S ArifClaimantRoyal Borough of GreenwichRespondent
Before
Employment Judge AndersonL Harris (instructed by counsel) for claimantN Porter (instructed by counsel) for respondentDate 25 April 2024
JUDGMENT
[1]The claimant’s claim of direct discrimination is dismissed.[2]The claimant’s claim of failure to make a reasonable adjustment is dismissed. JUDGMENT having been sent to the parties on 15 May 2024 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]The claimant brings a claim of disability discrimination (direct discrimination and failure to make a reasonable adjustment) against the respondent. The claimant was employed as a sheltered housing scheme manager. Her employment with the respondent commenced on 13 March 2013 and she is still in employment with the respondent though on long term sickness absence. The claimant made a request to work from home, which was refused by the respondent on 13 September 2022, and the claimant’s case is that the way in which the request was handled, and its refusal, were discriminatory. Early conciliation commenced on 8 September 2022 and ended on 20 October 2022. The claim was filed on 19 November 2022.[2]The parties filed a joint bundle of documents of 959 pages. The tribunal also received a bundle of authorities from the respondent, along with a chronology, a skeleton argument and a closing argument. The claimant submitted a witness statement, as did the respondent’s two witnesses, Maureen Dignam and Robert Linton. All witnesses attended the hearing and gave oral evidence.
The Issues
[3]The following issues were agreed at a case management hearing on 5 October 2023 and recorded in an Order from EJ King dated the same day. Bu the time this hearing commenced the parties were in agreement that there was no time point, so the tribunal has not reproduced that part of the list here: 1. Direct disability discrimination (Equality Act 2010 section 13) 1.1. The Respondent accepts that the Claimant is disabled for the purposes of the Equality Act 2010. 1.2. Did the Respondent do the following things: 1.2.1. Delayed the Claimant’s Formal Working Application request; 1.3. Was that less favourable treatment? The Tribunal will have to decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and those of the Claimant. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether she was treated worse than someone else would have been treated. The Claimant has not named anyone in particular who she says was treated better than she was and therefore relies upon a hypothetical comparator of someone without the Claimant’s disabilities. 1.4. If so, was it because of disability? 1.5. Is the Respondent able to prove a reason for the treatment occurred fora non-discriminatory reason not connected to disability? 2. Reasonable Adjustments (Equality Act 2010 ss. 20 & 21) 2.1. The Respondent accepts that the Claimant’s disabled for the purposes of the Equality Act 2010. 2.2. A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCPs: 2.2.1. Requiring staff the Claimant’s role to work ‘on site’ during working hours. 2.3. Did the PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that she became tired, fatigued and in pain after a few hours? 2.4. Did the Respondent know or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage? 2.5. What steps (the ‘adjustments’) could have been taken to avoid the disadvantage? The Claimant suggests: 2.5.1. Allowing hybrid working; that is, allowing the Claimant to work from home in the afternoons; 2.5.2. Suggested other options to the Claimant to allow her to continue working; 2.6. Was it reasonable for the Respondent to have to take those steps and when? 2.7. Did the Respondent fail to take those steps?
Findings of Fact
[4]The claimant is disabled is by reasons of Fibromyalgia, Trigeminal Neuralgia and Chronic Fatigue Syndrome and was so disabled at the time relevant to this claim. She was, from around April 2022, and still is, also suffering from Long Covid.[5]The claimant was employed by the respondent, a London council, from 13 March 2013 as a team administrator.[6]The claimant changed role to become a sheltered housing scheme manager (SHSM) on 1 January 2014.[7]The role of the SHSM is to manage a block of sheltered housing which accommodates vulnerable, elderly tenants. Duties include checking on the welfare of tenants each day, doing health and safety checks, dealing with tenant emergencies and repairs, facilitating community social events and meetings.[8]The claimant has had significant sick leave from July 2016, when she had a period of sick leave of 60 days with fatigue symptoms. She was absent in 2017 for 46 consecutive days with Trigeminal Neuralgia, 60 days during 2018 to 2019 due to Trigeminal Neuralgia and CFS, 50 days in early 2020 due to stress and facial pains. The claimant was then in work from 9 May 2020 until 21 December 2021 with only six and a half days absence. This was during a period of hybrid working due to Covid which is considered in more detail below.[9]The claimant was absent from 22 December 2021 until 1 April 2022, a period of 70 days, due to her disabilities, Covid and Long Covid. The claimant commenced a further period of sick absence on 13 June 2022 and has not returned to work since.[10]During the period May 2020 to December 2021, the claimant, due to Covid restrictions, worked entirely or partly from home. During this period her sickness absences decreased substantially. Mr Linton agreed in cross examination that hybrid working allowed the claimant to better manage her conditions and to achieve better attendance. During this period the claimant was not suffering from Long Covid.[11]Starting in March 2019 a number of adjustments have been made to assist the claimant in attending work. These included phased returns to work after periods of illness, re-allocating the claimant to manage smaller housing schemes with fewer tenants, allowing the claimant to start work later and finish earlier when required, agreeing to part time working, and computer breaks. Robert Linton, the claimant’s manager, also suggested on 2 August 2021 that the claimant may wish to look at redeployment within the respondent’s business.[12]From November 2020 to January 2021 the respondent undertook a consultation across its 16 sheltered housing schemes which included questions about whether the role of SHSM was valued and whether tenants were happy with the service provided by the respondent, including whether they were interested in having a reduced service charge and fewer SHSMs. The wording of the questionnaire was such that it asked about the ‘current service’. At that time many scheme managers were working only a half day on site due to Covid restrictions. The response was overwhelmingly positive about the service and in favour of retaining the SHSMs (i.e not reducing the number of SHSMs).[13]On 12 November 2021 the claimant made an informal request to continue with hybrid working (mornings on site and afternoons from home), after Covid restrictions and measures ended. The request was made to Mr Linton whose unchallenged evidence was that the claimant asked to work from home as her health was not improving and was worried that CFS was returning. The claimant said that she would not have interruptions from tenants at home and could rest, and that she would get on with paperwork.[14]Mr Linton responded by email on 14 December 2021 refusing the request. He said: I have discussed your request to work remotely with Maureen Dignam but this cannot be authorised for team members in the scheme manager role. The recent sheltered housing consultation found that the scheme managers on site presence was a fundamental part of the sheltered housing service. This resulted in the retention of 1 scheme manager per scheme instead of the proposed reduction of scheme managers. Scheme managers are expected to cover schemes Monday to Friday 9:00 AM to 5:00 PM and remote working does not fit this way of working especially as scheme managers are not in an office building occupied by similar workers. There is no expectation for any work currently conducted by scheme managers to be brought home and completed remotely. If we were to agree to your request it would mean additional staff cover but this could not be sustained on a long term basis. You mentioned to me that you wish to be considered for remote working because of your personal health issues, if you wish we can make a referral to the occupational health team to look at your current health status and consider if you are fit to continue working in the scheme manager role.[15]The claimant’s response was to request a formal flexible working application form on 15 December 2021.[16]In an email to all scheme managers on 16 December 2021 concerning arrangements during the Omicron outbreak, Mr Linton said: When you work a half day then tenants must have your work mobile number for contact and any calls or work completed during this period must be logged for monitoring purposes. It would be useful to know if there are any work tasks that can be completed effectively from home as you will still need to work full hours.[17]The claimant then contracted Covid and was on sick leave until 1 April 2022 with Covid, Long Covid and symptoms from her disabilities. She returned on a phased basis until 18 May 2022. On 12 May 2022 the claimant submitted a formal flexible working request. In the accompanying email she said: Working from home in the afternoons will enable me to have easier access to rest, health and care needs.[18]The request was to work Monday to Friday 9am to 1pm at the scheme and from 1pm to 5pm at home. She asked for the new work pattern to commence on 13 June 2022. The tribunal accepts that with the inclusion of a lunch break this equates to 15 hours per week working from home.[19]The claimant wrote on the form that she did not believe that there would be any impact and the new work pattern could be accommodated: As I will be available and attending on site every morning Monday to Friday I will be able to deal with prioritising my workload and able to see the tenants face to face as well as visually checking the building during this time. Also I will be available to all tenants, colleagues and others via my mobile phone, as previously worked from home during the pandemic and lockdown I will also be able to carry out all administrative tasks working from home for e.g. emails and updating client information and associated paperwork. And in emergencies/crisis available to return and attend back on site.[20]Under the respondent’s policy on flexible working the application should be discussed at a meeting between employee and line manager within 28 days of it being made.[21]Mr Linton said in evidence that he had work commitments during the week commencing 16 May 2022 so did not schedule a meeting during that week. The claimant was on leave from 18 May 2022 until 10 June 2022. A meeting was scheduled for 17 June 2022. She returned to work on the morning of 13 June 2022 but had to leave after half a day as she was too unwell to continue. She was not well enough to return during the rest of that week and Mr Linton cancelled the meeting on 17 June because she was on sick absence.[22]On 9 June 2022 Mr Linton emailed HR for advice as follows: Hi David, I am meeting next week with a staff member (Sezin Arif) who has submitted a Flexible Working Request, Sezin is asking to be at the scheme in the mornings and then work from home in the afternoon Monday – Fridays. One of the main requests from the tenants as part of the recent sheltered housing consultation was to have full time scheme manager presence and the outcome of the consultation was amended as a result of this request. I know the council is looking to adopt a more hybrid working approach for some staff but the scheme manager post relies on the manager being onsite fulltime in the scheme. There are no administrative tasks that can be accommodated working from home throughout the week every afternoon. The GMB union are involved and will be attending the meeting to support the scheme manager who they feel has a case due to her disabilities (long term issues of chronic fatigue syndrome, recent long covid recovery etc). Should I suggest the scheme manager also considers redeployment or reducing her hours. Any advice on this situation would be appreciated.[23]The claimant said that she was upset that the meeting on 17 June 2022 was cancelled as she wanted it to go ahead. Her view was that the implementation of her requested working pattern would enable her to return to work. In cross examination the claimant said that she had not asked Mr Linton if the meeting could go ahead as she did not know that she could do that. When asked why she had not then raised this after the meeting or said that she was keen for it to proceed in the following days, the claimant said that she had been unwell and had not seen the email to her and the union about the meeting as she was not at work and it was sent to her work address.[24]On 5 July Maureen Dignam, Mr Linton’s line manager, emailed him setting out a conversation she had had with Kevin Pink from the claimant’s trade union. She said that she had explained to him: …we will also make temporary work place adjustments for example phased return to work following sickness but that we could not agree to a permanent working from home arrangement. I explained that the Sheltered Scheme Managers role is to be on site as sheltered residents pay additional charges for an enhanced management service. During the pandemic (which was an exceptional time) we did make some adjustments to keep staff safe but these were temporary. Since then there has been consultation with residents and a reorganisation – residents were clear they would rather pay more and have a dedicated SSM on site and this was discussed and considered as part of the re-organisation. Home working is not possible in this role. I advised we are always willing to listen and make temporary adjustments – for example phased return to work or adjustment to hours – starting early or late – but these can only be temporary as it will then require cover by one of the other managers. I did say that if Sezin does not feel she can continue in the role we may need to consider redeployment, even if redeployed however there is no guarantee that home working will always be around.[25]Due to her continuing absence the claimant was referred to Occupational Health on 16 July 2022. This was one three referrals during 2022, the others being in February and September. A report was produced containing the following recommendations: Based on the available information, in my opinion a return to work could be considered, taking into consideration the following recommendations. I would advise that contact is maintained with Sezin from a welfare point of view to monitor her progress and to help identify any concerns she may have so they can be managed in a timely manner. Pre- arranged times for contact may be beneficial as too much communication could be perceived to exacerbate her symptoms as opposed to being beneficial and supportive. I would recommend that a meeting is arranged to discuss her concerns and her flexible working request. Sezin may benefit from some flexibility with her hours, i.e. start and finish times, in order to avoid peak travel times. If operationally viable being able to have a blend of site and home-based work, i.e being onsite each day but being able to work from home for part of the day to help manage her symptoms. In relation to reduced energy levels it is also important to identify activities which may require additional energy (physical or mental) and spacing these out during the working day/week into smaller achievable tasks and carrying out more demanding activities when energy levels are best. Additional short periodic rest breaks are also recommended to help Sezin refresh and maintain concentration I recommend that Sezin has a point of contact should any support be required on a day-to-day basis and regular one-to-one meetings arranged to allow Sezin to raise any issues at an early stage. Sezin may also require consideration of additional short breaks to help manage symptoms, as well as some flexibility with working hours or time off to attend any follow up counselling / therapeutic/ medical appointments if unable to arrange outside normal working hours. Sezin is aware, that it is at the manager’s discretion to implement any adjustments advised.[26]During this period (13 June to 2 September 2022) the claimant submitted a number of fit notes completed by her GP, none of which suggested that any adjustments could be made which would enable her to return to work. She was signed off as wholly unfit.[27]On 29 July 2022 Mr Linton and the claimant had a telephone call in which she asked him if he had received the OH report and if he had read it. He said that he had, and she asked to proceed with the flexible working request. It is the Claimant’s case that Mr Linton said ‘oh you still want this to go ahead’. Mr Linton does not recall making that comment. The tribunal finds that the comment was made, where the claimant has a clear recollection and Mr Linton does not deny that he made it. Mr Linton said that he would arrange a meeting but that he was going on leave and would do so after his return. He was on leave from 8 to 22 August 2022, returning on 23 August 2022. He scheduled a meeting on 24 August for 2 September 2022.[28]In the meantime, the claimant raised a grievance against Mr Linton regarding the 29. handling of her flexible working request, her absences and phased returns.[30]The flexible working meeting took place on 2 September 2022 with the claimant’s trade union representative in attendance. There are no notes of the meeting and neither party covered the meeting in any detail in their witness statements. In cross examination the claimant said that the meeting was not very long and that there were no questions about what work she would undertake in the afternoons. Mr Linton said in cross examination that there was no exploration of what work could be carried out in the afternoons and accepted that the claimant’s trade union representative had raised that a trial period of the proposed working pattern should take place.[31]On 13 September 2023 Mr Linton wrote to the claimant refusing the flexible working request in the following terms: I am sorry but I am unable to accommodate your request for the following business ground(s): - a detrimental effect on ability to meet customer demand - insufficiency of work during the periods you propose to work The grounds apply in the circumstances because: The scheme manager role is a customer and building focused position that requires the scheme manager to be on site in the scheme to support customer demand and housing services partners (contractors). The tenants appreciate the scheme manager on site contact, this was one of the fundamental outcomes given as part of the sheltered housing consultation in December 2020. This resulted in the sheltered housing service providing an enhanced housing management service that the sheltered tenants were prepared to pay an additional fee for. The administrative tasks that are being proposed to be completed daily in the afternoon is not sufficient. The phone calls, completion of forms and replying to emails would not accommodate the 3.5 hours for every afternoon of the working week.[32]The claimant appealed the decision, and the appeal was heard by Stephen Reed, Home Ownership Service Manager. On 10 October 2022, after Mr Reed had been appointed, Ms Dignam emailed him as follows: Steve, thanks so much for agreeing to hear the appeal against the decision not to allow flexible working from Sezin who is a Sheltered Scheme Manager. Although the decision was actually made by Robert Linton (who you may want to speak to) I have been involved and had an earlier conversation with the union regarding the application (I will send you this). Sheltered Housing and the Sheltered Scheme Managers moved from AOPs to Housing in 2021 there was a reorganisation but there was also a consultation with Sheltered residents that took place, the result of which was that Sheltered Scheme residents were keen to keep a manager in each scheme even if they had to pay more for this service. We introduced an enhanced housing management charge which is in addition to the service charge, and this has been added to ever sheltered scheme residents rent, so it’s different to how we manage main stream housing. The idea of the enhanced housing management in sheltered is that there is a full time scheme manager on site that residents have daily access to, when we have leave or sickness managers from other schemes still call in to check that all ok at each scheme. Sezin’s application for flexible working is to work from home part of the day to help her manage her medical conditions (she is currently off sick) unfortunately we could not accommodate this as a permanent arrangement due to the reasons already stated we would however always agreed to temporary adjustments, phased return to work etc and have done in the past. Sezin feels that it should be possible as home working was allowed during the pandemic – I was managing the service at the start of the pandemic but Robert can tell you more. My view is the pandemic was just that a pandemic and we had a duty to keep staff safe and residents too it was an exceptional time. Since then there has been the re-org and consultation and it is not a job that can be done effectively from home, you can not respond to a resident who needs immediate help from home. I will send you the other emails from Sezin and my email to the Union.[33]The appeal was heard on 6 December 2022 and dismissed on 16 December 2022 in the following terms: I write with reference to your flexible working request. Your request was refused for the reasons set out in a letter dated 13 September 2022. Your appeal against that decision was considered at the meeting on Tuesday, 6 December 2022 and has been rejected. An alternative place of work and duties, with you undertaking mainly administrative duties remotely from home, was considered but it was not possible to reach a mutually acceptable solution. ln reaching this decision the following factors have been considered: the client facing nature of your role which requires the Scheme Manager to be on site to assist elderly clients as part of the Sheltered Housing service. As stated in the decision letter of 13 September 2022 the clients consider the presence of the Scheme Manager on site to support and assist them as tenants a fundamental part of the service. They pay an additional fee for the presence of a Scheme Manager on site and reiterated in December 2020 that they consider the personal support and assistance provided by the Scheme Manager an essential component of the service they receive. Furthermore, the appeal panel also considered the alternative administrative duties you propose to be insufficient to fill 3.5 working hours per day. In light of the above considerations, the reasons for the rejection of your appeal are: Detrimental effect on ability to meet customer demand. lnsufficiency of work during the periods you propose to work.[34]The claimant has remained on sickness absence and is now going through an ill health retirement process.[35]Several weekly rotas for the 16 housing schemes were disclosed in the bundle which showed that on many occasions the schemes were without a SHSM for a half or a full day which the tribunal accepts was due to SHSM’s covering each other’s schemes for holiday, sickness and other absences, except in the case of one staff member, CB who has reduced her hours from 35 to 30 per week over four days, and, as accepted by Mr Linton, this means that there is no cover at her scheme on a Wednesday, though cover can be provided for emergencies. The claimant was also previously afforded the opportunity to work on a part time basis though there was no evidence before the tribunal about whether this meant reduced cover for her scheme. The claimant subsequently asked to return to full time hours.[36]Ms Dignam gave evidence that the respondent’s business model and aim is for there to be a SHSM present at each scheme from 9 to 5 Monday to Friday. This was reflected throughout the claimant’s flexible working application process in the decisions made and the emails from Ms Dignam to Kevin Pink and Stehen Reed. The nature of the work is to provide support and assistance to elderly and vulnerable residents in a sheltered housing setting and the outcome of the consultation completed in December 2020 was that this was a service very much valued by the tenants. The tribunal accepted this evidence and finds that this is an aim of the respondent but that it is often an aim that is not realised due to resource issues beyond its control. However, it finds that it also made a deliberate decision not to provide cover at Mandela house on Wednesdays. The date of that decision was not before the tribunal. The tribunal finds that some uncovered hours at schemes are a choice made by the respondent for reasons other than cover for absent staff, and therefore the rule that all scheme managers should be on site at all times is one that can and has been adjusted by the respondent.[37]The parties disagreed as to whether there was sufficient work that could be carried out at home that would take up 15 hours in a working week. The tribunal had a list of tasks compiled by the claimant which she set out in her witness statement. Mr Linton’s view was that those tasks would not take up 15 hours as many were not weekly, giving examples of one that was annual and another six weekly, though he admitted in evidence that he had not explored in detail with the claimant on 2 September what she proposed to do at home. Mr Linton is the Sheltered Housing and Extra Care Manager, overseeing all of the schemes and SHSMs, and has been in that post since 2011. He was manager throughout the Covid hybrid arrangements. He is clear that the tasks listed by the claimant would not amount to 15 hours work per week of work. The tribunal have also had regard to the job description and procedure manual, both of which reflect that the job is very much a hands on, on site job rather than one with a high level of time consuming administration. Whilst the claimant undoubtedly did save any administration up for afternoons during the Covid hybrid working period, there is no evidence that this would entail 15 hours work. The tribunal finds on the evidence before it that the role of SHSM is not one which involves tasks that can be carried out remotely which amount to 15 hours out of a 35 hour week. Submissions[38]Both parties made oral submissions, and the respondent also made written submissions. Their arguments were considered by the tribunal in reaching the decision set out below. Law, Decision and Reasons[39]The discrimination claims are brought under sections 13, 20 and 21 of the Equality Act 2010. Direct discrimination(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. 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.[40]For such claims the burden of proof provisions as set out in section 136 apply. 136 Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.(4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule. Direct discrimination[41]In direct discrimination it is for the claimant to establish, on the balance of probabilities, the factual basis of their claim including facts from which a tribunal could conclude, in the absence of any other explanation, that the employer has acted in breach of the Equality Act 2010. It is only once this is established that the burden of proof switches to the respondent, i.e., the respondent then has the responsibility of providing a reason for its act or omission which is not discriminatory.[42]The tests for direct discrimination were discussed in Igen v Wong [2005] ICR 931 and it is clear that all evidence before the tribunal can be taken into account, not just that put forward by the claimant. The test is: is the tribunal satisfied, on the balance of probabilities that this respondent treated this claimant less favourably than they treated or would have treated a nondisabled employee.[43]If the tribunal is satisfied that the primary facts show less favourable treatment because of disability, the tribunal proceeds to the second stage. At this stage, the tribunal looks to the employer for a credible, non-discriminatory explanation or reason for such less favourable treatment as has been proved. In the absence of such an explanation, proved to the tribunal’s satisfaction on the balance of probabilities, the tribunal will conclude that the less favourable or unfavourable treatment occurred because of disability discrimination.[44]The tribunal has set out above in its fact finding a chronology of events from the submission of the flexible working application on 12 May 2022 until the refusal of the application on 13 September 2022. It noted that both parties had a number of weeks of annual leave during that period, that the claimant was signed off by her GP for the duration of that period as being wholly unfit to work and that once the claimant raised with Mr Linton that she wanted to proceed with the flexible working application process despite being on sickness absence, on 29 July 2022, he did then take action to schedule a meeting. He did this on his return from leave which he had told the claimant he would do in their conversation on 29 July 2022. The comparator put forward by Mr Porter was of a SHSM who was not disabled who submitted a flexible working request and subsequently was absent from work for the same period as the claimant (albeit not a disability related absence). Mr Harris did not disagree with this construction. Mr Harris put it to Mr Linton that he delayed purposely or ignored the request in the hope it would go away or the claimant would leave as he was fed up with her repeated requests. Mr Linton denied this.[45]The tribunal finds that there are clear reasons why there was a delay in the resolution of the flexible working application, initially due to the claimant being absent on sick leave and then due to Mr Linton’s period of leave, such that that the tribunal does not infer, in the absence of explanation, that the delay was for a discriminatory reason and the burden of proof does not turn.[46]The claim of direct discrimination is dismissed. Reasonable adjustment[47]To prove a failure to make a reasonable adjustment the claimant must show that the respondent applied a PCP which put her, as a disabled person, at a particular disadvantage. She must then to identify, in broad terms at least, the nature of the adjustment she seeks that would remove the disadvantage. It is for the respondent to show that any adjustment was not reasonable or that it would not have ameliorated the disadvantage. The role of the tribunal is to form an objective view of whether the adjustment was reasonable on the facts.[48]The respondent’s view is that before a failure to make an adjustment can be considered, the tribunal must look at whether the duty to make an adjustment was triggered. It says it was not. Mr Porter relies on the case of Doran v Department for Work and Pensions UKEATS/0017/14 to say that as the claimant was signed off work by her GP as wholly unfit to work during this period (i.e. the GP had not suggested adjustments which could facilitate a return to work) and there was no return date suggested in the OH report (16 July) then the duty did not arise. Mr Harris for the claimant said this was an ex post facto argument not in the minds of the respondent at the time the adjustment was requested and the OH report indicates that a return to work was possible with adjustments, including that the flexible working matter should be resolved.[49]The tribunal is in agreement with Mr Harris on this point. It finds that the duty was triggered because it would have been clear to the respondent that the claimant believed that the proposed adjustment would facilitate her return to work, if not on 13 or 14 June 2022 then undoubtedly by 29 July 2022 when she said as much to Mr Linton and he acknowledged that she wanted to go ahead with the flexible working meeting. It agrees that it was not a matter on Mr Linton’s mind that no duty arose until the claimant returned from sick absence, and the facts are that when the claimant said that she wanted to proceed with the flexible working process then action was taken to facilitate that. The flexible working application process was clearly a request for an adjustment on the basis of disability. While Mr Linton may have assumed up until 29 July 2022, from the fit notes, that there was no question of the claimant returning to work in the near future, he will have been clear from that day that it was not her view, which she believed was supported by the OH report of 16 July 2022. He did not respond that it was inappropriate to continue before her return.[50]In terms of whether there was a failure to make a reasonable adjustment once the duty was triggered the tribunal’s decision is as follows.[51]The tribunal is satisfied that attending the work place at all times during working hours is a PCP applied by the respondent to those holding the role of SHSM and that this PCP puts the claimant at a particular disadvantage in that due to her disabilities she cannot maintain good attendance and avoid relapses of her condition if she attends the workplace 35 hours a week.[52]The tribunal must then consider whether if the requested adjustment was implemented it would obviate the disadvantage.[53]The authorities on this matter (South Staffordshire and Shropshire Healthcare NHS Foundation Trust v Billingsley EAT 0341/15 and Griffiths v Secretary of State for Work and Pensions 2017 ICR 160, CA) set out that there does not have to be absolute certainty or even a good prospect of an adjustment removing a disadvantage in order for that adjustment to be regarded as being a reasonable one. Rather, it is sufficient that a tribunal concludes on the evidence that there would have been a chance of the disadvantage being alleviated. This is a factor that forms part of the overall assessment of reasonableness of the adjustment.[54]There was evidence that during hybrid working periods during Covid lockdowns the claimant’s attendance record had significantly improved. It was suggested in a number of OH reports that hybrid working was likely to assist the claimant to attend work and in the report dated 16 July 2022 it was stated that a return to work was possible if a number of adjustments were implemented including the resolution of the flexible working application and hybrid working. The tribunal also had regard to the fact that at the time of the improvement in the claimant’s attendance during Covid restrictions, the claimant was not suffering from Long Covid. Nevertheless, it is satisfied that there was a chance that the proposed adjustment would obviate the disadvantage. Whether the adjustment was reasonable is an objective decision for the tribunal to make on the facts and is discussed below, but it notes that there was no indication from the respondent in its refusal of the flexible working request, that the refusal was based to any degree on the view that the adjustment would not solve the problem of maintaining attendance/keeping the claimant in good health.[55]The tribunal must then consider whether the adjustment is a reasonable one for the respondent to implement. Factors which may be taken into account are set out at paragraph 6.28 of the Equality and Human Rights Commission Statutory Code of Practice on Employment and includes the following: Whether taking any particular steps would be effective in preventing the substantial disadvantage; the practicability of the step; the financial and other costs of making the adjustment and the extent of any disruption caused; the extent of the employer’s financial or other resources; the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and the type and size of the employer.[56]The respondent sets out two reasons why the proposed adjustment is not reasonable. The first is that the nature of the job is such that it requires on site working during working hours and the second is that the nature of the job is such that there is not enough administrative work to be done to accommodate 15 hours per week of working from home.[57]On the requirement for on-site working, the tribunal has found above that while the business model and aim of the respondent is to ensure 9-5 onsite cover by a SHSM from Monday to Friday, the reality falls far short of this. The tribunal has accepted that mainly this is due to a resource issue. Whether that be in terms of recruitment or money to recruit is not clear, maybe it is both, but it has also found that that is not the only reason that there is not full 9-5 Monday to Friday cover. It is clear from the evidence that in the case of at least one scheme manager a flexible working request has been agreed in that the manager can work part time over four days and that a decision was taken by the respondent that no cover be provided at that particular scheme on a Wednesday. While the proportion of time that there would be no on site cover at the claimant’s scheme would be greater, this is not a point that was raised by the respondent in its refusal of the request and the tribunal therefore puts little weight on that. It concludes that as far as the adjustment requested involved there being no on site cover during afternoons, this was something that was practicable, particularly where the claimant was available by telephone and other forms of communication (should a laptop have been provided).[58]The respondent’s second objection was to do with whether there was enough administrative work to occupy a manager at home for 15 hours per week. As set out above, the tribunal has found, on the evidence provided, that it was the clear view of the respondent that there was not enough such work, and it has accepted that evidence. In effect then the adjustment would entail the respondent affording the claimant a reduction in working hours without a reduction in pay. It was not the claimant’s case that to facilitate a reduction in working hours without a reduction in pay was a reasonable adjustment sought. The tribunal has had regard to the nature of the respondent’s business, noting that despite being a large employer it is a public body with an inevitable pressure on resources and concludes that it would not be reasonable to allow home working where there was not sufficient work to fill the paid hours.[59]The tribunal finds that the respondent had a preference, and for very good reasons, namely the provision of a good service to vulnerable clients, to strive for an eight hour a day on site presence of scheme managers, though this was subject to some exceptions. However, when this is considered together with the fact that there was not enough work to fill in an afternoon of home working, overall, the tribunal’s decision is that the adjustment sought is not reasonable.[60]Both counsel addressed the tribunal on the matter of whether the claimant had asked for a trial of the proposed adjustment and whether a trial could be an adjustment in itself. The authorities of Rentokil Initial UK Ltd v Miller [2024] EAT 37 and Environment Agency v Rowan UKEAT/0060/07 were relied upon. The tribunal accepts that, as put forward by Mr Harris, a trial was suggested by the claimant, but finds that this is not relevant to its decision. The tribunal has found that the proposed adjustment was unreasonable because it was not practicable, and this is not a case where a trial would have established whether or not the adjustment would, for instance, have alleviated the disadvantage. The tribunal has accepted the evidence that it was the preference of the respondent for good service provision reasons to have schemes covered fully by an onsite manager during working hours and that there was not enough work in this role to amount to 15 hours of administrative work per week, and therefore a trial would not be reasonable.[61]Although the list of issues identified a second failure to make adjustments in that it is alleged that the respondent failed to suggest other options to the claimant to allow her to continue working, this was not something put forward by the claimant in evidence and the claimant did not set out any other apparently reasonable adjustment that she suggests could alleviate the disadvantage (Project Management Institute v Latif 2007 IRLR 579, EAT). Further the tribunal found that in, for example, the OH report from 16 July 2022, the recommendations made for breaks and differentiated start and finish times had already been implemented previously, as had a reduction in workload by allocating the claimant a scheme with fewer tenants.[62]The claimant’s claim of failure to make a reasonable adjustment is dismissed.