Miss L McCarthy v Kirklees Metropolitan Council: 1803977/2024

EMPLOYMENT TRIBUNALS

Case No 1803977/2024

Between

Miss L McCarthyClaimant

Kirklees Metropolitan CouncilRespondent

Before

Employment Judge D N Jones

Date 27 May 2026

[1]These are claims for disability discrimination in the form of a breach of the duty to make reasonable adjustments, direct discrimination, harassment and discrimination arising from disability. Evidence

[2]The Tribunal heard evidence from the claimant. The respondent called Ms Victoria Butterworth, formerly the Team Manager of REAL Employment in the Adult Social Care Department, Ms Annabel Pickering, Service Manager, Ms Angela Proctor, Deputy Manager of the REAL Employment Team, Ms Joanne Harrison, Senior HR Business Partner, Mr Saf Bhuta, Service Director (Service Commissioning, Partnerships and Provider Services) and Ms Joanna Long, Deputy Team Manager of REAL Employment Services. Case No. 1803977/2024 2

[3]The parties produced a bundle of documents running to 1268 pages. Issues

[4]The issues were identified by Employment Judge Jaleel at a case management hearing on 8 August 2025. Direct disability discrimination4.1 Did the respondent:4.1.1 Fail to consider or review the information that she provided about medical cannabis in around October or November 2023 to Angela Proctor and therefore unnecessarily delay her return to work;

4.1.2 Require the claimant to complete a further enhanced DBS check following a safeguarding concern being reported to the respondent by the NHS;

4.1.3 Move the claimant to a different role on the 3rd April 2024

4.1.4 Require the claimant to complete a risk assessment before she could return to work/implementation of the risk assessment;

4.1.5 Tell the claimant in April 2024 that she could not drive as part of her duties for the respondent?

4.2 Was any a detriment?

4.3 If so, did the respondent act in that way because the of the protected characteristic of disability? Did he treat the claimant less favourably than he treated or would have treated others because of the protected characteristic? Breach of the Duty to make adjustments

4.4 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?

4.5 Did the respondent have a PCP of:4.5.1 Not allowing the claimant to return to work from 6th November 2023 onwards because of her prescription for medical cannabis.

4.5.2 The respondent’s attendance management policy;

4.5.3 The requirement to complete an additional enhanced DBS check

4.6 Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that:4.6.1 She was not allowed to return to work despite being declared medically fit to return, first by her own doctors and then by the respondent’s EHC;

4.6.2 The claimant says she felt humiliated and upset at being asked to attend the attendance management meeting in December 2023 since the reason for her absence had been the respondent not allowing her to return. Case No. 1803977/2024 3

4.6.3 The claimant says that having to complete a further DBS check was also upsetting as she felt that she was being unfairly stigmatised because of her condition and prescription. The requirement to complete the further DBS check also delayed her return to work.

4.7 Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?

4.8 Would allowing the claimant to return to work in October or November 2023, choosing not to hold a formal attendance management meeting or not to require a further DBS check have had a real prospect of avoiding the disadvantage?

4.9 Would it have been reasonable for the respondent to have to take those steps? Unfavourable treatment because of something arising in consequence of disability (Equality Act 2010 section 15)

4.10 Did the respondent treat the claimant unfavourably by: 4.10.1 The respondent’s EHC stating that the claimant was not fit to ret

[5]The claimant commenced employment with the respondent on 19 July 2021 as a Job Coach within the REAL Employment service in the department of adult social Case No. 1803977/2024 5 care. Her role involved supporting vulnerable adults into employment, including work with Project SEARCH, for which employees had to obtain an enhanced DBS check.

[6]In January 2021, the claimant was diagnosed with Emotionally Unstable Personality Disorder (also referred to as Borderline Personality Disorder) (EUPD). That affected her emotional regulation, stress tolerance and overall day to day functioning. This impacted on social interaction and maintaining relationships. She was placed on a waiting list for Dialectical Behavioural Therapy (DBT) and prescribed medication by her GP. The respondent was aware of this diagnosis during the claimant’s employment. The claimant also had a history of anxiety and depression, which she later clarified were symptoms associated with her primary diagnosis.

[7]In mid-August 2023, the claimant informed her then line manager, Ms Butterworth, that her mental health was deteriorating. She disclosed that she had been using illegal substances. A referral was made to the respondent’s Employee Health Care service (EHC) and other support measures were discussed.

[8]The claimant’s mental health continued to decline and on 15 September 2023, the day of the interns’ graduation day, she had a crisis point, felt suicidal and the mental health crisis team was called. The claimant took time off sick. On 25 September 2023 the claimant attended the Accident and Emergency Department, in crisis, and was referred to the mental health liaison team. She was admitted to a psychiatric hospital. She discharged herself on 28 September 2023. She was absent from work and provided fit notes referring to her mental health condition.

[9]On 9 October 2023, the claimant had a telephone appointment with EHC. Ms Blake, senior occupational health advisor, concluded that she was not fit to return to work. She reported that the claimant had stopped taking the medication prescribed by her GP because of symptoms of fatigue and low mood. She had a good support system from her family, was due to see a psychiatrist on 17 October 2023 and was on a waiting list for DBT. A review appointment was arranged for early November.

[10]On 21 October 2023, the claimant had a consultation with a private medical clinic. The claimant later sent to Ms Proctor a letter which Dr Shaya, Rehabilitation Medicine Consultant, wrote to his colleagues following the appointment. He stated he was likely to prescribe medical cannabis in the form of flower to vape and gummy for the purpose of treating anxiety and improvement in mood, subject to a multidisciplinary team meeting. In early November 2023, the claimant sent emails to her manager attaching that letter, information about medical cannabis, including general guidance and external materials. Case No. 1803977/2024 6

[11]On 6 November 2023, the claimant attended a further EHC appointment with Ms Blake. The resulting report again stated that she was not fit for work. It stated the claimant had been assessed by the mental health team on 23 October 2023. They had felt the DBT was not required but advised a monthly review with a mental health nurse. The claimant had declined that as she did not think it was appropriate and would find it difficult to build a relationship with that nurse. On 24 October 2023 a meeting with a consultant had not gone well. The claimant told us this had then led to her lodging a complaint against the consultant. The occupational health advisor suggested to the claimant that she should seek advice from her GP, but she declined that recommendation and would not give consent to seek further guidance from her GP. A further review with an EHC physician was arranged.

[12]The claimant was assessed by an EHC physician, Dr Ahmed, on 15 November 2023. In his report dated 21 November 2023, he concluded that she was fit to return to work with advice. With respect to a question about whether and what adjustments might assist, he said her condition was variable and intermittent flare ups could be expected in future which might affect her attendance on occasions. Reasonable adjustments would be to arrange some flexibility for her sickness targets (in view of her sickness records linked to mental health) and provide flexibility to attend her medical appointments as needed. He wrote that she was not on any active treatments and made no reference to the prescribed cannabis. In response to a question about whether there was any action the claimant could take to help reduce the frequency or length of absences, he stated the claimant should stay compliant with the advice given to her by her treating clinicians. There was no reference to the concern the previous advisor had expressed about the claimant disengaging from treatment from the NHS.

[13]Ms Pickering arranged to meet with the claimant to discuss the EHC reports and her return to work, by letter of 22 November 2023. Her fit to work note was to expire on 26 November 2023 and the claimant asked her GP to renew it, as suggested by Ms Proctor. The GP issued a fit to work note on 24 November 2023 certifying that the claimant had EUPD and was not fit to work until 9 December 2023.

[14]On 22 November 2023 Ms Proctor received a PIPOT (person in a position of trust) report. Sharing of information by agencies arises in circumstances in which it is thought information held by one might assist others in safeguarding vulnerable persons. Ms Proctor duly made enquiries and the matter was handed over to Ms Pickering. The email summary forwarded to her by the police stated that the NHS had reported to them aggressive and threatening behaviour of the claimant with staff, including a consultant psychiatrist, in October 2023. The claimant later made a complaint about the doctor. The police had categorised this as ‘public order offence only’ and taken no further action, noting that the claimant’s mental health was not good and was affected during the session. The report also dealt with other contact with the police. It concerned a verbal Case No. 1803977/2024 7 domestic violence incident in January 2023 when the claimant had threatened to hurt herself and no threats had been made to others and two other domestic violence reports in January 2023 and April 2023, the first which was not found substantiated and the second concerned a low level argument for which the police had only been contacted to retrieve some shoes. The author of the report commented, “I have noted that the offences are not against vulnerable adults however they have demonstrated a level of risk to others due to an indication her current mental health is affecting her. As a result of this there could be a risk to those that she is employed to work with and care for if she was to deal with challenging behaviours or extremely stressful situations”.

[15]The attendance management meeting took place on 30 November 2023 with the claimant and Ms Pickering. Ms Harrison of HR, and Mr Campbell-Skelling, Unison representative, were present. Ms Pickering informed the claimant about the subject matter in the PIPOT report. She discussed the claimant’s use of medical cannabis and her role working with vulnerable adults. It was agreed that the claimant would undertake a further enhanced DBS check, and that further occupational health advice would be sought. Ms Pickering thought the claimant’s presentation in the meeting was a concern because of the extent of the mood changes from being agitated and upset and at other times very calm and quiet.

[16]On 11 December 2023 the claimant attended work because her fit to work note had not been renewed and she was keen to return. The claimant’s managers had concerns which are summarised in a medical suspension assessment, namely “Unknown presentation. Concerns in relation to conflicting Employee Healthcare reports dated 6 & 15 Nov 23, - the unknowns around the prescription of medical cannabis and guidance needed around driving - Information received from PIPOT regarding threats of harm to herself and others - Potential side-affects from abstinence of Cocaine”. Mr Bhuta took the decision to suspend the claimant because he believed it was necessary to safeguard vulnerable service users and the claimant’s well-being, pending the outcome of enquiries with respect to these matters. He summarised his decision in a letter to the claimant dated 11 December 2023. It explained that it was not disciplinary action but was pending the gathering of information from medical professionals in order to support her return.

[17]The claimant attended a further EHC appointment on 19 December 2023. The report of Ms Booth, occupational health practitioner, which was written on 11 January 2024, confirmed that the claimant was fit to return to work from a mental health perspective. With respect to a question about the use of medical cannabis, she noted that the role required the claimant to work with young people with additional needs, liaise with partners and local businesses, and drive around the district. She wrote that cannabis offered a range of medicinal benefits, but its psychoactive effects were known to pose a risk to a user’s ability to drive safely. She stated, “The fact a product is prescribed does not imply these risks are different to those of illicit cannabis. The advantage to the user of prescribed Case No. 1803977/2024 8 cannabis over illicit differs primarily in the reliability of the levels of active ingredients. Neurocognitive impairment can develop following absorption of prescribed cannabis and this could result in difficulty articulating and processing information which can affect attention, manual dexterity, coordination and reaction time. Impairment can last between a few minutes to around four hours after absorption of cannabis. Long term, regular use of cannabis has been found to be associated with mild to moderate loss in areas such as cognition, executive functioning, learning, memory and decision making and can be considered as persistent (meaning occurring when the user had not recently taken cannabis). I am unable to objectively measure the extent to which Lucy is affected by the THC content of the cannabis she is being prescribed, and therefore are [sic] unable to comment on whether or not she can provide a safe service, including driving, while using medical cannabis”.

[18]Between January and March 2024, correspondence and discussions took place between the parties concerning a return to work, the impact of the medication, and workplace safety.18.1 The claimant wrote on 26 January 2024 and said there had been no catch-up meetings and asked why no meeting had been arranged to discuss the EHC report. Ms Proctor replied to say she had tried to contact the claimant on a number of occasions unsuccessfully and asked if her number had changed. She stated Ms Pickering had been away. The claimant confirmed that she had a temporary issue with her phone and could not receive incoming calls, only texts and WhatsApp calls.

18.2 A DBS certificate dated 23 January 2024 stated there were no recorded convictions, cautions or other relevant information. The claimant sent this to Ms Proctor and Ms Pickering on 29 January 2024.

18.3 Ms Pickering sent an email on 30 January 2024 to say it had taken longer than planned and she had been unwell. She wrote inviting the claimant to a formal attendance management meeting on 2 February 2024. She stated they would consider whether a return to work could be supported with adjustments. The claimant informed Ms Pickering she had been advised by UNISON not to attend the meeting or any further meetings prior to their legal team reviewing the case.

18.4 Ms Pickering corresponded with the union representative and managed to arrange a meeting when the claimant was available on 29 February 2024. On 26 February 2024 the claimant’s union representative wrote to say he and the claimant agreed that it would be distressing to go over the same ground, having considered the issues of discussion, that the claimant was extremely upset about having to submit another DBS and supply information about her condition and the prescribed cannabis.

18.5 A meeting was arranged for 19 March 2024, after Ms Pickering had written again, but on that day the claimant’s union representative could not attend and the meeting was postponed and rearranged to 27 March 2024. A draft risk assessment and proposed return-to-work documentation were prepared and shared with the claimant prior to the meeting. Case No. 1803977/2024 9

[19]At the meeting on 27 March 2024 with Ms Pickering and Ms Harrison of HR, the claimant was accompanied by her union representatives. A phased return to work was agreed. It was proposed that the claimant would initially work from a different office location within the same service, would not undertake driving duties pending clarification, and would be subject to certain wellbeing and risk-management measures. One of the union representatives objected to the risk assessment, and said, incorrectly and inaccurately, that it described the clamant as dangerous. The draft risk assessment was not completed. Being pragmatic, Mrs Harrison and Ms Pickering prepared a wellness action plan instead and proposed that some of the suggestions from the draft risk assessment be put in that.

[20]The claimant returned to work on 3 April 2024. She met Ms Long and discussed what was planned for the coming days as well as a well-being action plan. The claimant attended work on 5 April 2024, having been unwell on 4th. There were some further emails the following week, on 9 April 2024, in which the claimant expressed her concerns about not doing her job at Project SEARCH and she had not been well because of low mood.

[21]The claimant took further sick leave and providing fit notes for various conditions including headaches, ENT issues, dental pain, and injuries following a fall. The claimant’s entitlement to occupational sick pay reduced in accordance with the respondent’s policy. The claimant’s employment ultimately terminated on 19 December 2024 on the grounds of ill-health. The Law Unlawful acts of discrimination

[22]By section 39(2) of the Equality Act 2010 (EqA): An employer (A) must not discriminate against an employee of A's (B)— (d) by subjecting B to any [other] detriment.

[23]In Ministry of Defence v Jeremiah

[1980] QB 87

, the Court of Appeal held that a detriment would exist if a reasonable worker would or might take the view that the treatment was in all the circumstances to his disadvantage. In Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

the House of Lords held that an unjustified sense of grievance would not amount to a detriment.

[24]By section 109(1) of the EqA, anything done in the course of a person’s employment must be treated as done by the employer and by section 109(3) it does not matter whether the thing is done with the approval or knowledge of the employer. Definitions of discrimination Case No. 1803977/2024 10

[25]Direct discrimination is defined in section 13 of the EqA: A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[26]By section 23 of the EqA, on a comparison of cases for the purpose of section 13, there must be no material difference between the circumstances relating to each case and the circumstances relating to a case for the purpose of section 13 shall include a person’s abilities if the protected characteristic is disability. The duty to make adjustments

[27]Section 20 of the EqA provides:(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.

[28]By paragraph 2 of Schedule 8 of the EqA, “A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know…that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement”. Harassment 28 By Section 26(1) of the EqA 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.

[29]By section 26(3), 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. Discrimination arising from disability 29 Section 15 of the Equality Act 2010 (EqA) provides: (1) A person (A) discriminates against a disabled person

(b) (B) if— Case No. 1803977/2024 11 (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[30]In Homer v Chief Constable of West Yorkshire

[2012] ICR 704

Lady Hale said, “To be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so”, para 22. “Part of the assessment of whether the criterion can be justified entails a comparison of the impact of that criterion upon the affected group as against the importance of the aim to the employer”, para 24. Lady Hale spoke of the impact of a criterion on the affected group because this was a case of indirect discrimination. In a section 15 case, like this one, the proportionality assessment balances the employer’s needs against the impact of the unfavourable treatment on the claimant. Burden of proof

[31]Section 136(1) of the EqA concerns the burden of proof: If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. Section 136(2) provides that does not apply if A shows that A did not contravene that provision.

[32]In Laing v Manchester City Council and another

[2006] ICR 1519

, the Employment Appeal Tribunal stated that if a tribunal was satisfied on the evidence that the respondent had provided a reason which, on a balance of probabilities, had eliminated any discriminatory cause, it was not necessary for the tribunal to trouble about whether the burden of proof had shifted in the first instance. In Hewage v Grampian Health Board

[2012] ICR 1054

, as later endorsed in Efobi v Royal Mail Group Limited

[2021] UKSC 33

, the Supreme Court stated that it was important not to make too much of the role of the burden of proof provisions: “They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other”, per Lord Hope in Hewage. Time Limits

[33]By section 123(1) of the EqA proceedings may not be brought after the end of the period of 3 months starting with the date of the act to which the complaint relates, or such other period as the employment tribunal thinks just and equitable.

[34]By section 123(2) of the EqA conduct extending over a period is to be treated as done at the end of the period. In Commissioner of Police for the Metropolis v Case No. 1803977/2024 12 Hendricks

(2003) ICR 503

, the Court of Appeal held that an act extending over a period was distinct from the succession of unconnected isolated specific acts that could constitute a state of affairs and was not restricted to a rule, policy or practice as identified in the earlier case law. Analysis and Conclusions

[35]It is necessary to address each allegation separately but we have had regard to the totality of the evidence on each. Any complaint must be considered against a background. Patterns may emerge from which inferences may be drawn about discriminatory motivations. These may be obscured if focussing on each complaint in isolation without standing back and looking at the whole.

[36]It is not necessary to address each issue which we have recited above from the preliminary hearing. That is because one or more issues may provide the answer to whether the complaint, or any defence to it, is made out, without the need then to address other questions which will have become academic. Direct disability discrimination Allegation 1 Failing to consider or review the information that the claimant provided about medical cannabis in around October or November 2023 to Angela Proctor and therefore unnecessarily delaying her return to work. The treatment and detriment is not established.

[37]The claimant had sent a copy of the letter from the Sapphire clinic to Ms Proctor on 2 November 2023. She also sent screenshots of extracts from DVLA guidance on medical cannabis and ‘employer guidance’. The provenance of the guidance is not clear. Ms Proctor sent this information to Ms Pickering and the EHC.

[38]We find that Ms Proctor and Ms Pickering had reviewed these materials.

[39]Following the raising of the PIPOT concern on 22 November 2022, Ms Pickering was troubled principally by the safeguarding issues to which they gave rise. That was discussed at the meeting on 30 November 2023. With respect to medical cannabis, Ms Pickering said she required more information and was seeking advice from EHC about how it might affect the claimant’s decisionmaking and work in general. In the report, following the consultation on 6 November 2023, Ms Blake advised that the claimant was not yet taking that medication but was self-medicating with daily cannabis use. In the medical report concerning the meeting on 15 November 2023, Dr Ahmed made no reference to the use of prescribed medical cannabis at all. He said the claimant was having no treatment.

[40]Ms Pickering decided to seek further guidance from the medical advisors of the respondent about the use of prescribed cannabis as well as more general advice Case No. 1803977/2024 13 about the claimant’s health and ability to return to work. The re-referral on 4 December 2023 raised the following:66.1 Advice and information to ascertain if the employee was able to provide a safe service whilst receiving a prescribed private prescription of medical cannabis;

66.2 Updated information with respect to abstinence from cocaine use;

66.3 Advice on whether the information regarding the threats of harm to herself and others received from PIPOT impacted on her ability to undertake her role;

66.4 Advice regarding any reasonable adjustments to be made, any support the EHC could provide such as DBT sessions and if an alternate, short/long term role may be required.

[41]We reject the proposition that there had been a delay in the return to work because the materials relating to medical cannabis had not been reviewed. Not only had they been considered, but questions were raised with EHC about the effect of medical cannabis on the claimant’s ability to do her job, as well as the other matters. We regard this as a responsible approach. The materials the claimant sent were selective extracts and no sound decision could be on those alone and the claimant’s own views. Allegation 2 Require the claimant to complete a further enhanced DBS check following a safeguarding concern being reported to the respondent by the NHS The treatment was not because of the claimant’s disability. Nor was it a detriment.

[42]It is common ground that this was required and is standard practice in respect of any employee if a safeguarding concern is raised about them. The PIPOT alert generated a requirement for such a check.

[43]It follows that this was not because of the claimant’s disability, even it were a detriment. The same request would be made of anyone, whether they had a disability or not. The less favourable treatment was not because of the protected characteristic.

[44]Nor would a reasonable worker regard the requirement for such a check as a disadvantage, in the circumstances. It was not a detriment. Working with vulnerable people required the employer to make an assessment for their safety and wellbeing. The DBS scheme was one source of independent material to assist on such an assessment. An employee would recognise the benefit of that, even though it involved disclosure of information about themselves which had come to the attention of the police. When the DBS was received it was clear. Allegation 3 Moving the claimant to a different role on the 3 April 2024 Case No. 1803977/2024 14 The move was not because of the claimant’s disability.

[45]In the letter to the claimant dated 2 April 2024, Miss Pickering recorded what had been discussed about her return. She wrote, We then discussed your return to work and where you would be based. I stated that for you to have a supportive return to work I would like you to temporarily work in the main team at Real Employment. There you would have access to management support. The team need support too as they are very busy and they would really value your skills. You would have a caseload, the job description is the same, and it’s the same 5 stage process, the only difference is that it would be with LSE. This would also give us the opportunity to explore mediation with your colleague in Project Search, Kate, which we haven’t discussed but you raised it in your Employee Healthcare meeting”.

[46]In the meeting, the claimant agreed to return to this role. It differed from her previous role at Project Search because the claimant was not allocated a fixed number of interns with whom she would meet every morning for an hour in the classroom and then assist them with work placements. But the role would include working with young people with learning difficulties and helping place them in work.

[47]We are satisfied the reason for placing the claimant in this role was for the reasons explained by Joanna Long and as recorded above. There was a vacancy in the main team, it was behind target and the claimant had the necessary skills and would have been valuable to other colleagues. She could share her experience with the rest of the team. Additionally, as explained in the above extract, there was a concern about the working relationship between her and her colleague Kate, in the Project Team. It was she who had informed Ms Butterworth in August 2023 that the claimant had been addicted to cocaine. It had been suggested that mediation would have been appropriate in those circumstances, at the meeting on 27 March 2023. It seems this was informed by remarks the claimant had made at her meeting with EHC on 19 December 2023:

“[The claimant] has expressed some apprehensions about returning to work with her immediate colleague as she feels the trust they shared previously may have been affected by recent events. However, this is a relationship Lucy values and would like to take steps to recover if possible”

. Someone had been undertaking the role of the claimant in her absence.

[48]None of these factors indicated that the reason the claimant was not placed in her previous role was because of her disability. The test is not a but-for one, but a reason why. The reasons were not because of EUPD. Allegation 4 Require the claimant to complete a risk assessment before she could return to work/implementation of the risk assessment. Case No. 1803977/2024 15 The treatment and detriment is not established. Even the modified presentation of the complaint does not establish a detriment.

[49]One would expect an employer to have undertaken a risk assessment if circumstances came to its attention which posed the potential for risk to service users. The claimant does not disagree with that, in principle. In any event, it was not pursued, because of concerns about it expressed by the claimant’s union representative.

[50]The claimant argues that it was the content of the proposed risk assessment to which she objected. The passage which suggested that one hazard would be if the claimant presented in a way that led management to believe she was unable to carry out her duties. The claimant says that this implied she was dangerous. Management would be able to make that judgment. Based on their assessment of her emotional stability on 30 November 2023, with which the claimant fundamentally disagreed, she considered that aspect of the risk assessment to have been unreasonable.

[51]The claimant’s standpoint is that she had overcome her cocaine addiction and, by then, had been taking only prescribed medicinal cannabis. She says she was safe. We regard that as naïve. The claimant had suffered a serious mental health episode in September 2023 when she had to leave work. She had taken illegal drugs daily, for 6 months, when she had been addicted to cocaine and cannabis over an 11 year period. Any responsible employer would have to plan for the risk of relapse and take precautions for any impacts in the workplace in the event the claimant’s mental health suffered a deterioration. It is surprising the assessment was not completed, but to placate the objections of the union representative Ms Pickering dealt with her concerns as part of a wellness action plan. To do so was not a detriment. No reasonable worker would consider it was, not least because it was, in part, to protect the employee. No attempt was made to implement the draft risk assessment. Allegation 5 Telling the claimant in April 2024 that she could not drive as part of her duties for the respondent. The treatment is not established.

[52]The claimant was not told she could not drive as part of her duties. The record of a discussion is included in the letter on 2 April 2024.

[53]At the meeting on 27 March 2024, there had been a conversation about medicinal cannabis, offences under the Road Traffic Act and that it would be a defence to a criminal charge if it was prescribed and taken in accordance with any directions given. Miss Pickard explained that is why they had asked for the information. The claimant said she rarely drove for work or transported interns. Ms Harrison said in that case it need not be discussed further.

[54]The claimant then returned to work. No prohibition on driving was imposed. Case No. 1803977/2024 16 Harassment related to disability Allegation 6 The provision of the Drugs and Substance Misuse Policy on 6 December 2023 The provision of the policy did not relate to the protected characteristic of disability, but to drug misuse. Even if it had, it would not have had the proscribed effect.

[55]Miss Pickard sent the Drugs and Alcohol Policy to offer the claimant support. The introduction to the policy states that it is a mechanism to support employees who are failing to maintain satisfactory standards of performance due to the misuse or abuse of alcohol or drugs. The information which had come to the attention of Miss Pickering established grounds for that belief in the history disclosed by the claimant.

[56]The claimant says that it was sent with respect to prescribed cannabis. The respondent disputes that. Miss Pickering says it was with respect to the cocaine addiction. The claimant says that she had told her employer that her use of cocaine had ceased and so it was inappropriate to send a policy to anyone who had admitted to drug use in the past.

[57]In the letter of 6 December 2023 there is mention of their discussion about prescribed cannabis, immediately before the reference to sending the policy. But there is also reference to the discussion about cocaine use in the passage which preceded that. We accept the evidence of Miss Pickering as to why she sent the policy. There is reference to concerns about the effects of abstinence from cocaine in the medical suspension assessment which was prepared a few days later, which supports the respondent’s case that issues surrounding the cocaine abuse remained a matter of concern.

[58]The policy plainly relates to illegal drug use. The only reference to medically prescribed drugs is at paragraph 5.1, but that is in connection with the way in which it is to be treated with respect to the definition of disability in the EqA.

[59]The provision of the policy to the claimant did not relate to her disability. It related to her use of illegal drugs. It was against the background of illicit drug use with only a recent introduction of prescribed cannabis, limited information about that, the prescription and when it had been introduced. An employer ought to be alive to the risks of relapse to any addict in recovery. Support may be invaluable in reducing those risks.

[60]Even had it related to disability, objectively it would not have had the effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. We take into account that was the claimant’s perception, but in all the circumstances of the case it was not reasonable for it to have had that effect. Miss Pickering said specifically, in her letter of 6 December 2023, that it was a supportive measure. It clearly was. A reading of the policy would have confirmed that. Case No. 1803977/2024 17

[61]The claimant suggests if it were intended to assist her, it would have been produced earlier, when she disclosed her drug abuse in August or October. We do not consider that a supportive measure has been transformed into an act of harassment because it could have been provided sooner. Breach of the Duty to make adjustments Allegation 7 Breach of duty in not making adjustments of [i] allowing the claimant to return to work in October or November 2023, [ii] choosing not to hold a formal attendance management meeting or [iii] not to require a further DBS check have had a real prospect of avoiding the disadvantage. There was not a PCP of refusing to allow the claimant to return to work from 6 November 2023 because of her use of prescribed cannabis. Choosing to hold a formal attendance management meeting was not a disadvantage and it would not have been a reasonable adjustment to forgo it, even if it were. The requirement to obtain a certificate did not place the claimant at a substantial disadvantage as a disabled person and it would not have been a reasonable adjustment not to require the claimant to have a further DBS check.

[62]It is accepted that the respondent had the provisions, criteria and practices of applying its attendance management policy and a requirement to complete an enhanced DBS check. It is denied that the respondent applied a policy of not allowing the claimant to return to work from 6th November 2023 onwards because of her prescription for medical cannabis.

[63]The claimant says that she was upset and humiliated at being asked to attend a meeting on 30 November 2023 because, she says, the reason for her absence was the respondent not allowing her to return to work. It would be a disadvantage not to be able to work if medically fit, in the absence of other concerns.

[64]In the claimant’s case there were other concerns. The evidence of Ms Pickering, which we accept, was that the issue which arose from the PIPOT referral of 22 November 2023 was a major one for her. It raised potential safeguarding challenges. In addition, there was little in the way of recommendations for reasonable adjustments in the recent EHC report from Dr Ahmed. Although there were some brief proposals, he had not addressed the question of driving at all. Nor does it seem he knew the claimant was using prescribed cannabis. The gaps in his report raised questions which required clarification.

[65]The claimant argues that the respondent had no business questioning her about her driving whilst on prescribed medication and that, because it did not routinely ask for the sight of prescriptions of other drugs and their impact on driving, it was discriminatory of the respondent to explore her use of this prescribed drug. To that, Ms Harrison said she would advise similar enquiries be made if it was suspected an employee’s ability to perform their duties might be affected by Case No. 1803977/2024 18 prescribed medication. We accept that. It plainly falls within the scope of the duty to keep the workplace safe and it is appropriate for the employer to make enquiries in all such situations. Because that had not happened with respect to other prescriptions the claimant had previously disclosed, does not mean enquires about the effect of prescribed medication on the discharge of her duties was improper.

[66]In respect to the use of prescribed cannabis and the side effects which might affect driving, a doctor from the private clinic had written to the claimant with relevant information. That was never shared with the respondent. The undated letter from Dr Hazlett of the Curaleaf clinic about an appointment on 25 March 2024, stated driving should be avoided at certain times when using the prescription. That included when a dose was changed to prevent the risk of an accident, until such times that it was known how the medicine affected the patient. The letter also includes details of when the drug was changed, 22 October 2023 and 25 March 2024. This was information the respondent was entitled to receive. In her work at the Project Team the claimant drove in work time in the course of her duties from one place to another. Occasionally, although very rarely, she transported service users. It was information the claimant should have provided, but she did not. Any advice of her union representative to the contrary was misconceived.

[67]Having regard to this history, the holding of a meeting under the attendance management policy to discuss a safe return to work for the employee and the service users was not a substantial disadvantage. Any objective view would recognise it was to safeguard their respective welfare. Managers should not blindly follow OHU advice. They must look at a broader picture. There were causes for concern and questions unanswered upon receipt of Dr Ahmed’s report. They supported a more reflective approach than Dr Ahmed suggested. A meeting to discuss these with the claimant was essential.

[68]But even if the application of the attendance management policy did disadvantage the claimant, the step of not having a meeting on 30 November 2023 to review the situation would not have been a reasonable one to take to avoid it. That is because the medical report of Dr Ahmed had not addressed all matters and, more significantly, there were other safeguarding concerns to be investigated which were best addressed first, by discussing them with the claimant.

[69]The claimant has characterised the decisions of her managers as having been driven solely by concerns she says they illegitimately held about use of prescribed cannabis. That is why the first PCP is expressed in the way it was, namely that that the respondent applied a policy of not allowing the claimant to return to work from 6th November 2023 onwards because of her prescription for medical cannabis. That was not a PCP they applied. The PIPOT alert, and the claimant’s emotional instability in the meeting, and during a number of phone calls with Ms Proctor, caused alarm with the managers. They felt they needed more advice before they took decisions. This was not all about prescribed cannabis. Case No. 1803977/2024 19

[70]In summary there was not a PCP of refusing to allow the claimant to return to work from 6 November 2023 because of her use of prescribed cannabis. She was allowed to return to work in spite of that use on 2 April 2024 even though the respondent had not received clarification of the type of prescription of the drug the claimant had been taking because she withheld it. It is reasonable to conclude that she would have been allowed to return regardless of her use of prescribed cannabis had she provided the relevant material, but for the other reasons; the PIPOT referral, awaiting of a DBS certificate, and her presentation of emotional instability in 2023, and the gaps in Dr Ahmed’s report, matters about which the report of 19 December 2023 was to address.

[71]We do not find the requirement to complete an additional enhanced DBS check placed the claimant as a disabled person at a particular disadvantage because she felt it stigmatised her. These were requirements arising from safeguarding concerns, not the claimant’s disability. In other words, anyone about whom a safeguarding concern had been raised would have been required to have a new DBS check, regardless of whether they had a disability.

[72]Even if it had, not to have required one would not have been a reasonable step to avoid that. The claimant had become agitated when the issues arising from the PIPOT report were raised in the meeting. Whilst understandable, because it was sprung on her that her employers had received a report about verbal aggression with a medical professional, and ex-partners, if similar actions were carried into the workplace, (for example in a moment of acute stress), they could jeopardise the emotional welfare of vulnerable people. An enhanced DBS check provides independent verification of whether any criminal findings arose from the PIPOT material. It allows a Chief Officer of Police to raise any other intelligence he/she holds which pertains to safety. It applies to all employees regardless of whether they have a disability. To have bypassed the process of obtaining a DSB certificate in this case would have been irresponsible. Unfavourable treatment because of something arising in consequence of disability (Equality Act 2010 section 15)

[73]It is said that the prescription for medical cannabis, the claimant’s absence from work, and her employer’s requirement for more information about the medical cannabis arose from her disability.

[74]The respondent disputes the first. In his report dated 21 November 2023 Dr Ahmed had stated that the claimant was not receiving any active treatments for her condition. For reasons we have expressed, his failure to refer to the prescription of medical cannabis at all was a reason for the managers to make further enquiries of EHC and not arrange an immediate return.

[75]A letter from Sapphire Clinics in respect of an appointment on 24 November 2023 stated that the claimant reported she was benefiting from her cannabis treatment to help her mental health. The claimant says she self-medicated with illegal drugs to manage her symptoms so the substitution of prescribed cannabis is sufficient to establish it arose from the disability. Case No. 1803977/2024 20

[76]The absence from work was plainly something which arose from the disability.

[77]The request for further information about medical cannabis could be something which related to her disability. However, the way in which this was expressed in the list of issues is not stand alone but specifically connected to the absence from work: “her absence from work due to sickness but also because of the respondent requiring more information about the medical cannabis. We have addressed this above, at paragraphs 69 and 70. The absence from work did not arise because the respondent required more information about the medical cannabis as there were other factors which impeded a return. In fact the claimant returned to work in spite of not providing that information on 2 April 2024. Allegation 8 Did the respondent treat the claimant unfavourably by its EHC stating that the claimant was not fit to return to work on 6th November 2023? The opinion that the claimant was unfit to work was not a detriment or unfavourable treatment. It was not because of the prescription of medical cannabis. It would, in any event, have been a proportionate means of achieving a legitimate aim.

[78]In the report of Ms Blake, dated 6 November 2023, the claimant was reported to have felt significantly improved, was awaiting the prescription of medical cannabis but was self-medicating with daily cannabis use. The claimant had declined the advice of the mental health team to see a mental health nurse monthly and a meeting with a psychiatrist had not gone well. Treatment was to be taken over by her GP. Ms Blake advised the claimant to seek advice from her GP about ongoing treatment, her medication and the use of medical cannabis and driving. The claimant said she did not intend to speak to her GP. Ms Blake’s view was that concerns surrounding the claimant’s treatment and management were such she was unfit for work.

[79]We do not consider, objectively analysed, this was unfavourable treatment or a detriment. The uncertainty surrounding the treatment of an employee who had only recently ceased taking a class A drug on a daily basis, continued to take cannabis daily and who had disengaged from further treatment by the NHS posed risks to the safety and welfare of service users and the claimant herself. No reasonable worker would regard that decision as disadvantageous.

[80]Even had it been unfavourable treatment and a detriment, it did not arise from the prescription of medical cannabis. The claimant had not started to take that prescription at that time. Advice was suggested about its impact when she did start to take it. The advice not to return embraced several concerns about the lack of medical information and support.

[81]Moreover the aim of safeguarding the claimant’s health and service-users’ welfare was plainly a legitimate one. It was a duty of care held by the respondent, as employer and local authority, and one it had to discharge. Not agreeing to a return to work was clearly relevant to that aim. Until her managers could be reassured that the claimant was well enough to work and that could be Case No. 1803977/2024 21 safely achieved, continuing her sick leave was unavoidable. Of course that has to be balanced against the claimant’s wish to return as soon as possible to her work. But no lesser measure was available at that time. It was proportionate to meet the aim. Allegation 9 Unfavourable treatment by inviting the claimant to attend a formal attendance management meeting on 29th November 2023. No unfavourable treatment or detriment arose from the invitation to the meeting. It would have been a proportionate means of achieving a legitimate aim had that been the case.

[82]It was neither unfavourable treatment nor a detriment to invite the claimant to the meeting on 30 November 2023. We have addressed this with regard to the duty to make adjustments. No worker would regard that decision as disadvantageous.

[83]The decision arose in part with respect to a need for more information about prescribed cannabis and its effects but, for the reasons we have given, it encompassed much broader concerns. It was justifiable. The legitimate aim remained safeguarding the welfare of the claimant and service users. It necessitated re-evaluating the advice of Dr Ahmed. That included obtaining more information upon the effects of prescribed cannabis on the patient and whether that might impact on her abilities to discharge her duties, which Dr Amend had simply not addressed, and exploring the safeguarding matters which had been raised in the PIPOT referral. We have balanced the claimant’s desire to return against the employer’s interests, but no lesser measure than such a meeting could have achieved the aim. Allegation 10 Unfavourable treatment by not allowing the claimant to return to work at the start of December 2023 as they stated they needed further information about her medical cannabis prescription, despite the fact that the claimant had been declared fit to return by the EHC on the 15th November 2023. The decision was a proportionate means of achieving a legitimate aim.

[84]The decision about not returning to work was multifactored. The need for greater clarification on the medical effect of prescribed cannabis was one, but of itself would not have led to a return pending the outcome of the DBS certificate and further medical report. Until all of these matters were clarified, it would not have been appropriate to allow a return for the reasons given and the failure of Dr Ahmed to address what medication the claimant was taking.

[85]The legitimate aim remained the same, safeguarding the welfare of the claimant and the service users. Not allowing the claimant to return to her previous work was appropriate to that aim, for the reason we have set out in paragraph 81. We have considered the impact on the claimant of that decision. Not being allowed to work was adversely affecting her mental health. That must be balanced Case No. 1803977/2024 22 against the employer’s needs and interests of meeting the legitimate aim. The claimant had refused the option of working from home, which was a measure which would have avoided the unquantifiable risks. There was no other suitable work at that time which the claimant could have done. The treatment was proportionate. Allegation 11 Unfavourable treatment by sending a copy of the Alcohol, Drug and Substance misuse policy to the claimant on the 6th December 2023. This was not a detriment and nor was it because of something arising from the disability.

[86]For the reasons already given, the provision of the policy was related to unlawful drug use and was supportive. This was not unfavourable treatment or a detriment.

[87]Even if it were, it was not because of anything alleged to have arisen arising from the claimant’s disability, in the pleaded list of issues. It was because of the long-standing use of illegal drugs. Allegation 12 Unfavourable treatment by telling the claimant on the 11th December 2023 that she was being suspended on medical grounds. Medical suspension was, in the particular circumstances not a detriment or treatment which was unfavourable. If it were, it was in any event a proportionate means of achieving a legitimate aim.

[88]Although the reasons for the medical suspension could have been better expressed in the letter provided to the claimant, they were down to the continuing concerns which arose from the PIPOT referral, which awaited a DBS certificate, and the unresolved concerns about the claimant’s presentation, gaps in Dr Ahmed’s report and lack of information surrounding the impact of prescribed cannabis.

[89]Because of the level of concern, a reasonable worker would not regard the decision made medically to suspend on full pay as a detriment or treatment which was unfavourable. It would be over-simplistic to evaluate this as merely refusing an employee the right to work when they wished to. Whether treatment is unfavourable and a detriment, in a claim brought under section 15 and section 39 of the EqA, must be considered in its full context. A motivation was to protect the claimant from a return which could have put her own health at risk. The other, to safeguard users of the service who had autism and learning difficulties, with the vulnerabilities that brings, was a matter a reasonable worker would regard as sufficiently important to warrant suspension whilst the necessary clarification was obtained.

[90]The way in which this matter is expressed, in the list of issues, is that the something which caused the unfavourable treatment was the prescription of medical cannabis or the absence from work, in part because of that. As to the first, we have Case No. 1803977/2024 23 found the claimant would have been suspended regardless of the prescription of cannabis. As to the second, we have found the casual connection is not established.

[91]Even if the unfavourable treatment, detriment and casual connection to something arising from the disability were established, the medical suspension would have been a proportionate means of achieving the legitimate aim for the reasons already identified. Safeguarding the service users and the claimant necessitated an assessment of the EHC advice and DBS certificate before the claimant returned and no other suitable employment was available at the time. Medical suspension was on full pay. Ms Pickering made repeated efforts to arrange a meeting to facilitate the claimant’s return after she returned from sick leave in early 2024, and after receipt of the EHC report and DBS certificate. The subsequent delays in removing the suspension and achieving a return were down to the unavailability of the claimant or her union representative, or objections taken by them, as set out in our findings at paragraph 18 above. Allegation 13 Unfavourable treatment by failing to consider or review the information that the claimant provided about medical cannabis, in around October or November 2023, to Angela Proctor, and therefore unnecessarily delaying her return to work. The treatment and detriment is not established.

[92]We have made findings about this in respect of direct discrimination. Ms Proctor and Miss Pritchard did review the information the claimant provided. It was selective and incomplete. They were entitled to request information about the prescription so as to take advice on whether the claimant could drive safely and also whether its side effects might impact upon her duties.

[93]The claimant did not provide all she had been asked for, to assist her employer evaluate whether she could work safely. As late as 29 February 2024, Ms Pickering had written to request the details of the prescription, but no such information was provided by the claimant. Such a lack of response was unreasonable because it left the assessment without all relevant information. The assessment would have been for her own wellbeing as well as others. There was no unnecessary delaying of her return to work. Allegation 14 Unfavourable treatment of the claimant by moving her to a different role on 3 April 2024.

[94]This was not unfavourable treatment, for the reasons already addressed. The claimant agreed to the role. Moreover it had nothing to do with the matters which are expressed to have arisen from the disability. Allegation 15 Unfavourable treatment of the claimant by telling her in April 2024 that she could not drive as part of her duties for the respondent. Case No. 1803977/2024 24

[95]The respondent did not impose that requirement. Allegation 16 Unfavourable treatment of the claimant by requiring the claimant to complete a risk assessment before she could return to work/implementation of the risk assessment.

[96]No such requirement was completed. It was agreed to undertake a wellness action plan instead.

[97]We consider it should have been. It would have been a proportionate means of achieving the legitimate aim. Unanimous decision

[98]All members of the Tribunal agreed on these findings and conclusions. Employment Judge D N Jones Date: 27 May 2026