Ms C Hollingshead v London General Transport Service Ltd: 2300066/2023 - Reserved Judgment

EMPLOYMENT TRIBUNALS

Case No 2300066/2023

Between

Ms C HollingsheadClaimant

London General Transport Service LtdRespondent

Before

Employment Judge Fredericks-Bowyer

Mr I McCabe (instructed by Counsel) for respondent

Date 6 January 2025

JUDGMENT

[1]None of the claimant’s claims succeed. The following are not well-founded and are dismissed:- 1.1. Unfair dismissal; 1.2. Dismissal following protected disclosure; 1.3. Less favourable treatment because of disability; 1.4. Discrimination due to something arising from disability; 1.5. Failure to make reasonable adjustments; and 1.6. Harassment related to disability.

[2]The respondent’s application for the claimant to pay a portion of its legal costs is refused. 1 of 34

REASONS

[1]I must, and do, apologise for the length of time it has taken for this judgment to reach the parties. The tale begins with a listing error which meant that we were only in the hearing for three days when four had been listed. In truth, given the number of claims, four days was probably an insufficient time estimate in the first instance.

[2]The Panel heard evidence from the parties over three days. Written submissions were ordered ahead of what were supposed to be two panel chambers days. Due to Panel availability (all were sitting but booked on other cases), the earliest dates we could convene was early October. Due to pressures in the list, those two days were compressed into one day. That was not sufficient time either to deal with everything which we needed to deal with. The resultant judgment here is from written work done by the Panel outside of listed hearings.

[3]I do not seek to make excuses for the delay, but it is inescapable that judicial resources are extremely limited and the volume of cases is very high. This is particularly so in this region, and each panel member has been extremely busy with hearing work throughout the summer, autumn and winter. It is regrettable that any case which cannot be concluded within its allotted window is likely to face significant delays.

[4]In terms of the judgment itself, the panel of three were unanimous in their findings of the facts and conclusions. This is the unanimous judgment of us all. Background and the hearing

[5]The claim arises from how the respondent dealt with the claimant following her developing a shoulder injury. This includes her dismissal on capability grounds because she was unable to drive a bus as a result of the injury. The claimant was employed as a bus driver.

[6]The claimant’s shoulder injury was found to amount to a disability from 19 July 2022 onwards, but not before then, by Employment Judge Dyal (as he then was) following a hearing on 20 May 2024. The claimant therefore has standing to advance her discrimination complaints only where they relate to things happening after the date.

[7]The claimant was represented by Mr Neckles. At the start of the proceedings, that representation was through an authorised Union. That Union had ceased operating by the hearing, and Mr Neckles provided representation in his capacity as a lay representative. The claimant gave evidence in support of her own case. The respondent was represented by Mr McCabe, Counsel, and called evidence from Mr Reavill (Engineering Manager), Mr Patel (Garage General Manager), and Mr Russell (retired General Manager).

[8]There was an agreed bundle of documents which ran to 327 pages. There were then additional documents, which were accepted. These were: 8.1. Occupational health referral form dated 9 June 2022; 2 of 34 8.2. Emails relating to pay slips from November 2022; 8.3. Application for PTSC Union to be removed from the list of Unions; 8.4. Fit note from 5 September 2022; 8.5. The claimant’s universal credit application dated 28 February 2024; and 8.6. Confirmation that PTSC Union was removed from the list. Claimant’s final day application for specific disclosure

[9]On the third day, the claimant made an application for specific disclosure of the sickness records of two bus drivers, Panajot Tika and Mark Eldridge. The application was said to arise out of cross-examination of Mr Russell, where the claimant disagreed with what Mr Russell had said. The two named individuals had originally been named comparators in the claim, but that allegation of less favourable treatment compared to them because of disability was withdrawn in the hearing before Judge Dyal. Mr Neckles sought to argue that that decision had been made under pressure from the Judge or in haste. There was no indication of that from the material before us, and it is notable that the claimant nor Mr Neckles had raised any concern about the withdrawals apparently freely made at that hearing. There was no appeal lodged seeking to restore named comparators to the claim.

[10]The application was made when the evidence of the claimant and Mr Russell was complete. The application sought disclosure of evidence which would undoubtedly have been relevant if the allegation of comparable situations had not been withdrawn. In our judgment, the respondent cannot be criticised for failing to disclose the evidence sought when the allegation which made it relevant had been withdrawn.

[11]To allow the application would have meant that the hearing would not have a chance of being completed in the trial window. The respondent would need to disclose the information. Mr Russell, and possibly the claimant, would need to have been recalled to give evidence again. To make an argument based on that evidence along the lines of incomparable treatment or re-introducing a comparator would also, in our view, require permission to amend the claim on the final day of the hearing after most of the evidence had been heard. There was no such application before us.

[12]In our view, the claimant had had the opportunity to run that argument, and she had initially run it. The argument was withdrawn before Judge Dyal. It might be that that later seemed unwise, but it was a decision the claimant made and was stuck with by this stage of the final hearing. It would not be proportionate or in accordance with the overriding objective for the application to be granted. There appeared no good reason to re-do a portion of the litigation process and re-convene for additional days of hearing. The application was refused.

The issues

[13]The issues were discussed at a hearing before Employment Judge L Clarke on 23 October 2023. There is a partial list of issues from that hearing which the claimant was ordered to clarify and provide some information. That was provided. The 3 of 34 disability determination issue was not before us because of the earlier determination. We did not consider remedy in the hearing.

[14]The issues with which we were concerned were:- 14.1. Unfair dismissal – 14.1.1. What was the reason or principal reason for dismissal? The claimant says the respondent dismissed her because of her perceived or actual disability and/or made a protected disclosure. The respondent says the reason for dismissal was capability (long term sickness absence). 14.1.2. Was the reason or principal reason for dismissal that the claimant made a protected disclosure and/or asserted her statutory rights? If so, the claimant will be regarded as unfairly dismissed. 14.1.3. The claimant says she made a protected disclosure. Did the claimant make one or more qualifying disclosures as defined in section 43B Employment Rights Act 1996? The Tribunal will decide:- 14.1.3.1. What did the claimant say or write? When? To whom? The claimant says she made disclosures on these occasions: 14.1.3.1.1. On 11 July 2022, the claimant orally told Mr Russell that her diagnosed position prevents her from driving duties, it is a recurring problem for which she is awaiting physio and acupuncture. She said she was not sure she could hold a steering wheel. 14.1.3.1.2. At a long-term sickness meeting with Mr Russell, the claimant orally told him that her diagnosed condition is improving and she can raise an arm to nearly level with her shoulder after doing exercise at home. She is still waiting for her physio. The company doctor suggests she may be able to return in 4-6 weeks. She did not feel able to properly and safely drive a vehicle at that moment. 14.1.3.1.3. At the final long-term sickness meeting, the claimant told Mr Russell that her shoulder pain prevented her from doing driving duties from 2 May 2022 to date and would be unable to drive full time because of her condition. 14.1.3.1.4. On 2 November 2022, the claimant orally told Mr Patel and Ms Phipps that she had been unable to return to work from 2 May 2022 to 16 September 2022 due to her shoulder condition and that she should be able to return when the condition improves. She said she was having treatment and taking painkillers. 14.1.3.2. Did those things disclose information? 14.1.3.3. Did she believe the disclosure of information was in the public interest? 4 of 34 14.1.3.4. Was that belief reasonable? 14.1.3.5. Did she believe it tended to show any of the matters set out in s43B(1)(b),(d) and (f) Employment Rights Act 1996 would apply? 14.1.3.6. Was that belief reasonable? 14.1.4. If the claimant made a protected disclosure, it was a protected disclosure because it was made to her employer. 14.1.5. If the reason was capability, did the respondent act reasonably 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 will usually decide in particular, whether – 14.1.5.1. The respondent genuinely believed the claimant was no longer capable of performing their duties; 14.1.5.2. The respondent adequately consulted the claimant; 14.1.5.3. The respondent carried out a reasonable investigation, including finding out the up to date medical position; 14.1.5.4. Whether the respondent could reasonably be expected to wait longer before dismissing the claimant; and 14.1.5.5. Whether dismissal was within the range of reasonable responses. 14.2. Direct disability discrimination (s13 Equality Act 2010) 14.2.1. The claimant was disabled from 19 July 2022 by reason of complex muscular tendonitis of the right shoulder. 14.2.2. Did the respondent do the following things: 14.2.2.1. Fail to afford the claimant the opportunity to recover from the tendonitis before taking or concluding sickness capability procedures. 14.2.2.2. Fail to continue to pay sick pay. 14.2.2.3. Fail to give time for treatment before taking sickness capability processes. 14.2.2.4. Fail to make reasonable adjustments for the claimant’s disability. 14.2.2.5. Fail to consider or implement medical retirement. 14.2.2.6. Insist upon having a definitive return to work date. 14.2.2.7. Dismiss the claimant conditionally (depriving her of continuity of employment rights). 14.2.2.8. Alternatively, dismiss the claimant. 5 of 34 14.2.2.9. Reject the claimant’s appeal against dismissal. 14.2.3. 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 circumstance and the claimant’s. If there was nobody else in the same circumstances as the claimant, the Tribunal will decide whether she was treated worse than someone else would have been treated. The claimant had named 10 comparators, but narrowed that to 5 in the hearing before Judge Dyal: Tim Corp, Fergus Williams Junior, Ryan Miller, Fergus Williams Senior, John Devlin. 14.2.4. If so, was it because of disability? 14.2.5. Did the respondent’s treatment amount to a detriment? 14.3. Discrimination arising from disability (s15 Equality Act 2010) 14.3.1. Did the respondent treat the claimant unfavourably by: 14.3.1.1. The claimant repeats less favourable treatment from direct disability claim. 14.3.2. Did the following things arise in consequence of the claimant’s disability: 14.3.2.1. The claimant’s inability to drive a PCV bus when afflicted with debilitating shoulder pain. 14.3.2.2. The claimant’s absence from work from 2 May 2022 until her dismissal. 14.3.3. Was the unfavourable treatment because of any of those things? 14.3.4. Was the treatment a proportionate means of achieving a legitimate aim? The respondent says its aims were to: 14.3.4.1. Provide a full and reliable bus service. 14.3.4.2. Have an acceptable level of attendance from staff. 14.3.4.3. Properly manage long term sickness absence. 14.3.5. The Tribunal will decide in particular: 14.3.5.1. Was the treatment an appropriate and reasonably necessary way to achieve those aims; 6 of 34 14.3.5.2. Could something less discriminatory have been done instead; 14.3.5.3. How should the needs of the claimant and respondent be balanced? 14.4. Reasonable adjustments (s20 & s21 Equality Act 2010) 14.4.1. Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date? 14.4.2. A “PCP” is a provision, criterion of practice. Did the respondent have the following PCPs: 14.4.2.1. The requirement for the claimant to attend work and undertake work duties. 14.4.3. Did the PCP put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that the claimant was unable to attend work duties that were incompatible with her condition, namely driving buses? 14.4.4. Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage? 14.4.5. What steps could have been taken to avoid the disadvantage? The claimant suggests the respondent should have: 14.4.5.1. Continued her sick pay entitlement. 14.4.5.2. Offered her alternative employment or work which did not require her to predominantly use her shoulder or move it excessively. 14.4.5.3. Waited until the claimant had completed medical treatment and/or investigations before implementing or concluding the sickness process which led to dismissal. 14.4.5.4. Implemented medical retirement. 14.4.6. Was it reasonable for the respondent to have to take those steps, and if so when? 14.4.7. Did the respondent fail to take those steps? 14.5. Harassment related to disability (s26 Equality Act 2010) 14.5.1. Did the claimant do the following things: 14.5.1.1. The claimant repeats the treatment relied upon for the direct disability claim. 7 of 34 14.5.2. If so, was that unwanted conduct? 14.5.3. Did it relate to disability? 14.5.4. Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? 14.5.5. If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. 14.6. Costs 14.6.1. Can a wasted costs order be made against Mr Neckles because he was conducting representation for profit? 14.6.2. If not, did Mr Neckles’ conduct which gave rise to the costs application amount to unreasonable conduct or failure to comply with orders which would allow the Tribunal to exercise discretion to award costs? 14.6.3. Does the Tribunal exercise that discretion? 14.6.4. If so, what is the amount of costs that the claimant should pay the respondent?

Relevant facts

[15]The claimant worked for the respondent as a PSV bus driver from 1 July 2017 until her dismissal on 16 September 2022. There is no dispute about the claimant’s injury and medical history. Now that the issue of disability has been decided, there is no dispute before us about whether or not the claimant was disabled either. Most of the factual matters set out below are taken from the findings of Judge Dyal or from the parts of the claimant’s witness statement which we accept. Where there is a conflict in the evidence, we explain how we have resolved that conflict at the relevant time. The onset of the injury

[16]The claimant had an injury to her left shoulder in 2020 and was signed off from work from 27 April 2020 to 24 July 2020. She then worked with adjusted duties until 13 August 2020. She did not have any further medical attention on her left shoulder.

[17]On 2 May 2022, the claimant began experiencing problems with her right shoulder. She attended A&E with the complaint. After this, she went to her GP and was diagnosed with impingement and tendonitis in her right shoulder. She was signed off work with the condition until 20 May 2022 (page 129). The respondent’s long term ill health procedures

[18]The respondent has procedures in place for managing absences. Slightly confusingly, and in a way which does not diffuse tension in respect of capability processes, the procedures are incorporated within the disciplinary policy. The 8 of 34 procedures to be used are Appendix C for persistent short term absences (page 192 to 195), and Appendix D “Guidelines for dealing with long term sickness absence” (page 197 to 200). We find that the respondent paid attention to Appendix D when dealing with the claimant.

[19]The operative clause in the substantive disciplinary policy in respect of long term sickness absence is paragraph 24 on page 189, which says, relevantly – “Long-term sickness absences are dealt with under the procedure set out in Appendix D… Managers are responsible under this policy to treat every case of long term sickness on its individual merits; to explore all reasonable options to rehabilitate the employee back into work and to only dismiss as a last resort…”

[20]For brevity, Appendix D is not copied and pasted, but the parties agree it applies. The most salient factual points from the early part of the document are:- 20.1. Ill health absence is treated as a contractual capability issue and not misconduct; 20.2. The respondent is a public passenger transport service where punctuality and regular service are key standards, and so the approach taken to long term absence must balance against obligations of staff to attend work regularly to deliver the contractually obliged service of the respondent; 20.3. Long term sickness is regarded as sickness lasting 3 weeks or more; 20.4. Managers have the responsibility of monitoring and reviewing sickness levels of staff, and assess and review reasons for absence to determine when a return to work is likely; and 20.5. The above requires early personal contact from manager to employee, and regular monitoring of illness and recovery including medical evidence to see when and if return can occur, or whether amended duties are required.

[21]Where a return to work remains uncertain, a first formal review will take place to discuss the absence and the reasons for it, and to consider evidence from the employee and any doctors to set an objectively acceptable time for the employee to return to work (page 198).

[22]If that acceptable time is not met or looks like it will not be met, a contract review meeting will take place to further assess the situation, and the employee should be told that dismissal is a possibility. The possibility of redeployment will also be discussed, and the manager “should assess if the underlying reason for the illness amounts to a disability under Equality Act 2010 and if so discuss with the employee if suitable adjustments would aid their return to work”. The employee should be given a date in writing and warned that their employment will be terminated if they do not return within that date (page 198 to 199). 9 of 34

[23]The guideline about termination is on page 199, and there is a right of appeal – “At the end of any time scale set for a return to work, where there is no prospect of a return to work in good time, or no reasonable alternative work available, the employee will be invited to a further formal meeting… Where the decision to terminate the contract is made this will be on the grounds of incapability due to ill health…”

[24]The manager may seek the opinion of the company doctor about whether the employee is medically able to do their duties. Where someone has been ill for 21 days or more, the company doctor must be consulted before an employee can return to work (page 200). Application of procedure to the claimant

[25]On 18 May 2022, the respondent’s Mr Barlow wrote to the claimant to arrange a meeting on 23 May 2022 to discuss the claimant’s ill health absence (page 130). The claimant was able to be accompanied and was advised to bring any medical notes to the meeting. On 19 May 2022, the claimant was issued with a new fit note saying she was not fit to work due to the shoulder condition until 10 June 2022 (page 131).

[26]The meeting took place on 23 May 2022 as arranged. Notes of the meeting are at page 132. We find that the claimant gave a history of the ailment and told Mr Barlow that she was not sure if there was any improvement since the injury occurred, but that it sometimes felt better. The claimant says she told Mr Barlow that the problem was caused by her driving duties. We accept that evidence.

[27]The claimant completed forms to give consent for a consultation with the company doctor and for the report to be sent to management. In her witness statement, the claimant said she had nothing to hide but felt pressured to sign the form. We accept that the claimant had nothing to hide and took part willingly, if hesitantly. We heard no evidence at all to indicate the claimant was seeking to hide or diminish her condition. We consider that she engaged honestly and cooperatively throughout the process. The form completed was at page 133. The form giving consent for the claimant’s GP to release notes to the company doctor was at page 134 to 135.

[28]The consultation with the company doctor took place on 9 June 2022. The consultation did not include consideration as to whether the condition which arose on 2 May 2022 may amount to a disability under s6 Equality Act 2010. The report from the company doctor concluded, relevantly (page 141) – “She’s been taking ibuprofen but has not started any other therapy. She is reviewed by her GP tomorrow and she may be referred to physiotherapy. She has described some improvement in her right arm but she’s often having to use the left arm to support her right arm for normal activities of daily living… If a return to work were not possible in the next 4-6 weeks, it will be difficult to say when she can return.” 10 of 34

[29]On 14 June 2022, the claimant saw her GP and her absence from work with the shoulder complaint was extended to 23 July 2022.

[30]On 17 June 2022, the respondent’s Mr Macfarlane wrote to the claimant to invite her to a medical review meeting with a view of establishing a realistic return date (page 143). The claimant is told she could be accompanied. The letter also says: “I must advise you that this interview could result in you being dismissed on medical grounds, particularly if you are still unable to provide us with a definitive return to work date”.

[31]The meeting took place on 28 June 2022. We accept the claimant’s account of the meeting and find as follows:- 31.1. The claimant gave an update about her condition, treatment and medication; 31.2. When asked when she could return to work, the claimant said that she could not answer that yet but will have a consultation with the GP and will be able to provide that information; 31.3. The claimant confirmed she was not fit to return to work as at that time; and 31.4. The claimant was careful not to commit to returning too soon because of the health and safety implications of driving a bus whilst unfit.

[32]On 5 July 2022, Mr Macfarlane wrote to the claimant again to set up another medical review meeting in the same terms as previously, with the meeting to take place on 11 July 2022 (page 144).

[33]The claimant attended that meeting, which was convened by Mr Russell. The claimant says, in that meeting, she made the first of the alleged protected disclosures in the list of issues. In truth, that disclosure reads much like an update about the claimant’s physical and medical condition. We find that such an update was given. It was the purpose of the meeting and it is broadly recorded by Mr Russell following the meeting on page 145. The meeting established that – 33.1. The claimant was awaiting physio and acupuncture; 33.2. The claimant’s pain and tension meant that she could not achieve a full range of shoulder movement; 33.3. The claimant was not sure she could hold a steering wheel at the time; 33.4. The claimant could not give a return date in the meeting; 33.5. The respondent could not wait indefinitely for a return date; and 33.6. One outcome of the process could be that the claimant is dismissed.

[34]On 26 June 2022, the claimant was signed off until 6 September 2022 (page 147) with “shoulder pain”. 11 of 34

[35]The claimant met with Mr Russell again on 2 August 2022. Mr Russell’s record of the meeting was sent to the claimant in the form of a letter of the same date (page 148 to 149). There is no real divergence between the parties about what happened in the meeting, and we find the core facts are – 35.1. The claimant was unable to give an update about her return to work; 35.2. The claimant had met with her GP previously who had referred her for an MRI scan; 35.3. The claimant’s condition fluctuated, although in the meeting she was able to demonstrate an increased range of movement; 35.4. The claimant was still awaiting physio input, but had been able to benefit from home exercises in the meantime; and 35.5. Mr Russell again reminded the claimant that the process could lead to dismissal.

[36]The claimant says that she made a further protected disclosure in the meeting. There was some confusion in evidence about what it is she said precisely when and in what times. In her witness statement, the alleged words spoken were in bold. Mr Neckles explained some amendments to the statement which included moving these statements around. We do not find that the wording alleged in the witness statement was said. The words do not read naturally and the claimant could not attest to the precise wording. However, we accept that a general update was given about the claimant’s condition, and the claimant confirmed that she was unable to work. As before, that it in essence what the protected disclosure is said to be.

[37]A further meeting took place between the claimant and Mr Russell on 16 August 2022. A further update was given. At the meeting, it was agreed that the claimant could return to work driving a Ferry Van between 5 and 29 September 2022. The claimant says this was proposed by Mr Russell and she felt bound to accept. Mr Russell does not recall whether it was his proposal, but he accepts that he would have been keen to get the claimant back to work and would be searching for a way to do so. He explained that the Ferry Van was a much smaller vehicle than a bus, and it was thought that driving it would be less physically demanding for the claimant. Whatever the reason, the parties concur that they agreed for the adjustment to be put into place. The agreement was confirmed in e-mail (page 152).

[38]At some point after this e-mail, neither party can recall when, the claimant contacted Mr Russell to say that she would not return to drive the Ferry Van. Instead, the claimant said she would return to her main role when her fit note expired. The parties agreed that the claimant would return for two days per week, instead of four, for a time. Mr Russell made clear that the claimant would need to pass a mentor supervision to observe that she was fir and safe to drive a bus (page 153). The claimant was not referred to the company doctor. In any event, the claimant did not return on 6 September 2022 because she was signed off with shoulder pain to 30 September 2022 (page 312). 12 of 34 Dismissal and appeal

[39]The claimant met with Mr Russell again on 16 September 2022. We find that the parties explored the history of the claimant’s absence and it was established that there was no return date in anticipation. Mr Russell says that he had received a list of vacancies from the respondent to discuss with the claimant. He says he confirmed to the claimant that there was no non-driving work available. He says that he showed the claimant the list of vacancies at pages 155 to 156 but that she was not interested in any of the vacancies on the list and did not say she would redeploy to any or apply for any.

[40]Mr Russell considered the position of the claimant and concluded that no real progress had been made over the course of his involvement with the claimant. He considered that there was no alternative work available, and that no position could be created. He was aware that the claimant was being paid reduced sick pay. He understood that the claimant was about to go for an ultrasound scan which could lead for treatment, but this did not amount to a prospect of return and he did not have confidence that real progress could be made over the short term. Mr Russell therefore decided to dismiss the claimant from her employment for, he says, long term ill health incapability.

[41]Mr Russell wrote to the claimant on the same day to set out what had happened, to inform her of her right to appeal, and to encourage her to come back to the respondent for re-employment when she was fit and well to work again (page 157 to 158).

[42]On 23 September 2022, the claimant appealed the decision to dismiss her. The sole ground of appeal was that the decision had been take too early because the respondent should have awaited the outcome of the ultrasound scan due to take place on 26 September 2022 (page 162).

[43]The appeal meeting took place on 2 November 2022. It was chaired by Mr Patel. The claimant was accompanied to the hearing by Mr F Neckles. Notes of the meeting are at pages 165 to 170. Both the claimant and Mr Patel gave evidence about the meeting. We find the following salient facts:- 43.1. The claimant was having acupuncture but was still awaiting physio. 43.2. The claimant had not had the planned MRI scan, and the ultrasound scan was to be repeated. 43.3. There has been some improvement in the shoulder condition but it is inconsistent; 43.4. The claimant was scared to drive since being dismissed, did not drive her own car, and would not feel safe driving a bus; and 43.5. The claimant was at that point signed off work unfit to work until 27 December 2022. 13 of 34

[44]In the meeting, Mr Neckles made representations in respect of the dismissal that mirror what has become this claim. In essence, that the dismissal was premature and unfair, but also that it was the result of discrimination. Mr Neckles then had to leave the meeting before its conclusion, so the outcome was communicated in writing.

[45]The outcome was sent to the claimant on 15 November 2022 (page 171 to 172). The letter outlines that there has been elements of deterioration in the claimant’s position since dismissal – she was now not feeling safe to drive at all, much less a bus with passengers. There was discussion about alternative roles but none were suitable. The representations made by Mr Neckles were rejected. The decision to dismiss was upheld.

[46]The claimant contends that she did not see an updated list of alternative roles in the appeal hearing. Mr Patel does not say she was shown it, but did say that he considered the updated list and, in light of the claimant’s fit note saying she could not work and in light of there being no new non-driving roles that the claimant had not seen previously, he considered that the list did not support the claimant’s appeal.

[47]The claimant complains that the respondent did not retire her on medical grounds. Mr Patel noted that this was never raised by the claimant, and we accept this because the claimant does not say that she did and it is not recorded in any notes. We also accept the respondent’s evidence that the claimant would be required to make an application to the trustees of the appropriate scheme to seek ill health retirement, and it was not something the respondent could do without the claimant driving it. We find as a fact that the respondent was unable to consider and implement ill health retirement, and this is why it did not do so. When the claimant was cross examined on this point, she accepted that she had not understood that this was something she was in control of pursuing. Insodoing, she accepted that that the omission of this possibility being considered was her responsibility (or her Union representative, who it appears did not advise her). The respondent and the alleged comparators

[48]It was put to the respondent witnesses that the respondent could (and should) have delayed dismissing the claimant. It was put to them that each day there were relief drivers available for the respondent, and so it was not operationally challenging to pay the claimant when she was unwell, given that there were said to be several drivers on relief each day who would be paid to not drive. The Panel was alert that this line of questioning was presented to the witnesses by Mr Neckles (whom had previously worked at the respondent) and it sounded very much like Mr Neckles was attempting to give evidence.

[49]The respondent witnesses were clear that there were no relief drivers in place. That practice was historic in nature, but could no longer be supported in current commercial conditions. Instead, there were two run out clerks, who would coordinate bus departures from the garage, and also drive if required. Driving was part of that job. In any case, there were no vacancies there for the claimant to fill. There was also another driver who may assist with administration roles, but that was not a fulltime administration role and driving was part of it. We accept the evidence of the respondent on these points, and find these responses to be factually accurate. We 14 of 34 therefore find as a fact that there was no obvious route for the claimant to be alternatively deployed save for the wider roles in the vacancy list, which was considered and discounted.

[50]There was a great deal of documentary evidence in the bundle about the named comparators. We deal sensitively with that evidence given that we were told some very personal medical information about those named which we do not consider it necessary to repeat. Mr Reavill gave evidence in respect of the alleged comparators, and from that evidence (which we accept), we find the following relevant facts:- 50.1. Tim Corp, or Carp, was an engineer who undertakes MOTs for the respondent; 50.2. Fergus Williams Jr is a Senior Vehicle Engineer; 50.3. Fergus Williams Snr was not a bus driver; 50.4. Ryan Miller was a Vehicle Engineer and also fits the definition of being disabled; and 50.5. John Devlin was a Storeman.

[51]We find as a fact that none of the comparators relied upon by the claimant were working in the same type of role as the claimant, and therefore operating under different conditions with different pressures in a different part of the business. Facts relating to the costs application

[52]There was a largely aborted hearing on 16 February 2024. The hearing had been listed to consider whether or not the claimant was disabled, but the claimant had not complied with case management orders in preparation of the hearing, including the submission of evidence, and so the hearing could not fulfil its purpose. The record of that hearing and summary, presided over by Employment Judge Anderson, are at pages 88 to 92.

[53]The respondent presented a costs application on 19 April 2022 (pages 99 to 100). It sets out that the claimant caused the hearing on 16 February 2024 to be wasted by failure to comply with orders in preparation for it. It also set out the chasing required and applications made in consequence of non-compliance which led to further costs.

[54]In the hearing before us, the respondent sought wasted costs against Mr Neckles on the understanding it was his conduct which led to the costs being incurred unnecessarily. Having heard evidence, we find as a fact that Mr Neckles (now) and the Union he was part of (then) were not operating in the pursuit of profit.

[55]We have seen evidence that Mr Neckles suffered a bereavement around the time in question and was required to be abroad. He says that a colleague then failed to do as they should have done, and has since left working with him. We are satisfied as a fact that the claimant herself did not cause any of the delays complained of which led to the costs application being made. We are equally satisfied that she instructed Mr Neckles to represent her and he was acting on her behalf when the delays occurred. 15 of 34 Relevant law Detriment following public interest disclosure

Relevant law

[56]Section 43B Employment Rights Act 1996 sets out what a claimant must show if they are to gain the protection afforded by making a protected disclosure (where such disclosures then gain protection by virtue of being made to an employer). The section says:- “43(1) In this Part a “qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. (2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory. (3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it. (4) A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice. (5) In this Part “ the relevant failure ”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).”

[57]The word ‘information’ in section 43B(1) is crucial, and the expression of mere allegations or suspicions is not the passing of information which would gain protection (Cavendish Munroe Professional Risks Services Ltd v Geduld [2010] 16 of 34 IRLR 38 EAT). Considering whether something is information or allegation is not always binary. A statement may contain both information and allegation and this will require analysis (Kilraine v London Borough of Wandsworth

[2016] IRLR 422

EAT).

[58]The information disclosed must also be in the public interest in the reasonable belief of the claimant making the disclosure, and so the information believed to be in the public interest must have wider public implications which affect more than just the claimant (Chesterton Global Ltd and another v Nurmohamed [2015] UK EAT 355).

[59]Where a claimant relies on information which tends to show that there is, has been, or will be a breach of a legal obligation, they need to identify and evidence what legal obligation it is that it being affected (Fincham v HM Prison Service

[2002] UKEAT 925

[60]Making a disclosure which conforms with section 43B (where it is worker to employer in line with section 43C) affords protection. Section 47B confers the right of a worker not to suffer a detriment as a result of making a protected disclosure. A detriment is any negative “act or deliberate failure to act by [an] employer done on the ground that the worker has made a protected disclosure”.

[61]The words ‘on the ground that’ are to be interpreted as being ‘materially influenced’ by the protected disclosure. It would be an error to conclude that the detriment was done because of the trivial influence of the protected act (NHS Manchester v Fecitt and others

[2011] EWCA Civ 1190

). The respondent bears the burden of showing, to the civil standard, that the thing which is claimed to be the detriment was done on other grounds, and not on the ground that the worker made a protected disclosure. Unfair dismissal (and justification on grounds of long term incapacity)

[62]The respondent bears the burden of showing that a dismissal was for a reason which is listed as ‘potentially fair’ at section 98 Employment Rights Act 1996. ‘Capability’ (ie. the capability of an employee to do their role) is one such potentially fair reason. Where the Tribunal finds that a dismissal is potentially fair, it should then judge the ‘fairness’ by considering whether in the circumstances the employer acted reasonably or unreasonably in treating the reason as being sufficient to dismiss the employee, in accordance with equity and the substantial merits of the case (section 98(4) Employment Rights Act 1996).

[63]In long term ill health or incapacity cases, the employer only needs to show that the ill health renders them incapable of performing all contractual duties and that this is a sufficient reason to dismiss (Shook v Ealing London Borough Council

[1986] ICR 314

EAT). A crucial consideration is always whether or not circumstances have changed or are likely to change which means that there is a likelihood that the employee will be able to fulfil all of their contractual roles in the reasonably near future (Post Office v Stones EAT 390/80; O’Brien v Bolton St Catherine’s Academy

[2017] ICR 737

CA).

[64]The employer is required to carry out a reasonable investigation when determining whether the employee is able to fulfil their role in the present or in the foreseeable future, and this will include an assessment of the medical position where there is a 17 of 34 long term health issue (East Lindsey District Council v Daubney [1977] ICR EAT; DB Schenker Rail (UK) Ltd v Doolan EAT 53/9).

[65]When considering whether there is sufficient reason to dismiss in the circumstances, the position of the employer in relevant because, if the employer cannot reasonably be expected to wait longer for a return, then it points against a dismissal at that point being unfair (East Lindsey District Council v GE Daubney

[1977] IRLR 373

). The Tribunal therefore conducts a balancing exercise about all of these relevant factors affecting both parties in order to decide whether the dismissal was fair or unfair according to the substantial merits of the case (BS v Dundee City Council

[2014] IRLR 131

SCIH). Direct discrimination

[66]Section 4 Equality Act 2010 lists protected characteristics for the purposes of that Act. Disability is listed as a protected characteristic. The protected that the claimant identifies as holding are within the list at section 4, and is therefore a protected characteristics which the claimant has.

[67]Section 13(1) Equality Act 2010 provides:- “A person(a) (A) discriminates against another

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

[68]This means that the claimant would have suffered from direct discrimination if we find that, in relation to each allegation, she was treated less favourably than someone who was not disabled.

[69]The claimant must establish that she was objectively treated in a ‘less favourable’ way. It is not sufficient for the treatment to simply be ‘different’ (Chief Constable of West Yorkshire Police v Khan

[2001] ICR 1065

HL). The person(s) with whom the comparison is made must have “no material difference in circumstances relating to each case” to the person bringing the claim (section 23(1) Equality Act 2010). The comparator should, other than in respect of the protected characteristic, “be a comparator in the same position in all material respects as the victim” (Shannon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

HL). If there is no such comparator in reality, then the Tribunal should define and consider how a hypothetical comparator would have been treated if in the same position as the claimant save for the fact that they would not have the protected characteristic relied upon (Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting

[2002] ICR 646

, CA).

[70]The phrase ‘because of’ is a key element of a direct discrimination claim. In Gould v St John’s Downshire Hill

[2021] ICR 1

EAT, Mr Justice Linden said, in respect of determining ‘because of’:- “It has therefore been coined the ‘reason why’ question and the test is subjective… For the tort of direct discrimination to have been committed, it is sufficient that the protected characteristic had a ‘significant influence’ on the decision to act in the manner complained of. In need not be the sole 18 of 34 ground for the decision… the influence of the protected characteristic may be conscious or subconscious.”

[71]It is a defence for a respondent to show that it had no knowledge of the protected characteristic relied upon, on the basis that the protected characteristic it did not know about could not have caused the treatment complained of (McClintock v Department for Constitutional Affairs

[2008] IRLR 29

EAT). However, this defence does not apply where the act itself is inherently discriminatory (such as differentiation on the grounds of a protected characteristic), and in such cases whatever is in the mind of the alleged perpetrator of the discrimination will be irrelevant (Amnesty International v Ahmed [209] ICR 1450 EAT).

[72]Under section 136(2) Equality Act 2010, the claimant needs to show facts, found on the balance of probabilities, which could lead the Tribunal to properly conclude that the discrimination has occurred before any other explanation is taken into account. If the claimant succeeds with this, then it is for the respondent to show that the contravention has not occurred (section 136(3) Equality Act 2010). The Tribunal must first consider whether the burden does shift to the respondent. The claimant must show more than simply there is a protected characteristic and a difference in treatment (Madarassy v Nomura International Plc

[2007] IRLR 246

[73]Once the burden has shifted, if it does, the respondent must to show that the treatment was ‘in no sense whatsoever’ due to the protected characteristic (Igen Ltd v Wong

[2005] IRLR 258

). In weighing up whether or not there has been discrimination, the Tribunal should consider all of the evidence from all sides to form an overall picture. Causation, or the ‘why’ the conduct was committed, is a subjective conclusion of law rather than objective conclusion of fact: what is the reason for the conduct and is that reason discriminatory (Chief Constable of West Yorkshire Police v Kahn

[2001] UKHL 48

. It is almost always the case that the Tribunal needs to discover what was in the mind of the alleged discriminator (The Law Society v Bahl

[2003] IRLR 640

). Discrimination arising from disability

[74]Section 15 Equality Act 2010 provides:- “(1) A person(a) (A) discriminates against a disabled person

(b) if – (a) A treats B unfavourable because of something arising in consequence of B’s disability; and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”

[75]It is generally easy to identify whether or not treatment is ‘unfavourable’. It is treatment which can also be categorised as a disadvantage of detriment – ie. something negative. Unfavourable treatment cannot be something which could be seen as ‘advantageous’ even where the treatment is something that is not wanted by the employee (Williams v Trustees of Swansea University Pension and Assurance Sceme and anor

[2019] ICR 230

, SC. 19 of 34

[76]When considering such a claim, the Tribunal should identify(1) whether there was unfavourable treatment and by whom,

(2) what caused that unfavourable treatment (was it the ‘something’, including where that cause is a more than trivial reason if there is more than one cause), and

(3) did that something arise in consequence of the disability (Pnaiser v NHS England and Anor

[2016] IRLR 170

EAT).

[77]The question of whether the ‘something’ arises in consequence of disability only requires a loose factual connection, to be assessed on each case, which reflects the looseness of the language used. Failure to make reasonable adjustments

[78]Section 20 Equality Act 2010 provides:- “(1)… (2)… (3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. ….”

[79]Section 21 Equality Act 2010 provides that a failure to comply with the three parts of s20 is a failure to comply with a duty to make reasonable adjustments, which is an act of discrimination. In other words, the employer must take reasonable steps to alleviate the substantial disadvantage where ‘substantial’ means “more than minor or trivial” (section 212(1) Equality Act 2010).

[80]An employer is not liable in respect of a failure to make reasonable adjustments unless it knows or is reasonably expected to know that a PCP will place the employee at a substantial disadvantage. Schedule 8 Equality Act 2010 deals with in work reasonable adjustments. Paragraph 20(1)(b) includes employees by virtue of the definition of an ‘interested disabled person’ in Part 2 of Schedule 8. Paragraph 20(1)(b) reads (together with 20(1)):- “A (employer) is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know…that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement”

[81]Often, cases will turn on whether or not the employer has adopted or operates the ‘PCP’ which is being alleged. That is principally a finding of face made by the Tribunal on the available evidence. Provisions and criteria are usually written down and understood to be rules or measurements for certain things to be done or made available. The Tribunal will examine whether the circumstances amounting to the PCP have been applied to a claimant, and then consider whether it would be done so again or applied in analogous scenarios to others. If the answer to those considerations is ‘yes’ then there is likely to be a practice (Ishola v Transport for 20 of 34 London

[2020] IRLR 358

). A ‘practice’ might be found where a Tribunal considers there is an expectation or requirement for something to be done or not done (Carerras v United First Partners Research Ltd EAT 0266/15).

[82]A holistic approach should be adopted when considering the reasonableness of the adjustments, including the timing of those adjustments, and may include factors such as the effectiveness of the steps, the cost, the practicability, and the nature and size of the employer’s undertaking (Burke v The College of Law and another

[2012] EWCA Civ 87

CA). An employer cannot properly be criticised for failing to take a particular step or failing to take particular advice because the Tribunal is looking at the end of the process and at what has or has not been done to alleviate a substantial disadvantage and whether that decision is reasonable (Tarbuck v Sainsbury’s Supermarket Ltd

[2006] IRLR 664

). Where the Tribunal is considering whether an employer should have made an adjustment suggested by an employee, the first question is whether the suggestion would have made any difference in alleviating the substantial disadvantage (First Group Plc v Paulley [2017] IRLR SC). Harassment related to disability

[83]Section 26 Equality Act 2010 provides:- “(1) A person(a) (A) harasses another

(b) if – (a) A engages with unwanted conduct related to a protected characteristic, and (b) The conduct has the purpose or effect of – (i) Violating B’s dignity, or (ii) Creating an intimidating, hostile, degrading, humiliating or offensive environment for B. …. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account – (a) The perception of B; (b) The other circumstances of the case; and

(c) Whether it is reasonable for the conduct to have that effect.” 84. ‘Disability’ is a protected characteristic because it appears in the list of protected characteristics at section 4 Equality Act 2010.

[85]Under section 136(2) Equality Act 2010, the claimant needs to show on the balance of probabilities that there are facts from which the Tribunal can decide that harassment related to disability has occurred. If the claimant succeeds with this, then it is for the respondent to show that the contravention has not occurred (section 21 of 34 136(3) Equality Act 2010). This means that the claimant will need to show more than simply she was disabled at the time any unwanted conduct occurs (Private Medicine Intermediaries Ltd v Hodkinson EAT 134/15.

[86]Harassment claims must be determined by considering evidence in the round, looking at the overall picture. Although the knowledge and perception of the characteristic on the part of the alleged perpetrator is relevant, it is not necessarily determinative (Hartley v Foreign and Commonwealth Office Services [2016] ICR D17). This means that the determination of the words ‘related to’ is a finding the Tribunal should make drawing on all of the evidence before it to account of the possibility, for example, that the alleged perpetrator may be displaying a subconscious bias which affects the recipient even if they do not know of the protected characteristic (Tees Esk and Wear Valleys NHS Foundation Trust v Aslan and another

[2020] IRLR 495

EAT). Costs in the Employment Tribunal

[87]The general rule is that the Employment Tribunal is a ‘costs neutral jurisdiction’. This means that the loser in proceedings does not automatically pay the winner’s costs, which is a divergence from proceedings which run in most of the civil court jurisdictions.

[88]The rules relating to costs are found under Rule 76 Employment Tribunal Rules of Procedure (2013):- “76.—(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that—(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or

(b) any claim or response had no reasonable prospect of success;

(c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which the relevant hearing begins. (2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party.”

[89]It is, therefore, a multi-stage determination to awarding costs. First, at least one of the ‘gateways’ outlined by Rule 76(1) and Rule 76(2) needs to be found to have been opened. In other words, we must be satisfied in this case that we have the ability to award costs.

[90]If one of the gateways to award costs is opened, then we may award costs. There is a discretion. The next stage, therefore, is to decide whether or not this is a case in which we exercise our discretion to award costs, having in mind the circumstances 22 of 34 of the case and the nature of the conduct that has led to the ability to award costs if decided appropriate (Hossaini v EDS Recruitment Ltd

[2020] ICR 491

[91]The final stage, if we decide to exercise discretion, is to decide the amount of the costs to award. Where evidence about a claimant’s means is provided, this should be taken into account so long as we are satisfied I have an honest and full picture of the claimant’s financial position. We must also consider the amount of costs requested in the application and decide whether or not the amount is appropriate, before deciding what amount should be paid towards those costs, or ordering that the whole of the costs are paid.

[92]The assessment of the amount of costs to pay is a broad brush exercise and does not take the form of any sort of detailed assessment of cost. The assessment is made broadly in all the circumstances using our judgment of what would be reasonable in this case. Generally, we are trying to consider the proportion of costs incurred because of the criticised conduct. Conclusions Protected disclosures

Conclusions

[93]In our judgment, the contention that the claimant made protected disclosures which led to her dismissal is fundamentally flawed. To succeed with the claim, the claimant needs to establish that she communicated information which she considered to be in the public interest, and which she believed reasonably tended to show one or more of the matters set out at s43B(1) Employment Rights Act 1996.

[94]In her claim, the claimant sets out wording which she says is the communication of information. She does not explain how that information is in the public interest. She does not explain why she believes it tends to show one or more of the matters set out in s43B(1) either. What we were left with was an element of guess work in trying to work it out. This did come up at the hearing, and Mr Neckles sought to explain to us that the claimant was raising her lack of fitness to show that the respondent could not place her back at work without risking non-compliance with health and safety. When considering this is a bus operator in London, such matters are said to be in the public interest.

[95]There are a few difficulties with what Mr Neckles’ submission:- 95.1. First, it was not supported by the claimant’s evidence. The claimant’s evidence shows that the respondent was most keen to learn about her condition. It wanted the claimant to propose a return to work date based on her medical advice. It did not seek to force her to return to work before she was ready. The claimant understood this at the time, and her witness statement shows that she understood this point, also. We do not consider it reasonable to believe that there was likely to be a breach of health and safety or legal obligation in light of that factual matrix. 95.2. Second, the claimant was providing information to the respondent about her own fitness to work, as she was required to do under the respondent’s policy, and as she would have been required to as a matter of common sense where 23 of 34 an illness is preventing her from doing her job and all parties want the illness to be resolved so she can return – that does not seem to us to be something of general public interest. 95.3. Third, the claimant give no evidence about why she considered the information to be in the public interest or why she thought one or more of the matters at s43B applied. This seems to us to be a serious omission, given that it is for her to show us on the balance of probabilities that she held a belief for reasons that we consider to be reasonable. Where no reasons are given, we cannot find facts about the reasons for the belief. We are then looking for other background evidence to try to fill the gap. Here, there does not seem to be any. We therefore cannot conclude that the belief was reasonable – or indeed genuine. This is why we have found no facts supporting this part of the claim. 95.4. Fourth, the disclosures themselves do not identify any particular likelihood of infringement of a matter set out at s43B, and neither does the information relied upon identify any particular person or entity which would infringe any such matter.

[96]In all those circumstances, we do not consider that the statements relied upon are protected disclosures. They do not meet the definition. It follows that the claimant could not have been dismissed for making a protected disclosure where none are made, and so this portion of the claim fails and is dismissed. Direct disability discrimination

[97]Many of the claimant’s alleged instances of less favourable treatment were a failure of the respondent to do things. Naturally, where those things did not happen, we have not found facts that they did. We conclude that the following instances did or did not occur as a matter of fact, to the extent explained below:- 97.1. Fail to afford the claimant the opportunity to recover from the tendonitis before taking or concluding sickness capability procedures The claimant was dismissed before she recovered from her condition, which we understand still affects her almost two years after her dismissal. The claimant was given around four months to recover as part of the respondent’s procedure. 97.2. Fail to continue to pay sick pay We understand this is a complaint that the respondent did not wait for the claimant’s sick pay entitlement to be exhausted before dismissing her. This is correct as a matter of fact. 97.3. Fail to give time for treatment before taking sickness capability processes This appears to us to be repetition of the first issue, in which case it is dealt with there. If the complaint is about the launching of the long-term sickness absence process, then this cannot form part of a disability discrimination complaint because the claimant did not meet the definition of disability 24 of 34 when the process started in May 2022. This allegation is dismissed for that reason. 97.4. Fail to make reasonable adjustments for the claimant’s disability We do not consider this was treatment done to the claimant for the reasons set out in the conclusions on the reasonable adjustments claim below. This allegation is dismissed. 97.5. Fail to consider or implement medical retirement This is factually accurate. The respondent did not consider or implement this, but it was unable to do so because the allegation misunderstands the process. Where the respondent had no power to do as the allegation contends it should have done, there cannot be less favourable treatment. The respondent could not secure this for any person whatever their characteristics, and so we dismiss this allegation at this point of consideration. 97.6. Insist upon having a definitive return to work date This is factually correct, as is set out in the respondent’s policy. 97.7. Dismiss the claimant conditionally (depriving her of continuity of employment rights) This contention is not supported by the facts. The claimant was dismissed, not conditionally dismissed. She was told she could seek a job in the same role if and when she recovered and was able to drive, but in the meantime her contract was entirely terminated. 97.8. Alternatively, dismiss the claimant This is the accurate way to frame what happened. The claimant was dismissed by the respondent. 97.9. Reject the claimant’s appeal against dismissal This is factually accurate. The comparator(s)

[98]The claimant has named actual comparators for her claim, and seeks to persuade us that she was treated less favourably than they were because of her disability. As is set out in the relevant law section above, the comparator needs to be someone who is in all the same circumstances as the claimant but who does not share her protected characteristic (Shannon). Her protected characteristic in this claim is that she was disabled from 19 July 2022.

[99]The difficulty for the claimant is that none of the comparators she relies upon were in materially the same circumstances. Mr Miller was disabled. He cannot be a 25 of 34 comparator. None of the others were bus drivers. They worked in non-driving roles. We have accepted the respondent’s account that driving roles are a particularly vital function of the respondent’s business. It is the provision of the timetabled service that the respondent is contractually obliged to follow and against which it is measured. As a matter of common sense, these concerns are less applicable to those in non-driving roles. The workload can be shifted and managed because it is not tied to timetable. This means that, although the claimant has shown us that those other individuals were off sick for periods of time and were not dismissed, she cannot compare herself to them. There is not, in our judgment, sufficiently the same circumstances at play.

[100]Following Balamoody, it is then open to us to consider a hypothetical comparator in the alternative. In the hearing, Mr Neckles resisted this because he was sure that the comparators could be applied. Mr McCabe did concede that we could consider a hypothetical comparator, and posited that we were looking at a comparator who was a driver, who had a shoulder complaint meaning they could not drive from May 2022 to December 2022, but which did not meet the definition of disability (perhaps because the injury resolved and was thought to be resolving within 12 months of May 2022). In our view, this is the correct analysis. Application of s136 Equality Act 2010

[101]The difficulty for the claimant, having adopted this hypothetical comparator, is that the respondent entirely followed its written procedure in dealing with the claimant. Further difficulty comes when we consider that the respondent did not realise that the claimant had a disability at the time. The claimant says it ought to have done so, and that is relevant for later claims, but to mete out less favourable treatment directly because of disability, the disability needs to have been appreciated (per McClintock).

[102]Are there facts from which we can properly conclude that the alleged less favourable treatment was due to discrimination? In this case, the respondent has followed its policy through on an absence management basis and then dismissed. It is tempting to take an easy or careless approach and conclude that the whole thing happened because of the shoulder disability, and so there must be discrimination. It seems to us that that is the basis of the claimant’s submission. That is the wrong approach.

[103]The correct approach requires us to consider what evidence there is that there has been less favourable treatment because of the disability. In our judgment, having in mind the comparator, there is not any. There is no wider context shown to us to the effect that disabled employees have been treated less favourably. On the contrary, we have heard and seen evidence of at least one disabled employee being supported for a longer period of time than the claimant was before she was dismissed. There is no evidence before us that the claimant would have been treated differently if her absence was caused by something other than disability. In our view, the burden does not shift to the respondent to show that disability in no sense whatever caused the treatment complained of.

[104]Even if it did for some reason, then we consider that the respondent has discharged its burden in the respect. First, relying on McClintock, the respondent 26 of 34 was not aware that the claimant was disabled at the time. We are comfortable with that conclusion because the evidence does not indicate actual knowledge at any point. The claimant alleges that the respondent should have taken steps to confirm whether or not she was disabled, and alleges that the respondent should have known, but it is not claimed that the respondent did know. This means that, when Mr Russell and Mr Patel explained that their reasons for going through the process were to ensure appropriate absence management and preserving the resources of the business through having people work in the jobs they are paid for, they are showing us that the fact the claimant was disabled from 19 July 2022 had nothing to do with their thinking.

[105]In our judgment, then, there is no less favourable treatment because of the claimant’s disability. The claim fails and is dismissed. Unfair dismissal The reason for the dismissal

[106]The claimant contends that the real reason for her dismissal were that she made protected disclosures, or because of disability discrimination. We have found that no protected disclosures were made. That does not mean that the claimant was not dismissed because of the things that she says she said, so we consider it anyway along with the possibility that discrimination was the reason for the dismissal. The respondent says that the reason was capability.

[107]It is for the respondent to satisfy us that the reason for dismissal was a potentially fair one. In support of this, the respondent produced witness evidence from Mr Russell and Mr Patel. Each satisfied us that they were following the respondent’s long-term sickness policy when dealing with the claimant. Each satisfied us that the factors they weighed when considering their decisions were questions relevant to capability. What was the claimant’s condition? What was her likely return date? What is her prognosis? What does she say about it? What does her GP say about it? All of these questions are relevant to capability.

[108]We do not consider that Mr Russell nor Mr Patel were concerned only with what the claimant says were protected disclosures, even though they are not. The matters relayed by the claimant about her condition and her fitness to work are clearly essential elements of the capability question. The information communicated by the claimant was legitimate information for the respondent to consider when thinking about whether the claimant should be dismissed as a result of her long term sickness absence. The claimant also contends she was dismissed because of disability discrimination. For the reasons outlined in the section above, there was no direct disability discrimination which caused the dismissal. Dismissal was not less favourable treatment caused by disability.

[109]Consequently, we conclude that the reason for dismissal was capability, which is a potentially fair reason. Did the respondent genuinely believe that the claimant could not fulfil her role, having consulted with her? 27 of 34

[110]The company doctor indicated to the respondent that the claimant’s prognosis to return was not known if she did not return within four to six weeks. From 2 May 2022 to the period after dismissal, the claimant was declared medically unfit to work by her GP. In each meeting, the claimant explained that she was unable to work because of her shoulder complaint, and she also says that she implied that it would not be safe for her to work. At the point of dismissal, the claimant had indicated that she could return to work in early September 2022, but then did not return and produced a fit note which certified her unfit to work for a further significant period.

[111]We consider that the respondent understood all of that factual summary, because this formed the discussions between the parties. The claimant agrees that she could not perform her role with her shoulder injury. It is clear the respondent held the required genuine belief. Did the respondent take into account up to date medical information in a reasonable investigation?

[112]The respondent followed its procedures in dealing with the claimant. It consulted with her and accepted the medical evidence she provided from her GP by way of the notes certifying her unfit to do any work. The respondent understood from the company doctor that the prognosis for return was difficult. The respondent attempted to have the claimant return to work with adjusted duties but that attempt failed.

[113]The respondent did not refer the claimant to the company doctor prior to the decision to dismiss the claimant. This was explored at length in the hearing, because the company doctor is most likely to be the one who can answer the question as to whether the claimant would be fit to return. When considering steps done or not done, we are considering whether the respondent has acted within the range of reasonable responses.

[114]We are satisfied that the respondent relied on the GP fit notes when considering the latest medical prognosis. It heard that the claimant was awaiting treatment. It heard that the recovery was inconsistent. It heard that the claimant did not know when she would be able to drive a bus again, because her GP and other investigations could not say how quickly (or whether) to recover. In those circumstances, deciding to rely on the information provided by the claimant is plainly within the reasonable range of responses. The claimant understood that she was at risk of dismissal. It made no sense for her to seek to exaggerate her condition or extend her return to work.

[115]The decision not to refer to the company doctor because of the evidence available is one that might raise eyebrows. But is it outside the range of reasonable responses? We conclude it is not. If the respondent is reasonably able to rely on the evidence provided by the clamant directly and from her GP, it is reasonably able to decide not to seek evidence from elsewhere at the cost of time and expense.

[116]In our judgment, the respondent carried out a reasonable investigation and considered adequate medical information. Did the respondent follow a fair procedure? 28 of 34

[117]The claimant does not complain about the procedure used being unfair, save of course for saying that it was discriminatory and so should not have started. We have concluded that it is not discriminatory, and so it should have been started if the respondent was to follow its policy. We are satisfied that the procedure used was fair. No unfair elements were highlighted to us and none of the Panel perceived any unfair elements during the course of the hearing. Was the decision to dismiss within the range of reasonable responses?

[118]The claimant contends that the dismissal was premature because she had an upcoming MRI scan which might give a better idea of treatment and prognosis. This formed the basis of her written appeal against her dismissal. We have found that Mr Russell and Mr Patel both considered that the scan was unlikely to yield a reasonable return to work, or even any clarity, given the extended period of absence without any discernible improvement in the claimant’s condition.

[119]In our view, the respondent had given the claimant multiple opportunities to show progress in her recovery and to get a sense of prognosis going forward. We accept difficulties in obtaining and waiting for appointments, but the claimant admits that in that time(1) her recovery was inconsistent and limited, and

(2) she had no idea when she would be able to return to work.

[120]It is also relevant that the claimant was getting signed off work entirely by her GP, and getting signed off for increasingly lengthier periods of time. It would be reasonable for the respondent to perceive that the claimant’s condition was becoming worse or less clear rather than better. We accept that these considerations were taking place against a backdrop of a difficult commercial environment where the respondent needed to have its bus drivers in buses and driving as much as possible.

[121]In our judgment, in light of the respondent’s reasonable conclusion that(1) the claimant could not do her role,

(2) she was signed off work,

(3) there was no consistent improvement in condition, and

(4) there was no clarity on return over 4 months after injury, dismissal did fall within the reasonable range of responses. This does not mean that we would have made the same decision at the same time. We are not putting ourselves in the shoes of the respondent when making our assessment of unfair dismissal. What we have decided is that it was no unreasonable for the respondent to have dismissed the claimant when it did.

[122]By the time of appeal, the claimant’s position had worsened in that she was no longer driving at all outside of work, and she said that she could not imagine driving a bus. Given her narrow appeal, which was that not dismissing her yet would give her the chance to show improvement and get a return date, it was within the range of reasonable responses to dismiss the appeal.

[123]Consequently, the claimant was not unfairly dismissed and this claim must fail. Discrimination arising from disability 29 of 34

[124]We apply the same conclusions about whether or not the elements of unfavourable treatment are present as we do for the alleged less favourable treatment above. We find the following things did or did not happen:- 124.1. Fail to afford the claimant the opportunity to recover before concluding the long term absence process; 124.2. Fail to continue to pay sick pay; 124.3. Insist on having a definitive return date; 124.4. dismiss the claimant; and 124.5. reject the claimant’s appeal.

[125]Following Pnaiser, the Tribunal should identify(1) whether there was unfavourable treatment and by whom,

(2) what caused that unfavourable treatment (was it the ‘something’, including where that cause is a more than trivial reason if there is more than one cause), and

(3) did that something arise in consequence of the disability.

The claim

[126]In our judgment, each of the five alleged instances of unfavourable treatment are indeed instances of unfavourable treatment. It is plain that taking steps to dismiss the claimant and not uphold her appeal (including the consequential loss of sick pay) are all unfavourable treatment. We can see the argument that insisting on a definitive return date might not be unfavourable treatment on the understanding that it is in everyone’s interests for the parties to be moving towards a definitive target date. However, we are satisfied from the context here that the requirement for a return date was not something that the claimant could deliver. Where the long term sickness policy uses a proposed return date as a date after which dismissal may occur if there is no return, seeking to have that stake placed in the ground was unfavourable.

[127]Were those instances of unfavourable treatment caused by the ‘something’? The claimant says there are two somethings:(1) the inability to drive a PCV bus; and

(2) her absence from work from 2 May 2022. In our view, the unfavourable treatment was caused by both of these things. The claimant could not do her job role, and she was put through the absence and dismissal process entirely because she could not drive the bus and because she was absent from work.

[128]Did that inability and did that absence arise in consequence of the disability? From 19 July 2022, yes they did. The shoulder complaint, which became a disability, is the thing that stopped the claimant from being able to drive her bus or return to work. The defence

[129]It is for the respondent to show that the unfavourable treatment for something arising in consequence of disability was a proportionate means of achieving a legitimate aim. The aims are(1) provide a full and reliable bus service,

(2) have an 30 of 34 acceptable level of attendance from staff, and

(3) properly manage long-term sickness absence. In our view, these are legitimate aims of any bus service employer. An organisation must be able to aim to fulfil its core purpose. It must do so with an acceptable level of staff attendance to avoid unacceptable cost and risk, and so it must also be able to properly manage long-term sickness absence.

[130]Was the placing of the claimant on to the process, culminating in an upheld dismissal, with the consequential loss of sick pay, a proportionate means of achieving those aims? The claimant says not, and says that dismissal without a longer opportunity to recover was not justified in the circumstances. The respondent says that the actions were justified in circumstances where illness needs to be managed and dismissal only took effect when it became clear that the claimant could not return to her (very important) role within a reasonable or known time frame.

[131]We have concluded above that the dismissal was not unfair and the decision to dismiss was not outside the reasonable range of responses. All of those considerations and reasons are relevant also to this analysis, because we are balancing the legitimate needs of the business against the claimant’s needs and characteristics. In our judgment, the respondent was entitled to take the steps it took in pursuit of its legitimate aims. Aside from dismissal and the unfavourable treatment done, the only alternative would be for the claimant to remain employed without a known prospect of returning to work.

[132]This would be a less discriminatory step, but would come at a cost to the respondent. It would be required to continue to pay sick pay for a period of time. Even when that was exhausted, it would carry the associated cost of having the claimant on its roster and dealing with the on-going absence management. In our judgment, it would not be proportionate to require the respondent to do that where the claimant’s likely return date could not be known. The five instances of less favourable treatment, all essentially about the dismissal and failed appeal, are justified. In our judgment, they were proportionate means of achieving a legitimate aim.

[133]This means that this part of the claim is not well-founded and is dismissed. Failure to make reasonable adjustments

[134]The respondent accepts the PCP relied upon. It requires its employees to perform the job role they are contracted to perform. We accept that PCP put the claimant at a substantial disadvantage from the point at which her shoulder complaint became a disability.

[135]To be under a duty to make reasonable adjustments, the respondents must know or ought to know that the PCP would put the claimant at a substantial disadvantage. In our judgment, this is where this claim falls down. At no point did the respondent know that the claimant was disabled. At no point was it told. It did not ask the company doctor to give an indication on the issue, but we would not expect that where an employee is signed off work for three weeks with shoulder pain.

[136]The respondent was told that, if the claimant did not return in a matter of weeks, the prognosis was unknown. That is not the same as the respondent being warned 31 of 34 that the claimant may be unwell for 12 months or more, which might trigger an investigation about disability. Similarly, the respondent was not told of substantial adverse effect on day to day life.

[137]The conversations between the claimant were about work, not everyday activities, and the claimant has established no facts that indicate she spoke to the claimant about any elements of s6 Equality Act 2010. The conversations were about return to work, and the respondent clearly expected a short term prognosis in terms of returning to work because it had regular meetings with the claimant to try and work out when she would return.

[138]We have found the respondent was not unreasonable when it chose to dismiss the claimant without another review from the company doctor. In those circumstances, we do not consider that the respondent ought to have made enquiries about whether the shoulder complaint was a disability. The respondent knew the claimant had limited range of movement, pain and could not drive. At the point of dismissal, it knew that she had been carrying the injury for four months. There is no indication the claimant said she was disabled at the dismissal meeting or that she gave information about a substantial adverse impact on day to day activities.

[139]It therefore follows that, in our judgment, the respondent was not under a duty to make reasonable adjustments.

[140]Even if it was, then we are not sure what reasonable adjustments could have been made. There were no adjustments which would make the claimant able to drive. She therefore could not fulfil her contractual role. To remain employed, she would need to be deployed into a non-driving role. We have found that none would have been available. We do not consider it reasonable to require the respondent to create a job role for the claimant which it did not need to be filled.

[141]We have considered the claimant’s suggested adjustments. None of them are adjustments which would allow the claimant to perform her role. All are, then, either requiring the respondent to pay her to do nothing, or to not do her job, or require the respondent to create a job for her that it did not need to be performed. None of those suggestions are reasonable adjustments. All are beyond what is reasonable.

[142]It follows that, even if the respondent ought to have known that the claimant suffered the substantial disadvantage alleged, there was no reasonable adjustment it could have made to alleviate the disadvantage caused by the PCP. Where the PCP is as simple as ‘do the job at all’, as effectively here, then there is rarely going to be a reasonable adjustment that can be made to it.

[143]Consequently, this claim fails and it is dismissed. Harassment related to disability

[144]The claimant claims that the matters which form the basis of her direct disability discrimination complaint and her discrimination arising from disability complaint also constitute harassment related to disability. In so doing, she alleges that they were unwanted conduct which had the purpose or the effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Where we consider that purpose was not present, we must consider whether the 32 of 34 conduct had that effect and whether it was reasonable for the claimant to feel that effect. All elements must be made out for harassment to be found.

[145]The claimant says that being put through the process of long term sickness management and dismissal was harassment because it was intimidating and put her in fear of losing her job. The respondent says that this does not constitute harassment.

[146]We accept that the conduct complained of was unwanted. We do not consider that the conduct had the purpose of making the claimant feel upset, scared or intimidated. The conduct had the purpose of managing the claimant’s absence and ultimately dismissing her (fairly) when it was reasonable to do so. In the circumstances, given that we have concluded that these same complaints are not(1) unfair dismissal,

(2) disability discrimination, or

(3) discrimination arising from disability, we do not consider it reasonable for the claimant to perceive that she has been harassed during this process. We understand that the process was frightening and upsetting. That is natural where there is a dismissal for ill health, where so much is beyond an employee’s control. That is far removed from harassment related to disability – or any protected characteristic. The claimant has not persuaded us it was reasonable for her to feel that way in all of the circumstances.

[147]The claim fails and is dismissed. Costs Who pays any costs

[148]If we make a costs order, the claimant would pay the costs. There is no ability to order a representative to pay costs where they are not acting in the pursuit of profit. Do we have the discretion to award costs?

[149]We are satisfied that the claimant failed to comply with Tribunal orders which led to a wasted hearing. Failing to comply with orders and directions is one of the gateways which, if met, allows us to have the discretion to award costs. In our judgment, the conduct in terms of failing to respond to or update the respondent, meaning the respondent was required to chase for updates and make applications to the Tribunal for orders to force compliance, was unreasonable. That is another gateway from which we can exercise our discretion. Do we exercise our discretion?

[150]We are conscious that the award of costs is the exception and not the rule in the Tribunal. In this case, the claimant is fixed with the conduct of her representative. Those omissions have been unreasonable and have led the respondent to incur costs it should not have had to incur.

[151]However, the award of costs is a discretionary exercise. We are satisfied that the claimant was an innocent party to the conduct of her representative. The Panel concludes that it does not wish to exercise its discretion in this case. This is because of the lack of input into the issues of the claimant, but also taking out the wider 33 of 34 circumstances of the case where the claimant has lost her livelihood as a result of a injury which was not her fault. Adding to her financial burden for something that she did not do is unappealing and we do not wish to do it.

[152]We recognise the difficulty the other way, which is that we then require the respondent to bear its own costs of dealing with cleaning up a mess which was not its fault. That is unfortunate, but part of litigation risk. If we had been able to make a wasted costs order against the representative, our decision in respect of exercising discretion may have been different.

Disposal

[153]The claimant was unsuccessful in all of her claims and so all of them are dismissed. The costs application from the respondent is also refused.