Ms C Nahum v Kings College Hospital NHS Foundation Trust: 2300236/2018
EMPLOYMENT TRIBUNALS
Case No 2300236/2018
Between
Ms C NahumClaimantKings College Hospital NHS Foundation TrustRespondent
Before
Employment Judge MortonIn person for claimantMs R Owusu-Agyei (instructed by Counsel) for respondentDate 9 October 2019
JUDGMENT
It is the unanimous judgment of the Tribunal that:[1]The Claimant was fairly dismissed by the Respondent.[2]The Claimant’s claims of unlawful discrimination under sections 15, 20-21 and 26 Equality Act 2010 fail and are dismissed.
REASONS
[1]By a claim form presented on 17 January 2018 the Claimant presented to the tribunal claims of disability discrimination under the Equality Act 2010 (“Equality Act”) and unfair dismissal under the Employment Rights Act 1996 (“ERA”). The Respondent resisted all the claims but, having initially denied that the Claimant was a disabled person conceded that she was disabled for the purposes of s 6 Equality Act when it submitted revised Grounds of Resistance on 4 July 2018. The conditions relied on were hypertension and a depressive illness.[2]At the hearing the Claimant gave evidence on her own behalf and called no other witnesses. The Respondent’s evidence was given by Michelle Woodhouse, cardiology outpatient manager, Joanne Tear, general manager for cardiovascular services and Laura Badley, director of operations for the Respondent. All of the witnesses had prepared written statements and there was a bundle of documents consisting of 321 pages, including three that were handed up on the second day of the hearing (pages 319-21). References to page numbers in this judgment are references to page numbers in that bundle.
The relevant law
[3]The law on unfair dismissal is set out in s 98(2) ERA. It is for the Respondent in an unfair dismissal case to establish that it had a potentially fair reason to dismiss the Claimant. In this case the Respondent relied on the Claimant’s capability. Lack of capability is a potentially fair reason to dismiss under section 98(2)(a) ERA.[4]The relevant law on disability discrimination is set out in sections 15, 20, 21(1) and 26 Equality Act which provide as follows:[15]Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[20]Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule 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 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.………[21]Failure to comply with duty(1) A failure to comply with the first, second or third 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.[26]Harassment (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant 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; (c) whether it is reasonable for the conduct to have that effect. 5. It is also relevant to consider the law on the burden of proof which is set out in section 136 of the Equality Act. In summary, if there are facts from which the tribunal could decide in the absence of any other explanation that the Claimant has been discriminated against, then the tribunal must find that discrimination has occurred unless the Respondent shows the contrary. It is generally recognised that it is unusual for there to be clear evidence of discrimination and that the tribunal should expect to consider matters in accordance with the relevant provisions in respect of the burden of proof and the guidance in respect thereof set out in Igen v Wong and others [2005] IRLR 258 confirmed by the Court of Appeal in Madarassy v Nomura International plc [2007] IRLR 246. The issues for the hearing 6. The issues had not been fully defined by the start of the hearing and the Tribunal therefore took time to define the issues in the Claimant’s claim of disability discrimination. Ms Owusu-Agyei objected to that process and was concerned that the Tribunal was impermissibly stepping into the arena. The problem was that the Claimant had not included any particulars of her complaints on her claim form and when a case management discussion took place in April 2018 the Claimant had still not given details of how she stated that the Respondent had discriminated against her. However by the time of the hearing the Claimant had written a statement. The Tribunal accepts that this was not satisfactory for the Respondent, but nevertheless considered it to be a requirement of the overriding objective that it assist the Claimant, who was unrepresented, by identify the legal issues that arose from that statement. What would not have been permissible would have been to help the Claimant unearth relevant facts in order to help her formulate the claim (Muschett v HM Prison Service [2010] IRLR 451). That is not what we did. The facts the Claimant was relying on were set out in her statement. We then considered that statement and identified the issues under the ERA and the Equality Act that it raised. We considered that these were as follows. Unfair dismissal 7. What was the reason for the Claimant’s dismissal? The Respondent asserts that it was a reason related to capability which is a potentially fair reason under s98(2)(a) Employment Rights Act 1996 (“ERA”). Further issues then arise under section 98(4) ERA which provides that the question of whether the dismissal was fair or unfair involves considering whether, having regard to the reasons shown by the Respondent, in all the circumstances of the case, including the size and administrative resources of the Respondent’s undertaking, the Respondent acted reasonably or unreasonably in treating the reason relied on as a sufficient reason for dismissing the Claimant. The question must be determined in accordance with equity and the substantial merits of the case. In accordance with the case of Iceland Frozen Foods v Jones [1982] IRLR 439 the Tribunal must not in reaching a decision on the reasonableness of the Respondent’s decision to dismiss substitute its own view as to what it would have done in the circumstances but must instead consider whether the Respondent’s response fell within a band of responses which a reasonable employer could adopt in such a case. 8. In order to meet the test in section 98(4) the Respondent must also follow a procedure that is fair in all the circumstances. That will ordinarily involve compliance with the Respondent’s own written procedures. 9. In a case in which a dismissal is found to be procedurally unfair consideration must also be given to the principles in the case of Polkey v A E Dayton Services [1988] ICR 142 and if it appears that the Claimant would have been fairly dismissed in any event had a fair procedure been followed then any compensation awarded must be reduced to reflect the percentage chance of that being the case. Disability 10. Was the Claimant dismissed for a reason related to her disability? If so, was it a proportionate means of achieving a legitimate aim for her to be dismissed? 11. Did the Respondent apply to the Claimant the following provisions, criteria or practices (“PCPs”): (a) requiring her to work full time in her role as appointments coordinator; (b) requiring her to work in a patient-facing capacity on the front desk; (c) requiring her to work on Mondays; (d) requiring her to work full time in the roles suggested to her by way of redeployment; and (e) requiring her to work additional hours to make up for time spent at hospital appointments? 12. In each case did the PCP place the Claimant at a disadvantage compared to people who are not disabled? 13. Did the Respondent fail to take such steps or make such adjustments as were reasonable to avoid the disadvantage? 14. Did the Respondent harass the Claimant for a reason related to her disability by suggesting that she would lose her job if she was unable to return to full time hours? Findings of fact 15. The Claimant began her employment with the Respondent as a Clinic Coordinator on 2 January 2001. At the time of the matters giving rise to her claims she was part of a team of three Band 3 Appointment Officers who role was to book appointments, sit on reception, deal with patients, answer the telephone and undertake other administrative tasks in a very busy cardiac non-invasive diagnostic department at Kings College Hospital. Her job description was at page 51F-51I. The team worked 37.5 hours per week on rotating shifts sharing out the various aspects of the role, including sitting at reception and dealing directly with patients, booking appointments using a booking system of some complexity and taking phone calls. The shift pattern had changed in around September 2015 to introduce one early shift (08.00-16.00) one mid shift (09.00 to 17.00) and one late shift (10.00 to 18.00) over a three week period. 16. The Claimant remained in the Respondent’s employment until she was dismissed for reasons of incapability. The decision to dismiss her was communicated at a sickness review meeting on 25 August 2017 and confirmed by letter dated 4 September 2017 (page 179-181). The Claimant’s last day of service, following her notice period, was 17 November 2017. The Claimant appealed against the decision to dismiss her with the support of her union (page 181A-B) and the appeal hearing took place on 2 October 2017. The appeal was unsuccessful and the outcome was communicated in a letter from the appeal hearing chair, Laura Badley on 6 October 2017. 17. The Claimant took considerable amounts of leave for sickness related reasons in the period from March 2007 onwards. There was a record of the Claimant’s sickness absence at page 169. This recorded two very protracted periods in February 2009 to August 2009 (177 days) and October 2012 to June 2013 (169 days). There was then a period of 240 working days’ absence between September 2015 and August 2016. Occupational health was consulted on a number of occasions and the full history was set out at pages 169-174 which formed part of the management case prepared by Ms Woodhouse in August 2017 for the sickness review meeting which led to the Claimant’s dismissal. It is clear from this document that there had been a number of occupational health reviews interspersed with long term sickness meetings. The occupational health reviews in the latter part of 2015, when the Claimant was on long term sick leave, consistently confirmed that the Claimant could not work in her role. On 9 March 2016 the Claimant met with Ms Woodhouse in accordance with the Respondent’s Sickness Absence Policy (page 32). A letter confirming the details (page 74) was sent to the Claimant on 19 April. The letter confirmed that there had been a discussion about the potential for the Claimant to return to work. It said: “We discussed a phased return which I am happy to support, you requested to only work on the back desk and not to have face to face contact with the patients and to have a change in working hours, this is agreeable during your phased return, after which normal shift patterns and duties will resume. We also spoke about ill-health retirement which Malwina said she would look into”. 18. A further meeting was set for 27 April 2016. 19 April 2016 was also the date of an occupational health report (page 76) which recommended a trial return to work. It said: “Following our consultation today my thoughts regarding a trial return to work remain unchanged. Miss Nahum does have a condition we feel is likely to be covered by the Equality Act as previously stated. We consider Miss Nahum is not fit for full time work at present. However we do consider her fit to start a work rehabilitation programme, if managerially possible. We would advise:• Miss Nahum returns on a phased return gradually increasing her hours. It is difficult to say how long it would be to return to full hours as it depends on Miss Nahum's adjustment to returning to work. Therefore we would suggest starting at three 5 hour shifts per week and then review this after 4 weeks to increase if symptomatically possible.• Miss Nahum and management carry out a stress risk assessment either prior or on initially returning to review the role and stress triggers. We would advise avoiding those triggers on first returning as per specialist advice and them reviewing this as treatment has an impact. I have in my previous report mentioned the areas Miss Nahum finds impacts upon her anxiety. o Face to face management of general public with a challenging situation o Challenging situation involving colleagues o Working alone in the office which she reports only happens when she finishes at 6pm• We would advise on this trial return to work to avoid stressful jobs where possible. I would plan to review Miss Nahum at the end of May". 19. Following the meeting on 27 April 2016 Ms Woodhouse sent a letter to the Claimant (page 78) which confirmed that the Claimant’s GP and Consultant did not yet consider the Claimant fit to return to work and that she was signed off until 31 May. It also recorded a discussion about the phased return to work recommended by occupational health, which Ms Woodhouse confirmed she was willing to support. She also agreed to let the Claimant use accumulated annual leave to support her return to work. The Claimant had asked what would happen if at the end of the phased return she could not go back to her post. The letter confirmed that the Claimant would then be considered for redeployment and given priority at interviews. A four week period would be allowed to find an alternative role after which, should the Claimant have been unsuccessful she would be dismissed. 20. After a further meeting on 17 June 2016 Ms Woodhouse wrote the letter at page 83. There was a detailed discussion of the Claimant’s health and a discussion of a potential phased return to work, which would involve short hours in her first week and the use of accumulated annual leave thereafter. The Claimant had raised the question of working reduced hours and was told that she could make a flexible working request, but that it might not be accepted due to service needs (page 84). The Claimant had already applied for flexible working in November 2015 (page 60), asking to work 8.00 to 16.00 until her health improved. The request was sent to Emma Jenkins but it was Ms Woodhouse who responded following a call from Ms Jenkins to seek the Claimant’s consent to Ms Woodhouse dealing with it (page 60). Ms Woodhouse responded on 22 December 2015 (page 69) following a meeting with the Claimant, turning down the request because of the impact it would have on the Claimant’s colleagues and because it would necessitate closing the clinic early every third week. The Claimant did not appeal against the refusal. 21. At the meeting on 17 June 2016 there was a discussion of ill-health retirement, but we heard no evidence about the outcome. It seemed from later events that the Claimant did not want to retire at that time. Finally there had been a discussion of the impact of the Claimant’s absence on the department and the Claimant was told that should her absence continue, her case would be referred for a final hearing in line with the Sickness Absence Policy and that dismissal would be a potential outcome. 22. Occupational health finally confirmed that the Claimant was fit for a phased return in its report of 10 August 2016 (page 85-87). It recommended a very gradual return involving two days a week for one month and initially reduced hours per shift. The report also recommended that the Claimant avoid stressful activity which would include stressful interactions with the public, challenging situations involving colleagues and working alone in the office, (which would only occur if the Claimant had to work a late shift). The Claimant did in fact return to work on 15 August 2016, beginning with two four hour shifts per week, which by 19 December 2016 had increased to 30 hours per week over four days. A table setting out details of the phased return was at page 193-4. During the whole period from the commencement of her phased return to the termination of her employment on 15 August 2017 the Claimant did not have face to face patient contact, was not working alone and continued to work restricted hours, not working on Mondays and not working beyond 5.00pm. 23. There were further occupational health reviews on 23 August, 6 September and 16 November 2016, followed by a case conference on 1 December 2016 (page 172). The 16 November occupational health report (page 94) had identified certain barriers to the Claimant returning to full time work: managing her fatigue if working full time; managing challenging patients at the front desk and being alone during late clinics. By the time of the next occupational health review on 31 January 2017 the advice was that the Claimant, who had by then increased her hours to 30 per week, should remain at 30 hours and continue not to work at front reception. This advice was repeated at the occupational health assessment on 3 May 2017 (page 101) and the restriction to 30 hours was repeated on 4 July 2017 (page 129) and 8 August although neither the July nor August reports made any reference to the Claimant being unable to work at the front desk. 24. Meanwhile the Claimant met with Ms Woodhouse on 13 January 2017 to discuss the phased return and Ms Woodhouse wrote the letter at page 97 following that meeting. The letter summarised the position to date and confirmed that Ms Woodhouse would sit with the Claimant at the front desk on 20 January to support her to return to normal duties. The letter also informed the Claimant that as she had used up her accrued annual leave she would not be paid for the reduced hours in the period until 1 February 2017 at which point Ms Woodhouse expected her to be returning to her normal duties, working the full shift pattern as described at paragraph 15 above and working at the front desk. The letter made it clear that if the Claimant was not able to return to full duties at the end of her phased return she would undergo further occupational health assessment with a view to possible redeployment. The Respondent was therefore clearly signalling to the Claimant that the adjustments it had put in place would not be continued indefinitely. 25. There was a further meeting between the Claimant and Ms Woodhouse on 4 April. The Claimant was accompanied by Frank Wood, her union representative. Emma Jenkins, the Cardiology Assistant Service Manager and a representative from HR were also present. The letter at page 104 records that the Claimant had reported at the meeting finding it difficult to work 30 hours per week, and that from the Respondent’s perspective the adjusted duties and working hours were having an adverse impact on the running of the service, specifically delays to patient appointments and additional costs in staff overtime. The Claimant was unable to confirm that she would be able to return to her full working hours and duties in the foreseeable future. 26. The letter was written on 12 May and the document at page 321 shows that there was a spike in the use of agency and bank staff in the department during April and May although it does not give a breakdown of the roles covered or the reasons that cover was required. It was not therefore clear to the Tribunal that all of these additional costs to the department were attributable to the Claimant’s adjusted hours and duties. Ms Woodhouse herself worked additional hours to get on top of a backlog in bookings and would have been paid for doing so. A schedule of her additional hours was at a page 195M. This shows however that most of the overtime worked by Ms Woodhouse was in October 2016, during the Claimant’s build up to 30 hours per week. Following that there was one day of overtime in March 2017, four days in April (after the meeting with the Claimant), one day in May and one day in July. Again it was not obvious that this overtime was specifically or only attributable to the Claimant’s working pattern. As a result of the Claimant’s absences however the department was short staffed on a Monday, the busiest day in an already extremely busy department with large numbers of patients. Ms Woodhouse maintained that staff morale was low but when questioned by the Tribunal was unable to give any specific examples of members of staff complaining. She did however have to train other members of staff, Band 2 Prep Clerks, to cover the front desk and she herself had to work on the front desk from time to time, and pick up the phone and deal with extra bookings. Ms Woodhouse unfavourably compared the running of the service with three full time staff in 2010 to the running of the service with reduced capacity in 2017. However the Tribunal thought that a number of factors could have contributed to that, and it could not be said that the Claimant’s work pattern was the only factor or even the main factor. That said, we accepted that it would have added to the pressures on the department over an extended period. We also accepted Ms Woodhouse’s assertion that the Claimant’s reduced hours had a knock on effect in other areas – other staff members fell behind with their administrative work, and other staff absences became more difficult to cover.
Findings of fact
[27]Ms Tear endorsed Ms Woodhouse’s description of the situation and the fact that the Claimant’s not working full time, not participating in the rota and not covering patient facing duties, was placing considerable strain on her colleagues and manager. We also accept her evidence that the service was not meeting its performance standards. Although a service might not meet performance standards for a range of different reasons, it would plainly not be helpful to such a service and would compound its difficulties to have one member of a team of three - a third of the workforce - unable to perform such a large part of the work. However we treated with circumspection the schedule of patient complaints at pages 195A-L. Without further context, an explanation of whether the volume of complaints was unusual and how specifically they related to the Claimant’s work pattern, we were unable to find that there was any correlation between patient complaints and the adjustments made for the Claimant. The Claimant pointed out furthermore that not all of the complaints listed arose in the service in which she was employed. We also accepted however that in an environment in which patients were complaining, it would not be helpful to be operating with below the full staff complement.[28]The letter at page 104 made it clear to the Claimant that the adjustments that had been made for her were no longer sustainable and recorded the fact that redeployment options had been discussed as well as ill health retirement. There was then another meeting on 12 May followed by the letter at page 106 sent on 22 May that reiterated that the situation was not sustainable for the Respondent. There had been a discussion about the Claimant taking Wednesdays off instead of Mondays to relieve the pressure on the service, but she had refused as she maintained that she needed a long weekend to recover. We note that this was not a specific recommendation of occupational health. It was concluded at the end of the meeting that redeployment would now be sought with the Claimant being given 6 weeks to find a suitable alternative role. The Claimant was also warned that if her search for alternative employment was unsuccessful her employment might be terminated.[29]Ms Woodhouse put considerable effort into supporting the Claimant’s search for an alternative role. A list of the emails sent in pursuit of possible jobs and informing the Claimant of possible jobs was set out at pages 176 to 177. Ms Woodhouse explained that the Claimant was seeking Band 2 or 3 roles and was unable to work for more than 30 hours a week or work in a patient facing capacity. In total Ms Woodhouse sent 22 emails, copies of which were at pages 108-127 and 132-164. In response Ms Woodhouse was sent lists of available and potentially suitable vacancies at the Respondent which she discussed with the Claimant with a view to identifying suitable posts. The Claimant had two interviews but was otherwise unfortunately unsuccessful in finding a suitable alternative role. The Claimant’s explanation for this was that the vast majority of the available roles were full time and therefore not suitable for her. In fact there had been at least one role available for two days a week which the Claimant declined as she wanted to work four days (email exchange page 133-135).[30]On 15 August 2017 the Claimant was invited by Ms Tear (using the name Joanne Lands) to a formal hearing under the Respondent’s Sickness Absence Policy and Procedure. The letter (page 165) warned the Claimant that dismissal on grounds of incapability due to ill health was a potential outcome of the meeting. A Management Case document detailing the history of the Claimant's ill-health absences and phased return was prepared by Ms Woodhouse (pages 166-178). The meeting took place on 25 August and the Claimant was again represented by Mr Wood. Ms Tear chaired the meeting of which the notes were at pages 178A-D. The Claimant conceded during the course of the meeting that the size of the team meant that any staff absence had a significant impact on the service. She confirmed that she was still unable to say when she would be able to return to her full duties and that her preference was to find another role rather than taking ill health retirement. After hearing from the Claimant Ms Tear adjourned the meeting during which she came to a decision that the Claimant’s employment would be terminated. She communicated this to the Claimant after an adjournment. Although Ms Tear seemed to suggest that the termination would take effect immediately the Respondent proceeded on the basis that the Claimant’s employment ended at the end of her notice period on 17 November 2017.The reasons were then set out in the letter at page 179 sent on 4 September which confirmed the outcome of the meeting. The letter stated as follows: “I acknowledge that you have a long-term health condition that resulted in a lengthy sickness absence. Upon your return to work in August 2016, Miss Woodhouse has supported you fully with a gradual phased return to work and reasonable adjustments as recommended by occupational health. However, it is now unsustainable to continue to support the reduced hours of working and adjustments to duties. The role in which you are employed is a fulltime role over five days and also requires participation in a staff rota of early/late shifts. The reception area is located in a large, busy waiting area used for patients attending for an outpatient appointment or cardiac diagnostic investigations. As part of your role you are expected to greet patients, record patient attendances on PIMS/CRIS, book diagnostic appointments, answer incoming calls from external/internal callers etc. The option of redeployment has been explored, but unfortunately you have not been successful in securing a role that meets your current needs. The impact of service delivery is also affected by the current workforce arrangements, and these are no longer sustainable within the department. The service has performance standards which require that all diagnostic appointments are booked and seen within six weeks. If this is not achieved there is a financial penalty applied to the Trust. In addition, staff morale is being affected due to covering additional workload and backlog of workload due to a lack of fulltime staff participating in all expected duties. Due to the recommendations by occupational health that you are unable to work fulltime in a patient-facing role, and you yourself cannot confirm that you will be able to undertake fulltime work with patient-facing duties in the immediate future, it is clear you are unable to fulfil your contractual obligations. Therefore, I am dismissing you from your role on grounds of capability due to ill health.”[31]The Claimant appealed against the decision by letter of 6 September (page 181A). There were two grounds of appeal: “Firstly: that a department should in seeking to retain disabled employees make reasonable adjustments to enable them to stay in their current post. This being a requirement in the Equality Act 2010. In this case both adjustments were manageable except that: the department had recently reduced the number of admin staff by natural wastage from five to three thus leaving the remaining staff, including Charlotte, under pressure to maintain the service. These funds had been used to upgrade a managerial post rather than support the admin workload in cardiology. The department was aware that Charlotte has been working to improve her HT and it was likely that this would resolve particularly if the department had confirmed the change to her role and assured some degree of job security and so reduce the pressure upon her. However, the department was insistent that it could not wait the projected six months for Charlotte's health to improve. Secondly, that Charlotte did not agree to the medical redeployment and felt that as, at the time, she was still only able to work part-time she was at a marked disadvantage in obtaining a new role”.[32]Miss Lands prepared the management response to the Claimant's appeal which was set out in her document at page 182-186. On page 185 was the Respondent's response to the Claimant's first ground of appeal which in summary was that the Claimant had been incorrect to assert that two posts had been cut from the department in order to upgrade the managerial position. There had been an upgrade of a post in the department but the funding for that was secured from within the existing budget. In response to the second ground of appeal, the Respondent pointed to the letter of 22 May 2017 (page 106) which recorded the discussion that took place between the Claimant and Miss Woodhouse on 12 May 2017 at which the Claimant had confirmed that she was happy to explore redeployment options.[33]The appeal meeting took place on 2 October 2017 and was conducted by Ms Badley. She did not uphold the Claimant's appeal and her appeal outcome letter was at page 187-189. Ms Badley summarised her decision at page 189 as follows: 'Having given full consideration to your appeal and Jo's response, I am now able to confirm that I have decided to uphold the outcome of the hearing that took place on 4 September 2017. I do believe that the department made very significant efforts to support you, both initially in returning to your position on restricted duties for a very long period of time, and then later in terms of seeking redeployment to other roles in the Trust. Unfortunately, it is clear that you are not fit to carry out the full duties of your position, and that the restrictions recommended by occupational health go beyond what can be sustained as reasonable adjustments by the department in the long-term. Considerable efforts were made to redeploy you into a position where your health needs could be better supported and sadly this did not prove to be achievable. I believe that Jo's decision to dismiss you on the grounds of ill health was taken correctly and reasonably in these circumstances.'[34]The Claimant's employment terminated on 17 November 2017. Submissions[35]Ms Owusu-Agyei provided the Tribunal with helpful and comprehensive written submissions for which it was grateful.[36]The Claimant submitted that she would like the Tribunal to take into consideration the fact that she was representing herself and was not able to provide written submissions in a legal format. She recognised that she had been on long-term sickness absence but had been given an adjustment of 30 hours working hours per week but during the time that the adjustment was in place she was constantly asked when she would be able to return to full time work. She considered that she had had insufficient redeployment support and did not consider that she was responsible for all the additional costs in the department. She reiterated the statement she had made in paragraph 8 of her witness statement. Conclusions Unfair dismissal – s98
Conclusions
[37]It is not in dispute that the Claimant was dismissed for the potentially fair reason of capability. In our judgment the Respondent adopted a process that was fair and involved adequate consultation with the Claimant. The Respondent informed itself of her health situation on a regular basis and acted on the advice of occupational health by giving the Claimant the benefit of a phased return to work over an extended period. The Claimant had the benefit of union representation throughout. There was then an extended period of search for redeployment opportunities during which Ms Woodward made documented efforts to identify a role that would match the Claimant’s skills and experience and meet her requirement for limited working hours. The Claimant was aware from the time of her return to work on adjusted hours and duties that the Respondent did not intend the arrangement to be permanent and that redeployment or termination of employment were possible outcomes.[38]The reasons for the Claimant’s dismissal were clearly set out in the outcome letter at page 179, quoted at length in paragraph 31. On the facts as we have found them the decision to dismiss was within the band of decisions that a reasonable employer could have reached. The Claimant was not able to give the Respondent any assurance as to when she would be likely to be able to return to full duties and occupational health advised throughout the period of the phased return and the process leading to dismissal that the Claimant was not able to work more than 30 hours per week. This was having a detrimental impact on service delivery in a very busy department in which s small number of staff members were required to work rotating shifts.[39]We considered whether occupational health should have been asked to give a further prognosis before the decision to dismiss was made rather than the Respondent relying on the Claimant’s own assessment of her condition, but on the evidence before us any such further enquiry would not have made any difference to the Respondent’s decision. The Claimant’s health had remained poor over a long period and there was nothing to suggest that a recovery was imminent. For the same reason we conclude that the Respondent was justified in acting when it did and not waiting any longer before deciding to dismiss. The appeal process was fair and gave proper and detailed consideration to the Claimant’s grounds of appeal.[40]We find that the Claimant’s dismissal was fair under s 98 ERA and that her claim of unfair dismissal should be dismissed. Reasonable adjustments – s 20-21[41]It was not in dispute that PCPs of being required to working full time hours and to work in a client facing role were applied to the Claimant. We conclude, contrary to the Respondent’s submission, that there was sufficient evidence to show how these PCPs placed the Claimant at a disadvantage compared to people who were not disabled. As a consequence of her health conditions working full time and dealing face to face with patients made demands on the Claimant’s energy and mental health that she was unable to sustain. That was clear from the occupational health reports and the recommendations that her working hours be reduced to avoid fatigue and that she avoid stressful situations to avoid exacerbating her anxiety. The disadvantage at which the Claimant was placed was established on the facts and was more than minor or trivial.[42]The Respondent put in place adjustments to the Claimant’s working hours and duties that had the effect of alleviating the disadvantage because it enabled to the Claimant to return to work after a very long period of ill health absence (240 days). However there came a point at which the Respondent did not consider that the adjustments could be continued long term. Did that amount decision amount to a breach of the duty? Paragraph 6.28 of the Equality and Human Rights Commission Code of Practice on Equality identifies the factors relevant to whether an adjustment is reasonable or not. These include the extent to which it is likely to be effective, the financial and other costs of making the adjustment and the extent of any disruption caused, the extent of the employer’s financial resources, the availability of financial or other assistance (e.g. Access to Work), and the type and size of the employer.[43]In our judgment the Respondent made adjustments for a period of time that was reasonable, given the evidence, referred to in paragraphs 27 and 28 of these reasons, that service delivery was being adversely affected by the adjustments that had been put in place. Although the Respondent is a large and wellresourced employer it is also operating under great pressure with very heavy demand on its services, particularly in the department in which the Claimant worked. Consequently the adjustments made to accommodate the Claimant’s disability were disruptive and difficult to sustain. This was a situation in which a permanent adjustment to the Claimant’s hours and duties would not have been reasonable given the nature of the cardiology service, the performance requirements placed on the service and the impact of the Claimant’s adjustments on other members of staff in a small team. By the time of Ms Lands’ decision to dismiss the Claimant on 25 August 2017 the Claimant had been working on adjusted hours for a year, following a period of 240 days sickness absence. In our judgment the adjustments made were reasonable and any prolongation of the adjusted hours and duties would have been more than the duty to make reasonable adjustments duty requires. There was therefore no breach of the duty to make reasonable adjustments on the part of the Respondent in deciding that the adjustments made could not be maintained permanently.[44]The Tribunal concludes that the Claimant did not show how the requirement to work on Mondays put her at a disadvantage compared to her non-disabled colleagues. Her assertion that she needed to weekend to recover was insufficient to explain the disadvantage and the degree to which it was substantial and not minor or trivial. The assertion was furthermore not supported by any specific recommendation of occupational health.[45]The tribunal concludes that PCP of having to work full time in redeployment roles was not applied to the Claimant. When a part time role was offered to her she declined it on the basis that it was not the number of hours that she wished to work. However the offer of the role meant that the Respondent was not on the facts applying the PCP of requiring the Claimant to work full time in roles that could have amounted to redeployment. The Claimant did not prove the facts that would have been required to substantiate this part of her claim.[46]The Claimant did not show that she was subjected to the PCP of having to make up time spent at hospital appointments. This was clear from her evidence in cross examination when she was unable to give specific details of her complaint or point to any documents that supported her contention. The Claimant did not prove the facts that would have been required to substantiate this part of her claim. Discrimination arising from disability – s15[47]By terminating the Claimant’s employment when it did because of her inability, for reasons arising from her health conditions, to discharge the full range of her duties during normal working hours, the Respondent treated the Claimant unfavourably for a reason related to her disability. The question that remains is whether that unfavourable treatment was a proportionate means of achieving a legitimate aim. In the Tribunal's judgment the Respondent established the aim relied upon, namely the efficient delivery of the service in which the Claimant was employed, and the Tribunal was satisfied that that is a legitimate aim. The Tribunal also concluded that the means adopted for achieving that aim, namely to terminate the Claimant’s employment in August 2017 after 12 month on adjusted duties and hours, were in this case proportionate, for the same reasons that it concluded that it would not have been reasonable to expect the Respondent to continue indefinitely to maintain the adjustments it had made for the Claimant in her role, given the impact that the constraints under which she was working were having on the service as a whole. We also conclude that the Respondent’s attempts to find an alternative to dismissal were adequate and proportionate in this case. As noted in relation to the Claimant’s unfair dismissal claim Ms Woodward made extensive and documented efforts to identify a role that would match the Claimant’s skills and experience and meet her requirement for limited working hours.[48]For these reasons the Tribunal does not uphold the Claimant's claim of discrimination for a reason arising from disability under s15 Equality Act. Harassment – s26[49]As regards the complaint of harassment, the Tribunal acknowledged that the Claimant would have felt under pressure as a result of knowing that her employer wanted her to return to work full time with her normal range of duties. That would have been conduct that was unwanted by her. It was also conduct that was related to her disability. Section 26(4) Equality Act however requires that the Tribunal consider all the circumstances in deciding whether or not conduct that is unwelcome on the part of a Claimant can properly be regarded as unlawful harassment. In our judgment the Respondent’s conduct towards the Claimant and specifically Ms Woodward’s indication to the Claimant that the adjustments that had been put in place for her could not be continued indefinitely, were part of a properly conducted sickness management process and did not amount to unlawful harassment under s26. There was furthermore no evidence of any conduct or words spoken that would have crossed the line from legitimate management to unlawful harassment or bullying. The Tribunal does not uphold the Claimant’s claim of unlawful harassment.[50]In light of our conclusion that the Claimants claims of disability discrimination do not succeed on the facts of the case it is unnecessary for us to make any findings as to which of her claims were brought within the statutory time limit and whether in relation to any that were brought out of time it would have been just and equitable to extend time.