on by the respondent before the claimant went on sick leave in November 2023. The respondent at the hearing did not put forward an explanation for this, other than Ms Cockburn stating in oral evidence that an authorisation letter was required, and that the claimant was absent from work for a large proportion of the next seven months (see further below). We note as well that it the report does not appear to have been provided by the claimant to his line management until November 2023.

[103]The report also contains the following narrative section (402): ‘Mr Sanders’ line manager, Donna, outlined after the assessment that she ensures Mr Sanders has additional time for reading, flexible deadlines, clear instructions, regular breaks, and a manageable workload. Mr Sanders has access to smaller officer spaces to work in at the fire station when required. However, Mr Sanders highlighted he can experience difficulties maintaining focus in the office, due to the occurrence of noise and visual distractions. It is recommended that Mr Sanders would benefit from working in a quieter zone/workplace/form home to compete his administrative work. This will help reduce distractions, increase his focus, and allow him to utilize the recommended software without any interference. Mr Sanders would benefit from being able to work his hours flexibly during the day. This would allow him to complete his administrative work at times when he is more productive. Mr Sanders would benefit from having an hour in the morning to plan his day and materials. Mr Sanders is sometimes required to complete his notes the day after his visits, but this can cause stress as he cannot always remember all the details due to his condition. Therefore he would benefit from enough administrative time at the end of this day to complete the notes from his visits to ensure his stress levels are managed. Working his administrative hours flexibly from home will allow him to organize his work, compete his work on the same day, and manage his stress levels.’

[104]Ms Wagner’s view when she subsequently considered this report was that the author had gone beyond her remit in recommending home working and flexibility in hours. Her view, and that of Ms Cockburn, was that a full assessment had been carried out in the Kade report, and the purpose of the Access to Work assessment was solely to assess what auxiliary aids could or should be provided from public funds.

[105]Ms Wagner also felt that the assessor was influenced by Mr Sanders in her report, and did not actively seek out Ms Wagner’s views. The assessor also observed that the office was quiet when she came in. We note the asessor’s expertise and qualifications are not recorded on the report and she is recorded simply as an ‘assessor’.

[106]On Tuesday 31 October 2023 a confrontation took place between Ms Wagner and Mr Sanders. We make no findings about what took place on this day, but subsequently there was an investigation and disciplinary proceedings against the claimant (see 412 onwards).

[107]Following this incident, Mr Sanders was on leave for the remainder of the week (423, 436).

[108]On Friday 3 November 2023 Ms Wagner raised a number of concerns regarding Mr Sanders to Area Manager Donegan (429-435). The same day, the claimant provided the Access to Work report to Human Resources and Toby May as part of his grievance process (428).

[109]On Monday 6 November 2023 (the day of the claimant’s return to work following four days’ leave), a meeting about the claimant’s grievance was held with Toby May (439). The claimant was allocated to the Castleford station again (423, 436)

[110]On 22 November 2023 the Access to Work report was sent to Mr Daly, at Mr Daly’s request (588).

[111]On Thursday 23 November and Friday 24 November the claimant was on sick leave (100). This continued until 3 June 2024.

[112]Whilst the claimant was on sick leave, on 1 December 2023 he was informed that he was under investigation for his conduct in the meetings on 7 July 2023, 11 October 2023, and the ‘heated argument’ on 31 October 2023 (479-480).

[113]On 7 December 2023 the claimant was informed that his grievance process was on hold pending the investigation into his own conduct (496).

[114]The claimant contacted ACAS to commence early conciliation on 8 December 2023. On 11 December 2023 he raised a grievance regarding the suspension of his earlier grievance (498).

[115]ACAS issued an early conciliation certificate on 19 January 2024 and this claim was presented on 19 February 2024.

[116]The claimant was provided with the outcome of his grievance on 21 February 2024. His complaints were not upheld (651). He appealed this decision on 3 May 2024 (498). The appeal was dismissed save for one point regarding the use of the term ‘self-diagnosed’ in relation to the claimant’s neurodiversity (846).

[117]The claimant returned to work on 3 June 2024. He was permanently re-allocated to be based at the Leeds station (Naomi Hirst witness statement para 12).

[118]In her oral evidence Ms Cockburn told us, and we accept, that on 4 June 2024 she actioned to the recommendations in the access to work report. She sent a ‘Grammarly’ link to the claimant. She also ordered a digital voice recorder. She contacted the claimant to confirm if he would accept alternative noise cancelling headphones as the model recommended was not available. The following day he confirmed his acceptance, and this was acted on.

[119]On 25 June 2024 Ms Hirst met with the claimant to discuss the RAP. He refused to sign the RAP on the basis that it still did not include any element of home working (witness statement paragraph 20). She was not challenged on this point and we accept her evidence.

[120]The disciplinary proceedings continued and the claimant was dismissed in the autumn of 2024. The decision to dismiss the claimant is the subject of separate proceedings.

Relevant law

[121]Section 20 Equality Act 2010 (EqA 2010) provides (in so far as relevant): ‘(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (4) […] (5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid. […]’

[122]Section 21 EqA 2010 provides (in so far as relevant): ‘(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person […].’

[123]Section 212 EqA 2010 provides that ‘substantial’ means ‘more than minor or trivial’.

[124]In a claim relating to the first requirement, the employee must clearly identify the provision, criterion or practice which it is asserted ought to have been adjusted, and the precise nature of the disadvantage it creates by comparison with a non-disabled person (see e.g. Secretary of State for Justice v Prospere EAT 0412/14, Griffiths v Secretary of State for Work and Pensions

2017 ICR 160

,CA).

[125]Where a number of adjustments, working in combination, are required to avoid the substantial disadvantage, a holistic approach should be adopted (Burke v The College of Law and another

[2012] EWCA Civ 37

). Reasonableness must be assessed objectively, taking into account both the claimant’s and the employer’s points of view (Smith v Churchills Stairlifts plc

[2006] ICR 524

, CA and Birmingham City Council v Lawrence EAT 0182/2016). It is therefore open to the Tribunal to conclude that a different adjustment to the one proposed by the claimant would have been reasonable (Garrett v LIDL Ltd EAT 0541/2008). The focus must be on the practical result of the measures taken, not the employer’s processes leading to the making or failure to make a reasonable adjustment (Owen v Amec Foster Wheeler Energy Ltd and Anor

[2019] ICR 1593

, CA).

[126]Section 26 EqA 2010 provides (in so far as relevant): ‘(1) A person(a) (A) harasses another

(b) (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. […] (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case;

(c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are— […] [...]

[127]The test in section 27(4) has both subjective and objective elements. In determining whether conduct has either the purpose or effect referred to in section 27(1)(b), the Tribunal must consider both the claimant’s perception and the reasonableness of that perception (see Pemberton v Inwood

2018 ICR 1291

, CA): ‘‘In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances — sub-section (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant’s dignity or creating an adverse environment for him or her, then it should not be found to have done so’

[128]This test has been considered in subsequent authorities. The EAT has applied it to mean that whether it was reasonable for the conduct to have that effect is determinative, and held that it is difficult to conceive of a situation where conduct could have the proscribed effect even though it was not reasonable for it to have that effect (Ahmed v Cardinal Hume Academies EAT 0196/18). Conclusions Failure to make reasonable adjustments 1.1. The respondent accepts that the claimant was disabled for the purposes of the Equality Act 2010 by his: 1.1.1. Dyslexia; 1.1.2. Dyspraxia; and/or 1.1.3. Attention deficit disorder.

Conclusions

[129]We also accept and find that the claimant was so disabled. 1.2. The respondent accepts that it knew that the claimant had the disability at the relevant time.

[130]The respondent accepts that it knew the claimant was disabled from receipt of the Kade report. We also so find. 1.3. A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs: 1.3.1. A practice of requiring employees to complete office based and administrative tasks from the office;

[131]The respondent accepted that it had this PCP. We also find and conclude that it had this PCP. 1.3.2. A practice of requiring employees to work from 9am to 5pm without flexibility in those hours;

[132]The respondent denied that it had this PCP. We agree. For the reasons given above, we find that the respondent had a PCP of requiring employees in the claimant’s role to work a standard day of 9am to 5pm, with flexibility to start or finish early or late if the role demanded, within a maximum ‘bandwidth’ of 7.00am to 7.00pm 1.3.3. A practice of not allowing a set period of time for preparation of community-based work and time to write up notes upon conclusion of the working day.

[133]The respondent denies that it had this PCP. We agree. For the reasons given above, we find that the respondent’s practice was to permit employees in the claimant’s role flexibility to plan their work including preparation of community-based work and time to write up notes upon conclusion of the working day. There was therefore no PCP which prevented employees from structuring their day to include a set period of time for preparation and writing up of notes. 1.4. Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that: 1.4.1. He was often overwhelmed, struggled to concentrate and prepare for his day in a noisy environment;

[134]The respondent denied this disadvantage on the basis that the office was not a noisy environment.

[135]We accept that there would have been some background noise in the office environment, which the claimant was required to work in by virtue of the PCP identified above at 1.3.1. We accept that this put him at a substantial disadvantage in that he could be overwhelmed and struggle to concentrate and prepare for his day, as set out in the Kade report. 1.4.2. He required extra time to complete preparation in advance of community work and extra time to write up his notes because his disability caused him to struggle to manage his time and the pressure of working under time constraints would often cause him to be flustered.

[136]We found that the respondent did not have the PCPs as set out at 1.3.2. and 1.3.3. and therefore the claimant was not put at this disadvantage. The PCP at 1.3.1. would not have put him at this disadvantage as it relates to location not time management or time constraints. 1.5. Did the claimant lack the following auxiliary aids: 1.5.1. Noise cancelling headphones; 1.5.2. Subscription to Grammarly; 1.5.3. Coloured overlays and screen covers/masking; 1.5.4. Digital voice recorder; 1.5.5. TextHelp Read and Write software; 1.5.6. Having information read aloud during reading-based tasks; 1.5.7. Ensuring any new information was set out in clear and understandable manner.

[137]As set out above, we find that the claimant was provided with:(i) Noise cancelling headphones shortly after his return to work on 4 June 2024;

(ii) Premium Subscription to Grammarly: this was available from shortly after his return to work on 4 June 2024;

(iii) Coloured overlays and screen covers / masking from shortly after 11 May 2023;

(iv) Digital Voice recorder: shortly after his return to work on 4 June 2024. Prior to this the claimant had the facility to record conversations using either his mobile phone or his work tablet;

(v) TextHelp Read and Write software from shortly after 11 May 2023;

(vi) Having information read aloud during reading-based tasks from shortly after 7 July 2023;

(vii) Ensuring any new information was set out in a clear and understandable manner from the RAP meeting on 7 July 2023. 1.6. If so, did the lack of that/those auxiliary aid(s) put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that such aids would have assisted the claimant’s concentration, time management, reading and writing?

[138]The respondent’s position is that the lack of those auxiliary aids did not put the claimant at a substantial disadvantage because during the period which they were not provided he was either(a) absent from work;

(b) working reduced hours; or

[139]We find that lack of the auxiliary aids specified, save for coloured overlays, did put the claimant at a substantial disadvantage. They were recommended in the Kade report and the Access to Work report, both of which set out the disadvantage which the claimant suffered without them.

[140]The claimant himself accepts that the lack of coloured overlays did not put him at a substantial disadvantage, as he found them to be of no help.

[141]The respondent’s submissions regarding the claimant’s absence from work or reduced hours, and provision of alternative auxiliary aids, we consider goes to the question of whether the respondent took reasonable steps to provide the auxiliary aid, rather than whether the lack of the auxiliary aid caused the claimant substantial disadvantage, and we return to this point below. 1.7. Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?

[142]The disadvantages which we have found were set out in the Kade report and subsequently the Access to Work report and therefore the respondent was aware of the disadvantage. 1.8. What steps could have been taken to avoid the disadvantage? The claimant suggests: 1.8.1. To allow the claimant to work from home with flexibility in hours;

[143]We separate these into two adjustments.

[144]Firstly, as we have not found that there was a PCP of any rigidity in hours which put the claimant at a disadvantage, the issue of flexibility in hours falls away.

[145]We have considered whether allowing the claimant to work from home would have avoided the disadvantage incurred by requiring the claimant to work from the office. We do not consider that it would. The office was not a significantly noisy environment and the claimant had access to quieter rooms to work in as and when required. There is limited evidence as to how quiet and distraction-free the claimant’s home environment would have been, particularly at either end of the working day.

[146]The Kade report does not recommend working from home. This is a thorough assessment carried out by a qualified psychologist. The Access to work report does suggest some element of home working, but the qualifications of the author are unclear and we agree that she has made recommendations beyond her remit. Her report does not explain why working from home would, of the options she proposes (‘working in a quieter zone/workplace/form home to compete his administrative work’) would have best addressed the disadvantage. We therefore prefer the Kade report. 1.8.2. To allow the claimant sufficient time at the beginning of the day to prepare for any community-based work and ample time to write up his notes at the end of the day;

[147]As we have found that there was no PCP which prevented this, this proposed adjustment falls away from consideration. 1.8.3. To allow the claimant additional time to read, retain and produce complex information;

[148]As above, because there was no PCP of rigidity of timing which might call for this adjustment it falls away from consideration. 1.8.4. To provide the auxiliary aids listed.

[149]As set out above, the lack of auxiliary aids put the claimant at a disadvantage, therefore the provision of auxiliary aids would have avoided the disadvantage. 1.9. Was it reasonable for the respondent to have to take those steps and when? 1.10. Did the respondent fail to take those steps?

[150]If we are wrong, and an element of working from home would have alleviated the substantial disadvantage to the claimant from the requirement to work in the office, we are satisfied that it was not a reasonable adjustment in any event. We accept that there were quiet spaces available for the claimant and the reasonable adjustment of making these available for the claimant (which they were), alongside the provision of noise cancelling headphones from June 2024, would have fully alleviated the substantial disadvantage from the background noise levels. We also accept that working from home would have meant that the claimant missed out on the important benefits of working from the office in terms of being able to access support from colleagues, including his manager being aware of the claimant’s stress levels, and improved opportunities for communication with his managers and colleagues, which further indicates that home working was not a reasonable adjustment. Finally, we accept that his role required working from the office, as set out in the 2021 hybrid working review and his job description.

[151]We also remind ourselves that where there are reasonable adjustments, they should be considered as a whole. The respondent provided adjustments including careful monitoring of the claimant’s workload, time for reflection, and clear guidelines and structure on deadlines. The respondent carefully considered what adjustments were called for, and implemented a number of them using a phased and monitored approach as recommended in the Kade report.

[152]Considering then whether the respondent failed to take reasonable steps to provide the auxiliary aids listed:

[153]We accept that the TextHelp software was available from 18 May 2023.

[154]We do not consider that the period from the Kade report being sent on 18 May 2023 until 7 July 2023 for the RAP meeting to be arranged was unreasonable. The auxiliary aid of having information read aloud and ensuring information was set out in a clear manner was available from that point.

[155]It was reasonable that, in the claimant’s absence, no further action in respect of the auxiliary aids of headphones, full Grammarly and TextHelp software and a digital voice recorder was taken from after that meeting until the claimant’s return to work on 11 October 2023.

[156]There was then a delay from 11 October 2023 until 30 October 2023 awaiting the Access to work assessment. This was reasonable.

[157]The respondent has not put forward an active reason for why the Grammarly, voice recorder and noise cancelling headphones were not ordered before the claimant was absent on sick leave from 27 November 2023. The respondent however submits that in light of the claimant’s absences from work between 30 October 2023 and 27 November 2023, it was reasonable that they were not ordered.

[158]Looking at the chronology, the Access to Work report was not provided to the claimant’s line manager until 22 November 2023. It had been shared with the HR department on 3 November 2023, but in the context of the claimant’s grievance appeal rather than any request from the claimant to action the provision of the aids it specified. From Monday 30 October until Monday 27 November the claimant was at work for 13 days. The Access to Work report was provided to his line manager on the last day the claimant was at work before he went on leave until June 2024. During some of those 13 days, the claimant was on reduced duties and a phased return to work, as discussed in the meeting on 11 October 2023. He was then reallocated to Castleford following the exchange on 31 October 2023. A substantial part of one of those days was allocated to his grievance hearing.

[159]In that context, we do not consider that it was unreasonable that the aids specified were not ordered during this period of time.

[160]The remaining auxiliary aids were available within a reasonable period of the claimant’s return to work in June 2024.

[161]Therefore, the respondent did not fail to take reasonable steps to provide the auxiliary aids identified.

[162]The claim for a failure to make reasonable adjustments fails and is dismissed. 2. Harassment related to disability (Equality Act 2010 section 26) 2.1. Did the respondent do the following things in a meeting with Donna Wagner and Paul Daly on 11 October 2023: 2.1.1. State that the claimant was using ‘buzz words’ in relation to his

[163]We find that Mr Daly did state the claimant was using ‘buzz words’ in relation to his disability. The context is as set out above, that Mr Daly stated the claimant was using the ‘buzz words’ of ‘you are discriminating against the disabled’. This was in the context of a discussion about whether the claimant was able to fulfil his role. 2.1.2. State that the claimant was ‘hiding’ behind his disability’;

[164]We find that Ms Wagner stated, ‘you can’t hide behind that’ in response to the claimant saying, ‘I’ve got a disability’. Again, this was in the context of the claimant being able to fulfil his role. 2.1.3. State that the claimant ‘clearly had an agenda’ regarding his

[165]Mr Daly stated that the claimant stated that the claimant ‘clearly had an agenda’ regarding his request to work from home as a reasonable adjustment. It is clear from the context of the conversation that the ‘agenda’ referred to is working from home. 2.1.4. State that the claimant was ‘nit picking’ regarding the reasonable adjustments for his disability;

[166]Mr Daly stated that the claimant was nitpicking regarding his (Mr Daly’s) use of the terms ‘a day off’ or ‘a day at home’ in the context of the discussion around whether the claimant’s role was suitable for hybrid working or an element of working from home. 2.1.5. State ‘your disability doesn’t stop you from coming to work 9 to 5’ when discussing flexible working;

[167]Mr Daly either stated ‘your’ or ‘a’ ‘disability doesn’t stop you from coming to work 9 to 5.’ We are unable to determine whether he stated ‘your’ or ‘a’ and we do not consider it is necessary for us to resolve this issue. 2.1.6. State that the claimant was ‘looking for loop holes’ when discussing his disability; and

[168]Mr Daly did state that the claimant was ‘looking for loop holes.’ As set out above, this forms part of the conversation about whether the claimant had an ‘agenda’ of wanting to work from home and the implication of Mr Daly’s words in context is that the claimant was seeking to use reasonable adjustments under the Equality Act to pursue this agenda. 2.1.7. Conduct a meeting with the claimant using unpleasant language and tone.

[169]Having listened to the entirety of the recording (around one hour 40 minutes), we do not consider that this is a fair characterization of the meeting. Mr Daly and Ms Wagner could in our view have managed the discussion more effectively. A lot of the meeting is spent discussing working from home. They attempted to close down this conversation using firm tone and language but they could have handled this differently. Something in the order of half the meeting was spent discussing this issue, at the claimant’s insistence, when the claimant had agreed in July 2023 to put in writing what home working he sought and why. The other part, roughly half, of the meeting is a measured discussion going through the stress risk assessment, carried out in a patient and measured manner. 2.2. If so, was that unwanted conduct?

[170]We accept that the words used were unwanted by the claimant.

[171]It was put to the claimant that he had deliberately set out to provoke a reaction from Mr Daly and Ms Wagner and therefore had sought out this conduct, in order to covertly record it. We do not accept this. 2.3. Did it relate to disability?

[172]In the context, we find that the comments at 2.1.1., 2.1.2., 2.1.3., 2.1.5., and 2.1.6. all related to disability.

[173]The comment at 2.1.4. (‘nitpicking’) was not related to disability. It was related to the language used by Mr Daly himself. 2.4. Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

[174]We do not find that Mr Daly or Ms Wagner’s purpose was to violate the claimant’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for him.

[175]Ms Wagner throughout the meeting on 11 October 2023 tried very hard to focus on the stress risk assessment and discuss the adjustments which could readily be put in place for the claimant. When she made the comment that ‘you can’t hide behind that’, we are satisfied that she was attempting to have an open and purposeful conversation with the claimant, and not allow him to limit or forestall any constructive discussion by him simply referring back to his disability.

[176]Mr Daly was firm with the claimant on a number of occasions throughout the meeting. We accept however that this was not with the purpose of intimidating the claimant, but rather with the purpose of focussing the discussion on the stress risk assessment, which was the reason it was being held, and necessary for the claimant’s return to the workplace. 2.5. If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[177]We accept that the claimant perceived the comments as unwanted and unpleasant. We accept that he perceived that Mr Daly and Ms Wagner were unreceptive to any discussion about working from home, and that they were trying to shut down any discussion about that. We also accept that he will have felt somewhat vulnerable on that day, with it being his first day back at work after a period of time off to recover from major surgery.

[178]The words used, looked at in isolation, could appear likely to have the proscribed effect. However, we have carefully considered the context in this case, and the meeting itself, and whether it was reasonable for them to have that effect.

[179]The other circumstances of the case include the proactive and positive discussion of adjustments for the claimant, both in the meeting on 7 July 2023 and 11 October 2023. They also include, significantly, the claimant’s repeated requests to work from home. He had raised a request to work from home in 2021. This was refused. When he was directed to return to the office following the conclusion of investigations on 26 April 2023, he was resistant to this and raised objections, citing the impact it would have on his domestic arrangements during that meeting. Home working was not recommended in the Kade report but despite this, he raised home working again repeatedly during the RAP meeting on 7 July 2023. In that meeting he was told, and he was aware of this, to put his reasons for requesting working from home in writing for Ms Wagner to consider further. Understandably, due to his absence, he had not done this by 11 October 2023. Rather than saying that he would do that, he again repeatedly brings the conversation on that date back to home working, at the expense of meaningful discussion about the stress risk assessment and the other adjustments which had been proposed.

[180]In those circumstances, he could not have been taken by surprise that his proposals were met with firm responses from Ms Wagner and Mr Daly.

[181]We are supported in this conclusion by the fact that the grievance raised by the claimant following the meeting relates predominantly to him working from home. In that grievance the claimant raises, as he had before, that he seeks home working not only as a reasonable adjustment but also cites meeting childcare requirements. It is not unsurprising that during the meeting on 11 October 2023 his line managers were confused and frustrated by the position he was taking, and the reasons for it.

[182]In conclusion, we find that it was not reasonable in that context, for the reasons set out, for the words used to have had the harassing effect and we do not so find. .

[183]Therefore, the respondent did not harass the claimant and the claim for harassment is dismissed.