Mr D Carrington v Home Office: 2218551/2024
JUDGMENT
The unanimous judgment of the Tribunal is as follows:[1]The Respondent’s application to strike out the claim is refused.[2]The complaints unfair dismissal and failure to make reasonable adjustments are dismissed.REASONS
[1]The Claimant, Mr Carrington, made complaints of unfair dismissal and failure to make reasonable adjustments. The Respondent, the Home Office, disputed those complaints.[2]The Tribunal gave an oral judgment, with reasons, at the conclusion of the hearing. These written reasons are produced at the request of the Respondent.[3]The Tribunal is unanimous in the reasons that follow.Preliminary Matters
[4]The Tribunal determined four preliminary matters at the commencement of the hearing, as follows:4.1 On the Claimant’s application to be permitted to attend by video, the Tribunal decided that the hearing would proceed in a hybrid format, with the Claimant attending by video and all other participants being present in person in the hearing room.4.2 The Claimant did not object to the Respondent’s application for anonymisation of a particular individual (not a witness in the proceedings) and the Tribunal concluded that such an order should be made in respect of that individual and his sister under rule 49 of the Employment Tribunal Procedure Rules.4.3 The Respondent applied for an order striking out the claim because of the way in which it had been conducted. The Tribunal decided not to strike out the claim.4.4 The parties agreed that the Respondent’s witnesses should give evidence first, in the main in order to take account of Mr Bourne’s availability in the light of the time taken over the preliminary matters.[5]The Tribunal gave oral reasons for its decisions on these preliminary matters. The Respondent’s request for written reasons was understood to relate to the Tribunal’s judgment on the merits, and so the reasons for the decisions on the preliminary matters have not been included.The issues
[6]The Tribunal decided to hear and determine the issues as to liability in the first instance.[7]The issues as agreed by the parties were set out in the case summary of Employment Judge Mensah following the preliminary hearing on 30 July 2024. The Tribunal will set out here the issues that, in the event, were determined at the hearing.[8]Time limits. The Tribunal did not determine these issues.[9]Unfair dismissal.8.1 Was the Claimant dismissed? (There was no issue as to this).8.2 What was the reason or principal reason for dismissal? The Respondent says capability, which is a potentially fair reason8.3 If the reason was capability, did the Respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant? In particular:8.3.1 Did the Respondent genuinely believe that the Claimant was no longer capable of performing his duties?8.3.2 Did the Respondent adequately consult the Claimant?8.3.3 Did the Respondent carry out a reasonable investigation, including finding out about the up-to-date medical position?8.3.4 Could the Respondent reasonably be expected to wait longer before dismissing the Claimant?8.3.5 Was dismissal within the range of reasonable responses?8.4 The Claimant alleges that the decision to dismiss was unfair because:8.4.1 The Respondent was in possession of an OH report dated 10 February 2023 and was therefore aware of the nature of the Claimant’s ill health. The Respondent should have:8.4.2 The Claimant’s mental health impairments resulted in him largely being unable to co-operate with the Respondent’s absence management process. The Respondent should have: (a) Not terminated the Claimant’s employment but enabled him further recovery time which could have decreased his psychological barriers associated with returning to his role. (b) Then enabled the Claimant to engage and co-operate with the absence management process with a view to him returning to work, in a redeployed role. (c) Not concluded the absence management process and subsequent termination of his employment until he was able to meaningfully co-operate.(a) Enabled the Claimant to have further recovery time.(b) Sought to work with him to find suitable alternative employment.(c) Resolved the disciplinary process and pay dispute before dismissal.[10]Disability. As will be explained later in these reasons, the Respondent conceded disability to an extent that meant it was not necessary for the Tribunal to determine the aspect that remained disputed.[11]Failure to make reasonable adjustments.11.1 Knowledge of disability was accepted in similar terms to the issue of disability.11.2 Did the Respondent have the following PCP: Arranging meetings with the Claimant in a non-collaborative way, and simply informing him of the dates and times he was required to attend meetings.11.3 Did the PCP put the Claimant at a substantial disadvantage compared to someone without his disability, in that he could not cooperate with meetings?11.4 Did the Respondent know or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage?11.5 What steps could have been taken to avoid the disadvantage? The Claimant suggests a collaborative effort in agreeing suitable dates and times for meetings.11.6 Was it reasonable for the Respondent to have to take those steps from February 2023 onwards, specifically in relation to emails to Lisa Clifford in February, April and December 2023.11.7 Did the Respondent fail to take those steps? Evidence and findings of fact[12]The Tribunal heard evidence from the following witnesses:12.1 Mr Simon Bourne, Chief Digital, Data and Technology Officer.12.2 Mr Nathan Eyles, Systems and Implementation Manager.12.3 Ms Lisa Clifford, formerly Deputy Director for Commercial Operations.12.4 The Claimant, Mr Carrington.[13]There was an agreed bundle of documents and page numbers in these reasons refer to that bundle.[14]The background to the claim is that the Claimant began work for the Respondent as a systems engineer in June 2014. Between May and November 2021 the Claimant sought permission to work from Barbados. The request was refused, although the Claimant had already booked flights. In the event, he went to Barbados for 4 weeks’ annual leave starting in May and thereafter took sick leave which lasted until March 2022, when he returned to work. That return was on reduced hours of 10.00am to 3.00pm Monday to Friday and working from home, by reason of his mental health condition.[15]Other background matters are that during 2022 the Claimant was the subject of a grievance from a colleague, Mr B. The Claimant also raised a grievance against Mr B and others. The Claimant’s grievance was determined against him, and his appeal against that decision was unsuccessful. There was also a disciplinary process which arose from one of the Claimant’s communications with Mr B. That process resulted in a warning and an appeal which, as we will describe, was never determined.[16]The Claimant had a history of sickness absences, which is at the centre of this case. That history (which is agreed) is set out in full on pages 870 to 871 in a letter dated 29 December 2023 in which Mrs Clifford communicated her decision to dismiss the Claimant. The material points to note are that the Claimant was continuously absent sick from 25 November 2022 until the date of his dismissal, 29 December 2023, and that there had been substantial other periods of sickness absence from June 2021 onwards (the first being from 1 July 2021 to 15 March 2022 when the Claimant was in Barbados).[17]All of the issues in the case relate in one way or another to the Claimant’s sickness absences and/or the Respondent’s absence management procedures. It is necessary to examine in some detail how the absence management process unfolded in the Claimant’s case.[18]Beginning at page 446, on 10 June 2022 the Claimant attended an Occupational Health (OH) assessment. This found that he was fit for the reduced hours on which he was working and that a stress risk assessment should be undertaken. The OH adviser said that the Claimant was feeling in low mood and was being supported by his GP. The OH adviser referred to the work culture, the demands of the job, and similar matters, and recommended that issues should be discussed and an action plan devised to resolve or improve the situation. The adviser said that, with support and a conclusion to the grievance process, he anticipated that the Claimant would render reliable service and attendance in the future without performance issues in his current role. The recommendation was to remain on the existing reduced hours until the situation was resolved.[19]Then on 13 October 2022 the Claimant had an interim discussion with an OH adviser, the letter about this being at page 590. On that occasion, the adviser said that the referral had come about following the earlier appointment in June, that there had been no resolution of the circumstances regarding the background issue of work-related conflict, and that management reports referred to worsening mental health and suicidal thoughts. The letter continued, saying that the formal consultation had not been completed, the Claimant not wishing to proceed on that date and having asked to re-schedule the consultation. The adviser wrote that she had had a discussion with the Claimant about his wellbeing and safeguarding and that he had said that he did not feel at risk of suicide. She concluded by asking the manager, Mr Eyles, to discuss the possibility of re-scheduling the appointment.[20]The Claimant began a period of sickness absence on 21 November 2022 which continued unbroken until the termination of his employment.[21]On 9 December 2022 Mr Eyles held an informal absence review meeting with the Claimant, notes of this being at pages 602-3. There was discussion of the Claimant’s current position, his family support, and the medical appointments he had been attending since September 2022. The note records that the Claimant said that he believed that the relationships within, and the environment of, Home Office Commercial had become toxic. He stated that he had no intention of returning, either to Commercial, or to the Home Office in general. He said that he could not return, and that the situation had become untenable. The Claimant said that his doctor’s recommendation was that he should never return to such a toxic environment.[22]Mr Eyles referred to the sick pay trigger points and to the formal attendance meetings that would take place at those stages. The Claimant stated that he felt that he could currently only speak to Mr Eyles, or potentially to Mrs Clifford, but no one else in the previous or current line management chain or in the senior leadership team.[23]Moving to 4 January 2023, at page 613, there was an e-mail inviting the Claimant to a formal absence management procedure meeting. That is from Ms Westcott who was a more senior manager who was dealing with the matter in the absence of Mr Eyles, who was himself on sick leave for a period. The date proposed was 11 January 2023. Ms Westcott wrote that she knew that the Claimant had expressed concerns about attending the office in person, so she had agreed to schedule the meeting on Teams. She then wrote: “If due to exceptional circumstances you are unable to attend at this time please let me know as soon as possible so an alternative date can be arranged.”[24]Ms Westcott referred to the right to be accompanied by a trade union representative or a work companion and said that if the meeting was at the Claimant's home he could have a family member attend. Ms Westcott continued that the Claimant’s employment with the department could be affected if his sickness absence could no longer be supported.[25]The Claimant did not respond to that e-mail and did not attend on 11 January. There was an e-mail at page 612 sent to the Claimant by Ms Westcott at 11.19 am on 11 January reminding him that there was a call scheduled for 11:00 am which he had not yet joined. Ms Westcott said that she would hold on for another 10 minutes or so in case he was running late. Following that, on 13 January 2023, Ms Westcott wrote to the Claimant about his non-attendance, the email being at page 611. Ms Westcott summarised the reasons for the formal attendance meeting, asked about the Claimant's current health and well-being, and about his return to work and a missing fit note.[26]The Claimant's response on the same page was as follows: “Also can I please remind you that I am currently on sick leave but it is not like a broken leg / hand type of sickness but as you know wellness / well-being / mental health and a great Fear for my life at work as relationships have become untenable, I am sure that you are very much aware of this, and your communications are further exasperating this, causing me emotional distress and tantamount to bullying and harassing.[27]A further OH appointment was arranged for 7 February 2023, which gave rise to a report at page 654 dated 10 February 2023. In this report the adviser said that the Claimant did not currently appear to be fit for work, and that the relationship between him and his employer appeared to have broken down irrevocably. The report continued that the Claimant did not anticipate being able to return to his previous role or to work within the same department. The adviser said that Claimant’s mental health recovery would likely be determined largely by the resolution of the current challenging circumstances surrounding his employment and said that, although he might in time be fit to return to work in a different role or in a different department, this remained unlikely until the current outstanding matters around the disciplinary appeals process and the dispute around pay were settled.[28]The dispute around pay concerned the operation of the Respondent’s practices about sick pay, which we will say more about later in these reasons. The formal absence review process then continued with an invitation on 20 February 2023 at page 663 to the Claimant to attend a meeting on 28 February 2023. This was sent by Mr Eyles, who said that it was now necessary to schedule a formal meeting and he said: “You are expected to attend the meeting as scheduled unless there are exceptional circumstances why you cannot. If this is the case as per the 1 February 2023 meeting, please inform me as soon as possible.[29]The Claimant replied on the same date, his email including the following: “Many thanks for the below, under legal and medical advice and from the advice and mandate given following my recent OH assessment all and any such meetings will be limited to me obtaining clearance and being accompanied and directed by my employment solicitor/s and physician/s.” In the event, therefore, that meeting did not take place although subsequently at page 660 onwards Mr Eyles on 2 March 2023 sent the Claimant a note of the questions that he was intending to ask at the meeting, and his observations from his own knowledge and understanding of the case.[30]Moving to 28 April 2023, Mrs Clifford (who was senior to Mr Eyles) had by now become charged with the taking the process forward. At page 678 she invited the Claimant to a formal absence review meeting (or “FARM”) on 9 May 2023. The letter included the following: “If due to exceptional circumstances you are unable to attend at this time please let me know as soon as possible so an alternative date can be arranged”.[31]The Claimant did not attend the meeting on 9 May 2023 and on page 688 on the same date Mrs Clifford wrote to him asking why that was. She wrote: “Please can you let me know why you were unable to attend. Please also let me know if there are any changes I can make that would enable you to join, for example meeting in person rather than over Teams or having a friend or family member to accompany you to support your mental health”.[32]Mrs Clifford stated that the meeting would be re-scheduled to 18 May and continued: “If your mental health is negatively impacted by this process, and you do not wish to attend any formal meeting, you can submit information to me in writing to explain from your perspective whether you feel able to return to work in the near future. I will take this into account as I make the decision on whether we can continue to support your absence from work.”[33]On the same date and on the same page the Claimant replied in the following terms: “Your tone and inappropriate pushing for a meeting is very hostile / insensitive and unlawful, which is causing me severe emotional distress further exacerbating my medical condition bullying and harassing in nature given the current situation. I would ask that you respect this moving forward and when the time is right I will make contact with yourself to proceed accordingly”.[34]On 23 May 2023 Mrs Clifford wrote again at pages 706 to 707, recording that the Claimant had not attended the meeting on the 9 May. It is not clear what happened about the intended meeting on 18 May, but nothing turns on that. Mrs Clifford invited the Claimant to a rescheduled meeting on 5 June 2023. She wrote: “I understand that you are finding it difficult to engage with the absence management procedure due to your mental health, but I would like to discuss this with you to understand your perspective and identify if there are any other actions that we can take to support your return to work. This will help me to decide whether we can continue to support your absence at this time”.[35]Mrs Clifford continued, asking the Claimant whether he would be happy to complete a further occupational health review. The letter also contained the following: “If you feel that you are unable to attend at this time please let me know as soon as possible. If you are unable to attend, you have the option to send me information about your absence in writing that I will consider as I make my decision”.[36]The Claimant replied on 1 June 2023 at page 710 saying that he would not be able to attend the rescheduled meeting on 5 June. He referred to the harm and damage which he had to endure and said that he had not been signed off by a medical professional to attend the meeting. He said that this was causing an impact on his mental health and overall wellness and then wrote this: “Would you be willing to enter into a “without prejudice” conversation? Please let me know and we will proceed accordingly”.[37]Mrs Clifford replied saying that she would be free on 5 June if the Claimant felt able to join the call. The Claimant wrote again on 2 June 2023 saying that he had been mistreated and much harm had been done by the actions and inactions of management due to no fault of his own. Again he asked whether there was a willingness to enter into a without prejudice conversation. He did not reply to the question whether he was willing or not to attend a further OH review.[38]There occurred on 10 July 2023, not an occupational health review, but a consultation which the Claimant attended with Dr Kelly, a consultant occupational physician, which was in connection with his application for injury benefit. It is not necessary to go into this in great detail, but in summary the Claimant was making an application for a benefit that is available from the Respondent in cases where an employee has been injured as a result of circumstances at work. Dr Kelly had been asked to express an opinion about the causation of the Claimant’s mental health conditions. To the extent that this was something that the Claimant attributed to events at work, Dr Kelly’s opinion was supportive of that.[39]There was set to take place on 20 July 2023 an OH review by telephone. This did not go ahead, and the Claimant’s account of why that was so was in an e-mail of that date at page 725. The Claimant said that the relevant doctor had contacted him and that the first question he was asked was whether he was abroad. He said he was, explaining that he was in Barbados, and that this was where his support was. The Claimant continued that the doctor went on to say that he would not then be able to conduct the OH assessment because he was abroad. The Claimant said that the conversation continued back and forth causing him a lot of stress, impacting his severe anxiety and depression, and triggering his posttraumatic stress disorder.[40]The Claimant reiterated that he was in this situation for no fault of his own but that of his employer, and that he considered this treatment to have been unfair and unacceptable. He concluded: “My employers have had plenty of time to course correct from the unprofessional / ludicrous / most dangerous and illegal practices and processes. This will no longer be tolerated this is madness at a pissed off level a very pissed off level”.[41]On 25 July 2023 at page 743 Mr Eyles wrote to the Claimant apologising for what had happened on 20 July. He wrote that he had asked for clarification of the position for OH appointments with someone who was abroad. The Claimant replied on the same date, also on page 743, referring to problems with the telephone line which was something that apparently the OH adviser had also mentioned to Mr Eyles. The Claimant said that his line was in fine working order and that if the doctor’s line was not functioning, “well then that is a matter for him and not for him to use the excuse that the line was poor”.[42]The Claimant continued that he had been advised by his therapist, GP and lawyer not to engage in any activities which would cause further harm or undue stress and this included, was but was not limited to, any occupational health assessments and work related communications of any nature. He also wrote: “So there will be no more interactions of such until I get the all clear from those in the professional medical field. Also as to my whereabouts this have no bearing on any proceedings and is of no one’s business other than my care / legal team”.[43]Moving to 3 August 2023, there was an e-mail from Mr Eyles to the Claimant at page 742 putting forward an OH appointment on 18 August. Mr Eyles had established with the OH providers that this could go ahead notwithstanding that the Claimant was in Barbados. The Claimant replied that “under professional medical and legal advice I have not been given the all clear to attend any OH appointment and or any work related activities until I have the sign off / go ahead from my care team. The Tribunal understood this as meaning that he did not propose to attend the appointment on 18 August.[44]The Claimant’s evidence was that nobody in fact tried to call him on the 18th of August. He is evidently correct because the OH providers had written at page 761 saying that they had IT problems on the day and so could not make that call. The Tribunal finds that this meant that the proposed appointment could not take place. It remains the case, however, that the Claimant had already said in the terms that we have described that he would not be willing to attend, it so it is perhaps coincidental that an IT problem on the day meant that it could not have taken place in any event.[45]A further OH appointment was proposed for 16 October 2023 in an email of 13 October 2023 at page 765 from Mrs Clifford. The response from the Claimant at page 775 was to say that he had another appointment then, and he continued: “If we can work together on setting up another OH assessment and not like all times an appointment being set up for me without prior input that would be very much appreciated”. Mrs Clifford then responded on 16 October 2023 saying that Mr Eyles had arranged for the OH appointment to be rescheduled. She continued: “We also asked whether they can give us a few options to see what would work best for you, but this may not be feasible. They are checking with their scheduling team and will then get back to us…”[46]The Claimant replied, also on 16 October: “Many thanks for the below, my bone of contention is that these appointments are being made without any input and or without consultation with myself. So as mentioned I'm unable to accommodate the appointment for today”.[47]There followed on 25 October 2023 at page 778 an e-mail from Mrs Clifford to the Claimant apologising for the delay in getting back to him and then saying: “The occupational health provider has been in contact today to ask if there are any dates to avoid and then they will offer you an appointment, taking into account your availability. Please can you let me know what dates you are unavailable over the next three weeks”.[48]In a similar vein at page 783 on 31 October 2023 Mr Eyles wrote to the Claimant, copied to Mrs Clifford, saying that Occupational Health had kindly offered two appointments and these were for 6 or 28 November. Mr Eyles asked the Claimant: “Please let us know which one you're able to make and I'll go back to them asap with confirmation”.[49]The Claimant’s reply, also on 26 October, addressed to Mrs Clifford and copied to Mr Eyles, referred to issues about pay and gave his account of how the situation had arisen. He then wrote that “On the OH assessment three selections would be much better than two”. He did not indicate any preference for either of the two that had been offered, nor any difficulty about either in particular. 50. 6 November 2023 passed without any OH assessment taking place. Then on 17 November at page 803 Mrs Clifford wrote to the Claimant stating that a telephone consultation had been arranged for 1.45pm on 28 November. She indicated that the purpose of the consultation would be to discuss the Claimant’s health and ongoing recovery, whether any reasonable adjustments could support his return to work, and whether ill health retirement was appropriate.[51]The Claimant replied on 17 November at page 802 in the following terms: “Many thanks for the below, as mentioned before these haphazard appointments without consideration to if I am available or not seems to be a pattern and this should not be the course of action. I was expecting a collaborative effort with this the point to note I am not being difficult or against these OH assessments but it is the way it is being done / arranged. If we can collectively come together and discuss when these appointments will be best suited base on my availability that would be very much appreciated”.[52]Mrs Clifford replied on the same date saying that she and Mr Eyles had asked for a choice of appointments; that the providers did not usually do that, but they had provided 2 appointments to choose from. She continued: “Please let me know if you are available to attend at the time slot below. If not, I will ask for an alternative time slot. Please let me know what dates / times are best for you but I can't guarantee that the OH provider will be able to provide an appointment, this is out of my hands”.[53]Then on 23 November 2023 at pages 813-815 Mrs Clifford wrote to the Claimant on a number of subjects. She referred to pay queries, which concerned the payment of contractual and statutory sick pay, saying in essence that the Claimant had been paid what he was entitled to in respect of those payments. Mrs Clifford referred to the injury at work application which had been the subject of a medical assessment in July, and set out some details of that application, but said that the decision had been made. Mrs Clifford explained in her witness statement that she had had advice from HR that mental health conditions were not covered by this particular scheme. She also said in the email that she could not approve applying a sick leave excusal to the Claimant’s employment record. As the Tribunal understands it, sick leave excusal would have changed the trigger points to the employee’s advantage in respect of ongoing sickness absences.[54]Mrs Clifford then dealt with the subject of the Claimant's ongoing absence and OH support. She referred to the original appointments offered in August, September and October. She said that the Claimant had a choice if he wished to attend the appointment on 28 November.[55]Mrs Clifford continued as follows: “Whether you decide to attend or not, due to the length of your absence, I will arrange a formal attendance management review meeting to take place in December. This is to discuss your absence and decide whether your employer can continue to support your absence or whether you should be dismissed. I can see that you continue to find it difficult to engage with the absence management procedure due to your mental health and that throughout this time, you have often asked us not to contact you. We have tried our best to listen and support you and give you the space to focus on your recovery. However, I must also follow the Home Office absence management procedures to decide what is best for both you and the organisation as a significant period of time has now passed and you remain unable to work due to your health”.[56]The Claimant replied at pages 808-809, also on 23 November, with two emails. One of them commented: “I am not sure where you have compiled your information from but there are lot of untruths within your statements and letter, which is the norm with yourself and others”. He added: “This is now a legal / criminal matter as you have continued to tell untruths and place the Home Office into disrepute a sackable offence”.[57]A second e-mail followed from the Claimant a few minutes later without any further intervention from Mrs Clifford. This read: “Also I'm currently on continuous sick leave because you and others have made it that way with your jackass and clownish behaviour at the end of the day you and others are the main cause of me being on continuous sick leave so get it together or I will get it together for your unprofessional out of order self”.[58]In his email to Mrs Clifford of 27 November page at 817 the Claimant said that he would not be attending the assessment on 28 November, saying that he had had no prior consultation about it. Mrs Clifford replied saying that she would not be cancelling the appointment, that it would be left in the diary, and that the Claimant could join if he changed his mind.[59]An OH adviser made a call to the Claimant on 28 November 2023. It is evident that there was some conversation. The Claimant answered the call, but it is not entirely clear what exactly happened. The Claimant’s oral evidence was that he had some brief conversation with the adviser and although no report was ever produced, his account or belief was that this was at least some form of assessment and that it involved some engagement between him and the adviser.[60]The upshot of that call was actual that on 7 December 2023 at page 829 Mrs Clifford sent an e-mail to Mr Eyles and others referring to a further invitation to which we will come shortly, but saying that she had contradictory advice as to whether or not the Claimant attended the 28 November appointment. She said that this had taken a few days to resolve and that OH confirmed that “call made - stated that he was on another call and had told his employer that he could not take the call today”.[61]There is therefore some degree of conflict about exactly what it was that happened on 28 November 2023. The Tribunal considers that the important point is that the Claimant had previously told Mrs Clifford that he would not take the call and he would not be attending the appointment. That was reflected in his e-mail and subsequently in what Mrs Clifford was told by the OH providers. Whether or not the Claimant said that he was on another call, and whether or not there was some brief discussion about the situation, seems to the Tribunal not to greatly matter. The point is that there was not a substantive occupational health assessment on this occasion and certainly not one that enabled a report to be provided.[62]On 7 December 2023 at pages 832-833 Mrs Clifford again wrote to the Claimant, saying that he was invited to a meeting on 18 December to discuss his sickness absence. Similar matters to those covered previously were covered again. Mrs Clifford said that it was important to follow Home Office values and the Civil Service Code when interacting with work colleagues and that some of the Claimant’s recent messages had fallen short of the standards required. Then in relation to the meeting Mrs Clifford wrote: “If you feel that you are unable to attend at this time please let me know as soon as possible. If you are unable to attend, you have the option to send me information about your absence in writing by 5pm on Friday 15th December 2023, that I will consider as I make a decision”.[63]The Claimant replied at page 830, also on 7 December 2023, saying: “I am unable to confirm at this time, as always you assume that I will make myself available for such without prior consultation with myself hence I am unable to provide you with an answer”.[64]The Claimant did not attend on 18 December and on 19 December 2023 at pages 856-7 Mrs Clifford sent a further letter to him. She said that the meeting would be rescheduled to 27 December 2023 and that if the Claimant decided not to attend a decision would be made on whether the Respondent could continue to support his absence, and that the decision would be made following the meeting on that date.[65]Mrs Clifford summarised the position regarding the occupational health reviews. She said that there had been 4 appointments that the Claimant had been unable or unwilling to attend, and she listed these as 20 July, 18 August, 16 October and 28 November. The Tribunal found that it was in fact an error to include 20 July in that list for the reasons given about what happened on that occasion. There were however, as the Tribunal understands it, nonetheless 4 occasions when the Claimant had not attended appointments at times that had been provided, because Mrs Clifford omitted from her list the appointment for 6 November. With regard to 18 August, the Tribunal found that although in the event the appointment could not have gone ahead, it was fair to say that the Claimant had stated that he was unable or unwilling to attend on that date.[66]As before, Mrs Clifford included in her letter the words: “If you feel that you are unable to attend at this time, please let me know as soon as possible. If you are unable to attend you have the option to send me information about your absence in writing……that I will consider as I make a decision”.[67]The Claimant did not attend the proposed meeting on 27 December. That led Mrs Clifford to send a letter dated 29 December 2023 at pages 870 to 873. This conveyed the decision that the Claimant would be dismissed because of his absences from work. Those absences were set out in detail. Mrs Clifford referred the most recent occupational health report, which was that of 10 February 2023, and said that this stated that the Claimant’s mental health situation was linked to events at work which was creating psychological barriers associated with returning to his role.[68]Mrs Clifford wrote: “As you have said that the relationship with your colleagues in Commercial Directorate has broken down, I offered you mediation to see whether this could help improve the relationship, which you declined. I also offered you the option of redeployment to a different SEO role outside of Commercial Directorate, which you also declined”. She then referred to the absence management meetings or proposed meetings. Mrs Clifford referred again to the Claimant’s the communications and her view that better standards expected of a civil service employee. She said that the Claimant had the right to appeal.[69]There was also at pages 874 to 877 an internal document setting out Mrs Clifford’s reasoning for her decision. This involved Mrs Clifford explaining why she considered that the business could no longer support the Claimant’s level of sickness. She stated that this was due to the long term nature of the absence; the Claimant’s unwillingness to cooperate in working towards a return to his role; and his showing that he had no wish to return to a role in the Home Office. Mrs Clifford said that down-grading was not appropriate. She said that mediation had been offered, and that the Claimant had not taken part in any of the absence management meetings, meaning that she had not been able to discuss reasonable adjustments. Mrs Clifford recorded that the most recent occupational health advice that had been received was that of 10 February 2023 and referred to the four occasions where reviews had been proposed but the Claimant had not attended. She referred to ill health retirement not being an appropriate reaction to the situation.[70]The Claimant appealed against Mrs Clifford’s decision by way of a document at pages 886 to 888. The substantive point that he made was that the assessment conducted on 10 July 2023 had not been taken properly into account. The Tribunal has already commented that this was concerned with a different subject, namely the question of injury benefit and not the Claimant’s continued employment.[71]The Claimant also said some more about what had happened on 28 November. He said that he told the medical professional that he was not feeling well and also of his continued frustration with the employer “who sets these meetings without consideration for what appointments I may have or how my disability is affecting me by this unreasonable practice, and she agreed with me”[72]The Tribunal has not made findings of fact about exactly what happened on 28 November. If the Claimant is right about this however, then that was not an explanation that Mrs Clifford was aware of because she had the information that she recounted from the OH providers. Furthermore, it seems to demonstrate a degree of ability to interact with the OH advisers beyond that which the Claimant was maintaining was possible, in that on that account he was able to explain his position to the OH adviser.[73]On page 887 the Claimant referred to Mrs Clifford's observation about less than appropriate communications. He wrote: “….any good manager would have brought what I said to my attention”, which in fact Mrs Clifford had done in the communications to which we have referred, and continued: “and if it had merit and was such cause for concern, the Home Office complaints procedure should have been initiated, was this done no”.[74]The Tribunal is bound to observe that within this very document there are two examples of what we consider to be inappropriate communications. With reference to the letter informing him of his dismissal the claimant wrote at page 886: “You must excuse me if I have missed anything, as the letter sent was nothing short of disjointed with no flow as if a 5 year old constructed it….” Then a little later on page 887 the Claimant wrote: “But just to show a lack of competence / awareness / and literacy and understanding issues along with message and messaging shortcomings noting that none are these qualities one would like to see and or experience by someone in Lisa’s current capacity, again something which needs to be address with immediate attention”.[75]The Claimant was invited to an appeal meeting on 14 February 2024. He replied that he was not available then and the meeting was in fact held on 16 February, conducted by Mr Bourne. There are lengthy notes of that meeting. The key points that Mr Bourne took into account were set out in a summary at page 1066. Several times during the meeting the Claimant said that the reasonable adjustment that he wanted but believed he did not get was collaboration, meaning working together on dates and times of meetings and assessments.[76]Mr Bourne also noted that the Claimant claimed that if he were a Caucasian male he would have been offered a different role in another department, although he was unable to evidence any instance where he had asked for such a role and that there had been an offer of a role in another department at an earlier point. The Claimant also contended that any sick leave before November 2022 should be discounted. Mr Bourne recorded that the Claimant was unable to set out why that should be, but he said he was classed as disabled. Mr Bourne noted that he had been asked to review the tone of the communications that the Claimant had received. He found nothing in their tone to be inappropriate but found, however, that the tone of the emails from the Claimant did show evidence of unprofessional communications to his management[77]Mr Bourne gave his outcome in a letter dated 23 February 2024 at page 1076, which was that the appeal would not be upheld. He said that he was content that the decision made was a reasonable one and did not involve any procedural error. The applicable law and conclusions[78]The Tribunal first considered the complaint of failure to make reasonable adjustments as the findings on this are also relevant to the complaint of unfair dismissal. This complaint is governed by sections 20 and 21 of the Equality Act which provide as follows: 20.(1) Where this Act imposes a duty to make reasonable adjustments on a person, sections 21………apply; and for those purposes a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. 21. (1) A failure to comply with the first……requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.[79]Disability is accepted at the relevant time, namely February 2023 onwards, in relation to depression and anxiety. The Respondent has not accepted the condition of PTSD, but the Tribunal finds that this makes no material difference as there are no separate effects of that condition relied on as compared to the depression and anxiety.[80]As to the question of knowledge, it is accepted and the Tribunal finds that at least the Respondent could reasonably have been expected to know that the Claimant was disabled from February 2023 (the date of the occupational health report) onwards.[81]The PCP relied on was that of arranging meetings with the Claimant in a non-collaborative way. This was further explained as involving simply informing him of the dates and times that he was required to attend meetings. In the course of the hearing the Claimant confirmed that he was referring to both occupational health assessments and FARMS. He also agreed that the approach to the occupational health meetings was in his terms “more collaborative” than the approach to FARMS.[82]The Tribunal found that the Respondent did not in fact operate the PCP alleged. With regard to occupational health appointments, the Tribunal accepted that the usual way in which the OH provider operated was to give the Respondent a date and time for an appointment. When it became apparent that there was a problem with appointments Mrs Clifford asked the Claimant for dates to avoid on 25 October 2023, and on 31 October was able to offer a choice of two dates. On 17 November 2023 Mrs Clifford asked what times or dates would be best for the Claimant. He did not provide any suggestions. The Tribunal found that this amounted to a collaborative approach, the Claimant being asked for his input about dates and times.[83]Regarding FARMS, Mrs Clifford always offered the Claimant opportunity to say that he could not attend at the time put forward. The reasonable interpretation of this is that this was said with a view to arranging an alternative if there was a problem about the particular time and date. Mrs Clifford also gave the Claimant the option of sending written representations if he was unable or unwilling to attend a meeting at all.[84]All of this was the case up to and including the invitation to the meeting on 27 December 2023. The collaborative approach from there is not perhaps quite so obvious as in relation to the occupational health assessments, given that at that point Mrs Clifford did not continue the dialogue about dates. This may explain the Claimant’s concession or partial concession regarding the latter, but not the former.[85]The Tribunal finds, however, that it would still be wrong to say that the Respondent did no more than inform the Claimant of the dates and times he was required to attend. He was offered the opportunity to say that he could not make the date or time proposed, or to send information in writing. This was the case for each of the proposed meetings.[86]The Tribunal also considered that the Claimant had demonstrated an approach that was far from collaborative. Not only did he not put forward any dates when he could attend meetings, but he used expressions such as “madness at a pissed off level”; “jackass and clownish behaviour” and “I will get it together for your unprofessional out of order self” which did not suggest a willingness to co-operate on his part.[87]The Tribunal therefore found that the PCP proposed had not been made out and that the complaint of failure to make reasonable adjustments must fail for that reason.[88]Perhaps another way of expressing the same finding is to say that the Respondent in fact took the steps the Claimants suggested by way of reasonable adjustment. They did make a collaborative effort to agree suitable dates and times for meetings to be held in the ways that we have described.[89]As the complaint of failure to make reasonable adjustments fails on the merits, it is not necessary for the Tribunal to deal with the issue about whether it is also been presented out of time.[90]The complaint of unfair dismissal falls to be considered under section 98 of the Employment Rights Act, which provides:(1) In determining……..whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) The reason, (or, if more than one, the principal reason) for the dismissal, and (b) That it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which they employee held.(2) A reason falls within this subsection if it – (a) Relates to the capability….of the employee for performing work of the kind which he was employed by the employer to do.”(3) ………………..(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) Depends on whether in he circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) Shall be determined in accordance with equity and the substantial merits of the case.[91]The overall test is one of reasonableness. The Tribunal is not to re-run for itself the decision about whether or not the Claimant should be dismissed. The question is whether the Respondent acted in a way in which no reasonable employer could have acted in the circumstances.[92]Referring to the list of issues, there is no doubt that the Claimant was dismissed. There was no effective challenge to Mrs Clifford's evidence that her reason for dismissing the Claimant was that the Respondent could no longer support his continuing sickness absence. When asked about this in cross-examination the Claimant said that he could not really comment on Mrs Clifford's reasons for dismissing him. The Claimant did not, however, advance any alternative explanation for why he was dismissed[93]The Tribunal found that Mrs Clifford's reason for dismissing the Claimant was the one that she identified, which is the potentially fair reason of a reason related to capability.[94]Was it reasonable for the Respondent to treat this as a sufficient reason for dismissing the Claimant? The Tribunal accepted that Mrs Clifford genuinely believed that the Claimant was no longer capable of performing his duties. He had been absent sick for a continuous period of 13 months following substantial previous sickness absence. Given his nonparticipation in the process and the tone of some of his communications, there was no reason to believe that he was likely to return to work in the foreseeable future. He himself had said that he would not return while senior management up to the level of the Permanent Secretary remained in place.[95]Was there adequate consultation and/or a reasonable investigation? It is the case that Mrs Clifford did not have up-to-date medical evidence in the sense that the most recent occupational health report was that of February 2023. As we have said, the July 2023 report was directed to a different issue altogether. It is also the case that Mrs Clifford had not met the Claimant in the course of the process and therefore had not in that sense consulted him.[96]The Tribunal’s findings in relation to the reasonable adjustments complaint are relevant here. We find that Mrs Clifford made a reasonable effort to consult the Claimant and in fact took the collaborative approach for which he has argued.[97]The Claimant had the opportunity to attend the final FARM on 18 or 27 December 2023. He did not do so. In both cases he was given the opportunity to say if he could not attend, or to provide information in writing if he could not or would not attend at all. He did not take the opportunity of doing so.[98]In addition to his contention about the collaborative approach, the Claimant argued that his mental health was such that he was effectively unable to cooperate with the absence management process. Here it is important to keep in mind the point that the Tribunal’s role is that of considering the reasonableness or otherwise of the Respondent’s decision, rather than the Claimant’s explanations for his actions.[99]The Tribunal found that the Claimant’s communications about the FARMS and OH assessments and his non-attendance would not have given Mrs Clifford reason to understand or believe that his mental health conditions rendered him unable to cooperate with the process. He said that the bone of contention was the way in which meetings and appointments were being arranged. Although in August 2023 said that he needed the medical and legal all clear to attend such meetings, he was not saying this during the period October to December. He did not at any time positively assert that he was medically unfit to attend. He was clearly able to communicate in writing as he frequently did so, and in the case of his appeal, in an extensive document.[100]The Claimant also contended that the Respondent could or should have waited longer before dismissing him. Again, the issue is whether the Respondent acted unreasonably in not waiting longer. The Tribunal finds that it did not act unreasonably. As we have said, as at 29 December 2023 the Claimant had been continuously absent sick for 13 months, against a background of earlier substantial absences. There was no reason to believe that the Claimant might return to work in the foreseeable future, but rather the reverse on the information Mrs Clifford had received.[101]Mrs Clifford also identified operational reasons why the Claimant's continued absence could not be supported long-term. She said, and the Tribunal accepts, that it was necessary for the department to have a longterm appointee in the Claimant’s role, and that it was not sufficient to cover this with a temporary appointment, as was being done later in the sequence of events. The Tribunal concluded that it could not be said that the Respondent acted unreasonably in not delaying further.[102]Was dismissal missile within the range of reasonable responses? The possible alternatives were delaying, which we have already dealt with, and seeking to redeploy the Claimant. We found that it was reasonable for Mrs Clifford to believe that redeployment within the Home Office was not feasible given what the Claimant had said about not being prepared to return under the existing management.[103]As to whether any wider redeployment was possible outside of the Home Office, Mrs Clifford had been advised that she could redeploy the Claimant within the Home Office. Her evidence was that she did not consider the wider Civil Service as it would not have been within her power to arrange that such redeployment.[104]The Tribunal concluded that it could not be said that Mrs Clifford was being unreasonable in that regard, the more so all against the background of the Claimant of not engaging with the process.[105]Finally, the Claimant contended that he should not have been dismissed while the disciplinary process and the pay dispute remained unresolved. The Tribunal considered that the pay dispute had in fact been resolved in the sense that Mrs Clifford had informed the Claimant in her letter of 23 November 2023 that he had been paid correctly, and that his injury at work application had been refused. Those matters had not been resolved to the Claimant’s satisfaction, but that is not the same as saying that they were outstanding.[106]The disciplinary process had not run its full course in that the Claimant’s appeal against the warning had not been determined by the time of his dismissal. The Tribunal found that nonetheless it was not unreasonable to proceed with the capability process. The possible outcomes of the disciplinary appeal would have been either confirming the warning that the Claimant had been given, or the removal of that warning. Neither outcome would have had any impact on the capability issue. There was no other compelling reason why the Claimant’s employment should have been continued in order to allow for completion of the disciplinary appeal.[107]We therefore found that dismissal was within the range of reasonable responses.[108]The complaints of unfair dismissal and failure to make reasonable adjustments are therefore both unsuccessful.