Ms A Berik v London Borough Of Camden: 2200869/2017
EMPLOYMENT TRIBUNALS
Case No 2200869/2017
Between
Ms A BerikClaimantLondon Borough Of CamdenRespondent
Before
Employment Judge Mr J Tayler
Members
Mrs H CraikDr V WeerasingheDate 1 October 2019
JUDGMENT
[1]The Claimant was subject to discrimination because of something arising in consequence of disability by being dismissed.[2]The dismissal of the Claimant was unfair.[3]The remaining claims are dismissed.
REASONS
[1]By a Claim Form submitted to the Employment Tribunal on 26 April 2017 the Claimant brought complaints of disability discrimination, sex discrimination (harassment), religion or belief discrimination, victimisation and unfair dismissal.[2]The matter was considered at a Preliminary Hearing for Case Management before Employment Judge Lewzey on 30 June 2017 (A66). The claims were identified and the Claimant was ordered to provide additional information.[3]The matter was considered at a further Preliminary Hearing for Case Management before Employment Judge Wade on 24 August 2017 (A114). A Preliminary Hearing was fixed to consider whether certain claims should be struck out as out of time, whether the Claimant was disabled at the material times, to agree the issues and list a final hearing.[4]The Preliminary Hearing was held before Employment Judge Spencer on 19 October 2017 who struck out the claims set out in paragraphs 1 to 35 of the Claimant’s additional information as out of time; and held that the Claimant was disabled. Employment Judge Spencer did not decide whether the claims of failure to make reasonable adjustment were out of time. The Claimant was ordered to provide additional information in respect of those claims.[5]The Claimant provided some further detail of her claim of failure to make reasonable adjustment by email dated 13 November 2017 (A137).[6]There was a Preliminary Hearing for Case Management before Employment Judge Pearl on 18 May 2018 where the remaining claims were identified as unfair dismissal, direct disability discrimination, discrimination because of something arising in consequence of disability and failure to make reasonable adjustment.
Issues
[7]The issues were further clarified at the outset out our hearing. The Claimant stated that she was not pursuing claims of sex discrimination (harassment), religion or belief discrimination or victimisation. She clarified the reasonable adjustments claim. After that clarification the issues were as set out in the Annex to these reasons. We determined those issues necessary to determine the claim.
Evidence
[8]The Claimant gave evidence on her own behalf and called: 8.1 Claire Marriott, former Trade Union Representative[9]The Respondents called:9.1 Jennie Arthur, Customer Insight Manager9.2 Mark Watson, Contact Centre Manager9.3 Louise McBride, Head of Transport Strategy[10]The witnesses who gave evidence before us did so from written witness statements. They were subject to cross-examination, questioning by the Tribunal and, where appropriate, re-examination.[11]We were provided with an agreed bundle of documents. References to page numbers in this judgement are to the page number in the agreed bundle of documents.[12]The Claimant did not rely upon the other witness statements that she submitted.
Findings of fact
[13]The Claimant commenced employment with the Respondent on 3 September 2007 as a Customer Service Officer.[14]The Claimant was involved to two road traffic accidents in 2007 and 2009 that resulted in injury to her back.[15]After the accident in 2009 the Claimant worked in a processing role dealing with email communications about repairs from tenants of the Respondent. She found that she was generally able to cope with that work as the had opportunities to get up, stretch and move around regularly.[16]The Claimant was seconded to work in the Customer Access team working on projects to allow tenants to ask for repairs to their properties online.[17]From 29 September 2014 the Claimant, while continuing to work on the secondment, was managed by Jennie Humphreys (now Jennie Arthur, which is how we will refer to her from now on), Customer Insight Manager. The Claimant was based at Cressy Road and other locations.[18]From 6 October to 17 October 2014 the Claimant was off work with back ache. On 18 October 2014 the Claimant returned to work.[20]The secondment was coming to an end at the end of November 2014. On 17 November 2014 Ms Arthur sent the Claimant an email about returning to work in a new role at Holmes Road that would involve aspects of telephony and processing, as part of a “right first time” initiative that would require the person who initially deals with a request for a repair to continue to deal with it until a repair has been booked.[21]On the 24 November 2014 the Claimant states that she suffered an exacerbation of her back condition when the arm of her orthopaedic chair broke and fell off as a result of which she suffered a jolt to her back.[22]The Claimant worked from home from 25 November 2014 to 3 December 2014.[23]On 1 December 2014 the Claimant raised concerns about changing role. Ms Arthur responded. “Whether you are doing mainly processing or mainly telephony you will sit in the same chair for the same length of time; so I am comfortable that as there is no change in your working environment this will be DDA compliant”.[24]On 1 December 2014 the Claimant and Ms Arthur exchanged emails about the new role at Holmes Road. The Claimant stated: “Thanks Jennie, I appreciate what is required of me as a CSO, however changes were made to assist me with working and offer support for my condition as its just not the seating, processing allows me the freedom to stretch, move or walk when I need to. The reason I asked is because I know there are still processing roles upstairs, although they may still take calls. I feel anxious as I wasn’t under the understanding that it will be a telephony role and it will be difficult for me with the reasons I stated. This was taken into account when I was moved to processing. I understand this isn’t the case anymore and will do my best to adapt to the new role”.[25]On 4 December 2014 the Claimant attends training at Holmes Road to prepare her for a return to her substantive post.[26]On 12 December 2014 a Workstation Assessment carried out by Jill Farmer from Workwise (pages B28 - B32) who stated; “Fall off chair was a real shock for Aysen and she feels as though it has exacerbated her symptoms considerably. She had a cold when I saw her which didn't help but she was clearly tired, in pain, and a little emotional. Discussed effects of stress on pain and the need to consider non-physical strategies and therapies as part of the solution to her chronic pain which she very much took on board. Aysen seems conscientious and is keen not to allow her symptoms to affect her work but struggles at times with roles that involve a lot of telephone work and the kind of pressures associated with time-sensitive inbound 'call waiting' scenarios which she is doing at present - not compatible with current pain and medication regime. Current commute also quite challenging. Actions: Invite Unique Office Solutions (supplier of Aysen's current chair) to• advise if repairs can be made to current chair. If this is not possible provide similar alternative with arms and headrest. Consider alternative roles which allow more flexibility in working• times/styles which Aysen finds more manageable - we understand that her previous substantive post at Cressy Road allowed this. Discuss roles/locations with Aysen.”[27]On 15 December 2014 the Claimant was signed off with stress related illness and back pain. She did not return to work thereafter.[28]On 23 January 2015 a report was provided by Lynn Page, an Occupational Health advisor (D1); “Aysen reports that she had a car accident approximately 5-6 years ago following which she has always suffered from back pain, at times she advises it affects normal activities of daily living. In order to manage the pain Aysen is prescribed medication that can render her feeling 'spaced out' when she initially takes it. Therefore when at work, she informs me, that she takes them when she knows she is due to undertake tasks where this would not be an issue. I understand she has recently changed roles and is not able to judge this in her current role as she could in her previous role, therefore increasing her pain as she is not sure when she can take the pain relief medication. Aysen also reports that her General Practitioner has referred her again to a Back Specialist, she has been previously, and she has also been referred for Psychotherapy. Presently Aysen reports that she has a fit note for 'Stress' and this is the case for at least a further 2 weeks. Originally the fit note was for 'Back Injury & Stress', as Aysen fell off a chair at work, immediately following which she became absent. The stress she attributes entirely to work-related issues such as the recent role/environment changes; being unable to take a special chair with her during the move; no longer being able to travel to and from work with a family member so her daily commute is now prolonged, to give a few examples. In response to your specific questions on your referral I cannot see why Aysen could not return to work on expiry of her current fit note if you are able to accommodate some adjustments I will go on to recommend below. Following assessment I am of the opinion that while the ill-health is not originally work related, I would consider it to have been recently exacerbated by work due to the fall and the potential seating change. Aysen is fit to attend a meeting with her manager, and I discussed with her the positive effect this may have which to my belief she understood. Indeed you could potentially explore all of her perceived work related issues in detail as I have not listed them all above. In terms of reasonable adjustments, I believe they would be best identified by a workstation assessment and any equipment, such as a chair being required, obtained for Aysen. While she is unable to specify exactly how long she can sit comfortably for, I recommend she avoids prolonged periods of static posture either sitting or standing for perhaps no more than 30-60 minutes at a time before she is allowed to stretch/move as she needs, during a micro-break that could be taken near to or at her desk area. In order to facilitate her to be able to take her medication, you may wish to adjust her work tasks when she is due to take this so she can safely undertake another duty that would not compromise her or the organisation. I anticipate that with the correct support Aysen should be able to render effective and reliable service into the future; this could be further monitored and supported by offering regular one to one meetings with her so to hopefully prevent a recurrence of another such absence of this type, and duration. With the relevant equipment, and if you are able to in cooperate the recommendations, I do not see why Aysen would not be fit to continue on her current post. I have not made any plans to review Aysen further; however if her absence continues I suggest she may benefit from a face to face appointment for either an Independent Medical Examination or Occupational Health Physician appointment. This is also true should you endeavour to implement any recommendations/adjustments and she becomes absent again in a short timeframe.”[29]By a certificate dated 23 February 2015 the Claimant was signed off from work from 7 January 2015 to 2 April 2015 for stress related illness and back pain.[30]On 13 March 2015 an Occupational Health report was provided by Dr Robin McNeiIl Love after conducting an occupational health assessment (Pages D3 - D7); “Her general practitioner has signed her with a sickness certificate until approximately 2 April 2015 to 3 April 2015. Apparently, this is for back pain and work-related stress. You are aware of the stress conditions at work. The key here is for Miss Berik's back pain to be further investigated and hopefully a definitive cause will be found. If this is the case then her general practitioner and/or specialist can proceed to undertake therapy which will hopefully improve the situation to a very considerable degree. In the meantime. Miss Berik is very keen to return to work when she is able to do so and I believe that, once her general practitioner certifies that she is fit to return to work, then I would support that. She realises that work is beneficial to her arid is keen to return to work. … As you are aware. Miss Berik states that there are various issues of stress at work and to that end I have provided her with a Health Management Limited 'Individual Stress Risk Assessment" document. … The utility of this process is that it allows Miss Berik and her line manager (with whom she has a very good relationship and for which she is very grateful for the support shown to her) to have a completely neutral and mutually-supportive conversation about all areas of Miss Berik's work, and it may result in areas of stress being identified that neither Miss Berik nor her line momager have thought of up until now and so allow them to discuss ways to mitigate this. This process will help Miss Berik progress through her current stress state and hopefully help pave the way towards a fuller recovery and to quality work. Inevitable, any resolution of her stress cannot have anything but a beneficial effect on her chronic back pain. … In addition, if it is organisationally possible from your business perspective, I would suggest that Miss Berik can be allowed to work at home on occasion. Apparently, this has happened in the past and she has successfully produced the work that is required. She does this from the remote laptop. She finds this beneficial because then she is not Located to a desk and she can get up and move around take breaks is required. In addition, she can take breaks when her current medication results her in her needing to take breaks due to their sedative effect. This is not a situation that will last necessarily in perpetuity, but may be helpful at the current time of Miss Berik’s exacerbation of back pain. In addition, if you are able to coincide the working hours of Miss Berik and her sister… so that her sister can drive Miss Berik to work, this would be a very beneficial arrangement … In the meantime, I would reiterate the advice provided to you by Lynn Page’s report in terms of avoiding prolonged periods of static posture, easier sitting or standing that perhaps no more than 30 to 60 minutes at a time, and allowing Miss Berik to stretch and move as she needs taking micro-breaks. Her work and tasks may need to be adjusted when she takes her medication, which can, at times, have a slightly sedative effect. … Miss Berik does take medication her back pain which can, at times, be sedative. She is therefore aware of the need to take additional care when she is in a slightly drowsy state, which may, at times, result in her not being able to perform optimally. Nevertheless, she tries not to take the medication at times when it affects her work. … If her back pain and her alleged work-related stress are both resolved, then she is, I believe, very capable of rendering reliable service and attendance into the future.”[31]On 19 May 2015 Mary Tobin, Team Leader Contact Camden, conducted a stage I meeting with the Claimant under the Respondent’s Sickness Absence Process. The Claimant was recorded as having 121 days absence. Ms Tobin produced a case summary after the meeting. Ms Tobin stated that the Claimant did not wish to discuss her work related stress. Ms Tobin recorded that the Claimant said that the majority of it majority of the stress was related to her previous role. The Claimant was informed that there could be flexibility in the CSO role, allowing her to take short breaks. The Claimant raised a concern that the medication she was taking could impact on her ability to perform work tasks. The Claimant stated that she was seeing a psychotherapist. The Claimant stated that she would like to return to her previous role in processing. The Claimant said that the processing role would give her more flexibility with working hours, permit working from home and allow flexible breaks. Ms Tobin told the Claimant that the role of CSO was now generic and that there was no such thing as “channels” i.e. telephony, face-to-face meetings and processing. There was now only one type of work that CSO's undertook. Ms Tobin stated it was because the Claimant's background was in repairs that she was assigned to the support service area. Ms Tobin stated that the Claimant’s orthopaedic chair had been mended, but was now in storage.[32]There was a discussion of possible adjustments that could be made. Ms Tobin suggested that it could not yet be determined how often the Claimant could work from home; but that it should be possible for her to work some shifts from home provided her house was a subject to a risk assessment. The Claimant asked to be allowed to work from Cressy Road, but was told that was not possible as her role was as a CSO working from Holmes Road. The Claimant raised the possibility of obtaining a lift to work with her sister if she worked at Cressy Road. Ms Tobin stated that the distance between Holmes Road and Cressy Road was only 1 mile which should not present too much of a problem to the Claimant.[33]The Claimant asked that a phased return to work be considered. It was noted that the Claimant was due to see her GP again at the beginning of June 2015 and that he might sign her as being fit to go back to work. Ms Tobin said that a phased return had to be recommended by Occupational Health and that she would be guided by any recommendations from OH regarding a phased return to work.[34]Under the section headed “Recommendations” it was recorded that the Respondent should seek medical advice from their OH provider when the Claimant’s GP deemed her fit enough to return to work. It was accepted that there could be a phased return to work. There would also be an individual stress risk assessment.[35]In the letter setting out the outcome of the meeting, and providing a notification of concern at stage I, it was stated: “I will also• Get more medical advice when your GP says you are well enough to return to work regarding a phased return to work.”[36]The Claimant stated that her understanding was that although the arm had been reattached to her chair it had not been secured. The chair had not been replaced.[37]The Claimant was then signed off by certificate dated 8 April 2015 from 2 April to 2 June 2015 for back pain and stress related illness.[38]On 1 June 2015 the Claimant was signed off work by her GP for two months by reason of low back pain and stress related illness.[39]Ms Tobin carried out a stage II Sickness Absence Management meeting with the Claimant on 7 July 2015. The Claimant was issued with a stage II notification of concern. Ms Tobin produced a case summary. The Claimant was noted as having had a further 34 days’ absence. Ms Tobin noted that there was no indication when the Claimant might be well enough to return to work. She noted that the most recent statement of fitness to work indicated that the Claimant was not fit to work until the beginning of August 2015. Ms Tobin recorded that the Claimant had been feeling really positive about the future at their their previous meeting, but felt a lot worse, both physically and mentally and felt overwhelmed. The Claimant had explained that her father had been unwell. The Claimant was undertaking physiotherapy and continued with pain management. She was taking pain medication. The Claimant had undertaken a course of CBT. It was noted that the Claimant had not felt up to coming to meet at Holmes Road, so the meeting had been held at the library in Wood Green, close to where the Claimant lived. It was recorded that further medical advice was to be obtained from the OH provider and that they should be asked to arrange for a consultation with the Claimant and obtain up-to-date information from the Claimant's GP to include in their report.[40]In the formal notification of concern letter, it was noted that Ms Tobin would get more medical advice from the Respondent's occupational health provider and had asked them to arrange for another face-to-face consultation. The Claimant would be provided with details of the Respondent's counselling service.[41]During the latter part 2015 there were problems in communication with the Claimant for a period. The Respondent was not in receipt of an fitness notes. They were provided in October 2015, with a sick certificate covering the period from 31 July 2015 to 31 October 2015.[42]On 12 November 2015 Dr Sheikh of Occupational Health wrote to the Respondent, stating that as requested a report from the Claimant's GP had been requested and had now been received. It was noted that the GP referred to a number of medical condition conditions, including headaches, back pain, neck pain and stress. Dr Sheikh stated; “Based on the information provided by her GP, it is evident that Ms Berik experiences symptoms related to her back and “stress”; however I have no clear understanding of her current level of functional capacity, or current level of symptoms as they affect her on a day to day basis, or may affect her ability to work. I am of the opinion that the best way forward here would be to offer Ms Berik a face to face consultation when she is next available, so that we are best able to advise you and Ms Berik with regards to when she may be in a position to return to work and how best to support this. I look forward to hearing from you when you have had you have further information with regards to when she will be available.”[43]A face to face consultation was arranged. On 10 December 2015 Claimant stated that she was not able to attend. The Claimant visited South Africa to help her recuperate.[44]The Claimant took part in a telephone call with Occupational Health on 10 December 2015. The Claimant stated that she would wish to see any Occupational Health report before she would consent to its release.[45]On 17 December 2015, a report was sent to the Claimant. However, the Claimant did not consent to its release. We have not been provided with a copy of the report.[46]On 15 January 2016 the Claimant was invited to a further sickness absence meeting fixed for 25 January 2016. Ms Tobin produced a sickness absence report for that review meeting. Ms Tobin set out a detailed chronology of events including summaries of the advice that had been obtained from occupational health. Under the heading summary of management action/support it was recorded; “Occupational health referrals have been made to seek medical advice on how to support Aysen in a return to work. However, as Aysen has not returned to work none of the recommendations have been put in place.”[47]Under the heading management recommendation, it was recorded; “Aysen has been absent for a total of 282 days since 15 December 2014. We have followed all the occupational health recommendations that have been made and have been unable to identify any additional action that may have assisted Aysen in a return to work. I recommend that Employment Review meeting is convened.[48]The planned sickness absence review meeting was delayed. The Claimant was invited to a further meeting on 28 January 2016. The meeting was eventually held on 2 February 2016 with the Head of the Customer Registration Services, Barry May. Ms Tobin presented the management case.[49]On 11 February 2016 the Claimant lodged a grievance complaining about the way she had been managed by Ms Tobin. The Claimant also complaining about Mr May, particularly in relation to how an allegation of sexual harassment against another staff member, which she had supported, had been managed by him.[50]In the light complaint about Mr May, Louise McBride, Acting Assistant Director of Environment and Transport took over the management of the Claimant's sickness absence and grievance. The two processes were dealt with in parallel.[51]On 29 February 2016, Ms McBride wrote inviting the Claimant to a meeting on 7 March 2016. The meeting was conducted on 7 March 2016. Thereafter there were investigations into the Claimant's grievance.[52]It was not until 5 August 2016 that a further Occupational Health Report was prepared by Dr Kathryn Campion, a Consultant Occupational Physician, following a face to face meeting with the Claimant.[53]Dr Campion stated; “Ms Berik explained that her current main medical problems are back and neck pain. As you are aware, she has been experiencing problems, mainly with her neck back, since 2007 when she was involved in car accident. Over time she has had a number of investigations, treatments, (including medication and physiotherapy) and has been seen by appropriate specialists. However, in spite of all of these interventions she remains in pain on a daily basis. Her pain can vary throughout the day and between days, there is no consistency and no pattern; however, I think over time she has learnt how to pace herself and manage her symptoms as well as possible. She takes analgesia as and when required and modifies her activities of daily living accordingly. Her current functional capabilities include the following:• Sitting tolerance – generally fine but she would need to fidget after 30 minutes or so to relieve any stiffness• Walking tolerance – is about five to ten minutes and then she would need to lean on a solid surface or object for support• Driving and commuting - she reported no particular issues, but would need to avoid times,(particularly when driving) when she may be experiencing sedation from her medications• Shopping and housework – has help• Hair washing - sometimes has help as she cannot raise her arm above shoulder level … She told me that she had been fine working in “processing” but when she asked to undertake telephone work, she found the prolonged sedentary nature of this role more difficult for her as she was not able to mobilise freely and she said that this had proved detrimental to the control of her condition. I understand there have been some issues with stress incidents at work involving a couple of colleagues, but I understand that there was an investigation ongoing at the present time. The resolution of this I think will be quite influential on her would-be rehabilitation back to the workplace. Likely date of return to work? She told me that she would like to return to work. Her current sick note takes her up to September so hopefully we could plan for then? I think it would help all parties if you would arrange a meeting with her manager, HR and her representative to explore her thoughts about this particularly in relation to her ongoing symptoms. From seeing and examining her the main issue to be mindful of are to avoid long periods of standing or sitting, to limit any activities with arms raised and to avoid frequent and repetitive arm movements. I have suggested some possible adjustments to consider and discuss later in this report. … Is a case conference required with OHP Not yet. If suitable progress cannot be made following the meeting with her manager, HR, but her representative to explore potential work options, then I would be happy to support a case. Is her case covered by the Equality Act and if so what adjustments should be considered? I would consider that her condition is most likely covered by the Equality Act although ultimately this is a legal decision. Possible adjustments to consider could include:• Job role – She explained “processing” work had allowed her to manage her medical condition at work. Telephone work did not seem to afford her the flexibility she needs to pace herself, and therefore when she commences back to work, I would advise that this be avoided, please. If “processing” work is not available, then a suitable role where she can ensure she has control over her immediate work environment, can take rest breaks as required and does not need to stand firm stand/sit for long periods of time, would be the sort of to aim for.• Hours - Please explore the possibility of her working reduced hours. It might be best if she aims to work for three days for a period of time to ensure that she can cope with this without detriment to her health. If she is able to cope for three days a week, then hopefully in due course, maybe several months hence, she could increase her hours gradually but this will depend on how her rehabilitation proceeds.• Location – she told me processing took place in Hampstead Heath that this commute was fine for her. Is this an option?• Commute - to reduce the lengthy commutes could home working be considered for the part of the week please?• Manual handling - She should avoid carrying heavy equipment, e.g. laptops around as this will put pressure on her back and neck and might exacerbate her symptoms of pain.• DSE assessment - I advised that you undertake comprehensive DSE assessment and ensure that she has a supportive chair and that she takes breaks in accordance with the DSE regulations, please Iis she likely to render reliable service and attendance into the future I think this is too soon to say, it will depend upon what role she undertakes, for how many days a week and how she fares with this. … Is she fit to continue in her current post? This needs to be explored in the management meeting that I mentioned above I hope you find the information in my report helpful. We do not recommend routine occupational health review but we would be happy to see Ms Berik again for re-referral should further advice be sought in the future.”[54]A grievance investigation meeting was held with the Claimant on 30 August 2016.[55]On 9 September 2016 the Claimant's GP provided a fit note signing the Claimant as not fit for work for a period of three months. The reason given for the absence was stress-related illness.[56]On 15 September 2016 a case conference call was held between Ms Tobin, Sue Greening, Mark Watson and Dr Campion to discuss the possible roles that might be available by way of adjustment on the Claimant's return to work. Ms Tobin and Mr Watson could not recall whether they had the GP's new fit note at that meeting. We consider that they did not have the fit note as if they had they would have discussed it. Dr Campion was very positive about the Claimant making a return to work. Ms Tobin suggested that the Claimant would be able to have as much control of her over her environment as she had in her previous processing role because call volumes were relatively low, much time was spent discussing matters with colleagues in the office and she was able to control the flow of calls. She stated that the Claimant could have a lengthy cable for her headset or use a Bluetooth headset. Dr Campion said she could not indicate how quickly the Claimant could increase her hours, but that a phased return should be possible. The participants in the conference call believed that there would be a relatively imminent return to work.[57]On 27 September 2016The Claimant was invited to a further stage III review meeting. The meeting was held on with Ms McBride 5 October 2016. The Claimant was first told that her grievance had not been upheld. The meeting then dealt with the Claimants sickness absence. Subsequently a case summary was produced; “As a result of the ongoing levels of absence, I decided to dismiss Aysen Berik from the Council’s service with immediate effect. Factors I have taken into account when making my decision• Aysen has been absent from the workplace for a total of 492 days since 12 December 2014 and specifically for 354 days since the Stage 2 Notification of Concern that was issued on 10 July 2015.• That Aysen’s most recent Fitness to Work certificate issued by her GP on 9 September 2016 states that she is not fit for work due to stress-related illness and expires on 9 December 2016. This means that Aysen has been absent from the workplace for 3 days short of two years• That previous Fitness to Work certificates referred to stress-related illness, low back pain and stress-related back pain.• That the most recent medical information that has been received from the Council's Occupational Health provider, dated 5 August 2016, suggested that a return to work could be planned for the end of the medical certificate at that time, which would have been September 2016, but that a further Fitness to Work certificate was received on 9 September 2016 for the period to 9 December 2016.• That there has been no indication of when Aysen may be fit to return to work…• Notwithstanding the reasons for Aysen’s sickness absence, there has been a considerable impact on the service. The role has had to be covered by backfilling Aysen’s post which has required a considerable investment in training. It also takes quite a considerable time to get someone fully up to speed… In arriving at my decision I also carefully reviewed your specific feedback during the meeting…• That you indicated that you did not feel ready to come back to work.• That the medication being taken for back pain makes it hard to focus that it might mean that you take longer to complete tasks.• That you have felt like you have been bullied at work and that as the Head of Service is still the same person you have questions/concerns about what you're going to be bullied again if you return to work• That you did not think that there was any additional support that the Council could offer to facilitate the return to work.• That your sickness absence levels were lower when doing a processing role… I took that account of the following: …• The availability of a processing role as a reasonable alternative role to facilitate Aysen’s return to work. However, unfortunately these roles are no longer available in the service.• That reasonable adjustments have been considered to facilitate Aysen’s return to work. Specifically that Aysen would be able to control the working environment doing a telephony role as much as a processing role and would be able to take thr regular breaks, work flexibly and control the number of call that she is answering. This was explained in more detail to Aysen by Mark Watson at the hearing. Unfortunately we have not been in a position to put in place the reasonable adjustments/mitigations that been discussed as Aysen has not returned to work and was signed off for a further three months in September 2016…• After careful consideration of the grievance and the associated information presented by all parties involved I did not uphold the allegations”[58]The Claimant and her represented accepted that at the meeting on 5 October 2016 the Claimant stated that she was not yet ready to return. She referred, particularly to stress which was being exacerbated by the grievance process, although she did not specifically state that she would only be fit to return months once her grievance had been completed. The Claimant mentioned her back condition in addition to the level of stress that she was feeling.[59]A further meeting was held on 28 November 2016 when the Claimant was informed that her grievance had not been upheld and that she was to be dismissed for capability. Written reasons for dismissal were sent on 12 December 2016[60]On 29 December 2016 the Claimant appealed her dismissal and the grievance outcome. A grievance appeal hearing was heard on 23 February 2017.[61]The appeal against the Claimants dismissal for ill health was not held until 15 December 2017. The Claimant was no longer represented at the appeal stage. She did not attend the meeting, complaining about the delay and stating that the process was now before the Employment Tribunal. The Law Disability Discrimination
The Law
[62]Disability is a protected characteristic for the purposes of the Equality Act 2010 (“EQA”). Discrimination in Employment[63]Certain forms of discrimination in employment are made unlawful by section 39 EQA; (2) An employer (A) must not discriminate against an employee of A's (B)— (c) by dismissing B; (5) A duty to make reasonable adjustments applies to an employer. Reasonable Adjustments[64]Section 20 EQA provides in respect of the duty to make reasonable adjustments; (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) The second requirement is a requirement, where a physical feature 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. (10) A reference in this section, section 21 or 22 or an applicable Schedule (apart from paragraphs 2 to 4 of Schedule 4) to a physical feature is a reference to— (c) a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises, …[65]The approach to PCP cases was considered in Royal Bank of Scotland v Ashton 2011 ICR 362 and Environment Agency v Rowan 2008 IRLR 20. The tribunal should consider the PCP relied upon, the identity of the nondisabled comparators, the nature and extent of the substantial disadvantage asserted to be suffered by the Claimant in comparison with the comparators and the practical result of the reasonable steps the employer can take to ameliorate the disadvantage.[66]A possible adjustment may be suggested by the parties or the Tribunal during the hearing: see Project Management Institute v Latif [2007] IRLR 579. There is no burden on the Claimant to identify the reasonable adjustment.[67]The duty to make reasonable adjustments may impose a requirement to treat a disabled employee more favourably than other employees and can involve transferring a disabled employee who could no longer perform his original job to an alternative role without competitive interview: Archibald v Fife Council [2004] ICR 954. It can even be a reasonable adjustment to create an entirely new role for a disabled Claimant in order to maintain their employment: Southampton City College v Randall [2006] IRLR 18.[68]The employer may not be under a duty to make reasonable adjustments by providing, for example, a phased return to work if the employee is at the time unfit for any work for the foreseeable future: NCH Scotland v McHugh EATS 0010/06. However, the employer will generally need to make sure proper adjustments are in place once a return to work is foreseeable. His Honour Judge McMullen QC referred to taking steps when there is “some sign on the horizon that the Claimant would be returning”. Discrimination because of something arising in consequence of disability[69]Discrimination because of something arising in consequence of disability is defined by section 15 EQA; 15(1) A person(a) (A) discriminates against a disabled person(b) (B) if— (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.[70]Langstaff P held in Basildon & Thurrock NHS Foundation Trust v Weerasinghe [2016] ICR 305, EAT): ''The current statute requires two steps. There are two links in the chain, both of which are causal, though the causative relationship is differently expressed in respect of each of them. The Tribunal has first to focus upon the words "because of something", and therefore has to identify "something" - and second upon the fact that that "something" must be "something arising in consequence of B's disability", which constitutes a second causative (consequential) link. These are two separate stages.''[71]We had regard to the approach to section 15 claims set out by Simler P in Pnaiser v NHS England [2016] IRLR 170 at §31.[72]Section 15 of the Equality Act 2006 provides in relation to the statutory Codes of Practice issued by the EHRC that a failure to comply with a provision of a code shall not of itself make a person liable to criminal or civil proceedings; but the code shall be admissible in evidence and shall be taken into account by a tribunal in any case in which it appears to the tribunal to be relevant.[73]At paragraph 17.20 it is noted that; If an employer takes action against a disabled worker for disability-related sickness absence, this may amount to discrimination arising from disability. The key issue then will be that of justification. This may be important in considering the treatment of disability related sickness absence. It is noted at paragraph 17.16 that; Sickness and absence from work may be governed by contractual terms and conditions and/or may be the subject of non-contractual practices and procedures. Regardless of the nature of these policies, it is important to ensure that they are non-discriminatory in design, and applied to workers who are sick or absent for whatever reason without discrimination of any kind. This is particularly important when a policy has discretionary elements such as decisions about stopping sick pay or commencing attendance management procedures.[74]The requirement for the employer to show that treatment of a disabled employee is justified also explains why, as noted at 17.19; “In particular, it will often be appropriate to manage disability … -related absences differently from other types of absence.”[75]In considering whether the treatment is a proportionate means of achieving a legitimate aim the ECHR Code helpfully summarises: “4.27 The question of whether the provision, criterion or practice is a proportionate means of achieving a legitimate aim should be approached in two stages: - Is the aim … legal and non-discriminatory, and one that represents a real, objective consideration? - If the aim is legitimate, is the means of achieving it proportionate -- that is, appropriate and necessary in all the circumstances? … 4.30 Even if the aim is a legitimate one, the means of achieving it must be proportionate. Deciding whether the means used to achieve the legitimate aim are proportionate involves a balancing exercise. An Employment Tribunal may wish to conduct a proper evaluation of the discriminatory effect … as against the employer’s reasons for applying it, taking into account all the relevant facts.”[76]The term necessary should be seen as meaning reasonably necessary: Hardys and Hansons plc v Lax [2005] ICR 1565, CA, in which Pill LJ stated: “I accept that the word ‘necessary’ used in Bilka is to be qualified by the word ‘reasonably’… The presence of the word ‘reasonably’ reflects the presence and applicability of the principle of proportionality. The employer does not have to demonstrate that no other proposal is possible.”[77]In considering whether such justification is made out the Tribunal adopts an objective approach. The Tribunal has to make a determination of whether the treatment was objectively justified: see Cadman v Health and Safety Executive [2005] ICR 1546. The focus is not on the decision making process of the Respondent but on the objective question of whether the treatment was a proportionate means od achieving a legitimate aim. However, it is for the Respondent to establish justification. Where it relies on the reasoning it adopted at the time as establishing justification it must necessarily be considered. It is not for the tribunal to consider some alternative justification not put forward by the Respondent.[78]Dismissing a person because of sickness absence arising in consequence of disability generally will not be proportionate if the absence could be avoided by the making of a reasonable adjustment. Direct discrimination[79]Direct discrimination is defined by Section 13 EQA: 13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[80]In the case of direct discrimination the Claimant must be compared with a person who is also absent from work and has similar limitation on the type of work to which he can return to as the Claimant; Lewisham London Borough Council v Malcolm [2008] IRLR 700.[81]The Courts have long been aware of the difficulties that face Claimants in bringing discrimination claims and of the importance of drawing inferences: King v The Great Britain-China Centre [1992] ICR 516. Statutory provision for the reversal of the burden of proof is now made by Section 136 EQA:[82]Guidance on the reversal of the burden of proof was given in Igen v Wong [2005] IRLR 258. It has repeatedly been approved thereafter: see Madarassy v Nomura International Plc [2007] ICR 867.[83]To establish discrimination, the discriminatory reason for the conduct need not be the sole or even the principal reason for the discrimination; it is enough that it is a contributing cause in the sense of a significant influence: see Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572 at 576. Discrimination time limits[84]The time limit in which complaints of discrimination should be brought is set out in Section 123 of the EqA; “(1) … proceedings on a complaint … 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. (3) For the purposes of this section—(a) conduct extending over a period is to be treated as done at the end of the period;(b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”[85]The time limit is adjusted to take account of pre-claim conciliation.[86]In Matuszowicz v Kingston-upon-Hull City Council [2009] ICR 1170 the Court of Appeal held that a failure to make a reasonable adjustment is an omission rather than an act. Lord Justice Sedley concluded that if there is a failure to make an adjustment there must come a time when the employee concludes that were the adjustment to be made it should have been made by that point, from which point the time limit will run. This prevents a situation of neglect from dragging on indefinitely.[87]Sedley LJ noted the difficulties that treating a failure to make reasonable adjustments as an omission could have but stated at paragraph 38; “…tribunals can be expected to have sympathetic regard to the problems that paragraph 3(4)(b) [now s.123(4)(b) EqA] will create for some Claimants. As Lloyd LJ points out, its forensic effect is to give the employer an interest in asserting that it could reasonably have been expected to act sooner, perhaps much sooner, than it did, and the employee in asserting the contrary. Both contentions will demand a measure of poker-faced insincerity which only a lawyer could understand or a casuist forgive.”[88]This is a matter that the Employment Tribunal may take into account when considering whether to apply a time limit longer than 3 months on just and equitable grounds; Watkins v HSBC Bank Plc [2018] IRLR 1015.[89]The Court of Appeal held in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] IRLR 1050 at paragraph 14; “Section 123(3) and (4) determine when time begins to run in relation to acts or omissions which extend over a period. In the case of omissions, the approach taken is to establish a default rule that time begins to run at the end of the period in which the Respondent might reasonably have been expected to comply with the relevant duty. Ascertaining when the Respondent might reasonably have been expected to comply with its duty is not the same as ascertaining when the failure to comply with the duty began.”[90]If the employer does an act inconsistent with making the adjustment, time runs from that date.[91]In considering whether it is just and equitable to extend time the Tribunal should have regard to the fact that the time limits are relatively short. The Tribunal has a broad discretion to extend time when there is a good reason for so doing: Robertson v Bexley Community Centre (t/a Leisure Link) [2003] IRLR 434 and Morgan at para. 18:[92]In Abertawe Bro Morgannwg Local Health Board v Morgan [2018] ICR 1194, CA, Leggatt LJ held that the Tribunal has “the widest possible discretion” under the just and equitable test (para 18). Unfair Dismissal[93]Pursuant to s.94 of the Employment Rights Act 1996 (“ERA”) an employee has the right not to be unfairly dismissed.[94]If dismissal is established, it is for the Respondent to establish one of a limited number of potentially fair reasons for dismissal. These include, pursuant to s.98(2)(b) ERA, a reason which relates to the capability of the employee.[95]Where the employer establishes a potentially fair reason for dismissal the Tribunal will go on to consider, on a neutral burden of proof, whether the dismissal was fair or unfair having regard to the reason shown by the employer. This depends on whether in the circumstances, including the size and administrative resources of the employer’s undertaking, the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. This is to be determined in accordance with equity and the substantial merits of the case. In a sickness absence dismissal case a Tribunal will often consider whether in all the circumstances of the case the employer could be expected to wait any linger and, if so, how much longer.[96]When considering fairness of procedures, the Tribunal considers the overall process including any appeal: Taylor v OCS Group Ltd [2006] ICR 1602.
Analysis
[97]We first considered the claim of discrimination because of something arising in consequence of disability. We accept that the reason for the dismissal of the Claimant was absence from work. That was something that arose in consequence of her disability. We accept that the Respondent had legitimate aims in seeking to ensure regular attendance of staff and maintaining services to the citizens of Camden. However, we did not agree on whether dismissing the Claimant was a proportionate means of achieving that legitimate aim.[98]The majority of the panel considered that at the time of the dismissal, and for a prolonged period before it, there was a disconnect between the advice from Occupational Health, who suggested that with appropriate adjustments the Claimant could return to work; and the Claimant’s General Practitioner who signed a series of certificates in which the box was ticked stating that the Claimant was not fit to return to work (he did not tick the box suggesting that a return to work could take place if adjustments were in place). While we appreciate that we are tasked with considering objectively whether the dismissal was justified, rather than reviewing the thought processes of the Respondent; determining the proportionality of dismissing the Claimant for disability related absences necessarily involves a consideration of whether a stage had been reached at which it was right to conclude, objectively, that the possibility of adjustments that might allow a return to work had been fully and properly considered, and a time had been reached when it was proportionate to dismiss, in that it was appropriate and reasonably necessary. Justification in the case of dismissal for disability related absences is not static so that it can be objectively assessed at the outset; it will be affected by the period of the absence and the extent to which adequate steps have been take to consider alternatives. Just as we need to look at the matter objectively, rather than focus on the thought process of the Respondent, it is not appropriate to assume that just because the Claimant’s GP was continuing to sign fit notes stating that the Claimant was not fit to return to work that was the end of the matter and no steps could be taken to get the Claimant back to work. There are times when it is proportionate to expect a proactive approach to be taken to the sickness absences of a disabled person so that they can be managed back into work. The ECHR Code states that the absence of disabled employees may need to be managed in a different way from other ill health absences. That is particularly the case where reasonable adjustments might allow a return to work.[99]It is important not only to consider the period for which the Claimant was absent but also what had happened during that period. The Claimant had been signed off work from 15 December 2014. As early as 23 January 2015, Lynn Page, an Occupational Health advisor, had stated that “I cannot see why Aysen could not return to work on expiry of her current fit note if you are able to accommodate some adjustments”, “I anticipate that with the correct support Aysen should be able to render effective and reliable service into the future” and that “With the relevant equipment, and if you are able to in cooperate the recommendations, I do not see why Aysen would not be fit to continue on her current post”. Thereafter there was not substantive consideration of making adjustment as the Claimant was signed off for a further three months.[100]In his report of 13 March 2015 Dr Robin McNeiIl Love was positive about a return to work with adjustments. However, no real progress was made in considering the adjustments that could allow a return to work as the Claimant was signed off again. After the Stage 1 meeting on 19 May 2015 Ms Tobin wrote that she planned to “get more medical advice when your GP says you are well enough to return to work regarding a phased return to work”. The approach that the Respondent adopted was that the decision of the GP to sign a fit note stating that the Claimant was not fit to work trumped the view of the Occupational Health experts that she could return with adjustments in place. We have to consider, objectively and irrespective of their reasoning, whether dismissal was justified.[101]This disconnect continued up to the stage of dismissal. At that stage there was advice from a Consultant Occupational Physician, Dr Campion, who had reported on 5 August 2016. She was reporting within her specific area of expertise. She was positive about the possibility of the Claimant returning to work with appropriate adjustments. She remained equally positive at the Case Conference call on 15 September 2016. Unbeknown to her a further three month sick certificate had been submitted. She was not contacted for her further views once the certificate was seen. We consider that the key factor in the decision to dismiss was the receipt of this further sick certificate. We do not consider that it was objectively justified to dismiss at this stage without investigating why this disconnect persisted. We do not consider that it is proportionate to decide to dismiss by offsetting the advice of Occupational Health experts against the tick in a box provided by the Claimant’s GP. Before dismissal could be justified this disconnect had to be resolved.[102]We do not consider that it was proportionate to dismiss in circumstances in which the Respondent had not set out those adjustments that they were prepared to make, those adjustments that they would not make and any area for a flexible approach and put that in clear terms in a written document that could be considered by Occupational Health and shown to the Claimant's General Practitioner so that he would know what adjustments would in place if the Claimant was signed as fit to return to work with adjustments.[103]We accept the Claimant's evidence that her General Practitioner had stated to her on many occasions that he did not feel able to sign her as fit to return until he knew what adjustments would be in place.[104]We also consider that for dismissal to be justified an opportunity for the Claimant to digests the outcome of the grievance was required. We do not accept the Respondent’s contention that the Claimant stated that a return to work could only be considered if there was a outcome to the grievance that was satisfactory to her. We accept the Claimant evidence that she would consider the position once the grievance was resolved, even if it was not to her satisfaction. The Claimant stated that her counsellor had suggested that she should consider putting the matter behind her once the grievance was concluded. While we accept that it was not expressly stated by the Claimant at the meeting on 5 October 2016 that she could only return once her grievance Ms McBride accepted that the stress was exasperated by the ongoing grievance. Giving the Claimant a period in which to consider the grievance was particularly important in circumstances in which the final fit note only referred to stress and did not include the back injury.[105]We consider further investigations were required before it was proportionate to dismiss the Claimant. This need not have taken very long. The proposed adjustments for the Claimant's return to work could have been put to Occupational Health who could contact the Claimant’s General Practitioner. After a discussion with the Claimant, knowing what adjustments could be put in place, the General Practitioner could then decide whether he was prepared to sign the Claimant as fit to return to work. We do not consider that the stage had be reached when it was proportionate to dismiss. We note that this is not a case in which the Respondent has sought to rely on anything as justifying the dismissal that they did not rely upon at the time. Looking at the matter objectively, irrespective of the Respondent’s reasoning at the time, we do consider that the Respondent has been able to show that the dismissal was a proportionate mans of achieving it legitimate aims.[106]Although the Respondent had stated that they were prepared to make the adjustments the Claimant requested, with the exception of a move to a processing role, they were not prepared to advance those matters until they had a certificate from the General Practitioner certifying the Claimant was fit to return to work. We consider that with proper consultation between the Respondent’s Occupational Health advisors and the Claimant’s GP, with an agreement of a package of adjustments of the type that the Respondent had stated could be made, there was a good chance of a successful return to work.[107]The view of the member in the minority, Mrs Craik, is that there had been a very substantial period of absence, nearly two year, at the date of dismissal. The Claimant's GP, who was well placed to understand her medical condition, including any information available from other treating physicians, must have been aware of the responsibility to either sign the Claimant as fit to return or to state that the Claimant was fit to return with adjustments, if that was the case. The GP consistently signed the Claimant as not fit to return. The minority member considers it is not necessary or appropriate to go behind that clear statement by the Claimant's GP. The minority member also considers that it is appropriate to take into account the fact that the Claimant stated herself at the meeting on 4 October 2016 that she did not feel able to return. That together with the fit certificate leads to a conclusion that there was no foreseeable date upon which the Claimant was likely to return to work. The stage had been reached where it was appropriate and reasonably necessary to bring the matter to a conclusion, so that there could be a resolution of the staffing issues within the repairs Department. The stage was reached when it was proportionate to dismiss. The minority member considers that it would be inappropriate to attempt to persuade the GP that the Claimant was fit to return to work.[108]Although the Respondent was not prepared for the Claimant to move to processing role, they were prepared to make the other main adjustments requested by the Claimant. The minority member considers that the Claimant would have been the person best placed to engage with her General Practitioner and explain what adjustments the Respondent was prepared to make and state whether she felt fit to return to work with those adjustments.[109]In respect of the unfair dismissal claim we accept that the Claimant was dismissed for a reason relating to her capability; namely, her absence from work through ill health. The question we had to consider was whether the Respondent had carried out a sufficient investigation and had reached a stage at which they could reasonably conclude that they should not wait any longer before determining upon the dismissal of the Claimant. In considering unfair dismissal we are not, unlike in the disability discrimination claim, considering the matter ourselves on the basis of the information now available, but must consider whether what the Respondent did was fair or unfair. We must not substitute our decision for that of the Respondent. However, we are enjoined by the statute to consider equity and the substantial merits of the case in making our assessment of whether the dismissal was fair.[110]The majority of the tribunal do not consider a stage had been reached when there had been a sufficient investigation of the medical situation or that the Respondent could not be expected to wait any further before moving to a decision on dismissal. We consider because of the differing approach that had occurred for a prolonged period between Occupational Health, who were optimistic about the prospects of adjustments allowing a successful return of the Claimant to work, whereas the General Practitioner continued to sign certificates stating the Claimant was not fit to return; further investigation was required; with the Respondent setting out those adjustments that they would be prepared to make, those that they would not be prepared to make and any area of flexibility. Occupational Health could then consult with the Claimant's GP and obtain a definitive decision whether, with those adjustments in place, the GP would sanction a return to work. We consider that any reasonable employer would have carried out these further investigations. Furthermore, we consider that where the Claimant had explained that that that she found the grievance process stressful, there should have been a period of time during which she could process the grievance outcome before a decision was made in respect of her dismissal. We consider it was too early to ask her whether she felt fit to return on 5 October 2016, when she was did not know the full grievance outcome (although she had seen the grievance report) and had insufficient time to consider it.[111]We accept the Claimant had a very lengthy period of absence. However, for much of that period there was the unresolved conflict between their Occupational Health advice and the GP certificates. The Respondent had not taken adequate steps to resolve that difference of approach. We consider that is a factor to be taken into account in considering equity and the substantial merits of the matter in considering whether the dismissal was fair. It is also important to note the very long time that the Respondent took in dealing with the Claimant’s grievance, particularly in the context of a procedure that suggests that grievances should be concluded within 20 days.[112]Furthermore we consider that the immense delay before the appeal against dismissal was considered was unfair. It effectively robbed the Claimant of an effective appeal as by the time it was heard she had lost faith in the process so did not attend the hearing.[113]The minority member considers that the Respondent had carried out sufficient medical investigation and that, in circumstances in which the Claimant and her General Practitioner were not indicating that she was fit to return, and there was no an ascertainable date of a likely return to work, the dismissal was fair falling within the range of reasonable responses. At the stage of the meeting on 5 October 2016, while the Claimant referred to stress and suggested there was some impact from the grievance, she did not put forward the case as clearly as at the tribunal that she felt she could not come back to work until the grievance was resolved, or suggest that resolution of the grievance, whether in her favour or against her, might allow a return to work. Furthermore, the stress that the Claimant was suffering was not solely related to the grievance.[114]Our unanimous conclusion is that the Claimant has not put forward evidence from which we could conclude that the dismissal was because of her disability.[115]We next considered the reasonable adjustments claim. At the stage of dismissal the Respondent was prepared to make the majority of the proposed adjustments with the exception of the move to an alternative role. The stage at which they were to be implemented had not yet been reached because the decision was taken to dismiss because the Claimant's General Practitioner had not signed her as fit to return to work. Accordingly, we considered that at the time of dismissal the appropriate way in which to analyse this claim was as one of dismissal because of something arising in consequence of disability. As stated above, we consider that with proper consultation between the Respondent’s Occupational Health advisors and the Claimant’s GP, with an agreement of a package of adjustments of the type that the Respondent had stated could be made, there was a good chance of a successful return to work.[116]We also considered whether it might said that as early as the stage I meeting in May 2015, in the light of the Occupational Health advice that suggested that there could have been a return to work with adjustments, those adjustments should have been made at that time. Even if there were adjustments that could and should have been made at that stage, it was clear that they had not been made and, even allowing for the time in which they might reasonably have been expected to have been made, the claim in respect of such adjustments is very considerably outside the normal three month time limit (taking account of the extension for ACAS conciliation). We take into account the fact that there is considerable flexibility in respect of time limits, particularly in respect of reasonable adjustment claims, and we note that the was a period that the Claimant was suffering ill health, including stress and was taking medication that could make her feel drowsy at times. We also take into account the fact that the Claimant was going through internal processes with the Respondent. However, we note that the claim is very substantially outside the time limit. The Claimant was able to submit a substantial and detailed grievance. The Claimant had the advantage of support from a trade union official. Had the Claimant wished to, she could have brought claims in respect of any reasonable adjustments that she claimed should have been made shortly after the stage 1 meeting. We note that there necessarily is some prejudice as a result of such a substantial delay and the management of the Claimant at the time was by other individuals than those who gave evidence before us. Furthermore, the Claimant has not been clear in stating precisely when she contends the adjustments should have been made, focusing primarily on the period at the time of her dismissal. In all the circumstances we do not consider it would be just and equitable to apply a time limit in excess of three months in respect of the adjustments that it might have been appropriate to make in 2015 and, accordingly, do not find in the Claimant's favour in respect of those claims. Employment Judge Tayler 1 October 20192 October 2019 ………...................................................................... Annex Disability discrimination
Analysis
[1]Employment Judge Spencer held that the Claimant was a disabled person at the material times. Although the disability is not specified in the Judgment the parties agreed a description of the disability as a back condition (related to spine and nervous system) exacerbated by stress[2]Was the Claimant dismissed because of her disability Discrimination because of something arising in consequence of disability[3]The something arising in consequence of disability was her absence from work and/or the need to make reasonable adjustment.[4]Was the Claimant dismissed because of that something arising in consequence of disability?[5]If so, was the treatment a proportionate means of achieving a legitimate aim.[6]Legitimate aim relied upon was ensuring reasonable attendance at work and the proper running of the organisation Reasonable adjustment Chair[7]Was there a physical feature that put the Claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled. The Claimant alleges that her orthopaedic chair was not mended.[8]Did the Respondent fail to make reasonable adjustments by not mending the chair. Processing role[9]Did the Respondent apply a provision criterion or practice to the Claimant that not disabled by requiring those in Customer Services to have a substantial element of telephony in their duties.[10]Did the Respondent fail to make reasonable adjustments by not putting the Claimant into a processing role. Stress[11]Did the Respondent apply a provision criterion or practice to the Claimant that not disabled by requiring staff in Customer Services to work in a stressful environment.[12]Did the Respondent fail to make reasonable adjustments by not reducing stress (including resolving the Claimant grievance within a reasonable period) Stress risk assessment and work station risk assessment[13]These were not relied upon as separated reasonable adjustments. Move back to original role[14]Did the Respondent apply a provision criterion or practice to the Claimant that not disabled by requiring the Claimant as a Customer Services employee to work at Holmes Road.[15]Did the Respondent fail to make reasonable adjustments by not allowing the Claimant to work at Cressy Rd. Breaks[16]Did the Respondent apply a provision criterion or practice to the Claimant that not disabled by limiting breaks to allocated normal breaks.[17]Did the Respondent fail to make reasonable adjustments by not allowing the Claimant extra breaks (which would not be available if she was taking a lengthy telephone call) Working from home[18]Did the Respondent apply a provision criterion or practice to the Claimant that not disabled by requiring a return to work before home working could be considered.[19]Did the Respondent fail to make reasonable adjustments by not allowing the Claimant to start a return to work from home. Hours[20]Did the Respondent apply a provision criterion or practice to the Claimant that not disabled by requiring a return to work before reduced hours could be considered.[21]Did the Respondent fail to make reasonable adjustments by not allowing the Claimant to start a return to work on reduced hours. Phased return[22]Did the Respondent apply a provision criterion or practice to the Claimant that not disabled by requiring a return to work before a phased return could be considered.[23]Did the Respondent fail to make reasonable adjustments by not allowing setting up a phased return to work before the Claimant cam back to work. Counselling This was not replied upon. Redeployment[25]Did the Respondent apply a provision criterion or practice to the Claimant that not disabled by requiring the Claimant to return to work in Customer Service in a telephony role.[26]Did the Respondent fail to make reasonable adjustments by not allowing the Claimant to return to work in a role that did not mainly involve telephone use. Unfair dismissal[27]What was the reason for the dismissal of the Claimant? The Respondent relies on lack of capability through ill health. Was the dismissal of the Claimant fair?