Employment Judge EmeryIn person for claimantDate 30 June 2025
JUDGMENT
[1]At the relevant times the claimant was a disabled person as defined by section 6 Equality Act 2010 because of ADHD with symptoms of anxiety and depression.[2]The complaint of unfair dismissal is well-founded. The claimant was unfairly dismissed.[3]The complaint of unfavourable treatment because of something arising in consequence of disability is well-founded and succeeds.[4]The complaint of direct disability discrimination is not well founded and is dismissed. v3 10.2.25 Case number: 2201983/2024 Approved by:[1]At the relevant times the claimant was a disabled person as defined by section 6 Equality Act 2010 because of ADHD with symptoms of anxiety and depression.[2]The complaint of unfair dismissal is well-founded. The claimant was unfairly dismissed.[3]The complaint of unfavourable treatment because of something arising in consequence of disability is well-founded and succeeds.[4]The complaint of direct disability discrimination is not well founded and is dismissed.
REASONS
[1]Reasons were provided at the hearing; written reasons were requested following promulgation of the judgment.
The Issues
[2]The parties accept that the claimant was dismissed. The respondent says the reason was capability (long term absence) or some other substantial reason.[3]If the reason was capability, did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. The Tribunal will usually have to consider, in particular, whether;a. The respondent genuinely believed the claimant was no longer capable of performing their duties;b. The respondent adequately consulted the claimant;c. The respondent carried out a reasonable investigation, including finding out about the up-to-date medical position;d. The respondent adequately considered redeployment as an alternative to dismissal;e. The respondent could reasonably be expected to wait longer before dismissing the claimant; andf. Dismissal was within the range of reasonable responses. Disability[4]Did the claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide:a. Did they have a physical or mental impairment: ADHD, depression and anxiety?(1) The respondent accepts that it had constructive knowledge of ADHD from 12 June 2023;(2) The respondent’s position on depression and anxiety is that the claimant had mental health issues from January 2023, but not that these conditions have a substantial effect on the claimant;b. Did it have a substantial adverse effect on their ability to carry out day-today activities?c. If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?d. Would the impairment have had a substantial adverse effect on their ability to carry out day-to-day activities without the treatment or other measures?e. Were the effects of the impairment long-term? The Tribunal will decide: (1) did they last at least 12 months, or were they likely to last at least 12 months? (2) if not, were they likely to recur?[5]Did the respondent treat the claimant unfavourably by:a. Not giving him an opportunity to take a pay cut and move to a different role;b. Dismissing him;c. Offering him a trainee engineer role after a successful appeal[6]Did the following things arise in consequence of the claimant’s disability: a. the claimant’s sickness absence? The respondent does not accept the claimant’s sickness absences arises from a disability.[7]Did the respondent [not give him an opportunity to take a pay cut and move to a new role; offer him a trainee engineer role; and] dismiss the claimant because of that sickness absence? NOTE: Following the hearing I considered paragraphs 5 & 6 above and I added the wording in square brackets.[8]Was the treatment a proportionate means of achieving a legitimate aim? The respondent says that its aims were:a. Having a workforce capable of attending work regularly to fulfil their roles to ensure operational efficacy and efficiency;b. Managing the effective attendance of its workforce to maintain good customer service in a regulated industry (OfCom);c. To ensure recruitment is confined to where there is a need so as to ensure resources and budget are used in accordance with demand to preserve and promote its commercial interests; andd. To control costs, manage resources efficiently (particularly during financial difficulties or economic uncertainty), realigning budget priorities, and allowing time for strategic planning and organisational restructuring.[9]The Tribunal will decide in particular:a. was the treatment an appropriate and reasonably necessary way to achieve those aims;b. could something less discriminatory have been done instead;c. how should the needs of the claimant and the respondent be balanced?[10]Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date? Direct disability discrimination[11]Did the respondent do the following things:a. Not give the Claimant an opportunity to take a pay cut and move to a different role;b. Dismiss him;c. Offer him a trainee engineer role after a successful appeal?[12]Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant relies on a hypothetical comparator.[13]If so, was it because of disability? Evidence and witnesses[14]We heard evidence from the claimant. Mr Jason Scheepers did not give evidence but was present during the hearing as support to the claimant; he also appears in the documents as providing support during the claimant's appeal hearing.[15]For the respondent we heard froma. Ms Joanne Derbyshire, the Senior Manager for network rearrangementb. Mr Mark Anderson, Regional Operations Manager and the claimant's line managerc. Mr Michael Dyet, Senior Regional Performance Manager, who was the dismissing managerd. Ms Emma Robinson, Senior Area Manager, who heard the claimant's appeal against dismissal[16]Before the claimant gave evidence, he clarified that the impact statement in the bundle was not the final version; on 6 June 2025 he sent a further statement with a ‘short clarification’. The respondent had received this but had not had a chance to consider it. This statement was considered during a break; the respondent had no objection to it, and it was this statement that the claimant relied on when giving evidence.
The relevant facts
[17]The claimant was employed by the respondent from 1 November 2014, latterly as a Patch Lead. He was successful in this role. He made an internal application for an office-based role and after interview was successful in obtaining the role of Network Rearrangement Technical Engineering Professional on 9 December 2021.[18]From early on in this new role he raised with colleagues and managers that he was struggling with the role. For example, on 4 February 2022 he was sent a message by a colleague - “don't feel disheartened by today”; the message says he will receive some assistance “to get up and running”, that he should “stop putting yourself down ... it’s a steep learning curve...” (128). By December 2022, the claimant's 1-1 with his manager, Mark Anderson, records that it would be “fair to say” that the claimant had found the transition to the new role difficult. “We spoke about ... mental health.” The 1-1 notes say that it is up to the claimant to decide whether the role is “for him long term.”[19]All witnesses accepted that the role was one of significant complexity, that it would take at least two years to master all elements of the role. Many of the respondent’s witnesses accepted that several experienced employees had left the team, that there was less experience in the team for new starters to learn from. The respondent's witness also accepted that two other field engineers who started in the role at the same time as the claimant did not stay in the role and transferred back into engineer roles.[20]By January 2023 the claimant was actively seeking another internal role. He emailed Ms Derbyshire saying that he was struggling in his role “it’s not just for me”, that “it's starting to make me ill” (149). He says he is aware of a current job freeze. He and Ms Derbyshire met, and afterwards Ms Derbyshire spoke to a manager, Matthew, who may have had opportunities; in a follow-up email Ms Derbyshire says that the claimant “would happily support” Matthew’s team, that he was “very interested” in returning to the patch lead pool. It describes the claimant as “one of the best patch leads” and she thanks Matthew for “helping to turn a torrid situation” to a more positive one (135). Mr Anderson also chases up this potential role with Matthew (230).[21]In February 2023, the claimant started what became long-term sick leave suffering from stress and anxiety, and he did not return to work prior to his dismissal.[22]Mr Anderson kept in touch with the claimant during his sick leave, she records that the claimant was determined to move to another role and was actively seeking internal roles, even at lower grades, “as he sees this as being the only way forward.” (4 April 2023 – page 112). At a formal absence review meeting on 18 April 2023, the claimant says that the idea of returning to the role “fills [him] with dread” (164).[23]The claimant was told on 28 April that the respondent’s ER team “would undertake a local job search” and he should do the same. The note of the call refers to a prospective Occupational Health referral, “but we both agreed that this was unlikely to uncover anything that we did not already know” (114).[24]The claimant's evidence was that he did not agree at this meeting that Occupational Health was not a good idea; that he believed it would be of benefit if he did have an appointment. We consider that Mr Anderson misunderstood the claimant’s position regarding Occupational Health.[25]By May 2023 the claimant and Mr Anderson agreed that “coming back to his current role in any capacity would not be the right move”. The notes record that the claimant is “actively looking” for roles inside and outside the respondent (115). Mr Anderson records that he has put out “feelers” for new roles and vacancies. The notes also record that the claimant is aware there are recruitment difficulties in other areas of the business (116).[26]In June 2023 the claimant told Mr Anderson that he had seen a specialist who had told him that “it is highly likely” that he has “ADHD and moving into this role has forced this to come out...”. Mr Anderson was told that a formal assessment was required to confirm this diagnosis. The note says that the claimant had a “desire” to be demoted to a lower grade and a more “hands on” role, not a screen-based role (117).[27]On 15 June 2023, the claimant indicated that he wanted an OH referral. ER was also advising management and was aware of the potential ADHD diagnosis. They were aware that managers including Mr Anderson were undertaking “local job searches” (119).[28]On 19 July 2023, the claimant had an Occupational Health assessment. The OH report states that the claimant has struggled in his role which had caused “distress and unhappiness”. He received CBT which helped him cope, but it made “no difference” to the way he perceived his role. He was prescribed medication which had side effects; his GP then signed him off work. It refers to the potential ADHD diagnosis. It says that the claimant wanted to return to his previous field engineering role. It says that his return to work “could be expedited if a change in role is facilitated”; it says that a return to his current role “is not envisaged”. The “obvious adjustment” to make if it could be facilitated would be a return to a field engineering role. It answers “yes” to the question is his performance is “significantly affected by ill-health", it says that this is a “likely long-term difficulty” with desk-based project management. It reiterates that the employee is not fit to continue in their current role “but would be fit for alternative roles in direct field engineering.” (171-2).[29]Ms Alison Bromilow’s ER advice in response to this report was “... however if there is no role there is no role and we cannot create one.” Mr Anderson was told that apart from a local job search “your only option” is to move to resolution” – i.e. dismiss the claimant (122). Mr Anderson summarised ER’s advice in an email, saying that the claimant should be dismissed because “he knowingly applied” for his current role and “the company is unable to make up an alternative role for him” (123).[30]In his evidence Mr Anderson said that he was taking guidance from ER, that their opinion on the next steps was not his own opinion. He accepted that AJS was “a potential next step”, that he received guidance from ER, but he was not told to proceed to AJS,[31]In questions to the claimant, the respondent’s case was that the claimant did not like his role, he wanted to be field-based, and the fact he did not enjoy the role was “the reason why you could not do it.” The claimant's case was that the role “impacted on his health, in particular ADHD, leading to "a ripple effect which created a perfect storm on my mental health”.[32]On 21 August 2023 the claimant was invited by Mr Dyet to a further long-term absence meeting. He is told that the business has explored opportunities for new roles; that one of the options following the meeting could be dismissal (178).[33]The claimant's email in response refers to potential roles - “MDU are currently recruiting and looking for field engineers. ... they are emailing internally to recruit. Mr Dyet’s response says that this role is “only open to people currently within the Chief Engineers” but that Michael is “happy to chat through any other opportunities you are aware of or see” on the internal recruitment board (180).[34]At the final absence meeting, the claimant was told that its main purpose was for him to put forward his case as to why he should not be dismissed. The claimant referred to the “50% attrition rate” of new starters in his role, that two other colleagues became ill, but found internal roles; he felt he should not have been recruited, that it was “obvious” the wrong people were recruited, that he was “dropped in deep and left alone.” He said that Ms Anderson was going to reach out about new roles. He said that he would like some help to find a role, also aware that the respondent was seeking to make redundancies (182-4).[35]On 11 September 2023 the claimant was informed of his dismissal on 3 months' notice, his final date of employment being 13 December 2023. The ‘Resolution Rationale’ for this decision states that there were no other available opportunities within the business, and the claimant could not provide a regular and effective service in his role. His absence has caused strain on his team, and this could have an impact on the team's well-being; there was a financial strain on the business. It says that the claimants “decision to go off sick” because it was the “only thing” he could do to keep is sanity was not the claimant's only option; that “in order to support [the claimant] within the role and potentially secure another role in the business, we could have explored alternatives at the time.” (187 – 189).[36]Mr Dyet’s evidence was that he believed that the claimant had had a “relapse” of his health which meant he was not in a position to consider alternative roles. The claimant was dismissed because he could not return to his role. Mr Dyet accepted that the OH report says that in fact the claimant was fit to undertake a field-based role at the time he was dismissed.[37]My Dyet said that the reason the claimant was not put through the AJS process was because it was for the claimant to present a “business case” for AJS, and “I did not feel there was a strong enough business case” to support him through this process. We accept that the claimant was not asked to present a business case to go onto the AJS, that this was never raised by Mr Dyet with the claimant.[38]Mr Dyet also said in his evidence that he was willing to put in place adjustments to the claimant's role, that having him supported in his role “was my intention”, but that in his view the respondent had proposed adjustments to his role (page 164) “and you are not accepting these adjustments”. He said that the claimant needed to be prepared to consider adjustments to his role: “AJS is specific to where there is ... a contract between manager and employee to finding a resolution ... for example making adjustments, proposing adjustments. There has to be acceptance to work towards adjustments rather than a different role”[39]The claimant appealed, on the ground of “inadequate support”, he referred to his meetings with Ms Derbyshire, Mr Dyet and Mr Anderson, that he was seeking a demotion or secondment as he was able to do the field engineer role, that he was prepared to be demoted on less money and a lesser grade to facilitate this. He criticises Mr Dyet for saying he could not be helped until he came back to his role as Mr Anderson had previously said that he should not return to his role. He mentions the difficulties and lack of support in the role, referring to a "50% attrition rate”, that he felt he had been “thrown in the deep end” in the new role (190).[40]Separately, the claimant said he was fit and wanted to return to work; eventually he did return to shadow for a role during his notice period, of which more below.[41]At the appeal hearing, the claimant's colleague attending with him, Jason Scheepers, asked why an Assisted Job Search process had not taken place (summarised at 217); this appears to be the first time that this process had been mentioned during the claimant’s sickness absence.[42]Ms Robinson, who conducted the appeal, provided details about a potential opportunity in a field engineering role, and the claimant was given a two-week shadowing opportunity in this role from 16 October 2023 (236). He did so, and in feedback thereafter on 30 October 2023 he describes it as "really enjoyable”.[43]At the 30 October meeting, Ms Robinson gives her thoughts on the long-term absence process and dismissal. She expressed a view that there had been a breach of process by a failure to seek an alternative role in the AJS scheme, and that there had been an issue around the training for his role. Ms Robinson informs the claimant that even though there is no actual vacancy, she is “happy” for the claimant to be reinstated to the role he had trialed for. She says she believes that had the AJS process been followed “then we would have explored all of the engineering roles and potentially have got a job on the back of that because I couldn’t see that the process had been followed correctly. ... I acknowledge that there’s been a breach, and we haven't followed the right process.”[44]Ms Robinson also says that if the claimant does not want this job “we will pick up the process and I will have to find out what we do next” (240-245); he is told that in this new role he would move from his current Grade E “down to an engineering grade”. The claimant said he would be happy with this.[45]On 31 October 2023 the claimant was offered the new role: it was at grade TMNE 2 – a salary of £29,495 plus bonus. The claimant responded that this was a drop of two engineer grades from his prior engineering role; he had been TMNE 4 and this was a £12,500 drop in his salary. In his response, he says that he had been treated appallingly throughout the process “you've confirmed there were breaches in process. To take a £12,500 pay drop is a further kick in the teeth. One I cannot afford to take.” He says he will take time to decide what to do next and asks to see the appeal decision before making his decision (255).[46]Ms Robinson provided her appeal rationale on 13 November 2022. The report in the bundle appears in draft and with track-changes, and there were extensive questions about who had added some of the changes. During closing submissions, we were provided with several earlier versions of the report. Ms Robinson confirmed in her evidence that the tracked changes were added by ER.[47]One of the tracked changes states “there is no medical reason which supports” the claimant wanting a change in role “other than they perceive it as stressful”; that “they feel unable to carry out their role.”[48]The AJS issue is also subject to tracked-change amendments: Ms Robinson’s wording is that AJS was not initiated. Added is the following: “... as they do not meet the criteria, there are no medical reasons as to why they are unable to remain in the current role ... other than they perceive it as stressful.” It says that management had tried to support the claimant back into the role “with help and support but [the claimant] felt unable to do so.”[49]The report concludes that the appeal is “upheld - successful” that the claimant should be reinstated as adjustments can be accommodated “i.e. a move into” the role the claimant had recently shadowed. In track changes is the following addition: That if the claimant chooses not to accept the lower graded role the original decision stands, “as per my rationale there are no medical reasons why they are unable to return to their contractual role” (264-7).[50]Ms Robinson’s evidence was that she initially believed that there had been a breach of the AJS, but that ER “talked me through” the policy, saying that there had to be a “change in capability” in the employee before AJS could be considered, that in the claimant's case the role was causing him anxiety, that the barrier was not ADHD but that the claimant felt he could not return to work. “It was not a capability issue, it was ‘I can’t return to the role’”. Ms Robinson accepted that ER’s advice was, to summarise, this was a “choice issue” and not a medical issue.[51]On 15 November 2023 the claimant confirmed that he “would not be willing to drop down to a basic newly qualified engineering role”; this is below an advanced engineer wage that he was in any event overqualified for as a patch lead. He says he feels his position is untenable, and that this appears to have been a deliberate tactic to force him out. In response he is told that because he has taken the decision to decline the role “the original decision stands” and he would remain on notice (268).[52]During his notice period, the claimant put in a grievance; much of the grievance is about issues not directly relevant to the claim, including the lack of support and training for his role, that the interview process did not properly consider actual capability for this role, that when performing the role there was inadequate peer support and training. Of relevance to his allegation that there were failures in the attendance and dismissal process, the claimant and his representative refer several times to the failure of the respondent to put the claimant in the Adjusted Job Search.[53]The respondent's Attendance Procedure states that where there is an extended absence, and where it is clear following an Occupational Health report that permanent adjustments cannot be made to the role, “a comprehensive search for alternative duties must be undertaken”, under the respondent’s Adjusted Job Search (AJS) procedure (593-602).[54]The AJS policy specifies that the manager must “exhaust” all local options which may be available via job searches; if unsuccessful the process includes the following “step by step line manager guide”: to “put together a business case and raise an HR case ... “to allow for AJS to be considered”; to meet with the employee to confirm the move to AJS and support AJS registration; provide regular support to the job search; maintain a job search record. A 2nd line manager has responsibility for reviewing the process for each AJS candidate. The recruitment team must advertise all jobs internally and consider priority candidates first for available roles.[55]The grievance outcome gives the following rationale for not putting the claimant into the AJS process: it was not initiated “as there was no reason [the claimant] could not perform his normal duties (apart from the Stress the role was causing [him]. This [followed] the OHS referral as part of the sickness absence that showed no reason”. It says that managers “supported” the claimant to find an alternative role. It says that the dismissal process was correctly followed, he was dismissed “as he was not prepared to return to work in the current role” and was not prepared to accept the lower-paid role (511-2).[56]In questions to the claimant at the hearing, the respondent’s position was that the claimant did not enjoy his role, it was not what he envisioned, that is why he wanted to leave, that there was no underlying health condition which meant that he was unable to undertake the role. The claimant disagreed, saying there was an underlying reason, that the role “impacted” on his ADHD, that this “caused a ripple effect which created a perfect storm” for his health.[57]The claimant’s impact statement describes anxiety and depression causing him sleeplessness and a sense of failure which “bled into every part of my life”; feeling isolated and overwhelmed at work, he suffered from “extreme anxiety”, his confidence eroded, and “everything crumbled around me”. He describes becoming emotionally distant from his children and there being strain on his marriage (553-555).[58]The respondent says that virtually all medical certificates state “anxiety” only; the claimant’s evidence was that his medical records also state “depression”. The respondent also argues that the records show his mood varying because of his role, that this is not a “long-standing diagnosis”; there are no prior diagnoses of these conditions prior to taking this role. The claimant accepted that the conditions were triggered by issues at work – he says that a lack of training and support caused anxiety and depression. He disagreed that the symptoms ceased after his dismissal, he says that they have been ongoing since his dismissal and up to the date of the claim.[59]The claimant’s relevant GP records during his employment record the following:•9 December 2022 – telephone triage, diagnosis of mixed anxiety and depressive disorder, after “a year from hell”. Relationship and work both “suffering” and he is “struggling with motivation”•14 December 2022: attended surgery. “struggled this year”, gone from “‘tonnes of energy’ to struggled with mental health”; medication made him drowsy, “goes through episodes of low and lethargic”, from “lots of energy to struggling”; he was told to keep a gratitude diary, a mood journal, and to “start sertraline”.•30 January 2023: “struggling at home ... more so with tablets... “•31 January 2023: “... states mood varies, feels despondent, other days he is fine”; difficulties in his relationship. Referred for CBT.•2 March 2023: fit note, anxiety•20 March 2023 – fit note, anxiety•31 March 2023: fit note, anxiety•2 May 2023: fit note, mixed anxiety and depressive disorder•31 May 2023: fit note, anxiety•2 July 2023: fit note, anxiety•2 August 2023: fit note, mixed anxiety and depressive disorder•31 August 2023: fit note, mixed anxiety and depressive disorder•18 September 2023: mixed anxiety and depressive disorder”, the claimant feels ready to work in “field duties” but not in his current role.[60]In his evidence the claimant described depression as affecting his ability to make informed decisions. His ability to think with confidence evaporated, he suffered significant “self-doubt”. He says he has suffered symptoms in the last but never long-lasting. He described serving in the army in Afghanistan, seeing “horrific” incidents but also having an extended support network in the Army; he compared this to the lack of support at the respondent.[61]The claimant described the impact of ADHD as follows: he would try to initiate a task, he could not as he felt overloaded, that the ADHD then intermixed with depression, that he then could not focus, he would struggle to start a job, struggle to finish it, he would often be “overstimulated” and would struggle day to day.[62]The respondent argues that the condition was not long-term, that his medical records on 29 February 2024 suggest a “traumatic year last year” where he had “a period of stress and anxiety about work”, that this was a job he did not like and did not want to do. The claimant disagreed, saying that the records also show that he was suffering from poor concentration at that time, that all conditions were having a substantial impact on him. He referred to counselling and medication he had from 2022, and that he had reached out to Mr Anderson in mid-2022 that he was struggling with his role and mental health. He said he has had ADHD his whole life.[63]The claimant obtained a confirmed ADHD diagnosis in November 2024; the “clinical assessment and observations section” records the claimant’s symptoms as follows: overlooking and missing details leading to inaccuracies and that this has been the case since childhood. It describes careless mistakes, he is readily distracted by unrelated thoughts, again from childhood; he struggles to keep attention on tasks, feelings restless, again since childhood; it says he had difficulty completing administrative tasks. He finds it challenging to sit still for extended periods; he has a “constant urge” to be active. It states that his “symptoms of inattention, hyperactivity and impulsivity significantly affect his daily life and relationships.” Closing submissions[64]The respondent provided a written submission and gave an oral submission; the claimant responded with an oral submission. I consider their submissions in the conclusions below.
The relevant law
[65]As well as the cases cited by Ms Jervis, I considered the following legislation and case law: At the relevant time, was the claimant a disabled person as defined in the Equality Act? 66. s.6 Equality Act 2010(1) A person (P) has a disability if - (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities. S.212 Equality Act 2010 General interpretation (1) In this Act - ... “substantial” means more than minor or trivial ... Schedule 1 Equality Act 2010 2(1) The effect of an impairment is long-term if - (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected. 5A (1) This paragraph has effect for the purposes of the application to the protected characteristic of disability of— (a) Part 5 (work);(2) References in the relevant provisions to a person’s ability to carry out normal day-to-day activities are to be taken as including references to the person’s ability to participate fully and effectively in working life on an equal basis with other workers.[67]The respondent accepts the claimant has impairments, it does not accept they had a substantial and long-term adverse effect on the claimant's ability to carry out day to day activities.[68]Case law on normal day to day activities:a. The Equality Act Guidance on matters to be taken into account in determining the question of disability: 'it is not possible to provide an exhaustive list of day to day activities'; but normal day to day activities does not include activities which are only normal for a small group of people (paragraphs D2, D8 & D9).b. Banaszczyk v Booker Ltd [2016] IRLR 273 EAT: When looking at the effect of an impairment the impact on a person's professional life can be taken into account.c. Chacón Navas v Eurest Colectividades IRLR 706 [2007]: what is now the s.6 definition includes limitations “which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life”.d. HK Danmark, acting on behalf of Ring v Dansk Boligselskab C-355/11 [2013] IRLR 571: “'the concept of disability must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the persons concerned in professional life on an equal basis with other workers'.”e. Chief Constable of Norfolk v Coffey [2019] EWCA Civ 1061: the phrase normal day to day activities should be given an interpretation which encompasses the activities which are relevant to participation in professional life'.f.The Equality Act 2010 (Amendment) Regulations 2023 SI 2023/1425 inserted with effect from 1 January 2024 a new paragraph into Sch 1 to the Equality Act 2010 providing that, in work-related discrimination cases, references to a person's ability to carry out normal day-to-day activities are to be taken as including references to the person's ability to participate fully and effectively in working life on an equal basis with other workers. The explanatory note to the regulations indicates that this is intended to put beyond doubt that the EU approach to the definition of disability is part of UK law after Brexit. However, it is possible that the wording in the regulations goes further and would bring within the definition a person whose impairment interferes with their ability to a carry out very specialised activities such as some of those involved in working as, say, a piano tuner or a silversmith.g. Igweike v TSB Bank Plc [2020] IRLR 267, EAT: a substantial effect on day-to-day activities may be established even if there is no effect on activities outside work or the particular job. Usually however disabled status is established because the requisite effects are found on normal day to day activities outside work, or both outside and in work”.[69]Case law on Substantial' adverse effecta. Statutory Guidance on the correct interpretation of disability: ''The requirement that an adverse effect be substantial reflects the general understanding of “disability” as a limitation going beyond the normal differences in ability which may exist among people. A “substantial” effect is more than would be produced by the sort of physical or mental conditions experienced by many people which have only minor effects. A “substantial” effect is one which is more than “minor” or “trivial”.'' (paragraph B1). The cumulative effects of an impairment are to be taken into account in assessing its seriousness (B4)b. Elliott v Dorset County Council [2021] IRLR 880, EAT: ''There is a potential internal inconsistency between an adverse effect being something that is “more than minor or trivial” and looking for a “limitation going beyond the normal differences in ability which might exist among people”. [….] The starting point is to remember that the statutory definition of the word “substantial” is “more than minor or trivial”. If the adverse effect has a more than minor or trivial effect on the ability of a person to carry out day-to-day activities the definition is met; no consideration of the abilities of some group of people, or section of the population, can alter that determination.' (paragraph 38). 'The … adverse effect of an impairment on a person is to be compared with the position of the same person, absent the impairment. If the impairment has a more than minor or trivial effect on the abilities of the person compared to those s/he would have absent the impairment, then the substantial condition is made out. (paragraph 43)'c. Anwar v Tower Hamlets College UKEAT/0091/10: There is nothing wrong as a matter of law to consider an impairment to be more than trivial, and yet still minor rather than substantial.d. Goodwin v Patent Office [1999] IRLR 4: In deciding how substantial an adverse effect is, examination should be made of what someone cannot do, rather than what they can.[70]Case law on long-term effecta. Tesco Stores Ltd v Tennant [2020] IRLR 363, EAT: a person who has a condition which lasts for 12 months may not be able to argue that they have been discriminated against during the period before it was a longterm condition, i.e. during that 12-month period.b. Nissa v Waverly Education Foundation Ltd UKEAT/0135/18: A medical diagnosis of a condition is relevant but is not determinative. The correct approach is to consider what the effects of the impairments were at the material time, and to consider whether there was information before the ET which showed that, viewed at that time, it could well happen that the effects of the impairments would last for more than 12 months. 71. s.15 Equality Act 2010(1) A person (A) discriminates against a disabled person (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.(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.[72]Case law on 'Arising in consequence of B's disability'a. 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.''b. City of York Council v Grosset [2018] EWCA Civ 1105: 'it is not possible to spell out of section 15(1)(a) a … requirement, that A must be shown to have been aware when choosing to subject B to the unfavourable treatment in question that the relevant “something” arose in consequence of B's disability'; in this case the employer was unaware that a lack of judgment had arisen in consequence of B’s disability. If A knows of the disability, it would "be wise to look into the matter more carefully before taking the unfavourable treatment”.c. Sheikholeslami v University of Edinburgh [2018] IRLR 1090, EAT: ''the approach to s 15 Equality Act 2010 is now well established and not in dispute on this appeal. In short, this provision requires an investigation of two distinct causative issues:(i) did A treat B unfavourably because of an (identified) something? and(ii) did that something arise in consequence of B's disability? The first issue involves an examination of the putative discriminator's state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found. If the “something” was a more than trivial part of the reason for unfavourable treatment then stage (i) is satisfied. The second issue is a question of objective fact for an employment tribunal to decide in light of the evidence.d. Dunn v Secretary of State for Justice [2018] EWCA Civ 1998, [2019]: 'it is a condition of liability for disability discrimination ... under s 15 that the complainant should have been treated in the manner complained of because of ... the “something” which arises in consequence of that disability'. This will typically involve establishing that the disability or relevant related factor operated on the mind of the putative discriminator, as part of their conscious or unconscious mental processes. iii) Lack of actual or constructive knowledge of B's disability[73]Case law on knowledge of disabilitya. EHRC Code: Paragraph 5.14: It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a 'disabled person'. Paragraph 5.15: An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment...b. Godfrey v Natwest Market Plc [2024] EAT 81: To succeed on ‘knowledge’ an employer would need to show that it did not know (and could not reasonably have been expected to know) that the employee had a physical or mental impairment that had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.c. City of York Council v Grosset [2018] EWCA Civ 1105: It is not necessary for an employer to be aware that the "something" arises in consequence of the employee's disability for it to be liable under section 15, if it treats the employee unfavourably because of that "something". The test is an objective one, and the employer can be liable under section 15 even though it was not aware that the employee's actions were due to their disability.d. A Ltd v Z [2019] IRLR 952, [2020] ICR 199, EAT:• There need only be actual or constructive knowledge as to the disability itself, not the causal link between the disability and its consequent effects which led to the unfavourable treatment;• The Respondent need not have constructive knowledge of the complainant's diagnosis to satisfy the requirements of s 15(2); it is, however, for the employer to show that it was unreasonable for it to be expected to know that a person(a) suffered an impediment to his physical or mental health, or(b) that that impairment had a substantial and(c) long-term effect;• When assessing the question of constructive knowledge, an employee's representations as to the cause of absence or disability related symptoms can be of importance; without knowing the likely cause of a given impairment, “it becomes much more difficult to know whether it may well last for more than 12 months, if it has not already done so. 52. Objective justification a. Chief Constable of Gwent Police v Parsons and Roberts UKEAT/0143/18: once a prima facie case of discrimination arising from disability is shown the onus is on the employer to establish justification, which involves showing that the unfavourable treatment was a reasonably necessary and proportionate means of achieving a legitimate aim. b. Hensman v Ministry of Defence EAT [2014] EqLR 670: when assessing proportionality, while an ET must reach its own judgment, that must in turn be based on a fair and detailed analysis of the working practices and business considerations involved, having particular regard to the business needs of the employer. c. City of York Council v Grosset [2018] EWCA Civ 1105: the test of justification is an objective one to be applied by the tribunal; therefore, while keeping the respondent's 'workplace practices and business considerations' firmly at the centre of its reasoning, it is the ET which must make its own assessment. In addition, the EHRC Employment Code of Practice makes it clear that a link between failure to put in place reasonable adjustments and the unfavourable treatment in issue under EqA 2010 s 15(1)(a) may be an important factor to be taken into account when determining justification. d. Buchanan v Commissioner of Police of the Metropolis [2016] IRLR 918: where a policy permits potentially different responses to any particular circumstance, for example the application of an absence policy, it is the particular treatment which must be examined to consider whether it is a proportionate means of achieving a legitimate aim.e. Knightley v Chelsea & Westminster Hospital Foundation Trust [2022 IRLR 567: If the Tribunal accepts the employer is pursuing legitimate aims when dismissing the claimant, the Tribunal must conduct the necessary balancing exercise to weigh up their discriminatory effect to determine the question of proportionality.f. Birtenshaw v Oldfield [2019] IRLR 946: in assessing proportionality the Tribunal should give a substantial degree of respect to the judgment of the employer as to what is reasonably necessary to achieve the legitimate aim.g. Carranza v General Dynamics Information Technology Ltd [2015] IRLR 43: the duty to make adjustments and the prohibition from discrimination arising from disability may be closely related. 'An employer who is in breach of a duty to make reasonable adjustments and dismisses the employee in consequence may have breached both duties.h. Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265: Where there is a link between reasonable adjustments and s.15 unfavourable treatment, a failure to make those reasonable adjustments is to be considered as part of the objective justification balancing exercise.i. Ali v Torrosian (t/a Bedford Hill Family Practice) UKEAT/0029/18: the authorities on the objective balancing exercise show that to be proportionate the conduct in question has to be both an appropriate and reasonably necessary means of achieving the legitimate aim; and for that purpose it will be relevant for the Tribunal to consider whether or not any lesser measure might have served that aim.j. Department for Work and Pensions v Boyers EAT 0282/19: The proportionality assessment requires the tribunal to carry out an objective balancing exercise, between the needs of the employer, and the negative effect of the dismissal on the claimant.k. O’Brien v Bolton St Catherine’s Academy [2017] ICR 737: where sickness absence is the ‘something arising in consequence’ of disability, the impact on the employer of the continuing long-term absence will be so obvious that a general statement to that effect will suffice.[74]Capability dismissalsa. BHS v Burchell test - Graham v Secretary of State for Work and Pensions (Jobcentre Plus) [2012] EWCA Civ 903: - applied to long-term sickness absence cases by DB Schenker Rail (UK) Ltd v Doolan [2010]: the employer must show:• It had a genuine belief that ill-health was the reason for dismissal;• It had reasonable grounds for its belief;• It carried out a reasonable investigation.• Burchell: “36 If the answer to each of those questions is “yes”, the ET must then decide on the reasonableness of the response by the employer. … In performing the latter exercise, the ET must consider, by the objective standards of the hypothetical reasonable employer, rather than by reference to the ET's own subjective views, whether the employer has acted within a “band or range of reasonable responses” to the particular misconduct found of the particular employee. If the employer has so acted, then the employer's decision to dismiss will be reasonable. However, this is not the same thing as saying that a decision of an employer to dismiss will only be regarded as unreasonable if it is shown to be perverse. The ET must not simply consider whether they think that the dismissal was fair and thereby substitute their decision as to what was the right course to adopt for that of the employer. The ET must determine whether the decision of the employer to dismiss the employee fell within the band of reasonable responses which “a reasonable employer might have adopted”. An ET must focus its attention on the fairness of the conduct of the employer at the time of the investigation and dismissal (or any internal appeal process) and not on whether in fact the employee has suffered an injustice.''b. Spencer v Paragon Wallpapers Ltd [1976] IRLR 373: ''Every case depends on its own circumstances. The basic question which has to be determined in every case is whether, in all the circumstances, the employer can be expected to wait any longer and, if so, how much longer?'c. Merseyside and North Wales Electricity Board v Taylor [1975] IRLR 60, [1975] ICR 185: ''… when one comes to consider the circumstances of the case, as to whether they make it reasonable or unreasonable to act upon his incapacity and to dismiss him, it cannot be right that, in such circumstances, an employer can be called upon by the law to create a special job for an employee however long-serving he may have been. On the other hand, each case must depend upon its own facts. The circumstances may well be such that the employer may have available light work of the kind which it is within the capacity of the employee to do, and the circumstances may make it fair to at least encourage him or to offer him the chance of doing that work, even if it be at a reduced rate of pay'.d. Garricks (Caterers) Ltd v Nolan [1980] IRLR 259: the employer acted unreasonably in not giving sufficient consideration to finding the employee a job in circumstances where although he was not fit enough to do shift work, he could have done a day job. ''Clearly employers cannot be expected to go to unreasonable lengths in seeking to accommodate someone who is not able to carry out his job to the full extent. What is reasonable is very largely a question of fact and degree for the industrial tribunal'.' Conclusions on the evidence at the law Disability[75]The respondent accepts that the claimant had ADHD at the relevant time, that it had constructive knowledge of ADHD; it accepts he had anxiety but not depression, saying that “mixed anxiety and depressive disorder” is a different condition to anxiety and depression. It says that none of these conditions had a substantial effect on him, they were work-related, and they did not have a longterm effect. The respondent also accepts that there may be an interrelationship between these conditions and their effect on the claimant.[76]We do not accept the respondent’s argument that there is no evidence in the medical records of substantial impact on the claimant – the extracts above show that in December 2022 the claimant was feeling low and lethargic, the records say he is “struggling” on several occasions. We accept also that the ADHD report, albeit a year later, accurately records the claimant's symptoms and their effect on him during his time at work – as the report says, many of the symptoms have been present since childhood.[77]We conclude the following from the medical and the claimant's evidence: while the claimant may have struggled with many events in his life because of undiagnosed ADHD, it is clear from his evidence – oral and in two statements - that from early 2022 this condition very quickly caused a substantial impact on his ability to so his role, that it made the role virtually impossible for him to undertake. As the OH report states, it is very shortly after he took the role that the claimant started suffering from depressive symptoms.[78]We accept that from early 2022 his anxiety, because he felt hopeless at not being able to do his role, became severe. We accept based on the medical records which record the previous “year from hell”, and from what the OH report states, and from what the claimant was telling his managers, that he was suffering from significant symptoms of depression and anxiety during much of 2022. We see no contradiction between this and Dr’s characterisation of a mixed anxiety and depressive disorder. While there may be a precise medical distinction between this condition and between the symptoms of anxiety and depression, for the purposes of the Equality Act the precise diagnosis matters less than the effect of those conditions on the claimant.[79]We conclude that the claimant’s undiagnosed ADHD impacted significantly on his ability to do his role from early 2022, that this impact on his ability to undertake day to day activities as described in the ADHD report became substantial in early to mid- 2022.[80]We accept the claimant's evidence that from early 2022 he struggled to start a job, struggled to finish, he had generally low mood and was withdrawn at home and at work.[81]We conclude based on the evidence we have seen and heard, that the interrelationship between all of the conditions started having a substantial effect on the claimant's day to day activities from mid-2022 onwards.[82]The respondent’s position is that the anxiety is work-related and transient, that ADHD at most impacts his ability to do his role but not day-to-day activities. We disagree. While the impact became apparent on the claimant because of the role he was undertaking, and his symptoms were worse because of the nature of the role, the activities he undertook in the role were not specialist; they readily transfer to other roles and tasks outside work – concentrating, analysing information, undertaking multiple desk and screen based tasks.[83]By early 2023 the claimant was desperate to leave his role, and shortly after he went on long-term sick leave. He went to his GP and was prescribed medication. We accept that during his sick leave the conditions continued to have a significant impact on his day-to-day activities. These include his ability to concentrate, being hyperactive and withdrawn, lacking in concentration and lacking attention, difficulty maintaining relationships, and difficulties sleeping.[84]The impact of ADHD is lifelong. We accept that in its own right this amounted to a disability from mid-2022 the end of the claimant’s employment. As stated above, we accept that his condition is interrelated with anxiety and depression from around the same period. We accept that the symptoms of anxiety and depression started decreasing in the months after the claimant's dismissal.[85]We conclude that from mid-2022 to December 2023 the three conditions taken together had a substantial impact on the claimant's ability to undertake day to day activities.[86]We accept the claimant had a condition which had a substantial impact on him when he commenced sick leave with depression, anxiety and undiagnosed ADHD. At this point, only ADHD was a long-term condition. Depression and anxiety became long-term conditions in June/July 2023, a year after these conditions started having a substantial impact on his day-to-day activities. Knowledge of disability[87]The respondent's position is that it was told of a potential ADHD diagnosis but had no knowledge of the effect of this condition on the claimant. It accepts he may have suffered from low mood “but this is not enough” for knowledge of the medical conditions. It accepts it had medical certificates, but that it had no conception of the impact of the symptoms of the conditions on him “we do not accept that we had knowledge of his symptoms”, that while the claimant may have said he had ADHD, “he does not suggest that his issues at work are attributable to ADHD”. The respondent’s position is that there is no explicit or implicit suggestion in the OH report that ADHD is the reason he is struggling.[88]From mid-2022 and into 2023 the effects on the claimant were noticeable, as documented by his managers. By January 2023 Ms Derbyshire is clear that not all is well with the claimant. In her evidence she noted that he appeared visibly ill and withdrawn, he was saying to her in this conversation that he was not coping in the role. Ms Anderson’s statement notes that the claimant “openly” told her about his mental health difficulties “that he was struggling in his life”. In her evidence she accepted that he was withdrawn and not contributing, she said that at this time it was clear his mental health was having “a major impact on his life. This was clearly known by others: an email from Mr Anderson to Ms Lancaster - “the claimant is really struggling”.[89]In this Tribunal’s collective experience, the claimant’s noticeable symptoms from mid-2022 should be a 'red flag’ for an employer. This was knowledge which should have led to advice being sought from ER, it is an issue of a duty of care.[90]It is also, we conclude, clear knowledge is that the claimant was suffering from poor mental health and not coping in role; this is at the very least constructive or imputed knowledge that the claimant may have a medical condition which is impacting on his ability to do his role. In this context, we find it very concerning that ER advice was not sought at this time.[91]There is then a significant delay between the claimant's sick leave starting and obtaining an Occupational Health report. Given the positive impact a report may have – in this case it may have led to the AJS process starting - we are surprised one was not sought earlier. The claimant denies “agreeing” not to seek a report in May 2023. We feel that given his symptoms and his frustration and wish to move to another role, it is unlikely the claimant would have said no to seeing OH.[92]We conclude that there was a lack of curiosity by the respondent as to what was causing the sick leave and whether Occupational Health could make suggestions to resolve the issues. This is concerning, given the respondent's knowledge of the claimant's long-standing issues with his role, the fact he is on a significant absence for work-related reasons.[93]By June 2023 the respondent had been told that the claimant had a tentative diagnosis of ADHD pending a formal assessment (118) and in July 2023 the respondent had an OH report which referred to ADHD and mentioned low mood. Mr Anderson thought that the claimant would not be able to return to the role.[94]This to us all points to the inevitable conclusion that, on receipt of the OH report, and given all of the prior interactions of the respondent about his heath, and given the claimant’s medical certificates, that the respondent was on clear notice that the claimant’s inability to cope with his role had an underlying medical reason. We conclude that by July 2023, on receipt of the report, the respondent had knowledge that the claimant had health issues which were significantly impacting him, his health and his ability to do his job. Given that this included a potential diagnosis of ADHD, a lifelong condition, the respondent should have known that this was a long-term condition.[95]We conclude that by July 2023 the respondent should have been clear that(i) the claimant was not capable of doing their role;(ii) his role was causing him illhealth, and(iii) this was very likely because of ADHD and its interrelationship with the claimant's symptoms of depression and anxiety.[96]We consider that the OH report was misinterpreted. The report says that the claimant has “distress and unhappiness”. We did not hear evidence from anyone in ER. But is it clear that the report is not saying that he is unhappy in his role, but that the role is causing him mental pain and depression. The report answers the question: the claimant is struggling in role, that his performance is “significantly affected by ill-health” and this is a long-term difficulty,[97]There is a significant difference between the claimant being unhappy in his role and not being able to do his role for a health-related reason, and we wonder why ER did not consider that he was unable to do his role for a health-related reason. We are surprised and dismayed by ER’s position. We wonder also why experienced managers did not consider the report and ask ER to justify its position.[98]To be clear on the issue of knowledge: If an employee is disabled, and there appears to be a link between that disability and the inability to a role, the fact that employee may feel unable to do their role, or the fact that they no longer want to do the role, is irrelevant. The respondent has instead focused on the fact that the claimant no longer wanted to do the role, that he was stressed in the role. It has ignored the fact that there are medical reasons for his inability to do his role – as the OH report says.[99]To be clear also, the causes of the disability are irrelevant; if ill health is precipitated by the fact someone can’t do a role, and that ill-health causes symptoms which amount to a disability – a long term and substantial impact on day-to-day activities - that person may well have a disability as defined in the Equality Act 2010.[100]We reiterate that the primary reason why the claimant could not do the role was not because he found it difficult and wanted a new role. This was not a choice. It is implicit in the OH report that the types of tasks he was required to do in his role were those significantly impacted by ADHD symptoms. We conclude that the fact he could not do his role was because of his symptoms of ADHD, rather than a lack of competence, or lack of willing, or general demotivation as the respondent asserts.[101]We also consider that the respondent would have been fully aware that not all people recruited to this role would be suited to it. The respondent’s witnesses did not contradict the claimant’s repeated statements that this is a difficult role. We believe that the recruitment process did not give the claimant a proper impression of what the role would entail, and he was not aware that it could take him years to achieve full competency in the role. It appears that at no time before this recruitment was anyone recruited for this role from outside that team, and we conclude that no proper thought was given to the fact that many recruits may not prosper in it. This can be seen by the fact that the two other engineers recruited with the claimant quickly left the role.[102]Was the failure to give the claimant a pay-cut and move to a different role because of his sick leave?[103]We note Mr Dyet’s justification in the dismissal letter: that had the claimant remained in work he could have received additional assistance or been transferred to another role. On Mr Dyet’s letter, it is apparent that the claimant's “choice” to go on sick leave halted such efforts. We note also that the ER team was resistant to anything other than a local job search notwithstanding his longterm absence, because of its view that the claimant's sick leave related to capability and his choice to apply for this role. We note also Ms Robinson’s conclusion at the meeting on 30 October 2023, that there were missed opportunities to put the claimant on AJS to secure him an alternative role.[104]We accept that there were attempts made to secure a role under a local job search. However, we also conclude that these were ad-hoc measures undertaken by Mr Anderson and Ms Lancaster by way of some emails to managers who may have roles. These efforts went nowhere; we conclude that this was because the claimant was not identified as a priority candidate under AJS.[105]We conclude therefore that the claimant was not given an opportunity to move to another role – likely with a pay cut as it would be to an engineering role – because he was on sick leave. As Ms Derbyshire put it in the grievance interview “... it he’d hung around, he probably would have ended up back in service delivery...”, a role she could have “pulled in some favours” for (506). Ms Lancaster gives the reasons why this did not happen in her evidence: question – I was still employed by the company, why not reach out?” Answer: “You were of poorly, I am not your line manager, and I am not in contact with you.”[106]It is clear on Mr Dyet’s report that had the claimant not been on sick leave his team would have “explored alternatives”. Ms Bromilow knows that the claimant can’t return to his role, but does not suggest AJS, it appears because she believed that his sick leave was caused by the fact he applied for the ‘wrong’ role. ER’s view as to the cause of his sickness absence has therefore been used to justify a decision not to go to AJS. We reiterate that it is mystifying why the AJS was not triggered when the OH report was received.[107]It is not disputed that the claimant's sick leave caused his dismissal.[108]The offer of a lower grade role. We appreciate that Ms Robinson was constrained by what she was being told by ER. We accept that this was unfavourable treatment as the claimant was offered a role on a junior/trainee level salary. He was prepared to take a pay cut from his current role, but he was envisaging that he would receive an engineer’s salary related to his experience as an engineer. It is clearly because the claimant was on long-term sick leave and facing dismissal that this offer was made as an alternative to dismissal.[109]We accept the respondent’s legitimate aims. But we do not accept that any of the unfavourable treatment was a proportionate means of achieving the legitimate aim. As Ms Robinson recognised at an appeal meeting, the claimant should have been put in the AJS process. We agree that doing so would be a more proportionate means of achieving its legitimate aim; had the respondent done so, on the evidence it is quite likely that the claimant would have been able to secure an alternative engineering-grade role at a salary which recognised his experience. This would have had a positive effect for the respondent on its legitimate aims 8.1, 8.2 and 8.4 above, as had AJS been adopted it is more likely than not that an alternative role would have been found, and the claimant would have secured a role before his actual date of dismissal.[110]We conclude also that the decision was not proportionate because of what we saw as an irrational analysis of the AJS policy and proecss. The policy does not say the claimant had to attempt to make adjustments to his role, as Mr Dyet contended in his evidence, and as was suggested in the respondent’s closing – that the employees “must exhaust reasonable adjustments, and they had not been exhausted”. This is irrational because it ignores OH’s advice that the claimant had a medical condition which meant he could not undertake his role, and accordingly OH had not suggested any adjustments to that role.[111]We base our conclusion that AJS would more likely than not have led to an alternative role on the evidence: Mr Dyet’s dismissal letter observations, Ms Robinson’s statements at the 30 October appeal meeting. We also note Ms Lancaster's evidence, that there could have been engineering roles available; that many engineers had left in a reorganisation, that there may well have been engineering roles available prior to his dismissal.[112]We accept that the respondent had a job freeze, and that it was legitimate not to create a role, we accept that “recruitment is confined to where there is a need...”. But the claimant and the respondent's witnesses agreed that there would have been vacancies. AJS would have put the claimant in a priority category for such vacancies. We heard evidence that there is turnover in engineering roles, engineers continued to retire and needed to be replaced, the respondent is a large organisation, and we do not accept that it was proportionate not to adopt AJS because of this legitimate aim.[113]We conclude that the respondent’s aims would have been better met had the claimant been put in the AJS process, that it is likely that he would have gained a role in the period from July 2023 had this happened.[114]We conclude that the dismissal was unfair. The respondent failed to follow its own policy, which states that if an employee is not capable of performing their role for a medical reason, AJS will be considered. While there appears to be a discretion on ER whether or not to adopt the policy, we conclude that in circumstances where Occupational Health has stated that ill health is preventing the claimant from returning to his role and is recommending an alternative role, and where the claimant has significant expertise and capability in that role and will be medically able to undertake it, it was outside of the range of reasonable responses to decide not to put the claimant into the AJS process. The rationale for not doing so, that he applied for the role, effectively blames the claimant for falling ill and being unable to undertake his role for an underlying medical reason.[115]This was not a procedural error. It was fundamental as the claimant was moved into the dismissal process with no opportunity to gain a role through the respondent’s policy. Per Garrick above, not enough was done to consider an alternative role in these particular circumstances.[116]Mr Dyet is an experienced manager. We fail to see why he did not recognise in the wording of the OH report and from his meeting with the claimant that the AJS process should have been adopted. We do not accept that his rationale for not doing so was within the range of reasonable responses. The claimant’s absence was for a disability-related reason, and it was because a medical condition meant he was unable to undertake the role, not because he was in the ‘wrong’ job.[117]We appreciate that Ms Robinson attempted to rectify these failures on appeal. We consider that the respondent effectively recognised that the process followed to date had been unreasonable, principally because of the failure to adopt AJS. The offer of an alternative role was an attempt to rectify this. Ms Robinson’s first instincts were correct. She recommended reengagement into another role or use of the AJS process.[118]We accept that the claimant was entitled to reject the offered role. While he was prepared to take a pay cut from his current role, he believed reinstatement would be on a salary which reflected his engineering experience. We conclude that offering the role at junior engineer’s salary was again outside of the range of reasonable responses.[119]We were not told that there was no prospect under AJS of securing a role on a salary which matched his experience. We accept that this offer is unreasonable and that the claimant did not act unreasonably in rejecting it.[120]We were further concerned about Ms Robinson's appeal report. As mentioned above, the report we saw in the bundle has tracked changes. There were in fact 4 iterations of this report, and we were given copies during closing submissions. We have concerns that the early versions of the report state that the appeal is successful and that the claimant is reinstated with adjustments, by v.3 the appeal is “unsuccessful” because there “is no medical reason” why the claimant cannot return to his role.[121]We cannot understand ER’s rationale for concluding that the claimant should not be put in AJS at this appeal stage. On Ms Robinsons’ account, this should have been done earlier. Why not rectify this error at the appeal stage and put the claimant into AJS, as her earlier version report appears to suggest?[122]It is apparent from the disclosed documents that ER’s views led Ms Robinson to reverse her earlier findings, and to decide that AJS was not appropriate. Her witness statement addresses this important issue in a short paragraph, that she was “advised” by HR that AJS was “not appropriate” because the claimant perceived his role as stressful, there were no “medical reasons” in the report.[123]But the OH report expressly says the claimant is unable to do the role for a medical reason - “yes” is the answer to the question “is performance significantly affected by ill health...?” (172). Ms Robinson understandably struggled in her evidence to account for this decision, which was not her instinct to take[124]We have concerns that ER effectively stepped in to persuade Ms Robinson to change her opinion as an independent appeal officer. To reiterate, ER’s involvement was misconceived because there were clearly medical reasons for the absence.[125]We have not heard ER’s rationale for this decision, which surprises us given ER was so central to the decision-making process. Instead, managers have been asked to defend ERs reasoning, without having anything in writing or in evidence of ER’s rationale for it. We conclude that it was an unreasonable and irrational decision to take in circumstances where the claimant was clearly fit for an engineering role on OH’s advice.[126]Given the unreasonable failure to put the claimant in the AJS during the attendance process, it was outside of the range of reasonable responses not to put the claimant into the AJS process at this appeal stage.[127]Ms Derbyshire was clear in her evidence that while a role could not be created, there would likely be job opportunities. It was recognised that engineers retire and need replacing. We accept that in AJS the claimant would have had access to vacancies in Openreach and in EE. On the respondent's own evidence there is a real prospect that he would have gained an engineering role in the AJS process. Ms Robinson was clear in her evidence that there was a retirement occurring in her team which the claimant may be suitable for. But ER blocked this way forward and this was outside of the range of reasonable responses - we do not accept that going onto AJS would have made no difference. Direct disability discrimination[128]A comparator must be in essentially the same circumstances as the claimant but who is not disabled. This comparator would be a person who was unable to do their role and on sickness absence but who was not disabled, and who wanted to transfer.[129]We consider that the respondent’s attitude and conduct would have been the same towards this non-disabled comparator. The respondent’s rationale would have been the same, the respondent would have concluded that this comparator did not have a medical reason to change roles, and AJS would have been refused. While that may have been detrimental treatment, the claimant is unable to show that he has been less favourably treated – i.e. this comparator would have been treated the same and would have also been dismissed. For this reason, the claim of direct discrimination fails. Approved by: