Mr G Morgan v South East Coast Ambulance Service NHS Foundation Trust: 2303808/2022
EMPLOYMENT TRIBUNALS
Case No 2303808/2022
Between
Mr G MorganClaimantSouth East Coast Ambulance Service NHS Foundation TrustRespondent
Before
Employment Judge LeithMs Brown (instructed by Counsel) for claimantMr Dunn (instructed by Counsel) for respondentDate 30 September 2024
JUDGMENT
[1]The complaint of indirect disability discrimination is dismissed upon withdrawal.[2]The complaint of failure to make reasonable adjustments succeeds in part (in respect of paragraph 5.1.2 of the list of issues).[3]The remaining part of the complaint of failure to make reasonable adjustments fails and is dismissed.[4]The complaint of discrimination arising from disability fails and is dismissed.[5]The complaint of unfair dismissal fails and is dismissed.
REASONS
[1]The claimant claims unfair dismissal, discrimination arising from disability, and failure to make reasonable adjustments.[2]A Preliminary Hearing took place before Employment Judge Krepski on 31 May 2023. The Claimant had, at that point, relatively recently instructed solicitors. The Claimant was directed to produce further and better particulars, following which the Respondent her permission to produce an amended response. After that, the parties agreed a list of issues.[3]Subsequent to that list of issues being agreed, the Claimant withdrew his original complaint of indirect discrimination, and the Respondent confirmed that there was no allegation of contributory fault being advanced. Amendment application[4]At the start of the hearing before us, the Claimant applied to amend one of the PCPs relied upon for his claim of failure to make reasonable adjustments. We dealt with that as a preliminary issue. Having heard submissions, we gave our decision on the point orally to the parties. We set out our reasons below. Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017[5]Rule 29 of the Employment Tribunal Rules of Procedure provides as follows: “The Tribunal may at any stage of the proceedings, on its own initiative or on application, make a case management order. Subject to rule 30A(2) and (3) the particular powers identified in the following rules do not restrict that general power. A case management order may vary, suspend or set aside an earlier case management order where that is necessary in the interests of justice, and in particular where a party affected by the earlier order did not have a reasonable opportunity to make representations before it was made.”[6]Rule 2 of the Rules provides as follows: “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”[7]In the case of Selkent Bus Company v Moore [1996] ICR 836, the EAT held that the discretion to grant leave to amend should be exercised in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretion. It is a balancing exercise, involving consideration of all relevant factors, a non-exhaustive list of which includes: 7.1. The nature of the amendment; 7.2. The applicability of time limits; and 7.3. The timing/manner of application.[8]The EAT has repeatedly emphasised that the factors identified in Selkent are not a checklist. In Vaughn v Modality Partnership [2021] ICR 535 the EAT noted that the core test to apply is the balance of injustice and hardship in allowing or refusing the application.[9]The background to the application, in brief, was as follows: Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017 9.1. The claim was issued on 11 October 2022. At that point, the Claimant was unrepresented. 9.2. A Preliminary Hearing took place before Employment Judge Krepski 31 May 2023. As set out above, the Claimant, who was by then represented, was directed to produce further particulars of his claim. 9.3. That was done on 28 June 2023. Paragraph 29 of the Claimant’s further particulars set out the relevant PCP for the reasonable adjustments claim as follows: “The Respondent operated a PCP of requiring trainee associate ambulance practitioners to carry out normal frontline duties without consideration of any health problem they may have.” 9.4. The Respondent produced amended response on 15 September 2023, and the parties cooperated to produce an agreed list of issues. The list of issues captured the relevant PCP in the same terms as set out in paragraph 29 of the further particulars. 9.5. The Claimant’s application, made orally for the first time at the start of the hearing, was to amend the list of issues to remove the final 9 words of the alleged PCP (“without consideration of any health problem they may have”). While the application was to amend the list of issues, the parties agreed that that would necessarily involve amending the claim.[10]The Claimant’s position was that the change was de minimis, and that it was foreshadowed in the substantial disadvantage relied upon by the Claimant. The substantial disadvantage relied upon was set out as follows: “because of his disabilities he was unfit to carry out the frontline duties in the PCP which contributed to, or resulted, in his dismissal”.[11]The Respondent objected, on the basis that the case it has prepared to meet was the one set out in the further particulars (and captured in the list of issues).[12]We carefully considered where the balance of prejudice lay. We bore in mind in particular that: 12.1. The Claimant had been legally represented throughout the relevant time, and the amended particulars were settled by the solicitors who were still acting for him. 12.2. The application was made orally in the face of the Tribunal, at the start of a final hearing listed for four days. 12.3. If the change was a minor one with no real practical effect and was simply a case of tidying up the issues, then there could have been no real hardship to the Claimant in not allowing it. But if it was anything more than that, there would be significant prejudice to the Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017 R espondent, who would have prepared to meet the case set out in the amended particulars of claim.[13]In the circumstances, we considered that the balance of prejudice would fall considerably more heavily on the Respondent if we allowed the amendment than on the Claimant if we rejected it. So we did not allow the amendment. The claim therefore remained as set out in the amended Particulars of Claim. We adopted the list of issues agreed by the parties (save for the points outlined above regarding the complaint of indirect discrimination [paragraph 4] and the reference to contributory fault [paragraph 7.3]).[14]The list of issues is appended to these reasons. Procedure, documents and evidence heard[15]We heard evidence from the Claimant.[16]On behalf of the Respondent, we heard evidence from: 16.1. Adrian Dry, Operations Manager at the Respondent’s Polegate site 16.2. Nick Keech, who at the relevant times was the Respondent’s Associate Director of Operations.[17]All of the witness gave their evidence by way of pre-prepared witness statements, on which they were cross-examined. By agreement, we took a break of fifteen minutes every hour during the Claimant’s evidence.[18]We had before us a bundle of 880 pages. On the first morning of the hearing the Respondent disclosed two further documents – the Respondent’s Non-Emergency Transport policy, and an email dated 10 January 2021 from Richard Fletcher to the Operational Team Leaders at the Polegate site. The Claimant did not object to their inclusion (while noting, in understandably strong terms, concern about the lateness of the disclosure). We admitted both documents.[19]At the conclusion of the evidence, we heard submissions from Mr Dunn and Ms Brown, supplemented in each case by written submissions. We are grateful to both Counsel for their assistance. Fact findings[20]We make the following findings on balance of probabilities. We have not dealt with every area canvassed before us; rather, we have focused on those necessary to reach a conclusion on the issues in the claim.[21]The Respondent is an NHS trust responsible for providing ambulance services. It employs approximately 4,000 staff across approximately 17 Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017 sites. Around 85% of its staff are engaged on front-line duties. One of the Trust’s Key Performance Indicators is to keep the sickness absence level at 5% or below, as above that level the service cannot cover its operational requirements.[22]The Respondent has a Managing Health and Attendance Policy & Procedure. The policy sets out a number of triggers (called “Sickness Absence Thresholds”). The policy provides that a formal review will be arranged when one or more of the sickness absence thresholds are met. One of the triggers is a continuous period of absence exceeds 28 days in a rolling 12 month period.[23]The first formal review should take place within six weeks of the commencement of a period of long term absence (that is, over 28 days) (paragraph 19.3). The policy provides that the Trust may issue a formal notice of concern at a formal attendance review meeting. There are three levels of formal concern: 23.1. Stage 1, which is given following a First Formal Attendance Review Meeting, and which lasts for 6 months., 23.2. Stage 2, which is given following a Second Formal Attendance Review Meeting, and which lasts for 12 months 23.3. Stage 3, which is given at a Formal Attendance Hearing.[24]The policy provides that at a Stage 3 Formal Attendance Hearing, termination of employment may be considered, but only as a final option once all other options have been fully investigated and discounted.[25]Regarding permanent redeployment, the policy says this: “23.1. A staff member who wishes to engage in the redeployment process will be considered for prior consideration at interview for any roles where their skills meet the essential requirements of the Person Specification, and where Occupational Health have confirmed that their health would not preclude them from fulfilling the full duties of that role. This may include any advice from Occupational Health around reasonable adjustments necessary to undertake the role. 23.2. If after an initial review of vacancies the likelihood of this is limited, this search may coincide with a notice period to terminate an employee’s contract of employment on the grounds of ill health should no suitable alternative role be found during that time. Such notice period will reflect an employee’s right to one week’s notice for every year of reckonable NHS service, up to a maximum of 12 weeks.”[26]That is distinct, within the policy, from alternative duties, which are a temporary adjustment to facilitate an employee to return to work or remain Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017 in work. The policy provides that alternative duties should not exceed three months in a particular role.[27]The Claimant commenced work for the Respondent on 6 October 2015 as an Emergency Care Support Worker. He was based at the Respondent’s Polegate ambulance station. He relocated from Wales to take up the job. The Claimant’s role included driving under blue light conditions.[28]There around 160 employees at the Respondent’s Polegate site. Front-line staff report to Operational Team Leaders, of which there were 11 or 12 at the relevant times. The Operational Team Leaders report to the Operations Manager, Adrian Dry. He reports to the Operational Unit Manager for Polegate and Hastings, who at the relevant time was Rhiannon Darling.[29]On 13 June 2018, the Claimant emailed Rhiannon Darling, Daren Machrie and Giles Adams raising a complaint of bullying and harassment. The concerns were escalated into a formal grievance, which was not upheld. The Claimant was unhappy with the way that Miss Darling dealt with his concerns.[30]From 17 May 2019, the Claimant was absent from work by reason of work related stress.[31]In August 2019, while absent from work, the Claimant was involved in a road traffic collision (while driving his own vehicle). He was diagnosed with Post Traumatic Stress Disorder (PTSD) arising from the accident.[32]Because the Claimant had been continuously absent for more than 28 days, he was invited to attend a Formal Stage 1 Attendance Review Meeting with Julie Allsop-West, Operational Team Leader, on 8 August 2019. The outcome of that meeting was sent to the Claimant on 9 August 2019. The Claimant was given a First Notice of Concern, which would remain live for 6 months. He was informed that if further thresholds were reached, he may be invited to attend a Second Formal Attendance Review Meeting. He was also referred to Occupational Health (OH).[33]The Claimant attended a telephone OH assessment on 16 August 2019. The OH practitioner advised that the Claimant would be unable to return to work for at least four weeks, and that a further OH assessment would take place then. The OH practitioner advised that the Claimant was likely to meet the criteria for disability in the Equality Act 2010.[34]The Claimant remained absent. On 15 September 2019, he was invited to a stage 2 attendance meeting with Julie Allsop-West. That meeting was subsequently rearranged; it took place on 7 November 2021.[35]On 2 December 2019, the Claimant was assessed by OH as being fit to return to work on a phased return to work. He was well enough to return to Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017 work from 2 January 2020 and his first day back on shift was 6 January 2020.[36]On 9 January 2020, the Claimant signed an apprenticeship agreement to train as a Trainee Associate Ambulance Practitioner. The apprenticeship was due to run from 3 February 2020 to 10 February 2021. The role was at Band 3 of the Respondent’s grading structure.[37]In December and January 2021, the Respondent’s services in the Kent area were under particularly intense pressure. The Claimant was temporarily sent to work in Kent, as part of a mutual aid scheme. On 9 January 2021, he was involved in a road traffic collision while travelling as a passenger in an ambulance on the way to an emergency call. The ambulance clipped a kerb and rolled down a bank. The Claimant injured his back and shoulder.[38]The Claimant was absent from work from the date of the accident.[39]We do not need to make findings about the immediate aftermath of the incident. We note that an independent investigation, commissioned by the Respondent after the termination of the Claimant’s employment into a grievance he had raised, found that the support offered to the Claimant in the 10 days following the incident was insufficient.[40]The Claimant subsequently spoke to the Respondent’s Freedom to Speak Up Guardian about his concerns about the way he was treated in the aftermath of the incident, and the way Ms Darling had dealt with his earlier grievance.[41]The Claimant was contacted by the Respondent on a weekly basis, although his evidence was that this only started around two months after his absence commenced.[42]The Claimant was referred to OH. He was assessed on the telephone by an OH Nurse on 21 April 2021. The OH Nurse noted that he remained unfit for work, and referred him to the OH Physician.[43]The Claimant was assessed by Dr Webb, an OH Physician, by telephone on 2 June 2021.[44]Dr Webb’s report noted that the Claimant had had physiotherapy and was undergoing hydrotherapy. It also noted that he was undertaking therapy privately in respect of what was descried as ongoing anxiety regarding driving. The OH advice at that point was that he could return to amended duties if suitable office-based work could be found for him, but that he was unfit for his substantive role due to his reduced capacity for lifting and handling and his residual anxiety about driving. The advice was that the Claimant should be fit to return to his substantive role within 3 months, and that if he was able to pass the moving and handling assessment then a period of “third-manning” would help him regain his confidence. Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017[45]The Claimant’s evidence in his witness statement was this (para 49): “The report confirmed I was unable to resume my ordinary duties but recommended a return to amended duties as soon as possible, which was expected to help with my recovery. I wasn’t happy with the suggestion, because the report completely failed to consider the fact that I was suffering with PTSD and focussed almost entirely on my shoulder and back injuries, so I complained to HR.”[46]That was consistent with an internal email regarding the complaint he made to HR at the time, which suggested that the focus of his concerns was on his ability to drive and his ability to continue with the therapies he was engaging with if he returned to work.[47]The Claimant’s oral evidence was somewhat different – he suggested that in fact he could have returned to other roles, and that he questioned whether the OH practitioner would have known about roles he could do that were not office based, such as manning the Operational Support Vehicle. We prefer the evidence in the Claimant’s witness statement to that which he gave orally. The evidence in his witness statement was consistent with the contemporaneous documents. We find that the Claimant was concerned about returning to work in any capacity at the time.[48]The Claimant was invited to a formal meeting under Stage 1 of the Managing Health and Attendance Policy, which took place on 21 June 2021. The meeting was conducted by Westley Shaw. Mr Shaw decided not to give the Claimant a Formal Stage 1 outcome.[49]On 3 July 2021, Russell Wood, an Operational Team Leader, set out a schedule for the Claimant to return to work on a phased basis from 2 August 2021. The schedule provided for the Claimant to undertake all of his shifts on the Operational Support Vehicle.[50]The Operational Support Vehicle (OSV) is a vehicle which was used by the Respondent to restock ambulances in the field, so as to avoid them having to return to an ambulance base and thus maximise the time they had available to attend calls. The OSV would also provide food and refreshments to the ambulance crews. It was informally known as the “welfare vehicle”. There was no requirement for staff manning the OSV to undertake CPR, or to handle patients.[51]On 20 July 2021, Mr Wood then updated the Claimant’s return to work plan to provide that he would go straight to third-manning an ambulance with effect from 1 August 2021 [280].[52]“Third manning” is when an additional member of staff rides with a two-person ambulance crew in an emergency ambulance. The employee who Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017 i s third manning may be required to carrying out CPR when required. They would need to travel as a passenger in emergency driving conditions.[53]On 26 July 2021, Steve Burdon, the Claimant’s Union representative, emailed Mr Shaw (copied to Mr Dry) about the Claimant’s return to work plan. He noted that the Claimant was expecting to return in a non-patient facing role to start, on the welfare vehicle. He indicated that in his opinion, the Claimant’s psychological health would be what he described as the Claimant’s biggest stumbling block in returning to work.[54]On 26 July 2021, Mr Shaw completed an Alternative Duties Assessment form for the Claimant. The purpose of the form was to refer the Claimant for alternative duties (on a temporary basis). The form contained the Claimant’s job title (Trainee Associate Ambulance Practitioner) and his band (Band 3). It noted that alternative duties were sought for one month or possibly two. The reason given on the form for alternative duties was that the Claimant was recovering from physical injury.[55]On 27 July 2021, Liz Berry, Wellbeing Coordinator, replied to Mr Shaw attaching a role brief for a potential role for the Claimant [788]. The role was that of 111 Welfare Text Support. The role was office-based. The form noted that the Respondent had “lots” of posts to fill, for any hours, and with no end time, to start as soon as possible. The person specification for the role said this: “[in grey text] Please consider: Any minimum banding restriction for this post? Will require a technician/associate practitioner grade and above [In black text] Any grade of staff,”[56]The text of the person specification was internally contradictory. We note, however, the final comment was that any grade of staff would be considered for the role. Furthermore, Liz Berry was aware of the Claimant’s role and his band, because they were set out on the Alternative Duties Assessment Form. We consider that it is inherently unlikely that she would have sent the role to be considered by the Claimant if he was not qualified for it. We therefore find that it was role for which the Claimant was qualified.[57]On 3 August 2021, the Claimant met with Adrian Dry and Russell Wood. The Claimant’s oral evidence appeared to be that he was not accompanied at the meeting. That was at odds with his witness statement and with the contemporaneous emails in evidence (which suggested that the meeting was scheduled around the availability of Mr Burdon, his Union representative). We find that Mr Burdon was at the meeting.[58]Mr Dry emailed the Claimant on 6 August 2021 summarising the meeting. He copied the email to Mr Burdon. Neither the Claimant nor Mr Burden Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017 suggested at the time that Mr Dry’s email was not an accurate summary of the meeting.[59]The email noted that at the meeting, a return to work plan was agreed. The plan saw the Claimant returning to work on 4 August 2021, and undertaking training. He would then work on the Operational Support Vehicle for the following two weeks, before third manning on fourth week. After two weeks annual leave, he would then undertake third manning for the following two weeks, working up towards full time hours. The email also noted that the Claimant would need to undertake physical capability tests during and at the end of the return to work period in order to gauge progress towards and fitness for a return to full operational duties. It also noted that if the Claimant was not able to return to full duties at the end of the agreed return to work plan, the situation would be reassessed.[60]The email noted that the Claimant had agreed to the proposal. It further noted that Mr Dry raised concerns about the relatively short period before the expected return to full duties, but that the Claimant felt that he would be ready to return.[61]The Claimant’s evidence to the Tribunal was that he had not agreed to the return to work plan, and that Mr Dry’s email was not an accurate summary of the meeting.[62]We find that Mr Dry’s email was a broadly accurate summary of the meeting. If it was not, we consider that the Claimant or Mr Burdon would have challenged it at the time.[63]Mr Dry accepted in evidence that he was aware at the time of that meeting that the Claimant would struggle with CPR, and consequently with the CPR element of any physical capability assessment.[64]On 13 August 2021, Russell Wood, another Operational Team Leader at Polegate, sent another completed Alternative Duties request form for the Claimant to the Alternative Duties team. Liz Berry responded on 18 August 2021 noting that a referral had already been completed by Mr Shaw. She explained that she had already suggested the role of 111 Welfare Text Support, and asked whether the role was acceptable for the Claimant.[65]On 17 August 2021, Joanna Brown emailed the Alternative Duties team asking if there was any update regarding alternative duties for the Claimant. Liz Berry responded on 18 August 2021 explaining that she had already offered a role but had not had any response from Mr Shaw or Mr Wood.[66]On 1 September 2021, Ms Berry emailed Mr Wood and Mr Dry asking for an update on the 111 Welfare Text Support role. She did not apparently receive any response. Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017[67]The Claimant’s evidence was that he was never told about the role, and if he had been told about it then he would have taken it. We accept that he would have taken the role on a short-term basis if it had been offered to him, in order to assist his return to work.[68]In the interim, the Claimant undertook the physical capability assessment with Mr Wood. There was in evidence a completed Physical Capability Review form, which purported to be signed by the Claimant. The Claimant’s evidence was that he had never seen the form before, and that he had not signed it.[69]The form was undated. It showed that the Claimant passed every part of the test save for CPR, which he failed.[70]There was in evidence before the Tribunal Mr Wood to Mr Dry and Ms Brown, dated 18 August 2021. That email said this: “I undertook Gareth’s informal capability assessment upon his RTW as instructed by Adrian. Gareth requested that this not be completed and be completed at a later date. I aid [sic] to Gareth it is a statutory requirement upon returning so we can gage insight into his physical health and ability to undertake his role. Gareth understood this and happily complied with the assessment and could have instructed it to stop at any point. However, he didn’t. There was no pressure applied for undertaking the assessment this was under Gareth’s own accord and could of refused or stopped at any time. He did however 48 hours later complain of shoulder and lower back pain.”[71]The Claimant’s oral evidence was that during the test, he asked for it to be stopped. That evidence was not in his witness statement. His evidence was also that during the test, Mr Wood loaded a stretcher with bags and equipment to simulate the weight of a patient, then pushed the stretcher from the top of the ramp at the rear of the ambulance and instructed the Claimant (who was standing at the bottom of the ramp) to catch it. That test was not reflected on the form before the Tribunal. The Claimant’s evidence was that that was that part of the test that caused him shoulder pain. The Claimant’s evidence was also that he actually passed the CPR assessment.[72]Mr Dry accepted in his evidence that the test was not a statutory requirement (as Mr Wood had suggested in his email). He accepted in evidence that there was no need for the Claimant to do CPR while he was driving the OSV. Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017[73]The Claimant was signed as unfit for work from 17 August 2021. The reason given on his fit note was “shoulder pain”.[74]The Claimant was reviewed by Occupational Health again on 22 September 2021. In answer to the question “Is the employee fit to carry out all current work activities”, the following advice was given: “He is currently unfit for his normal role but I think he could manage an amended role if this were available for him. This work could involve driving in non emergency conditions and require some moving and handling. I think an early return to amended duties would support his recovery and increase the chances of successful return to his normal role.”[75]The Occupational Health advice recommended that the Claimant should complete the major part of his therapy course before he returned to his frontline Associate Practitioner role. The advice noted that he would need to pass the physical capability assessment before returning, and that a four week period of third manning was likely to help him regain his confidence for driving under emergency conditions. The estimate timescale for the Claimant returning to his normal role was three months.[76]The Claimant met Mr Dry on 30 September 2021. The Claimant was again accompanied by Mr Burdon. Once again, Mr Dry summarised what was discussed in an email to the Claimant and Mr Burdon, and neither the Claimant nor Mr Burdon challenged that summary.[77]The email set out what was stated to be an agreed return to work plan. The plan provided for the Claimant to work on the OSV for three weeks, then have three weeks leave, after which he would have four weeks of third manning, increasing hours, with the Physical Capability Test being carried out in the final week. The first week was to be the week commencing 4 October 2021, and the Claimant’s first shift would be 7 October 2021.[78]Mr Dry noted in the email that the previous physical capability test had caused the Claimant physical discomfort which had led him to being unfit for work. He explained that within the new phased return to work plan, the physical capability test would not be carried out until the end of that return to work period so as to give the Claimant time to improve his core strength.[79]The email recorded that the Claimant had asked about working on the Non-Emergency Transport (NET) vehicle, which is a vehicle which (as the name suggests) transported non-emergency patients. Mr Dry had explained to the Claimant that the Claimant would need to be fully fit to undertake that, as there was a large amount of manual handling required. He also noted that the NET vehicle would potentially need to be the first attendance at a category one call. Category one calls are the highest priority calls. Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017 Attendance at category one calls would necessitate both blue-light driving and the need to undertake CPR.[80]The Claimant’s evidence was once again that the return to work plan was not agreed. Mr Dry’s evidence was that his email was an accurate record of the meeting. We prefer Mr Dry’s evidence. Once again, we consider that if the return to work plan had not been agreed at the meeting, either the Claimant or Mr Burdon would have challenged Mr Dry’s email.[81]We were taken to the relevant policy regarding the use of the NET vehicle. The policy provided that the circumstances in which the NET vehicle would attend a category one call were rare. The Claimant, in his evidence, likened it to an emergency on an aeroplane necessitating the crew to ask if there was a doctor on board. Mr Dry’s evidence was that because of the significant pressure the Respondent was under, due in part to the COVID pandemic, the NET vehicle during that period would have had to have attended category one calls much more regularly than would otherwise have been the case. We accept Mr Dry’s evidence in that regard.[82]On 8 October 2021, the colleague who had been driving the ambulance in which the Claimant had been a passenger on 8 January 2021 committed suicide. The Claimant’s evidence was that as a result, he could not face going into work, so he remained on sick leave. The Claimant accepted in evidence that he would, at least in the short term, have been unable to do any work thereafter.[83]The Claimant was assessed by an Occupational Health Adviser on 4 November 2021. The subsequent report noted that the Claimant’s PTSD had been exacerbated by the death of his colleague. It noted that the Claimant did not feel he could be a passenger in a vehicle at that stage, and that he was also anxious while driving. The report also noted that the Claimant’s left shoulder pain was exacerbated by pulling movements and driving a manual gearbox. The report advised that the Claimant was not fit for work and would be need a further period of rehabilitation prior to retuning to work. The report noted that the Claimant would be referred to the OH Physician for further advice.[84]On 14 November 2021, Mr Wood emailed the OH report to Mr Dry, who forwarded it to Miss Darling. Miss Darling responded “Well done Russ”.[85]On the same day, Mr Wood asked Leanne Astridge, Operational Unit Administrator, to arrange a Stage 1 meeting with the Claimant. There was then an exchange of emails about when the meeting would take place, which culminated with Mr Wood saying this: “Ideally it needs to be done next week, Rhiannon [Darling] wants it doing ASAP so doesn’t have to necessarily be with me.” Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017[86]The Claimant was assessed by an OH Physician on 18 November 2021. The report set out the Claimant’s progress with both his physical and psychological therapies. Under the heading “Current situation” it said this: “Gareth is clearly extremely unwell still. Unfortunately, his psychological state of mind has suffered a significant setback since [redacted] a few weeks ago. He has been receiving EMDR for his PTSD (at his own expense), with 2 further sessions available but is not finding it so beneficial this time. He has also had a conversation with the Community Psychiatric team who have recommended some medication, but as yet he has not been prescribed it. He is having a call with Healthy Minds tomorrow and will chase this up. I would guess that the prescription will come from his GP. Healthy Minds have offered therapy but told him that they would not start it for about two months after he has finished any EMDR. I have therefore informed him about our Wellbeing Service who might be able to offer him some psychological support if he found himself in a gap between therapists. Any medication as you know may take a few weeks to produce its own benefits in addition. His (left) shoulder injury has been treated by a Physiotherapist, but as he has severe pain and tenderness still in the scapula region he may be referred to an Orthopaedic Shoulder specialist soon for further assessment and advice. Essentially therefore Gareth is not well enough to consider work or being in an ambulance just now, and almost certainly is going to need considerable time to go through his treatments before starting back.”[87]Under the heading “Additional Comments”, it said this: “In conclusion, Gareth is not fit to work just now and needs time for assessing and treating both his physical as well as his psychological conditions. Please would you stay in regular contact with him, and refer him back to us when he has finished his treatments and feels well enough to try back at work.”[88]The Claimant’s evidence was that he understood that the report related to his substantive role only. Read as a whole, we find that the OH advice was that the Claimant was unfit to do any work at all. We do not consider that the OH advice could sensibly be read in any other way.[89]The Claimant was invited to a Stage 1 Formal Absence Review meeting, which took place on 13 December 2021. The Claimant was accompanied by Mr Burdon. The meeting was conducted by Joanna Brown, Operational Team Leader. The Claimant was given a Stage 1 formal outcome, which would remain live for 6 months.[90]The Claimant remained absent. On 4 March 2022, Julie Allsopp-West, Operations Manager, emailed the Claimant to invite him to a Stage 2 Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017 sickness meeting to take place on 17 March 2022. The Claimant responded that he would not be attending the meeting, because he felt it would be detrimental to his health. He referred to there being a “hidden agenda”. Ms Allsopp-West told the Claimant that he had to attend the scheduled meeting.[91]The Claimant did, in the event, attend the meeting. Ms Allsopp-West issued the Claimant with a Stage 2 outcome, valid for 12 months. She extended the normal triggers by 50%, so that the Claimant would need to be absent for a further 42 days to trigger the next stage in the absence management policy. This was confirmed to the Claimant in an outcome letter on the same date. The outcome letter noted that there was some discussion of redeployment during the meeting.[92]The Claimant was assessed by Occupational Health on 14 April 2022. The report recited the background as follows: “Gareth has explained to me how he endured a roll-over Road Traffic Accident in January 2021 which has left him with two main clinical problems. Firstly, he suffered a fracture to his left Humerus, which still causes him problems with his left arm. There appears to be nerve damage around the scapula region, and this prohibits from any heavy lifting. He is due to see an Orthopaedic Consultant on the 20th for further assessment and treatment. This may entail a steroid injection. Secondly, he has clearly been severely traumatized by the accident, and its after effects. He still cannot sit in a vehicle as a passenger, and any driving himself is ‘horrendous’. He has tried EMDR (30 sessions) and is currently trying a course of CBT. He has a further 6 sessions to go (weekly), and thinks they are starting to help. However, his level of anxiety remains extremely high just now, and this was apparent to me even through our telephone conversation. He is not currently taking any medication but is going to try and re start a previous prescription which was helping to some extent.”[93]The advice given was that the Claimant was unfit to work in any role, and needed time for treatment on his injured arm/shoulder as well as for his psychological health. The OH report suggested that he should be reviewed again in eight weeks.[94]On 27 April 2022, the Rhiannon Darling (Operating Unit Manager) wrote to the Claimant inviting him to a Stage 3 meeting. The meeting was to take place on 12 May 2022.[95]The Claimant did not take any issue with Miss Darling being involved in the process. His evidence was that that was because he felt unable to raise the issue. The Claimant’s own evidence he had previously referred Miss Darling to the Respondent’s Freedom to Speak Up Guardian. He was represented by his Trade Union. The Claimant had shown that he was quite capable of putting his view forward and standing his ground. We consider that the more likely explanation was that although he had had previous issues with Miss Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017 Darling, he did not have any particular concern about her being involved in the absence management process, and that his concern about Miss Darling’s involvement in the process arose later.[96]The Claimant attended the meeting with a Trade Union representative, Mark Tilley. Miss Darling noted in her outcome letter following the meeting that there had been some discussion of alternative duties and reasonable adjustments, but the Claimant did not identify any appropriate roles which would facilitate his return to work without risk of exacerbating his conditions. Miss Darling decided to apply a further 12 months monitoring at Stage 2, with all triggers being increased by 50% (as had been the case previously). The Claimant did not appeal the outcome of that meeting. His evidence was that he doubted he would even have read Miss Darling’s outcome letter at the time, as he did not always feel able to read correspondence from the Respondent during that period.[97]The Claimant was reviewed by OH on 22 June 2022. The report said this: “Since we last spoke he has completed the course in CBT, which has been of some use. He also re started the medication he was taking previously, but it is having adverse side effects now. Essentially however his mental health is not significantly better than we last spoke, and he still cannot drive or be a passenger in a vehicle because of the anguish it causes him. He has been seen by an Orthopaedic Surgeon now, and following an MRI scan which showed a bulging disc in his neck at the C 6/7 level he has been referred for a Cortisone injection to see if this helps the symptoms. He has no date as yet for the injection. In our opinion it is unlikely that Gareth is going to be able to resume his substantive role within the foreseeable future, and I gather that he is exploring the possibility of an alternative role.”[98]The Claimant was invited to a further Stage 3 Absence meeting with Miss Darling. The meeting took place on 15 July 2022. The Claimant was accompanied by a Trade Union representative, Crawford Paton.[99]Miss Darling decided to dismiss the Claimant on notice, to expire on 6 October 2022. In her outcome letter she noted that: 99.1. While the Claimant had explained that he wanted to be patient facing, he was anxious around ambulances, could not drive using blue lights or in inclement weather, and would be unable to be a passenger, and that he did not feel his health would enable him to undertake an alternative role. 99.2. The Claimant agreed with the recommendations in the OH report. 99.3. The service could not sustain the Claimant’s level of absence, given that the likelihood of an improvement in the foreseeable future appeared improbable. Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017[100]The Claimant was placed on the Respondent’s redeployment process during his notice period. This meant that he would be considered for prior consideration at interview for any roles where his skills met the essential requirements of the Person Specification, and where OH had confirmed that his health would not preclude him from fulfilling the full duties of the role.[101]The Claimant was therefore sent lists of possible vacancies within the Respondent. The vacancies he was sent included a number of Band 2 Service Adviser and Band 3 Call Handler vacancies on the 111 service, which were desk-based. The Claimant did not apply for any of those roles.[102]The Claimant applied for the role of Medical Equipment Specialist. Although his application was late, he was nonetheless offered an interview, although he was ultimately unsuccessful.[103]The Claimant indicated he was interested in the role of Deputy Freedom to Speak Up Guardian. On 1 August 2022 Charlie Martin-Stuart emailed him to ask how he had got on with the application. The Claimant responded as follows: Hi Charlie I haven't filled out the application form yet I'm afraid Hopefully I'll manage to do it in the next day or two Thanks[104]The Claimant did not subsequently fill out any application form. His evidence was that he thought that he only needed to express an interest in the role, and that when he referred to an “application form” it was a figure of speech. We do not accept his evidence in that regard. We prefer the contemporaneous correspondence, which suggested that the Claimant was aware that there was an application form and that he simply did not complete it. Nor did he apparently ask for additional time to do so.[105]In the interim, the Claimant had appealed his dismissal. His appeal was, broadly, on four grounds: 1) Alternative plans being changed last minute which hindered recovery and return. 2) Recovery was deliberately hindered, and that he wasn’t helped. 3) Forced to attend a hearing to get his OH Referral. 4) The process was not done without bias.[106]Mr Keech was appointed to hear the Claimant’s appeal. In advance of the appeal meeting, he was sent a pack of documents which included the previous meeting minutes and outcomes and the OH advice. Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017[107]The Claimant attended the appeal meeting without a Union representative. His evidence was that that was because his Union representative was not allowed time off to represent him. His evidence was that he did not object to continuing without a representative because, in his words, he wanted the matter “done and dusted”.[108]Mr Keech’s oral evidence was that in advance of the meeting, he had asked Miss Darling for further information about the steps she had taken, by email. That evidence was given for the first time in response to questions from the panel. There were no such emails in evidence before the Tribunal. We find that that did not happen. It was inconsistent with Mr Keech’s own evidence, which was that Miss Darling was on standby to attend the appeal meeting if she was required.[109]The notes recorded that the main part of the hearing lasted approximately 50 minutes. There was then a 17 minute adjournment before Mr Keech delivered his decision, which was that the appeal was not upheld. Mr Keech’s rationale, as captured in the notes, was that all the policies and procedures had been followed correctly.[110]The Claimant’s evidence was that during the adjournment, Miss Darling approached him while he was waiting in the staff room and said “The wrong one died” (which he understood to be a reference to the death of the employee who had been driving the ambulance on 9 January 2021).[111]The Claimant did not report that to Mr Keech on resuming the meeting. Nor was it captured in the subsequent grievance he raised, or in his initial ET1. It was mentioned for the first time in the Further and Better Particulars produced on 28 June 2023.[112]We have not heard evidence from Miss Darling. The alleged comment would be a surprising comment to have been made (putting it mildly). It would have provoked remark. The notes of the resumed part of the appeal meeting recorded that, after being told of by Mt Keech that his appeal was not upheld, the Claimant said this (after which he walked out of the meeting): “I warned you before, that [REDACTED] was in trouble, it’s your fault [REDACTED] dead I don’t want anything, you can say your sorry but you’re not.”[113]The death of the Claimant’s colleague was therefore mentioned in the resumed meeting before Mr Keech. The context was that the Claimant brought up his own frustrations about the way he perceived she had been treated by the Respondent. Had Miss Darling made the alleged remark, we consider that the Claimant would have raised it at the meeting before Mr Keech. We bear in mind that the Claimant was not afraid to complain about Miss Darling; he had done so previously. Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017[114]On balance of probabilities, we therefore find that the remark was not made as alleged by the Claimant.[115]Mr Keech’s outcome letter was only sent to the Claimant on 26 October 2022. The letter did not engage in terms with any of the points the Claimant had raised in his appeal. Regarding the outcome, he said this: You raised issues in relation to previous process and access to potential redeployment opportunities which I have escalated to HR however as your circumstances have not changed in relation to your current ability to return to a patient facing role, the arrangements for dismissal set out in the letter of 15th July 2022 remain the same.[116]The claimant notified ACAS under the early conciliation process of a potential claim on 30 August 2022 and the ACAS Early Conciliation Certificate was issued on 11 October 2022. The claim was presented on 27 October 2022.
Law
[117]Section 39(2) of the Equality Act 2010 provides that an employer must not discriminate against an employee: 117.1. In the terms of employment; 117.2. In the provision of opportunities for promotion, training, or other benefits; 117.3. By dismissing the employee; 117.4. By subjecting the employee to any other detriment. Protected characteristics[118]Disability is a protected characteristic (s.6). Discrimination arising from disability[119]The definition of discrimination arising from disability is set out in s.15 of the Equality Act 2010: “(1) A person(a) (A) discriminates against a disabled person(b) (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.” Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017[120]“Unfavourable” is not defined in the statute. The EHRC Statutory Code of Practice provides that it means that the disabled person “must have been put at a disadvantage”.[121]Guidance for Tribunals on how to approach the test in s.15 was set out by the EAT in Pnaiser v NHS England [2016] IRLR 170: “(a) A Tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises. (b) The Tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a section 15 case. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it. (c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A’s motive in acting as he or she did is simply irrelevant: see Nagarajan v London Regional Transport [1999] IRLR 572. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises, contrary to Miss Jeram’s submission (for example at paragraph 17 of her Skeleton). (d) The Tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is “something arising in consequence of B’s disability”. That expression ‘arising in consequence of’ could describe a range of causal links. Having regard to the legislative history of section 15 of the Act (described comprehensively by Elisabeth Laing J in Hall), the statutory purpose which appears from the wording of section 15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability. Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017 (e) For example, in Land Registry v Houghton UKEAT/0149/14 a bonus payment was refused by A because B had a warning. The warning was given for absence by a different manager. The absence arose from disability. The Tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact. (f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. (g) Miss Jeram argued that “a subjective approach infects the whole of section 15” by virtue of the requirement of knowledge in section 15(2) so that there must be, as she put it, ‘discriminatory motivation’ and the alleged discriminator must know that the ‘something’ that causes the treatment arises in consequence of disability. She relied on paragraphs 26 to 34 of Weerasinghe as supporting this approach, but in my judgment those paragraphs read properly do not support her submission, and indeed paragraph 34 highlights the difference between the two stages - the ‘because of’ stage involving A’s explanation for the treatment (and conscious or unconscious reasons for it) and the ‘something arising in consequence’ stage involving consideration of whether (as a matter of fact rather than belief) the ‘something’ was a consequence of the disability. (h) Moreover, the statutory language of section 15(2) makes clear (as Miss Jeram accepts) that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the ‘something’ leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so. Moreover, the effect of section 15 would be substantially restricted on Miss Jeram’s construction, and there would be little or no difference between a direct disability discrimination claim under section 13 and a discrimination arising from disability claim under section 15. (i) As Langstaff P held in Weerasinghe, it does not matter precisely in which order these questions are addressed. Depending on the facts, a Tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of “something arising in consequence of the claimant’s disability”. Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to ‘something’ that caused the unfavourable treatment.” Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017[122]The burden of showing objective justification rests on the Respondent. Reasonable Adjustments[123]The duty to make reasonable adjustments is set out in section 20 of the Equality Act 2010: 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.(4) The second requirement is a requirement, where a physical feature 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.(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put 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 provide the auxiliary aid.(6) Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.(7) A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A's costs of complying with the duty.(8) A reference in section 21 or 22 or an applicable Schedule to the first, second or third requirement is to be construed in accordance with this section.(9) In relation to the second requirement, a reference in this section or an applicable Schedule to avoiding a substantial disadvantage includes a reference to— (a) removing the physical feature in question, (b) altering it, or (c) providing a reasonable means of avoiding it. Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017(10) A reference in this section, section 21 or 22 or an applicable Schedule (apart from paragraphs 2 to 4 of Schedule 4) to a physical feature is a reference to— (a) a feature arising from the design or construction of a building, (b) a feature of an approach to, exit from or access to a building, (c) a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises, or (d) any other physical element or quality.(11) A reference in this section, section 21 or 22 or an applicable Schedule to an auxiliary aid includes a reference to an auxiliary service.(12) A reference in this section or an applicable Schedule to chattels is to be read, in relation to Scotland, as a reference to moveable property.(13) The applicable Schedule is, in relation to the Part of this Act specified in the first column of the Table, the Schedule specified in the second column.[124]Paragraph 8 of Schedule 20 provides that an employer is not subject to the duty to make reasonable adjustments if he or she does not know, and could not be reasonably be expected to know that the claimant: 124.1. Has a disability; and 124.2. Is likely to be placed at a disadvantage by the employer’s provision, criterion or practice, the physical features of the workplace or a failure to provide an auxiliary aid.[125]The Tribunal must therefore ask itself two questions: 125.1. Did the employer both know that the employee was disabled and that the disability was liable to put the employee at a substantial disadvantage? 125.2. If not, ought the employee to have known both of those thing?[126]If the answer to both questions is “no”, the duty to make reasonable adjustments is not triggered.[127]The ECHR Code of Practice provides that the phrase “provision, criterion or practice” should be construed widely.[128]When considering whether the duty to make reasonable adjustments is engaged, the Tribunal must consider the PCP identified by the claimant. The PCP must be properly identified (Secretary of State for Justice v Prospere [2015] 3 WLUK 676).[129]In order to find that an employer has breached the duty to make reasonable adjustments, the tribunal must identify the step or steps that it would have been reasonable for the employer to take. The adjustment must Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017 be a practical step or action as opposed to a mental process ( General Dynamics Information Technology Ltd v Carranza [2015] ICR 169).[130]In considering whether a step would have been reasonable, one factor the Tribunal must consider is whether it would have been effective in alleviating the disadvantage to the employee. An adjustment may still be reasonable even there is no guarantee that it would have been successful (Griffiths v Secretary of State for Work and Pensions [2017] ICR 160). Burden of proof[131]Section 136 of the Equality Act deals with the burden of proof: “(2) If there are facts from which the [tribunal] could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the [tribunal] must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene that provision”[132]The provision prescribes a two-stage process. At the first stage, there must be primary facts from which the tribunal could decide, in the absence of any other explanation, the discrimination took place. All that is required to shift the burden of proof is at primary facts from which “a reasonable tribunal could properly conclude” on balance of probabilities that there was discrimination. It must, however, be something more than merely a difference in protected characteristic and the difference in treatment (Madarassy v Nomura International PLC [2007] EWCA Civ 33.[133]The burden of proof at that stage is on the Claimant (Royal Mail Group v Efobi [2021] UKSC 22). The employer’s explanation is disregarded.[134]If the claimant satisfies that initial burden, the burden shifts to the employer at stage two to prove one balance of probabilities that the treatment was not for the prescribed reason.[135]The Court of Appeal gave guidance to tribunals the application of the burden of proof provisions in the case of Igen v Wong [2005] EWCA Civ 142. Jurisdiction[136]The time limit for bringing claims under the Equality Act 2010 is set out in section 123 of the Act, as follows: “123 Time limits(1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017 (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.(2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment tribunal thinks just and equitable.(3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”[137]The Tribunal may have regard by analogy to the factors set out in s.33(3) of the Limitation Act 1980, as set out in British Coal Corporation v Keeble and ors 1997 IRLR 336, EAT. That provides that the Tribunal must consider the prejudice that each party would suffer as a result of the decision reached and to have regard to all the circumstances of the case — in particular,• the length of, and reasons for, the delay;• the extent to which the cogency of the evidence is likely to be affected by the delay;• the extent to which the party sued has cooperated with any requests for information;• the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action;• and the steps taken by the claimant to obtain appropriate advice once he or she knew of the possibility of taking action.[138]The extension of time is the exception rather than the rule (Robertson v Bexley Community Centre t/a Leisure Link [2003] IRLR 434). There is no need for the Tribunal to be satisfied that there was as good reason for the delay, although any reason for the delay is a relevant factor to which the Tribunal can have regard (Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640). Unfair dismissal Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017[139]Section 94 of the Employment Rights Act 1996 confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111. The employee must show that they were dismissed by the respondent under section 95.[140]Section 98 of the 1996 Act deals with the fairness of dismissals. There are two stages within section 98. First, the employer must show that it had a potentially fair reason for the dismissal within section 98(2). Second, if the respondent shows that it had a potentially fair reason for the dismissal, the Tribunal must consider, without there being any burden of proof on either party, whether the respondent acted fairly or unfairly in dismissing for that reason.[141]Capability is a potentially fair reason for dismissal.[142]Section 98(4) deals with fairness generally and provides that the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and shall be determined in accordance with equity and the substantial merits of the case.[143]In considering dismissal for long term ill health, the Tribunal must consider whether the employer can be expected to wait any longer for the employee to return (BS v Dundee City Council [2014] IRLR 131).[144]The employer must consult with the employee about the proposed dismissal, and discover the true medical position (East Lindsey District Council v Daubney [1977] ICR 566). The Burchell test is applicable to dismissals for long term ill health – the employer must:• Genuinely believe that the employee is incapable of returning to their post;• Have carried out reasonable investigation into the position; and• Have reasonable grounds for that belief. (DB Schenker Rail (UK) Ltd v Doolan EAT 0053/09)[145]It is not for the Tribunal to substitute its own view on whether to dismiss; rather, the question for the Tribunal is whether dismissal was in the range of responses open to a reasonable employer. The range of reasonable responses test also applies to the process adopted by the employer.[146]The fact that an employer has caused the employee’s ill health is not a barrier to a fair dismissal, although the employer may be expected to “go the extra mile” in finding alternative employment, or put up with a longer Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017 period of sickness absence than would otherwise be reasonable ( McAdie v Royal Bank of Scotland [2007] EWCA Civ 806). Polkey[147]In the case of Polkey v AE Dayton Services Ltd [1987] UKHL 8, the House of Lords set down the principles on which a Tribunal may make an adjustment to a compensatory award on the grounds that if a fair process had been followed by the respondent in dealing with the claimant’s case, the claimant might have been fairly dismissed. Further guidance was given in teh cases of Software 2000 Ltd v Andrews [2007] ICR 825; W Devis & Sons Ltd v Atkins [1977] 3 All ER 40; and Crédit Agricole Corporate and Investment Bank v Wardle [2011] IRLR 604.[148]In undertaking the exercise of determining whether such a deduction ought to be made, the Tribunal is not assessing what it would have done. Rather, the role of the Tribunal is to assess what this employer would or might have done. I must assess the actions of the employer before me, on the assumption that the employer would this time have acted fairly though it did not do so beforehand: Hill v Governing Body of Great Tey Primary School [2013] IRLR 274 at para 24.
Conclusions
[149]The Respondent accepts that the Claimant was a disabled person at all relevant times by virtue of: 149.1. Post-Traumatic Stress Disorder; 149.2. Anxiety/depression; and 149.3. Shoulder injuries/injuries to the scapula and humerus.[150]The Respondent further accepts that it was aware that the Claimant was a disabled person at all relevant times by virtue of all three conditions. Failure to make reasonable adjustments[151]We deal first with the complaint of failure to make reasonable adjustments.[152]The Claimant relies on two PCPs: Requiring trainee associate ambulance practitioners to carry out normal frontline duties without consideration of any health problem they have.[153]We find that this was not a PCP which the Respondent applied to the Claimant. The Respondent did consider the Claimant’s health problems throughout, in that: 153.1. They had, and applied, a structured managing attendance at work policy. 153.2. They sought Occupational Health advice on the Claimant on numerous occasions. Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017 153.3. That advice was taken into account. The Respondent did not merely pay lip service to it, but considered and weighed it up and discussed it with the Claimant, and took it into account in making decisions about the Claimant’s potential return to work – for example, during the two meetings with Mr Dry. 153.4. They also discussed with Claimant how he felt. We found that Mr Dry’s contemporaneous emails broadly captured was discussed with the Claimant in those meetings. They showed open discussion taking place about the Claimant’s health problems and about adjustments to enable him to return to work.[154]Taking all of that into account, we consider that it could not be said that the Respondent required the Claimant to carry out normal frontline duties without consideration of any health problem. Nor was there any evidence before us that the Respondent acted differently in other cases. That would be inconsistent with their policy, and with the way that they treated the Claimant.[155]So for all of those reasons, we conclude that this was not a PCP which the Respondent applied to the Claimant. It follows that the complaint of failure to make reasonable adjustments in respect of that alleged PCP fails. Requiring all employees who had been absent through injury to do a fitness test.[156]It was common ground that this was a PCP which the Respondent applied at all material times.[157]The Claimant was put at a substantial disadvantage by reason of his shoulder injuries, in that he was unable to complete the test successfully, and attempting to do so aggravated his shoulder condition. That is consistent with both the 17 August 2021 fit note, and what Mr Dry accepted in the note of the meeting in September. The requirement to do a fitness test therefore put the Claimant at a disadvantage compared to someone who had been absent from work due to an injury, but whose injury had resolved (and was consequently not a disability within the meaning of the Equality Act 2010).[158]Mr Dry accepted in his evidence that he was aware at the time of the return to work meeting in August 2021 that the Claimant was concerned about the fitness test, and that he would struggle to complete it. We therefore conclude that the Respondent was aware (or at the very least ought to have been aware) of the substantial disadvantage that the Claimant would be put to by being required to complete a fitness test upon his return to work.[159]We consider that it would not have been reasonable to exempt the Claimant from performing a fitness test entirely, for the following reasons: Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017 159.1. Occupational Health had advised that the Claimant should undertake a fitness test before third-manning. 159.2. The Claimant’s substantive role was a physical one. The Respondent had to be satisfied that he could safely carry out CPR (and indeed the other physical patient-handling parts of the role) if he was carrying out duties where he would be required to do so. That was necessary in order to keep the Claimant safe, as much as to ensure the safety of the patients he was tasked to assist.[160]We do, however, consider that it would have been reasonable to have delayed the fitness test on his first return to work, because: 160.1. The nature of the work the Claimant was doing during the early part of the phased return to work plan meant that the parts of the fitness test with which he struggled were not things he would have to do at work in that time. He was on the OSV for the early part of the phased return to work, so he was not required to do CPR or handle patients. 160.2. When creating the Claimant’s second return to work plan in September 2021, Mr Dry provided that the Claimant did not need to undertake the fitness test until the end of the phasing period, to allow him to build up his strength. That is powerful evidence that it would have been reasonable for Respondent to have waited longer before requiring him to do the fitness test during the first return to work.[161]In terms of whether it made a difference, we cannot on the evidence before us say that it definitely would have; but it would potentially have done so. Mr Dry appeared to acknowledge that, by noting that having the fitness test at the end of the phasing period on the second occasion would have given the Claimant to build up his core strength.[162]It follows that the allegation is made out on the facts, subject to the question of jurisdiction, which we will deal with last. Discrimination arising from disability[163]We next turn to consider the complaint of discrimination arising from disability.[164]The allegation of unfavourable treatment relied upon by the Claimant was his dismissal. The Respondent accepted that the Claimant was treated unfavourably because of something arising from his disability, namely his disability-related absence.[165]The question for the Tribunal was therefore whether the dismissal of the Claimant was a proportionate means of achieving a legitimate aim. Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017[166]The Respondent relied on two legitimate aims:3.2.1 Being able to ensure regular and effective service from its employees.3.2.2 Effective management of the Respondent's resources.[167]We consider that both of those are legitimate aims. The Respondent is a publicly funded body, charged with delivering a critical service to the population in the area it serves. It is entirely legitimate for it to want to effectively manage its resources, and to be able to ensure regular and effective service rom employees in order to do so.[168]We turn then to consider whether dismissing the Claimant was proportionate. In that regard, we bear in mind that: 168.1. The decision to dismiss the Claimant was taken in July 2022. At that point, he had been absent from work since January 2021 (with only a short period back at work during August 2021, during which he was not doing his regular role). By time his dismissal took effect he had had been absent for around 22 months. 168.2. The OH advice at that point was that Claimant was unfortunately very unlikely to be able to return to his substantive role in the foreseeable future. 168.3. The OH advice as of April 2022 was that Claimant was unfit to work in any role. While the June 2022 advice did not expressly deal whether he was fit to do other work, it did say that his mental health was not significantly better than it had been in April 2022. There was therefore no clear suggestion that the Claimant was well enough to return to an alternative role. The picture painted by the medical advice, read as a whole, was that Claimant remained unfit at that point for any work. 168.4. 85% of the Respondent’s workforce are in engaged in front-line duties, of which the OH advice was that he would be unable to return to in any capacity in the foreseeable future. 168.5. The Respondent did take steps to redeploy the Claimant. He was put on the redeployment register. That was only done after the decision had been taken to dismiss him, but he did have the benefit of the redeployment register for the entirety of his notice period. So we consider that is relevant to the question of proportionality, since the dismissal did not crystallise until the expiry of the Claimant’s notice period. 168.6. The Claimant was offered opportunities to apply for redeployment, and he was not as proactive as he might have been in following those up. For example, he did not apply for the Deputy Freedom to Speak Up Guardian role, although he was aware he needed to do so. And there was no suggestion that the Claimant applied for any of the Band 2 and Band 3 roles that were sent to him. We consider that this was perhaps because he remained, until the end of his employment, overly optimistic about his prospect of Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017 returning to the role he really wanted to do, namely front-line ambulance work. 168.7. Where Respondent certainly ought to have been considerably more proactive was in respect of the 111 Welfare Texting role. But under the Respondent’s policy, the Claimant could only have been temporarily deployed to that role for three months. In August and September 2021, we consider that Claimant would not have wanted to take up the role on a permanent basis, because his focus was still returning to front line ambulance work. And in any event, even if the Claimant had been temporarily in the 111 Welfare Texting role, we conclude that he would still have been unable to continue working after 8 October 2021. The effect that the tragic event of that day had on his mental health meant that he was unfit to work for the Respondent in any capacity thereafter. Temporary redeployment to the 111 Welfare Texting role in August 2021 would have made no difference to the course of the Claimant’s absence after October 2021, or to his eventual dismissal. 168.8. Of course we have not heard evidence from Miss Darling, the decision-maker. But we do not draw any adverse inference from her failure to give evidence, given that she is no longer employed by the Respondent. We bear in mind also that Miss Darling’s decision was in any event reviewed on appeal by Mr Keech, from whom we did hear evidence.[169]Overall, taking a step back, we consider that the Respondent’s decision to dismiss the Claimant was proportionate. In the circumstances, there was no less restrictive way of achieving the aim they were pursuing. The Claimant had been unable to do his substantive role for nearly two years, with no end in sight. Nor was there any realistic possibility of him returning to an alternative role in the near future.[170]It follows that the complaint of discrimination arising from disability fails. Jurisdiction[171]We now turn to consider the question of jurisdiction in respect of the one complaint under the Equality Act 2010 which we have found was made out on the facts.[172]The failure to make reasonable adjustments occurred when the Claimant was required to undertaken the fitness test. That was on or around 15 August 2021 (it must have been at least 48 hours before Mr Wood’s email of 18 August 2021). The Claimant contacted ACAS on 30 August 2022, and the Early Conciliation certificate was issued on 1 October 2022. The claim was issued on 27 October 2022. The Claimant does not benefit from the ACAS extension, because he did not contact ACAS within three months of the failure. It follows then that the primary time limit expired on or around 14 November 2021, and the claim was out of time by over 11 months. Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017[173]We bear in mind the following factors: 173.1. We do not consider that there was any real forensic prejudice to the Respondent. The relevant witness was Mr Dry, as the fitness test was an outcome of the 3 August 2021 meeting. Mr Dry was a clear and impressive witness. We do not consider that his evidence was materially affected by the passage of time. 173.2. It was also a point on which there were a number of relevant contemporaneous documents, including detailed notes of the meetings on 3 August 2021 and 30 September 2021. 173.3. It is a matter which would have been dealt with in any event within the unfair dismissal claim, as it formed part of the absence management process which led, ultimately, to the Claimant’s dismissal. 173.4. The Claimant was represented throughout by his Trade Union. Set against that of course, while it does not bear a significant amount of weight, it is relevant that Claimant’s mental health at the point when limitation would have expired was poor. Primary limitation would have expired in November 2021, which was after his colleague passed away. The Claimant was never well enough to return to work after that point. And the Claimant’s evidence was that during that period of time, he was not always able to read documents he received from the Respondent (although he did engage with the dismissal process). 173.5. It is of course also relevant that we have found that the claim was made out on the facts.[174]Weighing all of that up, we conclude that it is just and equitable to extend time in respect of the claim. It follows that the complaint of reasonable adjustments in respect of the fitness test succeeds. Unfair dismissal[175]We first consider the reason for the Claimant’s dismissal.[176]The Respondent had gathered medical evidence and followed its own process in getting point of dismissal. We are entirely satisfied that the reason for the dismissal was the Claimant’s absence. At that point when the decision had been made to dismiss him he had been absent from work for approximately 19 months (barring a short attempt at a phased return to work in August 2021). There was no end in sight. We consider that the reason for the dismissal was the Claimant’s capability. We have of course found that the dismissal was not discriminatory.[177]We the consider whether the Respondent acted reasonably in all of the circumstances in treating the reason as sufficient to dismiss the Claimant. In that regard: Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017 177.1. We find that the Respondent had a genuine belief that Claimant was incapable of performing his role for the foreseeable future. That was what the Occupational Health advice said, and the Claimant did not disagree with that advice. 177.2. There were reasonable grounds for the Respondent to have formed that belief. At the point that the decision to dismiss the Claimant was made, he had been absent for 19 months. The Respondent also had the benefit of expert Occupational Health advice, which indicated that there was prospect of a return to the Claimant’s substantive role within the foreseeable future. 177.3. The Respondent had repeatedly sought OH advice over the period of the Claimant’s absence. The Respondent had been able to track the progress of the Claimant’s conditions across that period. The final piece of OH advice received did not stand in isolation; it was the culmination of a series of reports. The Respondent discussed the advice with Claimant. He had the opportunity to say if he disagreed with it. He did not disagree with the conclusions reached by OH. We are therefore satisfied that the Respondent carried out a reasonable investigation into the situation.[178]We consider that dismissal was within the range of reasonable responses open to a reasonable employer. The Respondent could not have been expected to have waited any longer. It needed to be in a position to fill the Claimant’s substantive role so as to continue to provide front-line services. There was no end in sight, and no prospect of the Claimant returning to his role in the foreseeable future.[179]The Claimant raises two challenges to the procedural fairness.[180]The first relates to the involvement of Miss Darling. Of course we have not heard evidence from her. We bear in mind that: 180.1. We have found that the Claimant did not, at the time, object to Miss Darling being involved in the absence management process. 180.2. The Claimant was represented by a Trade Union representative in both of the Stage 3 meetings conducted by Miss Darling 180.3. Miss Darling extended the triggers for the Claimant at the first Stage 3 meeting. That is not consistent with the suggestion that she had some underhand motive. Indeed, the timescales as a whole suggested that the Respondent was far more generous to the Claimant than its own policy required it to be. 180.4. We were taken to some emails from Miss Darling to managers under her, congratulating them on or thanking them for progressing the Claimant’s case. We see nothing inherently suspicious about any of those emails. In the context of an organisation which had a Key Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017 Performance Indicator of keeping sickness absence below a certain percentage, it is entirely understandable that she would have thanked junior managers for taking steps to progress through the absence management policy. There is nothing about that that suggests that the way the Claimant’s absence was managed was in any way either targeted or inappropriate. 180.5. We have found that the “the wrong one died” comment was not made. 180.6. Finally, of course, Mr Keech saw all of the paperwork when he reviewed Claimant’s dismissal at appeal stage. He considered that the Respondent’s policy had been followed correctly.[181]So we do not consider that Miss Darling’s involvement rendered the process, or the dismissal, in any way unfair.[182]The second point raised by the Claimant is that he was sometimes unaccompanied to meetings, including the appeal meeting. We have found that there was only one relevant meeting to which he was not accompanied. That was the appeal meeting before Mr Keech. The Claimant’s own evidence was that he did not object to the meeting proceeding in the absence of his Trade Union representative. In the circumstances, we do not consider the fact that the Claimant was unaccompanied at that meeting rendered the process unfair.[183]Mr Dunn suggested that our consideration of fairness should be limited to the specific challenges set out in the list of issues. While we see the force in that submission, we do not think that is quite right. The test of fairness is an open-textured one. We therefore step back and consider the process in the round. We do not consider that the process followed by the Respondent was a counsel of perfection. In particular: 183.1. We consider that the Respondent adopted an overly dogmatic approach to the question of the redeployment register, by not putting the Claimant on the redeployment register until the decision had been taken to dismiss him. We do not consider that it made any substantive difference in this case. The Claimant was still able to apply for other roles. Importantly, on the available medical evidence he was unfit for any work in the period leading up to the dismissal decision being made. So being on the redeployment register at that time would not have made any practical difference. And we bear in mind also that the Claimant had the benefit of the redeployment register throughout his notice period (during which he remained employed). We do, however, consider that it would have been better practice for the Respondent to have adopted a more flexible approach, and to have put the Claimant on the redeployment register before making the decision to dismiss him. 183.2. We consider that the Respondent ought to have started the formal process earlier than they did. The Claimant was not given his first formal outcome until some 11 months after his absence Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017 commenced (although the Respondent had remained in contact with him, and there had been a formal stage one meeting earlier on in the absence which resulted in no formal outcome being given). The delay in starting the formal part of the process was at odds with the Respondent’s own policy. However in practical terms, given the medical advice, had the formal process started more quickly it is likely that it would actually have resulted in the Claimant being dismissed earlier than he was. 183.3. We were troubled by the fact that the Respondent wrote to the Claimant to invite him to the Stage 3 meetings under the policy before the relevant triggers had been met. The triggers were met by the time the meetings took place; but it was arguably inconsistent with the wording of the Respondent’s own policy to issue the invitations before the trigger had been met. Given the medical advice in this case, we do not consider that it resulted in any actual unfairness to the Claimant. Importantly, there was no suggestion that the Claimant was close to returning or that there was any real possibility, at the point that the invitation letters were sent, that the Claimant would be in a position to return to work before the meetings he was being invited to, 183.4. Mr Keech did not expressly deal with Claimant’s grounds of appeal in his outcome letter. We accept that he engaged with the substance of whether the Claimant’s dismissal was a fair one, and whether the Respondent’s policies had been followed. But his outcome letter was very brief. It did not explain to the Claimant why the substance of his appeal had not been upheld.[184]The question we must answer is not whether the process was a perfect one, or whether it is the one the Tribunal would have adopted. Rather, it is whether it fell within the range of reasonable responses open to a reasonable employer. Looking at the process followed as a whole: 184.1. The Respondent obtained medical advice on a number of occasions. 184.2. That advice was shared, and discussed, with the Claimant. 184.3. The Claimant was consulted with throughout. 184.4. The Claimant had the opportunity to be accompanied at all of the meetings he attended (and was accompanied at all by one, where he indicated he was happy for the meeting to proceed without a representative). 184.5. The Respondent followed its own policy, and on two occasions extended the trigger periods within its policy. 184.6. The Respondent made efforts to find alternatives for the Claimant, and the Respondent discussed the possibility of alternative work with the Claimant. 184.7. The Claimant was warned when he was getting towards the point when termination of his employment would be considered. Case No: 2303808/2022 10.8 Reasons – rule 62(3) March 2017 184.8. After the decision was taken to dismiss the Claimant, he was given the opportunity to appeal that decision. His appeal was heard by a more senior manager.[185]Taking a step back, we conclude that the process as a whole did fall within the range of reasonable responses open to a reasonable employer.[186]It follows that the claim of unfair dismissal does not succeed.[187]We should say for completeness, because we have made some criticisms of the process the Respondent followed, that had we found that the dismissal was unfair, we would nonetheless have made a 100% Polkey reduction. That is because we consider that, even if the Respondent had adopted a perfect process, the outcome would have been the same. Unfortunately, the Claimant’s medical situation meant that there was no realistic prospect of the matter concluding with anything other than the Claimant’s dismissal. And this is not a case where the Respondent acted with undue haste. If anything, the dismissal might have happened more quickly than it did.[188]That is no criticism of the Claimant. It was abundantly clear from the evidence before us that he was a highly driven individual, who wanted to make a career as a front-line ambulance worker; a career which involved caring for other people at moments of acute challenge. There was absolutely no suggestion before us that there were any issues with the quality of his work. It was simply that the effect of both his physical and mental health conditions left him unfortunately unable to complete his role.