Ms D Clarke v General Medical Council: 2215401/2023 Ms D Clarke v General Medical Council: 2215401/2023

EMPLOYMENT TRIBUNALS

Case No 2215401/2023

Between

Ms D ClarkeClaimant

General Medical CouncilRespondent

Before

Employment Judge P Klimov

Date 4 February 2025

JUDGMENT

Any compensatory award to the claimant shall be reduced by 100% to reflect the claimant’s unreasonable failure to mitigate her loss.

REASONS

[1]By the Judgment dated 1 November 2024, the Tribunal found that the claimant’s complaints of discrimination arising from disability, indirect disability discrimination, failure to make reasonable adjustments, and unfair dismissal were well-founded. The Tribunal dismissed the complaint of direct disability discrimination.

[2]The Tribunal also found that the claimant’s refusal to accept the offered alternative role in the Policy team was unreasonable.

[3]The Tribunal listed a remedy hearing on 13 and 14 March 2025 to determine what compensation should be awarded to the claimant.

[4]At the end of the liability hearing, the respondent applied for the Tribunal to reconsider its decision that no reduction shall be made to the basic or compensatory award pursuant to Section 122(2) and Section 123(6) of the Employment Rights Act 1996.

[5]By its decision, dated 2 November 2024, the Tribunal refused the respondent’s application for reconsideration. However, in refusing the application, the Tribunal said (referring to its liability Judgment) that whilst the claimant’s conduct in refusing the alternative role could not be said to be culpable or blameworthy within the meaning of Section 122(2) and Section 123(6) of the Employment Rights Act 1996: “3. The Tribunal found that although the claimant’s refusal in those circumstances “appeared to us irrational”, and that if the Tribunal were dealing with the question whether by refusing that offer the claimant acted unreasonably within the meaning of s.141 ERA, thus losing her entitlement to a redundancy payment, we would have found that she had.”

[6]The Tribunal also decided that: “22. Therefore, the reason for the dismissal (and hence the sole causal link to “the dismissal”) remained the same throughout, and what the claimant contributed to by her unreasonable refusal to accept the Policy Administrator role was to the loss she suffered as a result of the dismissal, which is a relevant matter for the purposes of the question of mitigation of loss under s.123(4) ERA, but not for the purposes of contributory fault reduction under s.123(6) ERA.”

[7]Neither party appealed or applied for a further reconsideration of the liability Judgment or the decision on the respondent’s application for reconsideration.

[8]On 18 December 2024, the respondent applied to have the issue of mitigation determined in advance of the remedy hearing on the papers. The respondent relied on the Tribunal’s decision in the liability Judgment that the claimant’s refusal to accept the offered alternative role in the Policy team was unreasonable, and the Tribunal’s pronouncements in its decision on the respondent’s reconsideration application, in particular at paragraphs 3 and 22 (quoted above).

[9]On 31 December 2024, the claimant’s legal representative presented the claimant’s submissions, resisting the application.

[10]On 6 January 2025, I granted the application and directed the parties to send their written submissions on the issue of mitigation. The claimant presented her submissions on 20 January 2025. The respondent presented its reply on 27 January 2025.

[11]Having considered the parties’ submissions, I find that the respondent is right that in light of the Tribunal’s decision that the claimant’s refusal to accept the alternative role was unreasonable, and the Tribunal’s further decision, as recorded in paragraph 3 and 22 of the decision on the reconsideration application, the inevitable conclusion is that the claimant has failed to take reasonable steps to mitigate her loss and therefore any compensatory award must be reduced by 100%.

[12]The claimant’s submissions of 20 January 2025 fail to address the central issue, namely on what basis she says she should be entitled (in addition to a basic award) to be awarded compensation for financial losses flowing from her dismissal, despite the Tribunal's finding that her refusal to accept the Policy Administrator role was unreasonable and further Tribunal's pronouncement on this issue.

[13]Instead, in her submissions the claimant impermissibly seeks to reopen the issue of reasonableness of her refusal to accept the Policy Administrator role. As was explained in the Tribunal’s orders dated 6 January 2025, “[t]his issue is res judicata and will not be re-opened at the remedy hearing”.

[14]The claimant does not dispute the respondent’s submission that “[p]ursuant to Fyfe v Scientific Furnishings

[1989] ICR 648

, EAT (and applied by the Court of Appeal in Wilding v British Telecommunications Plc

[2002] EWCA Civ 349

), a claimant cannot recover damages for any loss which they could have avoided by taking reasonable steps to do so”, as representing the correct legal principle (with which submission I agree).

[15]In response the claimant says: “I submit that I had taken all reasonable steps to reduce and or avoid my losses. The Respondent’s redeployment policy said that I had to show an expression an interest in the Policy Administrator role, which I did not show an interest in for good reasons I had given at the time. I exercised my contractual and lawful right. It would now be unfair to penalise me because the Respondent does not like the consequences of its own policy. Therefore, the question to address would be whether I have sought to mitigate my losses since being dismissed? I submit I have for reasons I have already given in these submissions.”

[16]This, however, is no more than the impermissible attempt to go behind the Tribunal’s decision that the claimant’s decision to refuse the Policy Administrator role was unreasonable and “appeared to [the Tribunal] irrational”.

[17]For completeness, the claimant’s submission that it would be “unfair to penalise [her] because the Respondent does not like the consequences of its own policy” is misconceived. It is not a question of penalising the claimant, but applying the well-established legal principle (not disputed by the claimant) that the claimant is not entitled to recover loss, which she has unreasonably failed to mitigate, pursuant to the common law duty to take reasonable steps to mitigate loss.

[18]In the present case, had the claimant not unreasonably refused the offer of the Policy Administrator role, she would have remained employed by the respondent on the same salary and benefits, and consequently would not have suffered any financial loss arising from her dismissal. Accordingly, by refusing that role she has unreasonably failed to mitigate that loss and consequently is not entitled to recover it.

[19]It follows, any compensatory award due to the claimant must be reduced by 100%.

[20]In light of this Judgment, the parties must consider and write to the Tribunal as soon as possible to confirm whether the remedy hearing is still required, and if so, whether it can be reduced to 1 day.

[1]This was a remedy hearing to determine compensation to the claimant for unfair dismissal and disability discrimination, pursuant to the Tribunal’s liability judgment dated 1 November 2024 (“the Liability Judgment”).

[2]As part of the Liability Judgment the Tribunal held that “The claimant’s refusal to accept the offered alternative role in the Policy team was unreasonable”.

[3]On 4 February 2025, the Tribunal issued a judgment that “[a]ny compensatory award to the claimant shall be reduced by 100% to reflect the claimant’s unreasonable failure to mitigate her loss” (“the February Judgment”). The reasons for that decision and the relevant background are set out in the February Judgment.

[4]The claimant was represented at the hearing by Mr Clement, who did not appear for the claimant at the liability hearing, however he represented the claimant with respect to the issues determined by the February Judgment. Mr Arnold appeared for the respondent, as he did at the liability hearing. The Tribunal is grateful to both counsel for their submissions and other assistance to the Tribunal.

[5]The claimant gave sworn evidence and was cross-examined by Mr Arnold. There were no witnesses for the respondent. The Tribunal was referred to various documents in a 294-page bundle of documents the parties introduced in evidence. All references in these Reasons in the format (p.xx) are to the corresponding page number in the hearing bundle.

[6]The claimant presented a schedule of loss (p.266-271). The respondent presented a counter schedule of loss (p.291 – 294).

[7]Mr Arnold presented a written skeleton, which he then supplemented by oral closing submissions. Mr Clement presented his arguments orally.

[8]At the start of the hearing, Mr Clement confirmed that, in light of the February Judgment, compensation claims for loss of earnings (past and future) were no longer pursued by the claimant. Mr Clement said that he had “a one-line submission” for each of the claims for loss of statutory rights, costs of therapy sessions, private health insurance, and interests on loans. Mr Clement said that the claimant accepted the respondent’s calculations of the basic award.

[9]Following the claimant’s evidence, before adjourning the hearing for the parties to prepare their final submissions, the Tribunal drew the parties’ attention to the recent EAT judgment in the case Eddie Stobart Limited v. Catlin Graham

[2025] EAT 14

, in which Judge Barry Clarke, having reviewed the case law on injury to feelings awards, gave further guidance to employment tribunals on the correct approach in quantifying the appropriate level of compensation for injury to feelings, in particular the importance of evidence of injury caused by discriminatory conduct.

[10]Having heard the parties’ final submissions, the Tribunal adjourned for deliberations. Upon reconvening the hearing in the afternoon, the Tribunal announced its unanimous decision as follows. Basic award

[11]The sum of the basic award is agreed by the parties as £2,956.65. The tribunal therefore orders the respondent to pay the claimant a basic award for unfair dismissal in that sum. Loss of statutory rights

[12]The claimant seeks £650 for loss of statutory rights. Mr Clement argued that despite the claimant’s compensatory award being reduced to zero, she should still be awarded compensation for loss of statutory rights, because, in his words, the question of mitigation must follow the dismissal, by which time the claimant had already lost her statutory rights by virtue of being dismissed, and therefore is due compensation for that, regardless of whether or not she has failed to mitigate her loss.

[13]We make no award for loss of statutory rights. That is because it forms part of a compensatory award, which had been reduced by 100% percent by the February Judgment.

[14]In our view, the alternative analysis advanced by Mr Clement is misconceived. The question of mitigation does not “follow the dismissal”. It follows the question of loss; and it is the question of loss that follows the dismissal. In other words, the claimant must show what loss, arising from the unfairness of her dismissal, she has suffered. She is under the duty to mitigated all that loss. Therefore, if the claimant claims that she has suffered a financial loss by reason of losing her statutory rights, caused by her unfair dismissal, she is still under the duty to mitigate that loss. We see no principled reason why this particular type of loss should be excluded from the scope of the duty to mitigate. Mr Clement did not refer us to any authority on this point.

[15]In any event, Mr Clement analysis does not help the claimant’s case on the facts, as in her case her failure to mitigate her loss (by turning down the policy administrator role) came before and not after the dismissal. In short, had she not unreasonably refused the offered alternative role, she would not have been dismissed, and hence would not have lost her statutory rights.

[16]Finally, the claimant receives the basic award, which function is to compensate the employee for the loss of job security caused by the unfair dismissal by awarding him/her a sum equivalent to a statutory redundancy payment. In that sense, the claimant has not “lost her statutory rights”, but, on the contrary, she had them realised by the Liability Judgment, declaring the dismissal unfair, and by receiving the basic award as a compensation for having to re-start accruing the requisite qualifying service for certain employment rights

[17]Therefore, in the circumstances, we find that it will not be just and equitable to award the claimant any compensation for loss of statutory rights. Therapy sessions, loss of private insurance, and interest on loans

[18]Equally, we make no award for therapy sessions, loss of private insurance, and interest on loans. All these are sub-headings of the alleged financial loss, which fall within the compensatory award that had been reduced to zero.

[19]In any event, we had no evidence of the claimant actually sustaining any of these losses. The claimant accepted in cross-examination that she had not had any self-paid therapy sessions. She presented no evidence of any paid interest on the alleged loans. Her schedule of loss says that she borrowed money from friends and family, but she gave no evidence what interests on those borrowings she paid and to whom. She did not even quantify the alleged losses in her schedule of loss. Therefore, there is simply no evidential basis, upon which we could make any monetary award under any of these subheadings.

[20]Mr Clement did not put any cogent case to us on what basis these compensation claims could be sustained, instead limiting his submissions by “adopting what the claimant’s says”. The claimant’s case is unsustainable both as a matter of facts and law. Injury to feelings

[21]The claimant seeks an award exceeding £56,200 (above the top end of the Vento upper band, applicable at the time of the claim). Mr Clement argued that an award above the top end of the upper band was justifiable, because it was “the most exceptional case” by reason of the claimant suffering from depression, being vulnerable in many respects, and the stress causing her mobility problems and aggravating her skin condition.

[22]Mr Arnold argued that the claimant’s evidence as to the effects of the dismissal on her health must be taken with “a pitch of salt”. There is no medical evidence before the Tribunal to corroborate the claimant’s alleged depression. There is no medical evidence linking the alleged physical problems, such as fibromyalgia or skin disorder to the dismissal. Mr Arnold reminded the Tribunal that:a. in this case the only discriminatory conduct found by the Tribunal was the claimant’s dismissal.

b. it was not a case of a sustained discriminatory conduct by the respondent over a period, or of a campaign of harassment.

c. the Tribunal said, when giving oral reasons for the Liability Judgment, that the respondent was doing “the right thing” by pausing the capability process in September 2022, making several occupational health referrals, extending the claimant’s notice period, and generally not rushing with the dismissal, thus putting itself in a worse legal position than it would have been had it dismissed the claimant shortly after May 2022, when it became apparent that the claimant could not return to office working. Therefore, Mr Arnold argued, it was not a case that could sensibly be said as falling within the categories of the most exceptional, or the most serious cases.

[23]Mr Arnold referred us to various employment tribunal cases, which support the respondent’s argument that a case of this kind falls no higher than in the middle of the middle Vento band, and the figure of £13,500, suggested by the respondent, was just and equitable compensation.

[24]Before reaching its decision on the level of compensation, the Tribunal directed itself to the relevant statutory provisions and the case law (as conveniently summarised by Judge Clark in Eddie Stobart Limited v. Catlin Graham (at [30] – [50]). We also carefully considered the authorities referred to in Mr Arnold’s skeleton.

[25]We find that the claimant has not presented sufficient evidence to prove (on the balance of probabilities) that she suffered or suffers from depression, or that the alleged depression has been caused by the discriminatory dismissal.

[26]In our judgment, the evidence before us is insufficient to establish either the fact of depression or the causal connection between the dismissal and the alleged depression. We agree with Mr Arnold’s analysis on that. The highest it can be taken is that the claimant self-diagnoses herself with depression, but that self-diagnosis is not supported by any independent medical evidence.

[27]The fact that the claimant’s GP suggested to her that she could trial antidepressants does not mean that the GP or another medical professional has diagnosed her with depression. In the medical notes, relied upon by the claimant, there is no diagnosis of depression. The “Problem list” in the notes makes no mention of the depression. The “Visit notes” simply talk about mental health being low in setting up social stressors. The “Plan” talks about encouraging exploring talking therapies. The “Additional advice” simply recommends an annual review to check for the development of comorbidities, such as hypertension, ischaemic heart disease, osteoporosis and depression. There is no referral to any psychiatrist or another mental health specialist for further examination.

[28]To be thorough and fair to the claimant we have also carefully considered her other medical evidence in the bundle. However, they do not advance the claimant’s case on depression, let alone depression being cause by the dismissal, any further. In fact, the opposite picture emerges.

[29]In the medical note of 7/10/24 (p.252 – 253) there is no reference to depression. The only active problem diagnoses is one of asthma. In her application form for a personal independence payment (“PIP”), completed on 31 May 2024, (p.215 – 221) the claimant lists 10 disabilities, but makes no mention of depression.

[30]Equally, there is simply no credible evidence before us linking the alleged depression to the dismissal.

[31]Unfortunately, the claimant suffers from several complex medical conditions related to her physical health, which undoubtedly affect her mental health and contribute to her feelings of anxiety and stress. She candidly described that in her PIP questionnaire: “Because of my respiratory problems and pain it is hard to bend and clean my legs, feet especially as I am gasping for breathe. All of this impacts on my mental health and makes me feel undesirable and that I will be on my own forever. Makes me feel like no one will want me or understand how hard it is for me on a daily basis”. (p.224)

[32]She also describes (p.225) that loss of her job “because the aircon system made me so ill that I could not physically go into the office and would be off sick if I did. This has caused me great distress and anxiety as I feel so different to others. Recently I went to a hotel stay for a friends birthday and became very ill because they would not turn off the aircon in the public area. It can be very depressing as I know I am putting myself at risk when I go out so I feel isolated from my friends and society most days.”

[33]We also note that, following her medical assessment for the PIP benefit, the claimant was not awarded any points for limitations in day-to-day activities typically associated with mental health issues (such as communicating, reading, mixing with other people, making budgeting decisions, planning and following a journey).

[34]Finally, it is also notable that despite the alleged depression, the claimant continued to earn a regular income by herself providing counselling services to others (p.120-121).

[35]In summary, we find that the claimant has failed to establish that she suffered or suffers from depression, or that it has been caused by the discriminatory dismissal by the respondent.

[36]We also reject Mr Clement’s submission that the claimant’s physical health problems, such as, fibromyalgia or skin rash, was caused by the dismissal. There is simply not credible medical evidence before us, upon which that connection could be established. The simple fact that the claimant was diagnosed with fibromyalgia or had a skin rash sometime after she had been dismissed by the respondent is wholly inadequate as the evidence that the dismissal was the operating cause of these conditions. Just because one event precedes another in time, does not mean that the earlier event is the effective cause of the later.

[37]As I have already mentioned, the claimant, unfortunately, suffers from multiple complex medical conditions, and, judging by her PIP questionnaire, many of which predate her dismissal by a considerable period of time. We have no medical or other credible evidence to support the conclusion that fibromyalgia or her skin problems or other physical health problems were caused by the dismissal as opposed to the claimant’s historic medical conditions or some other events in her life.

[38]We, however, accept that the claimant’s dismissal caused her anxiety and stress, and to this day she feels upset about losing her job. We also accept her evidence that the dismissal had a significant impact on her enjoyment of life, as it caused her to lose her financial security, and heighten her angst of, as she puts it in her PIP questionnaire, “being different to others”, and not being able to find another job.

[39]Evidently, any dismissal will usually be a traumatic experience for any employee. When you are dismissed because of limitations associated with your disability, in the circumstances where there are no other issues with your abilities, performance, or conduct, and where your limitations can and should be accommodated by your employer, is undoubtedly something that may have a serious impact on your self-esteem and quality of life, and make you feel isolated and humiliated.

[40]On the other hand, in this case the respondent did not go about dismissing the claimant in a heavy-handed, malicious, insulting or oppressive manner. On the contrary, as was found by the Tribunal at the liability hearing, the respondent tried to accommodate the claimant’s health problems the best it thought was possible, including by giving the claimant alternative duties on a temporary basis, suspending the capability procedure, extending the notice period, searching and finding a suitable alternative employment for the claimant.

[41]It still fell short of the required standard, but it was not a deliberate act of discrimination. Nor was the respondent turning a blind eye on the claimant’s health problems. It engaged with the problem and tried to solve it. The respondent’s mistake, which caused it fall foul of its duties under the Equality Act 2010, was not to pause and consider whether in light of the developments on its digital ID checks project, the previous factually sound position, that the claimant’s role required her to be present in the office, remained valid.

[42]Therefore, considering the manner of discrimination as “a tool by which the tribunal can properly draw an inference of secondary fact as to the injury suffered by a claimant” (see Eddie Stobard v C Graham at [43]) we find that this evidence points a considerable way below the level of injury to feelings the claimant claims she has suffered.

[43]Furthermore, we note what the claimant says in her witness statement about the sources of her anxiety and stress. In many cases, she links that not to her dismissal, but the events that followed. In particular, to the stress of having to deal with the tribunal litigation. We, however, can only award compensation to the claimant in respect of injury to her feelings caused by the respondent’s discriminatory conduct, i.e. her dismissal, and not in respect to any injury to her feelings caused by subsequent events, such as having to deal with a stressful litigation process.

[44]Stepping back and looking at all these factors, we agree with Mr Arnold’s submissions that this case falls in the middle of the middle band of the Vento bands. In our judgment, this case does not come anywhere near the top band, let alone justifying an exceptional award, exceeding the upper end of the top band.

[45]We also agree with the respondent’s assessment that the figure of £13,500 is just and equitable compensation for the claimant’s injured feelings caused by the discriminatory dismissal. We accordingly make the award in that sum. Aggravated damages

[46]We make no award for aggravated damages. We emphatically reject the claimant’s submissions that the respondent’s conduct of litigation was highhanded, malicious, insulting, oppressive, or otherwise inappropriate.

[47]The fact that the respondent had not conceded disability earlier than the second day of the liability hearing does not mean that the respondent did not have a valid reason to contest the disability until, as Mr Arnold pointed out, further discussion had been had with the Tribunal at the beginning of the liability hearing. The claimant’s case on what her claimed disability was was not straightforward and required further clarification. Once her claimed disability had been clarified by the Tribunal, the respondent very sensibly accepted that at the material time the claimant had that disability.

[48]Equally, we reject the submission that there was any failure on the part of the respondent to disclose all relevant evidence. The fact that the digital ID check contract had been signed was stated in the respondent’s witnesses’ witness statements. The claimant knew that fact from when the statements had been exchanged. The fact that the contract itself was not in the hearing bundle might have been an omission, but it was not a deliberate attempt by the respondent to hide the evidence. In any event, it was quickly provided by the respondent when it was requested by the Tribunal.

[49]In short, there are no proper grounds to make any award for aggravated damages. ACAS Uplift

[50]Finally, for the sake of completeness, we make no award for ACAS uplift. That is because we made no findings that the ACAS code of conduct applied, or that the respondent was in breach of it. Total award

[51]To sum up, we make a basic award in the sum of £2,956.65, and an award for injury to feelings in the amount of £13,500, plus interest on the injury to feelings award, to be calculated in the usual manner. Interest

[52]The Tribunal then asked the parties to make their interest calculations and confirm the figure. After a short adjournment the parties confirmed that the agreed interest sum was £1,946.95. JUDGMENT with oral reasons having been announced to the parties at the hearing on 1 November 2024, the written Judgment having been sent to the parties on 6 November 2024, and written reasons having been requested by the Employment Appeal Tribunal on 8 September 2025, in accordance with Rule 60(5) of the Employment Tribunal Procedure Rules 2024, the following reasons are provided:

[53]On 23 August 2022, EC met with C. EC informed C that R would be convening a capability hearing to consider her capacity to carry out her current role and redeployment opportunities. Dismissal was mentioned as one potential outcome. That was confirmed by EC to C in an email on the same day.

[54]On 24 August 2022, C asked for her hours to be increased to 21 hours. That was agreed with effect from 2 September 2022.

[55]On 31 August 2022, Tsungai George (“TG”) of R’s HR department, emailed C a skills form for redeployment. C completed and returned the form on 23 September 2022. C stated that she would consider alternative roles only if they: i. could be carried out from home on a permanent basis allowed her to maintain her working pattern of 0.6 FTE; ii. were Level 5 in the GMC classification matrix; and iii. attracted a London salary weighting.

[56]There were very few possible options at R that were capable of meeting all these requirements. While HR team and EC were exploring potential redeployment opportunities with C, the capability hearing process was put on hold. The search for possible redeployment opportunities continued for 3 ½ months, but none were found.

[57]Accordingly, R re-started the capability procedure. On 13 January 2023, there was the initial capability hearing, chaired by ES. A further 2 months’ period was allowed to try and find another job for C.

[58]On 24 March 2023, the second capability hearing tool place. At that meeting, R took the decision to dismiss C on capability grounds. C was notified of her right to appeal the decision. R informed C that it would continue to explore redeployment opportunities. R also took the decision to give C eight weeks' notice (instead 5, to which C was contractually entitled) as a goodwill gesture in order to provide C with more time to explore redeployment. R told C that she was not required to work during her notice period and should focus on searching for alternative roles.

[59]On 29 March 2023, C appealed the decision to terminate her employment. C complained about the process that had been followed and the decision to dismiss her in general terms, as well as the impact of the dismissal on her from a personal, financial and health perspective. C stated that she believed she was entitled to severance pay and was seeking a "decent severance package".

[60]On 31 March 2023, R acknowledged C’s appeal and asked C to clarify her grounds of appeal.

[61]On 18 April 2023, TG notified C that she had found a potential redeployment opportunity, which met all C’s requirements. It was a Policy Administrator (Level 5) role, 21 hours per week, which did not require office working, and attracted London Weighting.

[62]On 28 April 2023, C emailed R with further information relating to the basis of her appeal. C complained (amongst other things) that R had not shown compassion and had failed in its duty of care towards her. C said that she would like to be offered a severance package to aid her moving forwards.

[63]A few minutes later, C also responded to TG’s email of 18 April, saying that she was not interested working in Policy because she had worked in policy elsewhere and “it was very boring and tedious”. C also incorrectly stated that she had “already been dismissed on medical grounds”.

[64]On 17 May 2023, C appeal was heard by LW. It was unsuccessful. The decision was confirmed to C on 23 May 2023. Her employment with R ended on 26 May 2023. Digital ID

[65]In 2021, R1 started a digital ID checks project, aimed at implementing a computer system, which would allow conducting ID checks remotely.

[66]On 6 March 2022, R signed a services agreement with Digidenity B.V. for the implementation of ID checks system. By that stage some work had already been done on the projects and certain tasks delivered. First trials were conducted in December 2022 and were largely successful. The implementation project concluded at the end of April 2023.

[67]In May 2023, the final trial of the ID checks system successfully concluded. With effect from June 2023 digital ID checks have been offered by R to all IMG doctors seeking to join the UK register. The Law

[68]The relevant legal principles were helpfully summarised by Mr Arnold in his Legal Principles document, submitted together with his closing submissions (reproduced for ease of reference in Annex B2). We are grateful for that. We considered and applied these principles to the facts of this case, as we have found them.

[69]The Tribunal also directed itself to the following statutory provisions:a. Unfair dismissal: ss. 94, 98 of the Employment Rights Act (“ERA”);

b. Direct disability discrimination: ss. 6, 13, 23, 39, 109, 110, 136, EqA;

c. Discrimination arising from disability: ss.6, 15, 39, 109, 110, 136 EqA;

d. Indirect disability discrimination: ss. 6, 19, 39, 109, 110, 136 EqA;

e. Failure to make reasonable adjustments: ss. 6, 20, 21, 39, 109, 110, 136 and para 20(1)(b) of Schedule 8, EqA;

[70]Further relevant law is stated in the Analysis and Conclusions section. Analysis and Conclusions3 Direct Disability Discrimination

[71]The claimant alleges that the respondent discriminated against her by:(i) Dismissing her in May 2023, and

(ii) On 13 January 2023 Elizabeth Swatkins telling the claimant that she could go and find another job in two months.

[72]The claimant alleges that the less favourable treatment was because of her disability, namely respiratory problems which are exacerbated by airconditioning.

[73]The claimant did not name any person who she says was treated better than her. Instead, she relies on a hypothetical comparator.

[74]Section13 of the Equality Act 2010 (“EqA”) concerns with difference in treatment by reason of a protected characteristic. It follows, that a comparator must not share the claimant’s protected characteristic, i.e. he or she must not be a disabled person. 2 Some formatting might have been lost in transposing the document into the Annex. 3 This section largely reproduces the decision announced to the parties at the end of the hearing.

[75]Section 23(1) of the EqA provides that on a comparison for the purpose of establishing direct discrimination there must be ‘no material difference between the circumstances relating to each case’.

[76]Therefore, a hypothetical comparator would be someone, who like the claimant was employed by the respondent as a Registration Service Advisor, with duties materially the same as the claimant’s duties, in particular with the core duty being performing ID checks, and who, like the claimant, was unable to work from the office for whatever reason (e.g. care commitments or lengthy commute), but who was not a disabled person.

[77]Section 136 of the EqA provides that the initial burden of proof to establish the facts, from which the tribunal could (as opposed to definitely would) in the absence of any other explanation find that the respondent contravened the Act is on the claimant. This is often referred to as establishing a prima facie case.

[78]We find that with respect to the allegation of the dismissal being an act of direct discrimination because of disability, the claimant has failed to discharge the initial burden of proof. There are simply no facts from which we could conclude that in no material different circumstances a hypothetical comparator would have been treated better (that is, he/she would not have been dismissed), or that the claimant’s disability as such, as opposed to her inability to perform her role from the office, was something that influenced the respondent's decision to dismiss the claimant.

[79]In any event, we accept Ms Swatkins’ evidence that the claimant’s disability as such was not the reason for the claimant’s dismissal, and in those circumstances her decision would have been the same if she had had to deal with a case of a hypothetical comparator of the type I have just described.

[80]It follows that this allegation of direct disability discrimination fails and is dismissed.

[81]The second allegation, that is that on 13 January 2023 Elizabeth Swatkins told the claimant that she could go and find another job in two months, fails for several reasons.

[82]Firstly, it fails on the facts. We find that on 13 January 2023, Ms Swatkins did not tell the claimant that she could go and find another job in two months. By that stage no decision to dismiss the claimant had been taken and no notice of termination had been issued to the claimant. It appears that in her closing submissions the claimant accepts that the reference to 13 January 2023 was incorrect.

[83]To the extent the claimant complains that this was said to her at the next capability meeting on 23 March 2023, we find that what Ms Swatkins actually said at that meeting was that the claimant’s notice period would be extended to 8 weeks. We accept Ms Swatkins’ evidence on that and reject the claimant’s submission that Ms Swatkins’ evidence was unreliable. Ms Swatkins’ evidence is also corroborated by the contemporaneous documentary evidence (pages 505, 604, 612, 613)

[84]Furthermore, the claimant was only contractually entitled to 5-week notice. Therefore, extending the claimant’s notice period to 8 weeks, on any view, cannot be said to be a detriment.

[85]Finally, as with the first allegation of direct discrimination, we find that the claimant has failed to establish a prima facie case, that is that in material no different circumstances a hypothetical comparator would have been treated better, whatever that better treatment might have been, or that her disability, as such, was what motivated Ms Swakins when she decided to extend the claimant’s notice.

[86]For these reasons, the complaint of direct discrimination because of disability fails and is dismissed. Discrimination arising from disability

[87]It is common ground that the claimant’s inability to work in an air-conditioned office was something arising in consequence of her disability.

[88]It is also not in dispute that the claimant was dismissed because of her inability to work in the respondent’s air-conditioned office.

[89]Therefore, both causative elements of the section 15 complaint are made out.

[90]It is also not in dispute that the claimant's dismissal was unfavourable treatment.

[91]The question therefore is whether in all the circumstances the claimant's dismissal was a proportionate means of achieving a legitimate aim.

[92]The respondent's case is that the legitimate aims are: 71.1. ensuring that employees are assigned duties that are commensurate with their grade and associated salary, to maintain consistency with the Respondent's internal grading structure; 71.2. ensuring that employees in the Registration Services Team were familiar with all aspects of the role, to avoid team members being deskilled and to ensure that the team was resilient in its ability to respond to periods of sickness absence and holidays; 71.3. ensuring that the headcount (and associated salary costs) within the Registration Services Team did not exceed that which was necessary for the efficient function of the team and the service (on the basis that, if the Claimant was not required to conduct in person ID checks, the Respondent would have needed to recruit an additional person within the Registration Services Team to perform this core function).

[93]The respondent further contends that “…. it acted proportionately in achieving those aims, in particular, by exploring various alternative roles with the Claimant which would not require office working”. (at [72] of the amended Grounds of Resistance)

[94]In Gray v University of Portsmouth EAT 0242/20 (Eady J, as she then was) reminded the tribunals that in considering the justification defence: “…..Its task [was, therefore], to [then] undertake a critical evaluation of the evidence - weighing in the balance the needs of the employer against the discriminatory impact on the Claimant - so as to determine whether the treatment in issue was a proportionate means of achieving that aim.56. The ET's task in this regard was not the same as would be required if determining whether the decision had fallen within the band of reasonable responses for the purposes of deciding whether it was fair under section 98(4) of the Employment Rights Act 1996. Although both tests are objective, the critical evaluation required for the purposes of section 15 EqA means that the ET must carry out its own assessment; it is not asking what might fall within the band of reasonable responses of the reasonable employer (albeit, in many cases, the effect of the different tests may be the same; see the observations of Underhill LJ in O'Brien v Bolton St Catherine's Academy

[2017] ICR 737

at paragraphs 51-55 and those of Sales LJ (as he then was) in City of York Council v Grosset

[2018] EWCA Civ 1105

at paragraph 55 ).

57. More than that, however, the ET was required to make clear how it had undertaken its assessment. In such cases the critical evaluation is not merely required, it is also necessary that it be demonstrated in the ET's reasoning. That is not just a matter of form. It is this requirement that mitigates against the risk of superficiality and against the ET's merely accepting the employer's stated reasons without proper scrutiny (see per Pill LJ in Hardy & Hansons plc v Lax

[2005] IRLR 726

, at paragraph 34 ).”

[95]We find that the following key facts important in our assessment of the respondent’s justification defence.

[96]The decision to dismiss the claimant was taken by Ms Swatkins on or around end of January – February 2023. She based her assessment on whether it was feasible for the claimant to work from home based on the information provided to her by Ms Cox on 27 January 2023.

[97]Ms Swatkins communicated her decision to the claimant on 24 March 2023, almost two months later.

[98]Meanwhile, the contract for the implementation of the digital ID check system had been signed on 6 March 2023 and the implementation project was well underway. As I have explored with Ms Swatkins during her evidence, things moved on quite considerably since the position on 27 January 2023. Not only the implementation contract had been signed, out of 36 requirements (of which 33 were “must” and 3 “should”), only 5 “musts” were pending. And that was as of the date of the contract - 6 March. We heard no evidence as to the position as at 24 March 2023, but considering the respondent’s pleaded case that the implementation project had been completed at the end of April and the trial began in May one might deduce that by 24 March some of the outstanding functionality might have been already implemented, thus improving on the number of pending “must” and “should”. This is in contrast to what Ms Swatkins was told by Ms Cox on 27 January that there were 22 development requirements (13 – must, 9 – should) yet to be contracted for and implemented.

[99]Ms Swatkins gave evidence that at the time of communicating her decision to the claimant on 23 March 2023 she did not have that up-to-date information on the digital ID checks project. She, therefore, proceeded on the basis of the information given to her by Ms Cox that no contract had been signed and realistically a full version of the digital ID check system would not be delivered until latter half of 2023.

[100]In the letter of dismissal Ms Swatkins acknowledges that the possibility of the claimant continuing to work from home following the introduction of the digital ID check service, which she says in that letter (“would in theory allow [the claimant] to carry out ID checks remotely”), was discussed at the meeting on 13 January 2023, and which possibility Ms Swatkins then carefully considered.

[101]Ms Swatkins, however, dismissed that possibility as a relevant factor because she had “learnt that an implementation date for the Digital ID Check Service has not yet been agreed. It would therefore be optimistic to conclude that the digital service will be operational before the end of 2023.” (p.604)

[102]Therefore, on 23 March 2023, when affirming her decision taken in late January/February, Ms Swatkins did not consider whether the circumstances related to the possibility of the claimant doing her role from home using the digital ID checks system was as remote and as “optimistic” as it appeared at the end of January.

[103]As I have mentioned, the respondent’s pleaded case is that it launched a process for digital ID checks in late April 2023, albeit it remained optional, and the respondent did not know at that time how many doctors would be electing to use digital ID check services or how many of those would be able to successfully complete a digital ID check (at [83.2] of amended Grounds of Resistance).

[104]Ms Cox’s evidence (at [103]) is that “In May 2023 the trial was concluded successfully and with effect from June 2023 digital ID checks have been offered to all IMG doctors seeking to join the UK register”

[105]The claimant appealed her dismissal on 29 March and sent her grounds of appeal on 28 April 2023. In her appeal letter the claimant wrote: “I have repeatedly been made ill from working in an environment at the GMC office which has caused further damage to my respiratory system. My doctor and OH both suggested I work from home for my well being and health and there is evidence that my health will continue to deteriorate if put into a cold air con environment. I feel as if I am being punished as you have shown no compassion or consideration. None of this is my fault.” (p.621)

[106]Therefore, the possibility of the claimant working from home remained a life issue to be considered at the appeal hearing.

[107]It does not appear that the digital ID check system was specifically discussed at the appeal hearing. However, Ms Westwood’s evidence (at [52] of her witness statement) is that she has spoken with Ms Cox on 19 May, who had confirmed to her that nothing had changed in terms of the business case. The business case in question was the one prepared by Ms Cox back in January 2023, which contained the following statement (p.506): “We are developing a digital solution, but are still at early stages, with a small scale pilot currently underway and no permanent contracts signed nor SMT decisions taken on approval.”, which by 19 May was plainly no longer correct.

[108]Furthermore, Ms Westwood accepts in her witness statement (at [35]) that the claimant had told her that the information in Ms Cox’s business case was incorrect.

[109]In her oral evidence to this Tribunal Ms Westwood clarified her evidence by firstly, confirming that she did have up-to-date information on the state of the digital ID checks project and knew that the May 2023 trial was successful and from June digital ID checks would be offered to all international medical graduates (therefore that aspect of the business case had changed).

[110]Secondly, Ms Westwood said that she had considered the possibility of whether the claimant’s dismissal was still proportionate in light of the state of the digital ID check projects and decided that it was because, although the system was about to go live there was still uncertainties as to:(i) the anticipated volume of digital ID checks (i.e. how many graduates would opt for digital ID checks as opposed to inperson),

(ii) whether the system would support all nationalities (which appears to go to the same issue of anticipated volume of digital ID checks), and

(iii) how well the system would “scale” and work in the live environment.

[111]Ms Westwood said that at that time her view was that all those uncertainties would persist until the end of 2023. Therefore, given the fact that the claimant was not doing the core part of her role, and the administrative tasks she was undertaking were not sufficient to justify retaining the claimant until such time when the timeframe for digital ID checks being “well established” became clear (which she thought would not be earlier than the end of the year), she decided that in those circumstances the decision to dismiss must stand, because it was both fair and proportionate.

[112]Ms Westwood also said that the policy remained that in-person ID checks would continue to be offered and that the respondent might itself invite certain applicants to come to the office to do their ID checks face-to-face. That, she said, meant that registration advisors would be required to do both digital and in-person ID checks.

[113]We note, in passing, that neither Ms Westwood’s letter, dismissing the appeal, nor her evidence in chief (in her witness statement) deal with these, in our view, critical matters in those terms. In fact, the impression one gets from reading the appeal letter and Ms Westwood’s witness statement is that she did not consider the possibility of the claimant continuing in her role from home by doing digital ID checks, because the claimant did not raise that matter on appeal.

[114]Ms Westwood’s evidence (at [67)] is that “…if Diahanna had been allowed to continue working from home doing just administrative duties, we would have had to recruit an additional Adviser to perform in-person ID checks in order to meet the demand for that, at least until digital ID checks were established and there was no timescale for when that would happen (and Diahanna did not raise this as part of her appeal).”

[115]This suggests that Ms Westwood accepts that once the digital ID checks were established (the relevant passage - “at least until digital ID checks were established”) there was at the very least a possibility that there would be no need for an additional Advisor. Logically, this implies that the need to recruit an additional adviser in those circumstances would fall away because the claimant would be able to do ID checks remotely. However, by that time – 23 May 2023 digital ID checks were established.

[116]Whether by “established” Ms Westwood meant to say: “well established”, in our judgment, does not make any material difference. Strictly speaking, digital ID checks might not have been up and running, but the trial in May went in a way that the respondent had decided to roll out digital ID checks services to all international medical graduates, starting in June 2023 (which was just a week away from the claimant’s effective date of termination). This shows that the respondent had a sufficient degree of confidence that digital ID checks were “established” as a viable service offering, at least to that category of applicants.

[117]On the other hand, this evidence (at [67]) either suggests that Ms Westwood operated under a false premise that there was no timescale for when the digital ID checks “would happen”, which was not the evidence she gave orally to the Tribunal, or that her evidence in chief that “there was no timescale for when that would happen” (“that” being ID checks being “established” or “well established”) was wrong.

[118]Either way, the reality of the situation was quite different. As I have just said, digital ID checks were going live very shortly, therefore, on any view, digital ID checks were established (at least established well enough to be offered to international medical graduates as a service) and the timescale of that was known to the respondent.

[119]As to the claimant not raising this matter specifically on appeal, the claimant had been told by Ms Swatkins that it would be “optimistic” to think that the ID checks would be implemented before the end of 2023. She was never told otherwise. In any event, it is for the respondent to show that the dismissal was a proportionate means of achieving the legitimate aims. Therefore, as part of that exercise, it was incumbent on the respondent to consider whether less severe means of achieving those aims were available to it, whether or not those alternative means had been proffered by the claimant.

[120]Furthermore, in not explaining to the claimant then current status of digital ID checks services and why she thought they were still not a viable alternative to the dismissal, Ms Westwood essentially denied the claimant an opportunity to make suggestions on possible ways of achieving the respondent’s legitimate aims without dismissing her.

[121]Anyhow, accepting Ms Westwood’s oral evidence (as we do) that she did consider the possibility of keeping the claimant and assigning digital ID checks to her as an alternative to dismissal, but decided against that option, we must still subject Ms Westwood’s reasoning to scrutiny, as to whether in those circumstances her decision to uphold the dismissal was a proportionate means of achieving the legitimate aims.

[122]For that we need to return and examine the pleaded legitimate aims. 71.1. ensuring that employees are assigned duties that are commensurate with their grade and associated salary, to maintain consistency with the Respondent's internal grading structure;

[123]We accept that it is a legitimate aim. However, in the circumstances when by the date of the claimant’s dismissal on 26 May 2023 on the respondent’s own evidential case the ID check system had gone through a successful pilot and was about to go live and offered to all international medical graduates in June, we fail to see how dismissing the claimant instead of assigning to her duties of conducting digital ID checks, which duties would be commensurate with her grade and associated salary could be said to be a proportionate means of achieving that aim.

[124]Even accepting Ms Westwood’s evidence that there were still some uncertainties about the uptake of digital ID checks, possible functionality issues (i.e. whether the service could be offered to all nationalities), and possible issues with “upscaling the system” we still do not see how these uncertainties could reasonably be said to outweigh the very serious discriminatory impact of the decision on the claimant.

[125]On one side of the scale there were some “unknowns”, as to how quickly digital ID checks would scale up and what possible technical issues it may produce, on the other side of the scale there was the dead certainty of the claimant losing her job and her livelihood because of her disability related limitations.

[126]Furthermore, Ms Westwood knew that back in December 2022 the trial was “largely successful” and the uptake was 40% - not an insignificant number. We do not know the details of the May 2023 trials. However, following the May trials the respondent had decided to go live in June 2023, which suggests that the trials were largely successful and there were sufficient volumes to justify offering that option to all international medical graduates.

[127]This shows that by that stage the respondent had decided that it would be offering digital ID checks as a service in the immediate future. We, therefore, reject Mr Arnold’s submission (at [94.4] of his closings) that “It was not reasonable to wait to see ‘what may happen at an indeterminate time in the future’. By that stage the respondent was well aware what was happening and when.

[128]In any event, if the respondent relies on these “uncertainties” as justifying the proportionality of their decision, it is for the respondent to present cogent evidence on that, which, in our judgment, requires a far more involved and detailed analysis of the impact on such “uncertainties” on the business, rather than simply saying that there were still some concerns about the system and its use by the applicants. 71.2 ensuring that employees in the Registration Services Team were familiar with all aspects of the role, to avoid team members being deskilled and to ensure that the team was resilient in its ability to respond to periods of sickness absence and holidays”

[129]Again, we accept it is a legitimate aim too. However, the respondent has not presented any cogent evidence to show that allowing the claimant to do digital ID checks (and the usual volume of additional administrative tasks per adviser) would have resulted in other team members being deskilled or the team becoming less resilient. It was not the respondent’s evidential case that allowing the claimant to do digital ID checks only would have meant that there would not be enough digital ID check cases for other members to do, thus causing them to be deskilled on that aspect of the role or making the team less resilient.

[130]With respect to the fact that the respondent continued to offer in-person ID checks services and therefore team members were expected to do both, the question then arises whether it was still proportionate to dismiss the claimant as opposed to allow her to do digital ID checks only as a reasonable adjustment to accommodate her disability. The respondent did not lead any evidential case on this issue.

[131]Finally, as to the need to be trained to do ID checks. Again, we had no evidence from the respondent as to how that training was done in April/May 2023, and whether it would or would not have been possible for such training to be done remotely for the claimant as a reasonable adjustment. We also note that the claimant, during her meeting with Ms Swatkins on 13 January 2023 (p.599 – para 12.5), did not discount the possibility of attending an inperson training in the office, albeit she remained understandably apprehensive about coming to the office, considering her experience on 9 May 2022.

[132]Ms Westwood evidence was that the training was done in-person in the office “under supervision”. This, however, does not answer the question as to why the same training could not have been offered to the claimant remotely (with supervision done remotely too or in-person by the supervisor attending the claimant’s home), as a reasonable adjustment. 71.3 ensuring that the headcount (and associated salary costs) within the Registration Services Team did not exceed that which was necessary for the efficient function of the team and the service (on the basis that, if the Claimant was not required to conduct in person ID checks, the Respondent would have needed to recruit an additional person within the Registration Services Team to perform this core function).

[133]The premise of this legitimate aim is that if the claimant were not required to conduct in person ID checks the respondent would have needed to recruit an additional person within the Registration Services Team to perform this core function. However, that premise is not supported by any cogent evidence that at end of May 2023 with the digital ID checks about to go live, the projected volume of in-person ID checks remained such that even if the claimant were allowed to do digital ID checks only (plus her admin tasks), that would not have filled in her role, and the respondent would have still had to recruit an additional resource to do in-person ID checks.

[134]Ms Cox gave evidence that “in May 2023 the trial was concluded successfully and with effect from June 2023 digital ID checks have been offered to all IMG doctors seeking to join the UK register.” she did not give evidence as to the number of digital ID checks vs in-person ID checks done in May and June 2023. The only other piece of evidence she gives is that as of 26 September 2024 (the date of her statement) 95% of the ID checks were done by her Team digitally. This, of course, does not mean that as of May or June 2023 the requirement for in-person ID checks has drastically diminished. However, this equally does not support the respondent’s pleaded case that if the claimant was not required to do in persons ID checks, and instead was allowed to do digital ID checks only, the respondent would have had to recruit an additional resource to do in-person ID checks. Ms Westwood’s evidence on this was simply that it was still uncertain.

[135]For completeness, we also reject Mr Arnold’s submission that offering digital ID checks to the claimant was not a viable option because of the “The risk of errors through ‘switch off’ if administrative tasks were deprioritised, and the home-based colleague would need to work on Digital ID checks with no variety for seven hours a day.” Firstly, we heard no evidence to the effect that offering digital ID checks to the claimant would have meant removing or deprioritising administrative tasks from the scope of her work. That, in fact, appears to contradict the earlier suggestion of insufficiency of volumes of digital ID checks. Secondly, we heard no cogent evidence to make a reliable finding that allowing an advisor to work exclusively on digital ID checks creates an unacceptable risk of errors, when compared to an advisor who does both digital and in-person ID checks. Finally, it cannot be a proportionate response to dismiss the claimant because of that perceived risk, when the respondent had no evidence of the claimant making any such errors, and indeed without applying its mind to other means of mitigating that perceived risk, such as regular off-screen breaks, peer verification, etc.

[136]Considering all these factors, we find that the respondent has failed to show that in those circumstances dismissing the claimant was a proportionate means of achieving any of these aims. The claimant was ready and willing to continue to perform her role fully (not just admin task) by working from home. Digital ID checks was the obvious way of restoring the full remit of the claimant’s role. There were no concerns (as accepted by Ms Cox in her evidence) with the claimant’s quality of work. Therefore, the respondent had no good reasons to think that the claimant would not be able, with appropriate training, to undertake digital ID checks, working from home. It appears no consideration was given to the possibility of training the claimant on digital ID checks remotely, and in any event, no training was offered to the claimant, either remotely or in-person.

[137]In deciding to dismiss the claimant, Ms Swatkins based her conclusions on outdated information as to the state of preparedness of the digital ID checks system. She, therefore, failed to take into account the relevant factors, and indeed took into account the factors (such as that the implementation contract had not been signed and there was no timescale for implementation) which were wrong and therefore no longer relevant.

[138]For the reasons explained above, this fundamental failure has not been corrected on appeal. In fact, in our judgment, the appeal only aggravated the disproportionality of the dismissal, where on the respondent’s case Ms Westwood had the necessary up-to-date information on the state of readiness of the digital ID checks system, but still decided to dismiss the claimant, despite a far less severe option being clearly available to her.

[139]In short, in those circumstances it is hard to see how it could be said to be a proportionate response to dismiss a disabled person because they are unable to come to the office to perform the core part of their role, when that core part of their role, thanks to technology, was perfectly capable of being performed by them from home, and at that time the respondent was well underway of embracing that new digital way of working.

[140]For these reasons, we conclude that the respondent has failed to show that the claimant’s dismissal was a proportionate means of achieving the legitimate aims. It follows that we find that the claimant’s complaint of discrimination arising from disability is well-founded. Indirect discrimination and Failure to make reasonable adjustments

[141]I shall deal with these two complaints together as there is a substantial overlap between them, as indeed with the discrimination arising from disability complaint.

[142]The respondent accepts (as was clarified yesterday at the closings) that despite the list of issues recording PCP as: “The decision make on 3 May 2022 for all employees to return to work in the office”, we should decide these complaints on the basis of PCP being: “requiring all employees including the Claimant, but excluding designated home workers to work in the office on a regular basis from 3 May 2022”.

[143]The respondent further accepts that it had that PCP and applied it to the claimant, and, for the purposes of the indirect discrimination complaint, also to those that did not have the Claimant’s disability.

[144]The respondent also accepts that the PCP put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that the Claimant suffered from respiratory problems and breathing problems when working in an air-conditioned office. That disadvantage ultimately led to the claimant’s dismissal.

[145]The respondent, however, contends that the measure taken (dismissal) achieved the legitimate aims proportionally. The respondent also contends that the claimant has failed to show group disadvantage for the purposes of her indirect discrimination complaint.

[146]Dealing with the group disadvantage point first, whilst the claimant did not lead any evidence on the group disadvantage issue, we find that it is one of those cases where the Tribunal can simply take “judicial notice” that people, who like the claimant suffer from respiratory problems, which are exacerbated by air-conditioning will be put at a particular disadvantage by the requirement to work in an air-conditioned office when compared to people who have no such respiratory problems. This is simply a matter of common sense and requires no statistical or other evidence to prove.

[147]Therefore, as with the complaint of discrimination arising from disability, the outcome of the indirect discrimination complaint depends on whether the respondent could make good the justification defence, that is to show that the PCP of “requiring all employees including the Claimant, but excluding designated home workers, to work in the office on a regular basis from 3 May 2022” was a proportionate means of achieving a legitimate aim.

[148]The respondent pleaded different legitimate aim with respect to this complaint:(a) seeking to ensure that the Respondent conducts robust ID checks for those seeking to join the medical register (insofar as the PCP was applied to the Registration Services Team specifically) and

(b) seeking to facilitate more collaborative working through in person contact (insofar as the PCP applied to the Respondent's employees generally). (para 74 of the amended GoR).

[149]The respondent says that the claimant’s dismissal was a proportionate step in achieving these aims. We reject that for the same reasons as I have explained when dealing with the discrimination arising from disability complaint.

[150]In addition, in the circumstances when the digital ID services about to go live, dismissing the claimant to achieve the aim of “seeking to ensure that the Respondent conducts robust ID checks for those seeking to join the medical register” was clearly a disproportionate step. The respondent had other far less severe means at its disposal to achieve that aim, that is by allowing the claimant (with appropriate training) to conduct “robust ID checks” using the digital ID checks system.

[151]With respect to the second aim: “seeking to facilitate more collaborative working through in person contact”, the respondent’s evidential case was that the claimant was dismissed for not being able to work in the office and thus to undertake the core part of her duties, not that she was dismissed because her absence from the office negatively affected the corroborative working of the Registration Services Team. In any event, we find that in those circumstances, dismissing the claimant to achieve the aim of facilitating more collaborative working through in person contact was not a proportionate measure. If that was indeed an issue for the respondent, it should have explored other means of facilitating collaborative working (such as regular team meetings, task sharing, etc) with the claimant participating remotely. We heard no evidence about the respondent considering any such steps.

[152]The same analysis essentially applies to the complaint of failure to make reasonable adjustments. We accept that the respondent had made reasonable adjustments back in May 2022 by allowing the claimant to work from home and giving her tasks that did not require her being present in the office.

[153]However, the respondent then decided to remove that reasonable adjustment and instead dismiss the claimant for not being able to work from the office. Removing a previously made reasonable adjustment is a failure to make that reasonable adjustment (see Northumberland Tyne & Wear NHS Foundation Trust v Ward

UKEAT/0249/18

/DA).

[154]For the same reasons as apply to our conclusions on s. 15 and s.19 complaints (which there is no need to repeat again), we find that in those circumstances it was reasonable for the respondent not to remove the reasonable adjustment of home working.

[155]In short, as was observed by Elias LJ in Griffiths v Secretary of State for Work and Pensions

[2015] EWCA Civ 1265

[emphasis added] “26 …[I]t is perfectly possible for a single act of the employer, not amounting to direct discrimination, to constitute a breach of each of the other three forms [of discrimination]. An employer who dismisses a disabled employee without making a reasonable adjustment which would have enabled the employee to remain in employment – say allowing him to work part-time – will necessarily have infringed the duty to make adjustments, but in addition the act of dismissal will surely constitute an act of discrimination arising out of disability. The dismissal will be for a reason related to disability and if a potentially reasonable adjustment which might have allowed the employee to remain in employment has not been made, the dismissal will not be justified. Finally, if the PCP, breach of which gives rise to the dismissal, also adversely impacts on a class of disabled people including the claimant, the conditions for establishing indirect discrimination will also be met. “27 … [I]t is in practice hard to envisage circumstances where an employer who is held to have committed indirect disability discrimination will not also be committing discrimination arising out of disability, at least where the employer has, or ought to have, acknowledged that the employee is disabled. Both require essentially the same proportionality analysis. Strictly, in the case of indirect discrimination it is the PCP which needs to be justified whereas in the case of discrimination arising out of disability is the treatment, but in practice the treatment will flow from the application of the PCP. Accordingly, once the relevant disparate treatment is established, both forms of discrimination are likely to stand or fall together. However, the converse is not true. If it is not possible to establish that the relevant PCP created a disparate impact, the case will not fall within the concept of indirect discrimination but it may nonetheless constitute discrimination arising out of disability.”

[156]This case is a perfect illustration of that scenario.

[157]Finally, because the removal of the reasonable adjustment was the act of dismissal and that was also the result of the admitted substantial disadvantage for the purposes of the indirect discrimination complaint, the time limit issue does not arise on the facts.

[158]For all these reasons, we find that the claimant’s complaints of indirect disability discrimination and failure to make reasonable adjustments are wellfounded too. Unfair dismissal

[159]Turning to deal with the last complaint in the claim. The reason for the dismissal is not in dispute. The claimant accepted that it was not a redundancy, but capability by reason of ill-health, which is one of the five potentially fair reasons under s.98 ERA.

[160]On the face of it the process followed by the respondent in dismissing the claimant appears reasonable, in so far as the procedural steps are concerned. There was sufficient notice given to the claimant, more than what her contract required. The respondent had several consultation meetings with the claimant. It took OH advice. It made reasonable attempts to find a suitable alternative employment.

[161]We reject the claimant’s submissions that the respondent’s conduct was unreasonable by reason of the respondent failing to tell the claimant that in the event that a suitable alternative role found for her would be at a lower pay scale the claimant’s pay would be protected for six months. The redeployment policy we have been referred to does not say “for six months” but “for a fixed period”. It appears to be a draft version of the policy. In any event, there were no such lower pay scale roles identified for the claimant. The Policy team role, which had been found for the claimant to take, was on the same pay scale as the claimant’s, but the claimant still turned it down.

[162]Equally, we find nothing unreasonable in the respondent not referring the claimant to Access to Work as an additional support option, or Wellbeing Action Plans. With respect to the former, it was the claimant, who had to approach JobCentre Plus for advice, if she was interested in that option. With respect to the latter, it appears to be aimed at supporting employees’ mental wellbeing at work. In any event, all that information was available to the claimant through the respondent’s Managing and supporting short term sickness absence policy. In fact, the respondent did refer the claimant to Wellness action plan in an email from Lloyd Sauders of 12 March 2023 (p.583). During the consultation process the claimant did not raise any of these matters as something she wanted to explore further.

[163]However, as we have found, Ms Westwood did not tell the claimant the up-to-date information on the status of the digital ID checks project, which deprived the claimant of the opportunity to make representations on possible ways of keeping her job. We also found that Ms Swatkins in dismissing the claimant took outdated and thus irrelevant information into account. These flaws might not have been sufficient by themselves to take the decision outside the range of reasonable responses. However, there is a much more fundamental problem with that decision, that is the reasonableness of the decision to dismiss the claimant in those circumstances.

[164]We do not accept Mr Arnold’s submission that the respondent could not reasonably be expected to wait any longer before dismissing the claimant. There was nothing to wait for, the claimant was ready, willing and capable of performing her role using the digital ID checks systems, the option, which the respondent did not offer to her.

[165]Albeit the test under s.15 EqA and s.98 ERA are different (proportionality vs. range of reasonable responses), on the facts of this case, our findings with respect to the respondent’s failings (at the dismissal stage and the appeal stage) to properly consider the most obvious viable alternative to the dismissal, that is to train and allow the claimant to do digital ID checks, working from home, in our judgment, also takes the decision to dismiss outside the range of reasonable responses.

[166]Without repeating our reasons, to put it simply, the respondent’s case for dismissal which might have been valid in January 2023 (all things being equal) by March 2023 and certainly by 26 May 2023 has lost its proper foundation. With the digital ID check project being successfully implemented and ready to go live, it was no longer the case that the claimant working from home was not a viable option. The respondent either did not apply its mind to that change of circumstances properly or unreasonably discounted that change of circumstances as a sufficient reason to overturn the earlier decision. Either way, in our judgment, in those circumstances the respondent acted unreasonably (that is outside the range of reasonable responses) in pressing ahead with the claimant’s dismissal regardless.

[167]On one view, it might be said that by doing “the right thing” by pausing the capability process in September 2022, making several OH referrals, extending the claimant’s notice period, and generally not rushing with the dismissal, the respondent put itself in a worse position than it would have been had it dismissed the claimant shortly after May 2022, when it became apparent that the claimant could not return to office working. That might be so. However, the reasonableness of the decision to dismiss must be judged by the circumstances as those existed at the time of the dismissal and not many months before.

[168]It follows, that the claimant’s complaint of unfair dismissal is wellfounded too. Polkey/Chagger

[169]We considered Mr Arnold’s submission that we should not deal with the Polkey/Chagger issue, leaving it for a remedy hearing. Upon reflection, we do not accept that it would be appropriate to do so. Firstly, the respondent pleaded the Polkey point in its amended grounds of resistance. This hearing was listed as liability and remedy, with Polkey being one of the issues on the agreed list of issues. When at the start of this hearing it was decided that the hearing would be liability only, it was specifically agreed that Polkey would be considered as part of this hearing.

[170]We do not accept that for the respondent to make meaningful submissions on Polkey / Chagger it needs to know “the Tribunal’s determination of the factual matrix”. The respondent knew all along the claimant’s case and the facts relied upon. Therefore, if the respondent considered (as it pleaded) that if the claimant succeeds on her case, the respondent would still be able to show that the claimant would have been dismissed in any event (or that there was a good chance of that), and such dismissal would have been fair and non-discriminatory, the respondent should have put that evidential case to us. It has not done so, and deferring this matter to a remedy hearing, would essentially be giving the respondent a second bite of the cherry, which would not be fair on the claimant. For these reasons, we have decided that we must determine Polkey/Chagger issue as part of this judgment.

[171]We make no Polkey/Chagger reduction. The burden of proof to show that the claimant would have been dismissed fairly and non-discriminatory (or that there was a good chance of that) is on the respondent. We find that the respondent has failed to show that.

[172]As I have already mentioned above, the respondent’s evidential case is that it had no issue with the quality of the claimant’s work, albeit Ms Cox said that she had some issues with her attendance. That, however, is not enough to show that if the claimant had been allowed to work from home her attendance would have been unsatisfactory and to such an extent that it would have been fair and non-discriminatory for the respondent to dismiss her for poor attendance.

[173]The respondent’s case is that there was no redundancy situation and no plans to reduce the team. In fact, its case is that if the claimant were not doing her core duties it meant that it needed to recruit another adviser.

[174]The claimant was willing and ready to continue to work in her role from home. There is no evidence that had she been offered training to do digital ID checks she would have declined or failed the training.

[175]Finally, there is no evidence to the effect that the volumes of digital ID checks were insufficient to sustain the claimant’s role on a remote basis. In fact, the evidence led by the respondent points in the opposite direction (at present 95% of all ID checks are done digitally).

[176]Therefore, we have no proper evidential basis to make any Polkey/Chagger deduction. Contributory fault

[177]Whilst we accept that the Tribunal’s powers to reduce basic and compensatory awards for conduct are not limited to cases of dismissals for reasons related to conduct, it seems to us that when an employee is dismissed on the grounds of capability arising from ill-heath, it would be a rare case when such reduction would be appropriate.

[178]In any event, we did consider whether the claimant’s refusal to accept the offered role in the Policy team was “culpable or blameworthy conduct” for the purposes of reducing any compensatory award, as well as whether it would be just and equitable to reduce the basic award for that reason.

[179]The claimant’s decision to forego that opportunity (which Mr Arnold described as “a lifeline”), because of her prior experience working in a policy team at another organisation was that “it was very boring and tedious”, in our judgment, was unreasonable. Indeed, in the circumstances the claimant was facing, it appeared to us irrational.

[180]The claimant refused that “lifeline”, despite the offered Policy role ticked all her requirement boxes in terms of pay, seniority, hours and location (home working).

[181]The claimant herself was telling the respondent that she needed to have a regular employment income because she had responsibility for supporting two teenage daughters of her friend as well as her own daughter and her grandchildren. The claimant says that due to her medical condition she would struggle to find another office-based job.

[182]Furthermore, she turned down that opportunity without trying it, and without so much as making any further enquiries to understand what that job involved before branding it “very boring and tedious”.

[183]Looking at the contemporaneous documents, it appears that the claimant was more interested in getting “a decent severance package”, rather than finding a way of protecting her employment with the respondent and the associated regular employment income.

[184]If we were dealing with the question whether by refusing that offer the claimant acted unreasonably within the meaning of s.141 ERA, thus losing her entitlement to a redundancy payment, we would have found that she had so acted.

[185]However, the question is whether the claimant’s decision to turn down the offer of the Policy team role was a culpable or blameworthy conduct. In our judgment it was not. We say that because even the claimant’s conduct was unreasonable, in our view, it would be wrong to describe it as culpable or blameworthy, thus attaching a degree of condemnation to it. That in our view would amount to condemning the claimant for exercising her legitimate right to choose such occupations and jobs as she finds appealing to her, thus encroaching on the fundamental principle of freedom of labour.

[186]For these reasons, we find that the claimant’s conduct in refusing the Policy teams role, although unreasonable, was not culpable or blameworthy, and consequently it would not be just and equitable to reduce basic or compensatory award.

[187]This, however, does not mean that the claimant’s unreasonable refusal to accept the respondent’s redeployment offer cannot be used by the respondent to argue that the claimant has unreasonably failed to mitigate her losses, but that would be for another day. Overall conclusion

[188]We, therefore, make a declaration that the claimant was unfairly dismissed by the respondent and that by dismissing the claimant the respondent discriminated against the claimant because of something arising in consequences of her disability, namely inability to work in the air-conditioned office, and by doing so it also indirectly discriminated against the claimant in relation to her disability and failed in its duty to make reasonable adjustments. The complaint of direct discrimination because of disability fails and is dismissed.

[189]There shall be no reduction for Polkey/Chagger or for contributory fault. All other remedy issues will be decided (if not agreed by the parties) at a remedy hearing.

[190]That concludes our judgment. Employment Judge Klimov 22 October 2025 29 October 2025 ...................................................................... ...................................................................... For the Tribunals Office Annex – List of Issues

[1]Time limits The respondent will clarify in its amended Grounds of Resistance whether it still takes an issue in respect of time limits. 1.1 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.1.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

1.1.2 If not, was there conduct extending over a period?

1.1.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

1.1.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.1.4.1 Why were the complaints not made to the Tribunal in time?

1.1.4.2 In any event, is it just and equitable in all the circumstances to extend time?

[2]Unfair dismissal2.1 Was the claimant dismissed? It is agreed that she was.

2.2 What was the reason or principal reason for dismissal? The respondent says the reason was capability. The claimant suggests that she was made redundant.

2.3 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. It Tribunal will usually decide, in particular, whether:2.3.1 The respondent genuinely believed the claimant was no longer capable of performing their duties;

2.3.2 The respondent adequately consulted the claimant;

2.3.3 The respondent carried out a reasonable investigation, including finding out about the up-to-date medical position;

2.3.4 Whether the respondent could reasonably be expected to wait longer before dismissing the claimant;

2.3.5 Dismissal was within the range of reasonable responses.

[3]Remedy for unfair dismissal3.1 Does the claimant wish to be reinstated to their previous employment? She does not.

3.2 Does the claimant wish to be re-engaged to comparable employment or other suitable employment? She does not.

3.3 If there is a compensatory award, how much should it be? The Tribunal will decide:3.3.1 What financial losses has the dismissal caused the claimant?

3.3.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?

3.3.3 If not, for what period of loss should the claimant be compensated?

3.3.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

3.3.5 If so, should the claimant’s compensation be reduced? By how much?

3.3.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

3.3.7 If not, is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?

3.3.8 If the claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct?

3.3.9 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?

3.3.10 Does the statutory cap apply?

3.4 What basic award is payable to the claimant, if any?

3.5 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent?

[4]Disability 4.1 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:4.1.1 Did they have a physical or mental impairment? Reaction to aircon because of problems with her respiratory system.

4.1.2 Did it have a substantial adverse effect on their ability to carry out day-to-day activities?

4.1.3 If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?

4.1.4 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?

4.1.5 Were the effects of the impairment long-term? The Tribunal will decide:4.1.5.1 did they last at least 12 months, or were they likely to last at least 12 months?

4.1.5.2 if not, were they likely to recur?

[5]Direct disability discrimination (Equality Act 2010 section 13)5.1 Did the respondent do the following things:5.1.1 Dismiss the claimant in May 2023.

5.1.2 On 13 January 2023 did Elizabeth Watkins tell the claimant that she could go and find another job in two months.

5.2 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 has not named anyone in particular who they say was treated better than they were.

5.3 If so, was it because of disability?

5.4 Did the respondent’s treatment amount to a detriment?

[6]Discrimination arising from disability (Equality Act 2010 section 15)6.1 Did the respondent treat the claimant unfavourably by: 6.1.1 Dismissing her in May 2023.

6.2 Did the following things arise in consequence of the claimant’s disability: 6.2.1 The claimant’s inability to work in the air-conditioned office?

6.3 Did the respondent dismiss the claimant because of her inability to work in the air-conditioned office?

6.4 Was the treatment a proportionate means of achieving a legitimate aim? The respondent will clarify this in its amended Grounds of Resistance.

6.5 The Tribunal will decide in particular:6.5.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;

6.5.2 could something less discriminatory have been done instead;

6.5.3 how should the needs of the claimant and the respondent be balanced?

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

[7]Indirect discrimination (Equality Act 2010 section 19)7.1 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCP: 7.1.1 The decision make on 3 May 2022 for all employees to return to work in the office.

7.2 Did the respondent apply the PCP to the claimant?

7.3 Did the respondent apply the PCP to people who do not have the claimant’s disability or would it have done so?

7.4 Did the PCP put people who have the claimant’s disability at a particular disadvantage when compared with people who do not, in that the claimant suffered from respiratory problems and breathing problems when working in an air-conditioned office?

7.5 Did the PCP put the claimant at that disadvantage?

7.6 Was the PCP a proportionate means of achieving a legitimate aim? The respondent will clarify this in its amended Grounds of Resistance.

7.7 The Tribunal will decide in particular:7.7.1 was the PCP an appropriate and reasonably necessary way to achieve those aims;

7.7.2 could something less discriminatory have been done instead;

7.7.3 how should the needs of the claimant and the respondent be balanced?

[8]Reasonable Adjustments (Equality Act 2010 sections 20 & 21)8.1 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?

8.2 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs: 8.2.1 The decision made on 3 May 2022 for all employees to return to work in the office.

8.3 Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that the claimant suffered from respiratory problems and breathing problems when working in an air-conditioned office?

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

8.5 What steps could have been taken to avoid the disadvantage? The claimant suggests:8.5.1 Make arrangements to allow for the claimant to work from home full time by re-assigning work or changing the type of work which the claimant was doing.

8.5.2 Change the process to allow for digital ID checks rather than inperson ID checks.

8.5.3 Change role to an equivalent grade (level 5) which would allow for full remote working.

8.6 Was it reasonable for the respondent to have to take those steps and when?

8.7 Did the respondent fail to take those steps?

[9]Remedy for discrimination9.1 What financial losses has the discrimination caused the claimant?

9.2 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

9.3 If not, for what period of loss should the claimant be compensated?

9.4 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?

9.5 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?

9.6 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

9.7 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

9.8 Did the respondent or the claimant unreasonably fail to comply with it?

9.9 If so is it just and equitable to increase or decrease any award payable to the claimant?

9.10 By what proportion, up to 25%?

9.11 Should interest be awarded? How much? Annex B – Relevant Legal Principles SCOPE OF TRIBUNAL’S ENQUIRY 1. The Tribunal’s jurisdiction is limited to adjudication upon the claim as presented - Chapman v Simon

[1994] IRLR 124

, CA. 2. Chandhok v Tirkey

[2015] IRLR 195

, EAT, paragraph 16: The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a respondent is required to respond. A respondent is not required to answer a witness statement, nor a document, but the claims made – meaning, under the Rules of Procedure 2013 (SI 2013/1237), the claim as set out in the ET1. 3. Employment tribunals are constantly presented with irrelevant evidence; but most often it is better to make no fuss and simply disregard it – HSBC Asia Holdings BV v Gillespie

[2011] IRLR 209

, EAT, per Underhill P, as he then was. LIMITATION

(i) Continuing act 4. The leading case of whether an act is ‘continuing’ for the purposes of discrimination is Hendricks v Commissioner of the Police for the Metropolis

[2003] IRLR 96

, CA per Mummery LJ at paragraphs 48-49 & 52: 48… the burden is on [the Claimant] to prove, either by direct evidence or by inference from primary facts, that the numerous alleged incidents of discrimination are linked to one another and that they are evidence of a continuing discriminatory state of affairs covered by the concept of 'an act extending over a period'. I regard this as a legally more precise way of characterising her case than the use of expressions such as 'institutionalised racism', 'a prevailing way of life', a 'generalised policy of discrimination', or 'climate' or 'culture' of unlawful discrimination. 49… [the Claimant] may not succeed in proving that the alleged incidents actually occurred or that, if they did, they add up to more than isolated and unconnected acts of less favourable treatment by different people in different places over a long period and that there was no 'act extending over a period' for which the Commissioner can be held legally responsible as a result of what he has done, or omitted to do, in the direction and control of the Service in matters of race and sex discrimination. 52 The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of 'an act extending over a period'… the Appeal Tribunal allowed itself to be side-tracked by focusing on whether a 'policy' could be discerned. Instead, the focus should be on the substance of the complaints that the Commissioner was responsible for an on-going situation or a continuing state of affairs in which female ethnic minority officers in the Service were treated less favourably. The question is whether that is 'an act extending over a period' as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed.

(ii) Just & equitable extension 5. In Adedeji v University Hospitals Birmingham NHS Foundation

[2021] EWCA Civ 23

, [2021] ICR D5, the Court of Appeal repeated a caution against tribunals relying on the checklist of factors found in section 33 of the Limitation Act 1980 (a checklist which applies to extensions of time for late personal injury claims in the civil courts). 6. Lord Justice Underhill stated: “The best approach for a tribunal in considering the exercise of the discretion under s 123 (1) (b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular (as Holland J notes) ‘the length of, and the reasons for, the delay’” CAPABILITY DISMISSAL 7. As Lord Denning MR put it in Taylor v Alidair Ltd.

[1978] IRLR 82

[1978] ICR 445

, CA: “Whenever a man is dismissed for incapacity or incompetence it is sufficient that the employer honestly believes on reasonable grounds that the man is incapable and incompetent. It is not necessary for the employer to prove that he is in fact incapable or incompetent”. 8. The correct test is whether, in all the circumstances of the case, any reasonable employer would have waited longer before dismissing the employee (having consulted with the employee and obtained proper medical evidence) – BS v Dundee City Council

[2013] CSIH 91

[2014] IRLR 131

, applying East Lindsey District Council v GE Daubney

[1977] IRLR 181

EAT. 9. In Spencer v Paragon Wallpapers Ltd

[1976] IRLR 373

, Phillips J emphasised the importance of scrutinising all the relevant factors. “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?”

[10]The relevant circumstances include “the nature of the illness… and the need of the employers to have done the work which the employee was engaged to do”.

[11]The fact an employer has caused the incapacity in question (which is strongly denied in the Claimant’s case), however culpably, cannot preclude him forever from effecting a fair dismissal. If it were otherwise, employers would in such cases be obliged to retain on their books indefinitely employees who were incapable of any useful work. Employees who have been injured as a result of a breach of duty by their employers are entitled to compensation in the ordinary courts, which in an appropriate case will include compensation for lost earnings and lost capacity: tribunals must resist the temptation of being led by sympathy for the employee into granting by way of compensation for unfair dismissal what is in truth an award of compensation for injury – McAdie v Royal Bank of Scotland

[2007] IRLR 895

, CA. DIRECT DISCRIMINATION (i) Comparator

[12]Lewisham London Borough Council v Malcolm

[2008] 3 WLR 194

, HL, per Lord Scott of Foscote: 32 My Lords, I must respectfully disagree. Mummery LJ's conclusion emasculates the statutory comparison. What is the point of asking whether a person has been treated "less favourably than others" if the "others" are those to whom the reason why the disabled person was subjected to the complained of treatment cannot apply? If a person has been dismissed because he is incapable of doing his job, what is the point of making the lawfulness of his dismissal depend on whether those who are capable of doing their job would have been dismissed? If a person has been dismissed because he will be absent from work for a year, what is the point of making the lawfulness of his dismissal dependant on whether those who will not be absent from work will be dismissed? If a tenant has been given notice terminating his tenancy because he has sublet in breach of the tenancy agreement, what is the point of making the lawfulness of the action taken by his landlord dependant on whether notice to quit would have been served on tenants who had not sublet? Parliament must surely have intended the comparison directed by section 5(1)(a), or by section 24(1)(a), or, for that matter, by section 20(1)(a) where the directed comparison is in identical terms, to be a meaningful comparison in order to distinguish between treatment that was discriminatory and treatment that was not. (ii) ‘Reason why’

[13]Nagarajan v London Regional Transport

[1999] IRLR 572

, HL in relation to the meaning of ‘on racial grounds’ per Lord Nicholls: 19… Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.

[14]Chief Constable of West Yorkshire v Khan

[2001] ICR 1065

, HL (obiter in terms of direct discrimination, Khan being a claim of victimisation): per Lord Nicholls: 29:… The phrases 'on racial grounds’ and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact. per Lord Scott: 77: Was the reference withheld ‘by reason that’ Sergeant Khan had brought the race discrimination proceedings? In a strict causative sense it was. If the proceedings had not been brought the reference would have been given. The proceedings were a causa sine qua non. But the language used in s.2(1) is not the language of strict causation. The words ‘by reason that’ suggest, to my mind, that it is the real reason, the core reason, the causa causans, the motive, for the treatment complained of that must be identified.

[15]Shamoon v. Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

[2003] IRLR 285

, HL per Lord Nicholls: 9 The present case is a good example. The relevant provisions in the Sex Discrimination (Northern Ireland) Order 1976 are in all material respects the same as those in the Sex Discrimination Act 1975 which, for ease of discussion, I have so far referred to. Chief Inspector Shamoon claimed she was treated less favourably than two male chief inspectors. Unlike her, they retained their counselling responsibilities. Is this comparing like with like? Prima facie it is not. She had been the subject of complaints and of representations by Police Federation representatives, the male chief inspectors had not. This might be the reason why she was treated as she was. This might explain why she was relieved of her responsibilities and they were not. But whether this factual difference between their positions was in truth a material difference is an issue which cannot be resolved without determining why she was treated as she was. It might be that the reason why she was relieved of her counselling responsibilities had nothing to do with the complaints and representations. If that were so, then a comparison between her and the two male chief inspectors may well be comparing like with like, because in that event the difference between her and her two male colleagues would be an immaterial difference. 10 I must take this a step further. As I have said, prima facie the comparison with the two male chief inspectors is not apt. So be it. Let it be assumed that, this being so, the most sensible course in practice is to proceed on the footing that the appropriate comparator is a hypothetical comparator: a male chief inspector regarding whose conduct similar complaints and representations had been made. On this footing, the less favourable treatment issue is this: was Chief Inspector Shamoon treated less favourably than such a male chief inspector would have been treated? But here also the question is incapable of being answered without deciding why Chief Inspector Shamoon was treated as she was. It is impossible to decide whether Chief Inspector Shamoon was treated less favourably than a hypothetical male chief inspector without identifying the ground on which she was treated as she was. Was it grounds of sex? If yes, then she was treated less favourably than a male chief inspector in her position would have been treated. If not, not. Thus, on this footing also, the less-favourable-treatment issue is incapable of being decided without deciding the reasonwhy issue. And the decision on the reason-why issue will also provide the answer to the less-favourable- treatment issue (iii) ‘Burden of proof’

[16]Per Her Honour Judge Eady QC in Fraser v University of Leicester

UKEAT/0155/13/DM

89… The Tribunal did not, however, stop at this first stage but went on, in any event, to ask what reason the Respondent had established for the behaviour in question. That was not putting an additional onus upon the Claimant but acknowledged that very often the answer to a case of discrimination lies in the examination of the “reason why” (Shamoon). That effectively put the spot-light on the Respondent, requiring it (notwithstanding the Tribunal’s conclusion that the burden of proof had not shifted) to establish a non-discriminatory reason for the action or omission in issue. There was no error of law in this approach.

[17]Hewage v Grampian Health Board

[2012] IRLR 870

, SC: …it is important not to make too much of the role of the burden of proof provisions – they require careful attention where there is room for doubt as to the facts necessary to establish discrimination, but have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.

[18]Amnesty International v Ahmed

[2009] ICR 450

, EAT per Mr. Justice Underhill at paragraph 24: (4) Although the tribunal refers to the so-called 'reverse burden of proof' provisions of s.54A of the 1976 Act, its conclusion does not depend on the application of those provisions. It has made an explicit finding as to the reason for the claimant's treatment which renders the elaborations of the 'Barton/Igen guidelines' otiose. (There would be fewer appeals to this tribunal in discrimination cases if more tribunals took this straightforward course and only resorted to the provisions of s.54A (or its cognates) where they felt unable to make positive findings on the evidence without its assistance.) DISCRIMINATION ARISING FROM DISABILITY (i) Proportionate means of achieving a legitimate aim

[19]The legitimate aim being relied upon must in fact be pursued by the measure in question; however, as confirmed by the Supreme Court in Seldon v Clarkson Wright and Jakes

[2012] IRLR 590

, it is not necessary that the aim was either articulated or even realised at the time; ex post facto rationalisation is permissible. Per Lady Hale: 59 The fact that a particular aim is capable of being a legitimate aim under the Directive (and therefore the domestic legislation) is only the beginning of the story. It is still necessary to inquire whether it is in fact the aim being pursued. The ET, EAT and Court of Appeal considered, on the basis of the case law concerning indirect discrimination (Schönheit v Stadt Frankfurt am Main, joined cases C-4/02 and C5/02,

[2004] IRLR 983

; see also R (Elias) v Secretary of State for Defence

[2006] IRLR 934

), that the aim need not have been articulated or even realised at the time when the measure was first adopted. It can be an ex post facto rationalisation. The EAT also said this [50]: 'A tribunal is entitled to look with particular care at alleged aims which in fact were not, or may not have been, in the rule-maker's mind at all. But to treat as discriminatory, what might be a clearly justified rule on this basis would be unjust, would be perceived to be unjust, and would bring discrimination law into disrepute.' 60 There is in fact no hint in the Luxembourg cases that the objective pursued has to be that which was in the minds of those who adopted the measure in the first place. Indeed, the national court asked that very question in Petersen. The answer given was that it was for the national court 'to seek out the reason for maintaining the measure in question and thus to identify the objective which it pursues' [42] (emphasis supplied). So it would seem that, while it has to be the actual objective, this may be an ex post facto rationalisation.

[20]The classic test was set out in Bilka-Kaufhaus GmbH v Weber Von Harz (Case 170/84)

[1984] IRLR 317

, ECJ in the context of indirect sex discrimination. The ECJ said that the court or tribunal must be satisfied that the measures must “correspond to a real need … are appropriate with a view to achieving the objectives pursued and are necessary to that end” (para 36).

[21]It has subsequently been emphasised that the reference to “necessary” means “reasonably necessary”: see Rainey v Greater Glasgow Health Board

[1987] ICR 129

, HL per Lord Keith of Kinkel at pp 142-143.

[22]The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it: Hardys & Hansons plc v Lax

[2005] IRLR 726

per Pill LJ at paras 19-34, Thomas LJ at 54-55 and Gage LJ at 60.

[23]It is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer’s measure and to make its own assessment of whether the former outweigh the latter. There is no ‘range of reasonable response’ test in this context: Hardys & Hansons plc v Lax

[2005] IRLR 726

, CA.

[24]Hensman v Ministry of Defence

UKEAT/0067/14/DM

per Singh J: [41] As I have already mentioned, this relates to the reasoning on the proportionality point, particularly at para 116 of the Judgment. Mr Tunley criticises the reasoning in that passage for a number of reasons. He submits that the tribunal simply did not engage at all with the reasons for the dismissal which the Respondent in this particular case in fact had. Those were succinctly put in the letter of dismissal dated 3 May 2012 from Mr King, which I have already quoted. In particular, Mr Tunley complains that nowhere in the tribunal's reasoning anywhere is to be found any acknowledgment of the Respondent's legitimate concern in this case that the Claimant had committed a breach of trust and furthermore that he engaged in covert recording. Mr Tunley reminded me of the decision of the Court of Appeal in Hardy and Hansons plc v Lax

[2005] ICR 1565

in which the main Judgment was given by Pill LJ In particular, my attention was drawn to paras 31 - 33 of that Judgment, which set out the correct approach to be adopted by the Employment Tribunal when assessing questions of proportionality. At para 31 Pill LJ stated "It is for the employment tribunal to weigh the real needs of the undertaking, expressed without exaggeration, against the discriminatory effect of the employer's proposal. The proposal must be objectively justified and proportionate." [42] At para 32 Pill LJ said: "I accept that the word 'necessary' . . . has to be qualified by the word 'reasonably'. That qualification does not, however, permit the margin of discretion or range of reasonable responses for which the Appellants contend. 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. The employer has to show that the proposal, in this case for a fulltime appointment, is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary. I reject [the employer's] submission . . . that, when reaching its conclusion, the employment tribunal needs to consider only whether or not it is satisfied that the employer's views are within the range of views reasonable in the particular circumstances." [43] Accordingly it is clear, first, that the role of the Employment Tribunal in assessing proportionality, in contexts such as the present, is not the same as its role when considering unfair dismissal. In particular, it is not confined to asking whether the decision was within the range of views reasonable in the particular circumstances. The exercise is one to be performed objectively by the tribunal itself. [44] However, secondly, I accept Mr Tunley's submission that the Employment Tribunal must reach its own judgment upon a fair and detailed analysis of the working practices and business considerations involved. In particular, it must have regard to the business needs of the employer. This is particularly reinforced in a case such as the present where the Employment Tribunal had already found at the beginning of para 106 that the Respondent had legitimate aims to be served. Furthermore, in this context I accept Mr Tunley's submission, based upon para 33 of Pill LJ's Judgment, which I will now quote, so far as material "This is an appraisal requiring considerable skill and insight. As this court has recognised in Allonby and in Cadman, a critical evaluation is required and is required to be demonstrated in the reasoning of the tribunal." As Pill LJ then said towards the end of the same paragraph: ". . . the statutory task is such that, just as the employment tribunal must conduct a critical evaluation of the scheme in question, so must the appellate court consider critically whether the employment tribunal has understood and applied the evidence and has assessed fairly the employer's attempts at justification." It is important to remind oneself, as I was reminded by Mr Nicholls, that in the intervening passage in para 33 there is this important statement by Pill LJ: "In considering whether the employment tribunal has adequately performed its duty, appellate courts must keep in mind...the respect due to the conclusions of the fact finding tribunal and the importance of not overturning a sound decision because there are imperfections in presentation." [45] Mr Nicholls also reminded me that the burden of proof in respect of showing justification in this context lies upon a Respondent. Nevertheless I accept Mr Tunley's criticisms of para 116 of the Tribunal's Judgment. In particular, it does seem to me that the tribunal failed to assess, in the balancing exercise which it had to perform, the particular considerations which were weighing upon the Respondent's mind in the present case. [Emphases added FAILURE TO MAKE REASONABLE ADJUSTMENTS

[25]There is no obligation on an employer to create a post specifically, which is not otherwise necessary, merely to create a job for a disabled person – Tarbuck v Sainsbury’s Supermarkets Ltd.

[2006] IRLR 664

, EAT.

[26]Whether the adjustment is made by luck or by judgment is immaterial – Spence v Intype Libra Ltd.

UKEAT/0617/06/JOJ

. See also British Gas v McCaull

[2001] IRLR 60

, EAT

[27]Tameside Hospital NHS Foundation Trust v Mylott

UKEAT/0352/09/DM

is authority for the proposition that a Tribunal is not entitled to find that the Equality Act 2010 gives rise to a duty on the employer of a disabled employee to take steps to facilitate an application for ill-health retirement. Reasonable adjustments involve steps to enable the employee to stay in employment, not to compensate him for having to leave it.

[28]O’Hanlon v Commissioners for H. M. Customs & Revenue

[2006] IRLR 840

: 69... as the tribunal pointed out, the purpose of this legislation is to assist the disabled to obtain employment and to integrate them into the workforce. All the examples given in s.18B(3) are of this nature. True, they are stated to be examples of reasonable adjustments only and are not to be taken as exhaustive of what might be reasonable in any particular case, but none of them suggests that it will ever be necessary simply to put more money into the wage packet of the disabled. The Act is designed to recognise the dignity of the disabled and to require modifications which will enable them to play a full part in the world of work, important and laudable aims. It is not to treat them as objects of charity which, as the tribunal pointed out, may in fact sometimes and for some people tend to act as a positive disincentive to return to work. INDIRECT DISCRIMINATION (i) Solitary disadvantage is not sufficient / group disadvantage must be established

[29]Eweida v British Airways plc

[2010] IRLR 322

, CA per Lord Justice Sedley: 15… there is in my judgment no indication that the Directive intended either that solitary disadvantage should be sufficient - the use of the plural ('persons') makes such a reading highly problematical - or that any requirement of plural disadvantage must be dropped.

[30]Trayhorn v Secretary of State for Justice

UKEAT/0304/16/RN

per Slade DBE J: [69] Lord Justice Elias held at para 33 that group disadvantage has to be established for justification of the PCP to be required. However Lord Justice Elias held that once such disadvantage had been established, it was difficult to imagine that a court would give much weight to the fact that the size of the pool adversely affected is in principle potentially large if that is not the case in relation to a particular employer. [70] Lord Justice Elias held that the protection of freedom of religion conferred by Art 9 does not require a Claimant to establish any group disadvantage. The Judge observed that the Claimant's Art 9 right was incapable of direct enforcement in the Employment Tribunal even though she was employed by a state body. Lord Justice Elias held at para 35 of what is now EqA s 19(2)(b): "35. ... In my judgment, it is simply not possible to read down the concept of indirect discrimination to ignore the need to establish group disadvantage. ..." However Lord Justice Elias saw no reason why the concept of justification in what is now s 19(2)(d) could not be read compatibly with Art 9 when that provision was in play. It was in play in Mba as the Claimant was, as in this case, an employee of a state body. For the purposes of EqA s 19(2)(d) it would not matter whether the Claimant was disadvantaged along with others or not. However the number of employees adversely affected by a PCP may be relevant to the issue of whether it is justified. [72] In my judgment it is clear from the judgment of Lord Justice Elias in Mba that it is not possible to read the predecessor of EqA s 19(2)(b) in a way which ignores the need to establish group disadvantage notwithstanding that protection of freedom of religion under Art 9 does not require a Claimant to establish any such group disadvantage. Accordingly the ET did not err in considering whether the first and second PCPs led to "any group disadvantage". Moreover at para 17.2(vii), the ET observed that they had not been taken to any part of the Policies which were the basis of the PCPs which put the Claimant or those of a Christian faith or of the Pentecostal denomination at a disadvantage singly or as a group. Whilst more frequent reference was made to "group disadvantage" this passage shows that the ET also considered whether there was evidence that any individual Christian had been disadvantaged by the PCPs, and had concluded there was not. [73] The right to manifest religion is provided in domestic law by the EqA. Domestic law provides two distinct routes by which such rights may be enforced: a claim of direct discrimination under s 13 and indirect discrimination under s 19. Domestic law provides for a defence to a claim of indirect discrimination but not to a claim of direct discrimination. As is provided by statute and put beyond doubt by the judgment of the Court of Appeal in Mba, the statutory threshold in s 19(2)(b) for a Claimant in an indirect discrimination claim of showing that the relevant PCP puts or would put persons with whom the Claimant shares the relevant characteristic at a particular disadvantage when compared with persons with whom the Claimant does not share it is to be applied to claims of indirect discrimination. [Emphases added] CONTRIBUTION – UNFAIR DISMISSAL (i) Basic award

[31]Section 122 (Basic Award – reductions) of the Employment Rights Act 1996 (‘ERA’): (2) Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly. (ii) Compensatory award

[32]Section 123 (Compensatory Award) of the ERA: (6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding. (iii) Legal principles relating to statutory contribution

[33]Optikinetics Ltd v Whooley

[1999] 1 ICR 984

, EAT, per Judge Peter Clark: From the various authorities and taking into account the submissions made before us, we think that the following propositions of law emerge.(1) Before making any finding of contribution the employee must be found guilty of culpable or blameworthy conduct. The inquiry is directed solely to his conduct and not that of the employer or others.

(2) For the purposes of section 123(6) the employee's conduct must be known to the employer at the time of the dismissal (cf. the just and equitable provision under section 123(1)) and have been a cause of the dismissal.

(3) Once blameworthy conduct causing, in whole or in part, the dismissal has been found, the tribunal must reduce the compensatory award by such proportion as it considers just and equitable. It must make a reduction: see Parker Foundry Ltd. v. Slack [1992] I.C.R. 302, 309,per Woolf L.J., approving the approach of the appeal tribunal in Warrilow v. Robert Walker Ltd. [1984] I.R.L.R. 304, 306, para. 19.

(4) A finding of contribution under section 122(2) does not require a finding that the conduct is causatively linked to the dismissal. It may be first discovered after dismissal: cf. W. Devis & Sons Ltd. v. Atkins [1977] I.C.R. 662. The wording of section 122(2) grants to the employment tribunal a wide discretion as to whether to make any, and if so what, reduction in the basic award on the grounds of the employer's conduct.

(5) After some uncertainty, see Chaplin v. H. J. Rawlinson Ltd. [1991] I.C.R. 553, it is now clear that different proportionate reductions are permissible in relation to the basic and compensatory awards: see Rao [1994] I.C.R. 495; Slack [1992] I.C.R. 302 and White [1995] I.C.R. 349.

(6) The appellate courts will rarely interfere with the employment tribunal's assessment of the percentage reduction for contribution: Hollier v. Plysu Ltd. [1983] I.R.L.R. 260. (iv) Conclusions re. legal principles on basic award & compensatory award

[34]If blameworthy conduct is found in the circumstances provided, then the Tribunal must reduce the compensatory award by such proportion as it considers just and equitable (i.e. the reduction is mandatory). In contrast, the Tribunal retains a wide discretion to as to whether to reduce the basic award. (v) Nature of the conduct in question

[35]The misconduct need not be gross in character to warrant a reduction. In Jagex Ltd v McCambridge

[2020] IRLR 187

, EAT, the employee was summarily dismissed after finding a document that had been left on the communal printer which contained the salary of a senior employee and then telling a few colleagues about it. Although the employee was not responsible for any wider dissemination of the information, it was embarrassing for the employer when the level of the executive's pay became more generally known in the office. The tribunal had erred in considering that a contributory fault reduction could only be made if the employee had committed an act of gross misconduct, which was too high a threshold.

[36]The correct test is to consider if the conduct was culpable, blameworthy, foolish or similar which includes conduct that falls short of gross misconduct and need not necessarily amount to a breach of contract - Nelson v British Broadcasting Corporation (No. 2)

[1979] IRLR 346

, CA. (vi) Correct approach

[37]The tribunal must make findings of fact about the conduct in question. The focus when addressing the issue of contributory conduct shifts from the employer (whose decisionmaking process is largely under the spotlight upon the issue of fairness) to that of the employee. The analysis of the employer's decision-making (including, crucially on this question, some evidence of the link between the conduct and the dismissal). However, the issue of contribution requires the making of primary factual findings by the tribunal. That the two issues need to be kept separate and need to be dealt with differently was explained by the Court of Appeal in London Ambulance Services NHS Trust v Small

[2009] EWCA Civ 220

[2009] IRLR 563

. In Small, the Court of Appeal issued a reminder that the issue of contributory conduct was one of fact for the tribunal and was not (unlike the decision to dismiss) one for the employer to make. (vii) Categories of reduction

[38]Upon the question of the actions of others (such as the employer) impacting upon the degree of culpability of the employee, see Hollier v Plysu

[1983] IRLR 260

. The employee had disregarded her employer's warning to have no dealings with a fellow employee lorry driver (who was known to be something of a rogue) by purchasing from him several toy pandas and a clock which were items of dubious provenance. The Court of Appeal approved the EAT's suggestion of four broad categories of reduction:38.1 Employee wholly to blame: 100%

38.2 Employee mainly to blame: 75%

38.3 Employer and employee equally to blame: 50%

38.4 Employee slightly to blame: 25% CONTRIBUTION - DISCRIMINATION

[39]Discrimination is a form of statutory tort and falls to be assessed as such. It has been held that, as a matter of principle, a reduction in compensation can be made in an award of compensation for discrimination on the basis of contributory negligence (Way v Crouch

(2005) IRLR 603

, EAT).

[40]However, following the recent decision in First Greater Western v Waiyego

UKEAT/0056/18/RN

, doubting Way v Crouch, submissions on contributory fault are better put as a failure to mitigate loss.