Mr M Armstrong v The Secretary of State for Justice: 2402393/2024
EMPLOYMENT TRIBUNALS
Case No 2402393/2024
Between
Mr M ArmstrongClaimantThe Secretary of State for JusticeRespondent
Before
Employment Judge Phil AllenMr R McLean (instructed by counsel) for respondentDate 17 November 2025
JUDGMENT
[1]The complaint of unfair dismissal is well-founded. The claimant was unfairly dismissed.[2]The compensation to be awarded to the claimant should be reduced by 40% applying Polkey, to reflect the chance that the claimant’s employment would have ended in a fair dismissal in any event (issue 8.3).[3]The complaint that the claimant’s dismissal was unfavourable treatment because of something arising in consequence of disability (issue 5.1.2) is wellfounded and succeeds.[4]The complaint of failure to make reasonable adjustments for disability relying upon the argument that the reasonable adjustment which should have been made was not to have dismissed the claimant at the meeting on 11 December 2023 (issue 6.4.1) is well-founded and succeeds.[5]The complaints of direct disability discrimination are not well-founded and are dismissed.[6]The other complaint of unfavourable treatment because of something arising in consequence of disability is not well-founded and is dismissed.[7]The other complaints of failure to make reasonable adjustments for disability are not well-founded and are dismissed.
REASONS
Introduction
[1]The claimant was employed by the respondent as an HM Prison Officer from 11 September 2019 until his dismissal on 11 December 2023. The claimant had a disability at the relevant time (PTSD). The claimant alleged that he was discriminated against on grounds of disability (direct discrimination, discrimination arising from disability and/or breach of the duty to make reasonable adjustments) and was unfairly dismissed. The respondent denied discrimination and contended that the dismissal was fair by reason of capability (health). Claims and Issues[2]I conducted a preliminary hearing in the case on 19 August 2024. Appended to the case management order produced following that hearing was a draft list of issues. Included in the bundle for this hearing was an agreed updated list of issues (61). At the start of this hearing, the parties agreed that those were the issues to be determined. The list of the issues to be determined is appended to this case management order.
Procedure
[3]For issue 5.4, the respondent had included the legitimate aim(s) upon which he relied in his amended grounds of response at paragraph 35 (58). It/they were said to be: the need to ensure staff fitness for work in the light of medical advice, to ensure health and safety of all staff and service users, in compliance with the respondent’s policies, to manage staffing including ensuring adequate numbers of officers throughout the prison and ensuring proper operation of the prison.[4]We agreed at the start of the hearing that we would consider and determine the liability issues only (initially), but, when doing so, we would also consider and determine issue 8.3 (something which had been suggested would occur in the case management order produced following the preliminary hearing).
Procedure
[5]The claimant was represented by Mr Armstrong, a relative (and lay representative). Mr McLean, counsel, represented the respondent.[6]The hearing was held in-person in Manchester with both parties and all witnesses attending Manchester Employment Tribunal.[7]We were provided with a bundle of documents which had 522 pages. We read the documents in the bundle to which we were referred. Where we refer to a number in square brackets in this Judgment, that is a reference to the page number in the bundle.[8]The claimant made an application to strike out the response. The application was made in a skeleton argument sent to the Tribunal on the day before the hearing. On the first morning, we heard the application and the respondent’s response. We agreed with the parties that they would consider some matters raised by us during the morning whilst we read the statements and documents, and they would then return after lunch with the claimant identifying the relevant document and the respondent’s counsel confirming the position regarding witness statements. We heard from each representative briefly after the lunch break and adjourned to consider our decision. We decided not to strike out the response and we informed the parties of that decision and our reasons for it. Those reasons are confirmed below.[9]We were provided with witness statements from each of the witnesses called to give evidence. We read those statements, together with the documents referred to in them or in the claimant’s skeleton argument, during the morning of the first day.[10]We heard evidence from the claimant, who was cross examined by the respondent’s representative, and we asked him questions. His evidence was heard on the first day and part of the morning of the second. As a reasonable adjustment, we agreed that we would take breaks when the claimant wished to do so. No other adjustments were sought or required.[11]We heard evidence from each of the following witnesses called by the respondent. Each were cross-examined by the claimant’s representative, and, where required, we asked questions (for Mr Knight we also asked some questions which needed to be asked to ensure that the claimant’s case was put to that witness, where the claimant had a lay representative). The respondent’s witnesses’ evidence was heard from part-way through the morning of the second day until the end of the third day. The witnesses were: Mr Wayne Howard, Custody Manager; Mr Simon Eve, formerly Residential Custody Manager and now Prison Learning Delivery Manager; Miss Michelle Metcalfe, formerly Deputy Governor at HMP Manchester and now Governing Governor of HMP Wakefield; Mr Robert Knight, Governing Governor of HMP Manchester; and Mr Gavin O’Malley, Prison Group Director.[12]When we were provided with witness statements, the respondent also provided a witness statement from Mr Nicholas Whitehead, formerly Temporary Custody Manager and now Senior Officer at HMP Hindley. He was not called to give evidence (we were told he was unwell) and therefore his evidence was given limited weight as he was not able to be cross-examined.[13]After the evidence was heard, each of the parties was given the opportunity to make submissions. They each made their submissions orally on the morning of the fourth day.[14]We adjourned to reach our decision and considered and made our decision during an adjournment for the remainder of the fourth day and the morning of the fifth day. We informed the parties of our Judgment, and the reasons for it, on the afternoon of the fifth day.[15]As written reasons were requested, the Judgment and the reasons for it are contained in this document. Application to strike out[16]The application to strike out the response was made under rules 38(1)(b), (c) and (e) of the Employment Tribunal rules of procedure. That was confirmed by the claimant’s representative orally. The application as written had appeared to have been made under rule 38(1)(a) (on the basis that it was said the response had no reasonable prospect of success) but that was not pursued orally. We confirmed that we would not have struck out the response on that basis even had the application been pursued. We had five days set aside to hear the case and the evidence. There was a response, and the merits would need to be determined on the evidence. For an application to strike out, we would have been required to take the respondent’s case at its highest and, if doing so, it could not be said that he had no reasonable prospects of success.[17]We considered the application under rules 38(1)(b), (c) and (e) together. We will not reproduce precisely what is said in those rules in this Judgment, but we confirmed what they said when we informed the parties of our decision.[18]There was an issue regarding comparator documents. In summary, the claimant made an application for disclosure of comparator documents after the respondent had objected to disclosing what was sought. Employment Judge Leach determined that application on 20 May 2025, when he ordered that some information should be provided by the respondent, but he refused the application for specific disclosure. There was an application for reconsideration, which he determined on 24 June 2025 (when the decision made was not varied). The respondent provided the information it was ordered to provide (albeit the information it provided was limited).[19]There was an issue raised about a list of those appointed to the Externals role, which the claimant believed had been sent to others. When the claimant had sought that document, the respondent had informed him on 18 August 2025 (370) that the member of staff who may have a list or may have sent the list, was not currently in work, with no set return to work date at the time of the response. We were informed that the position remained unchanged as at the start of this hearing. It was surprising that no further steps had been taken, but we confirmed that the claimant would be able to highlight the absence of that document and would be able to ask questions about it.[20]There had also been an issue regarding witness statements. The parties had been ordered to send their witness statements to the other party by 23 June 2025. The respondent made an application to extend the time given to do so. Unfortunately, the Tribunal had not made a decision on the application until 24 June. The claimant sent his witness statement to the respondent as he had been ordered to do. Time was extended following the application (to 23 July 2025). After a further application on 25 June 2025, time was extended to 1 September 2025 (with that decision having been on 29 July 2025). Witness statements were sent by the parties to each other on 1 September. Each party has had the other party’s witness statements for two and a half months.[21]We did not find that the respondent’s conduct of proceedings had been scandalous, unreasonable, or vexatious.[22]There had been compliance with the orders of the Tribunal, save that the respondent had not provided its witness statements on the date it had originally been ordered to, a date which had retrospectively been extended by the Tribunal. We confirmed that the claimant would be able to ask questions of the respondent’s witnesses about having his first witness statement when theirs were prepared, and he could make submissions based upon the timing of provision of witness statements.[23]We found that a fair hearing remained possible. We decided we would not strike out the response.
Facts
[24]The claimant worked for the respondent from 11 March 2019.[25]The claimant has PTSD. It was a pre-existing condition when he started working for the respondent. The respondent accepted that the claimant had a disability at the relevant time as a result of his PTSD.[26]The respondent has a detailed attendance management policy (288). We will not reproduce in detail the content of the policy, but we took into account what it said, as it was a key element of the documentation to which we were referred. Paragraph 2.45 (299) defined a trigger point for managing unsatisfactory attendance. Paragraph 2.51 (300) set out the formal decision points during formal action for unsatisfactory attendance (first written warning, final written warning, and downgrade/regrade or dismissal). Continuous absence was addressed from paragraph 2.72 onwards (302) and it was stated that a continuous period of sickness absence was one which reached fourteen calendar days. Paragraphs 2.75 and 2.76 (303) addressed meetings during continuous sickness absence, including Formal Attendance Review Meetings (FARM) which were due to take place after twentyeight calendar days, another after three months absence, and every quarter thereafter. What a FARM was, and what was to be considered, were addressed at paragraphs 2.83 to 2.95 (304). It was said that decisions on dismissal were to be taken by the Governor in a prison and must be considered where attendance had not improved following a final written improvement warning or where a return to work was not expected within a reasonable time frame during a period of continuous absence. The policy also set out the process for appeals. Annex C contained a checklist for referring a case to a decision manager (316).[27]The claimant was employed as a Prison Officer. He was usually allocated to a specific wing. During the last two years of his employment, the claimant undertook a lot of overtime particularly in Externals, something which he enjoyed.[28]We were provided with a table which recorded the claimant’s ill health absences (101) taken from the respondent’s SOP system. The claimant was absent for three working days in early December 2019 due to influenza and a further three days later that month due to vomiting and sickness. The claimant was absent for five days in May 2020 due to nervous system – migraines and headaches (albeit that was recorded as being no working days lost). He was absent for fourteen working days in June 2020 due to anxiety and depression. The claimant was absent for two days in January 2021 due to infectious and parasitic (recorded as a null). He was absent for two days in November 2021 due to digestive system (also recorded as a null). He was absent for ten working days in December 2021 due to respiratory system – influenza. The table also recorded absences from April 2022, which are addressed below as an absence management process was followed. The table recorded some absence due to Covid, however it appeared to be common ground that those absences should not be taken into account. The table showed that (putting Covid aside) from the start of his employment in March 2019 until the end of March 2022, the claimant was absent for a total of thirty-nine working days. We heard no evidence about any absence management undertaken throughout that period. The table also recorded a later period of absence which arose from an injury suffered at work, and which it appeared the respondent had chosen not to formally address as it was not addressed in the subsequent meetings and letters.[29]It was Mr Howard’s evidence that a Formal Attendance Review Meeting took place with the claimant on 30 September 2022. It was his evidence that it had been his intention to issue the claimant with a stage one written improvement warning. He said he appreciated that the wording of the letter was not clear. He updated the SOP system with the information that the claimant had been given a stage one improvement warning.[30]The claimant was sent the letter on 1 October 2022 (dated 30 September) from Mr Howard, his line manager (77). The covering email referred to it as a sick warning. The absences to which it related were six days of absence in April 2022 due to anxiety and depression and eleven days of absence in August 2022 due to (what was described as) digestive system. The letter (78) was headed “outcome of formal attendance meeting”, it referred to the meeting on 30 September and said: “the purpose of which was to give us the opportunity to discuss the concerns about your attendance. In particular I pointed out that you had taken a total of 17 days in 2 absence periods over the last twelve months. I am not pursuing formal action on this occasion, however, in the event that your attendance does not improve a further formal attendance meeting will be held to review the circumstances of your sickness absence”[31]The letter did not contain a formal warning. The letter expressly said that Mr Howard was not pursuing formal action. The information which Mr Howard recorded on the SOP system was not correct.[32]Following a further period of absence, Mr Howard’s evidence was that a further Formal Attendance Review Meeting took place with the claimant on 7 March 2023. It was his evidence that he informed the claimant he would be issuing him with a final written warning. The claimant did not believe he had been issued with a final written warning.[33]The claimant was sent an email and letter about his absence on 7 March 2023 from Mr Howard, following the meeting of the same date. The email (83) referred to a copy of the claimant’s sick warning notification. The meeting had followed eight days of absence in January 2023 recorded as being due to respiratory system – other. The letter referred to the meeting and said: “the purpose of which was to give us the opportunity to discuss the concerns about your attendance. In particular I pointed out that you had taken a total of 8 days in 1 absence periods over the last twelve months. I am not pursuing formal action on this occasion. Your existing improvement warning remains in place and your improvement period continues to apply. In the event that your attendance does not improve a further formal attendance meeting will be held to review the circumstances of your sickness absence”[34]It was Mr Howard’s evidence that the second absence letter was sent in error. It should have been a final written warning. It was not. In his witness statement he said he had used the wrong template, and the letter therefore did not state that the claimant had been issued with a final written improvement warning. Mr Howard recorded on the respondent’s SOP system that the claimant had been issued with a final written warning. This was referred to by Mr Howard as being simply an administrative error on his part. The outcome was that the SOP system recorded the claimant as having received both a first and final written warning, when in fact the claimant had not received any written warnings at all.[35]The respondent undertook a prison reprofile exercise. As part of that exercise, expressions of interest in two types of work/role (Externals and Visits) were sought (on two occasions). The claimant expressed an interest in an Externals role on 9 July 2023 (339). He also completed a statement of suitability (342). Mr Whitehead informed the claimant that he would be a good fit for the role. The claimant did not express an interest in or complete a statement for a role in the visits/activities group and his evidence to us was that he preferred to continue working on the wing to undertaking a role in the Visits group. It was Miss Metcalfe’s evidence that she chaired the rotation meeting at which the allocation of staff was considered. In her evidence to us, she emphasised that the process was not equivalent to that for a recruitment exercise, it was about allocating band three Prison Officers to work which fell within the duties of that role and which a Prison Officer could be asked to undertake.
The Law
[36]The expressions of interest were considered. The allocation of roles was discussed at a meeting of the senior management team on 10 August 2023. The discussion was not noted. Miss Metcalfe chaired the meeting and gave evidence about what was discussed and the broad reasons for making the decisions. They included the need for balance in the prison between areas and roles, including of experience and (for certain specific tasks) gender. It was Miss Metcalfe’s evidence that the claimant was not appointed to work in Externals, the area in which he had expressed an interest. He was placed in Visits, an area in which he had not expressed an interest. Nobody evidenced precisely why that decision was made. Miss Metcalfe gave evidence about the process but could not recall why the claimant was not successful. He was not alone in being placed in an area which he did not want, as we were shown an exchange of emails with somebody else who was unhappy. Miss Metcalfe was clear in her evidence that there were no discussions about levels of sickness absence, medical conditions or disabilities at the meeting and those things were not a factor in the decisions made.[37]Mr Howard ceased to be the claimant’s manager in July 2023. We heard no evidence that anyone managed the claimant between July and October 2023, although Mr Knight believed that a manager’s manager would have been the identified manager when there was no direct line manager.[38]The claimant worked a week of nights in early August, followed by a rest week and then two weeks annual leave. He returned to work on 29 August. After working that week, the claimant commenced an extended period of ill health absence on 4 September 2023. He did not return from that period of absence.[39]The evidence was not entirely clear about what and when the claimant was informed about the decision on the role allocations. In his witness statement, the claimant said that Mr Whitehead told him that he had obtained the Externals role, but he wasn’t sure when it started. In his statement, Mr Whitehead said that he had not done so, and he played no part in what he described as the recruitment process for the role. As we heard from the claimant but not from Mr Whitehead, we accepted the claimant’s evidence that Mr Whitehead told him what the claimant evidenced. However, we also accepted the respondent’s submission that, irrespective of what Mr Whitehead said, it was not in his gift to make the appointment. We also noted that the claimant was clearly not entirely certain about the position, in the light of what was subsequently recorded in the occupational health report of 12 October. The respondent provided no email or document which showed the claimant being informed about the outcome of the process or being told where he was now being required to work.[40]In the course of the disclosure exercise, the claimant asked about a spreadsheet which he believed had been circulated and which showed that he had been appointed to Externals. The claimant’s belief was based upon a text message he had received from a colleague on 13 October 2023 (377) in which she told the claimant that she had seen him on the list. As we have already recorded, the respondent’s reply to the question was (370) that the member of staff who may have a list or may have sent the list, was not currently in work, with no set return to work date at the time of the response. We were informed that the position remained unchanged as at the start of this hearing. None of the witnesses from whom we heard, gave evidence about such a list.[41]An occupational health report was obtained dated 29 September 2023 (125). It was positive about the prognosis and said the claimant would be fit enough to return to work after two weeks, with a phased return to work.[42]Mr Eve became the claimant’s line manager in October 2023. He prepared a log which contained all of the contact with the claimant (102) which the claimant agreed was accurate. It is not necessary for us to reproduce all the contact in this Judgment. Mr Eve spoke to the claimant by phone on 3 October 2023 and sent him a summary of the conversation the following day.[43]A further occupational health report was obtained dated 12 October 2023 (165). That was also positive about the claimant’s prognosis and said he would be fit enough to return to work within the next two weeks. It advised that the claimant should return on a phased return to work. It said that the claimant would be fit to perform his full duties if his improvement at the time continued. It also commented, “Mr Armstrong informs me he has potentially obtained an altered role previous to his going off sick. He is concerned he may have missed this opportunity due to his absence, and this is an identified stressor for him. I would suggest this is clarified for him, as uncertainty is often a key difficulty for individuals suffering from PTSD/symptoms of anxiety”[44]On 23 October the claimant emailed Mr Eve (169) and said that he had seen that he was down for video link for two weeks, when he had never applied for Visits, only Externals. He said he was under the impression he would be moving to Externals. He said he did not want to work on Visits as it was a mundane and boring job. Mr Eve did not respond. Both Miss Metcalfe and Mr Knight evidenced that it was normal practice for the management of someone absent on ill health grounds to remain unchanged where possible until their return. On 25 October the claimant sent a further email saying he was very stressed about coming back and annoyed about being taken off Externals, he made a rude and inappropriate comment about those working on Visits. In his evidence in the Tribunal hearing, the claimant explained that he had found out that whilst he was off sick, he had been moved to a job which he had never applied for. He said his mental health took a massive dip.[45]By agreement with the claimant, a meeting took place in a Costa coffee shop on 9 November 2023. It was attended by both Mr Howard and Mr Eve, because the claimant had asked that Mr Howard remain his manager. Mr Eve took notes, which the claimant accepted were accurate (111). The claimant explained that he had ceased taking the medication when he had felt better and that had been a bad decision. He said that his anxiety had also been set off when found that he was being changed to Visits. The claimant was reassured that in Visits he would not be working with a manager with whom he had serious issues, as he would be working with a different manager. A phased or restricted return to work was discussed and the claimant said he did not want it/them. The claimant was told that he would be referred to occupational health, with a consideration for ill health retirement. He was also told that there would be a Formal Attendance Review Meeting to be chaired by the Governor. The notes said that the claimant was also told that he would be due an unacceptable attendance warning stage three, and this would form part of the FARM. Mr Eve said he would accompany the claimant to the meeting if he wanted it. From the notes, it appeared to be the case that the claimant accepted Mr Eve as his line manager, and it was clear from Mr Eve’s evidence at this hearing that Mr Eve believed that to be the case.[46]The attendance management policy provides that decisions on dismissal are taken by the Governor of the prison. From Mr Eve’s evidence it was clear that the arrangements for who would hear a Formal Attendance Review Meeting depended upon the point reached in the formal process. If there had already been a stage one warning and a stage two final warning, the SOP system proposed that there would be a FARM to be heard by a Governor. Where those things were not recorded, a FARM meeting with a more junior manager, such as Mr Eve, would be arranged, as Mr Eve did not have the authority to dismiss. Mr Eve explained the difference in focus between the two types of FARM meeting and emphasised that his focus was on trying to facilitate a return to work. As a result of the incorrect information recorded on the SOP system about warnings issued to the claimant, a potentialdismissal FARM was arranged with the Governor. Had the SOP system correctly recorded that no warnings had been issued to the claimant (or even had it recorded only one warning), based upon Mr Eve’s evidence, the FARM meeting arranged would have been only with Mr Eve not the Governor, and dismissal would not have been considered (or possible). Mr Eve worked only from the information on the SOP system, he did not look at the letters which had actually been sent to the claimant.[47]The evidence of Miss Metcalfe about what prompted the FARM heard by the Governor was slightly different. She evidenced that she chaired weekly attendance meetings with managers and HR. Absences were discussed. She recalled the claimant’s “high” level of absence being discussed at those meetings. It was her evidence that it having been drawn to her attention, she made the decision that the claimant be referred to a FARM meeting before the Governor.[48]The claimant failed to attend one occupational health appointment, but after attending a later one, a further occupational health report was provided on 29 November 2023 (213). The report explained that three or four weeks before the claimant had been ready to return to work but had stopped his antidepressants “and the symptoms came back with a vengeance”. It was stated that the claimant hoped to return to work when his symptoms improved. The report went on to say that the claimant, “is unfit for work in any capacity due to the symptoms he reports. There are no management actions or workplace adjustments that are likely to expedite his recovery or support a return to work at this time … Once his mental health symptoms do start to improve, he could attempt a phased return to work, and I anticipate it could take a few months until he feels well enough to return when his medications take full effect”[49]No date for a likely return was provided. The current outlook was described: “he remains vulnerable to further episodes of his condition, the frequency and intensity of which cannot be predicted. The expectation is that his symptoms will improve over time, but he requires an ongoing review of his treatment and possibly adjustment to his current treatment for this to be achieved. Although I cannot provide you with a clear date of when he may be able to return to work, there is no indication of long-term, permanent incapacity at this stage”[50]In answer to a specific question asked about whether the claimant had a medical condition that would prevent him from performing the roles and responsibilities of a band 3 Prison Officer, the reply was, “The expectation is that his symptoms will improve over time and he will return to his full operational role”[51]A letter of 3 December 2023 (218) informed the claimant that his entitlement to full sick pay would cease in January 2024 and from 2 January 2024 he would be paid at half pay (plus SSP if SSP was still payable).[52]On 4 December 2023 the claimant emailed Mr Eve and said he had just collected his sick note. He said that he would want to look at coming back before it ran out (119). In evidence, the claimant placed considerable emphasis on that statement as showing that he had identified when he thought he would be able to return to work. The relevant fit note (224) was dated 4 December 2023 and recorded that the claimant was not fit for work from 24 November 2023 until 28 December 2023 due to anxiety with depression.[53]The claimant was invited to a formal attendance review meeting in a letter of 28 November 2023 (207). The letter set out clearly that there were four possible outcomes to the meeting, including dismissal or what was said to be “whether your sick absence level should continue to be supported at this time”. The right to be accompanied was set out. The policy was referred to and it was recommended that the claimant read it. As quoted, the letter expressly addressed sick absence level and not current continuous absence.[54]The invite letter did not explain what materials or records would be considered at the meeting and copies were not provided. No record of absence was summarised in the letter. The letter did not refer to any warnings which would be taken into account. Copies of relevant documents were not provided.[55]When the claimant was asked about preparing for the formal attendance review meeting in December 2023, he explained that he had not been given anything to prepare with, as he was not given copies of any of the documents to be considered in order to prepare. It was Mr Eve’s evidence that Mr Knight was provided with a pack of documents including absence records and something which recorded the warnings as recorded on the SOP system (albeit we were not provided with a copy). It was the evidence of both Mr Eve and Mr Knight that Mr Knight was provided with Mr Eve’s full timeline document (which recorded the claimant as having said on the 4 December that he was looking to come back to work when his sick note ran out). Mr Knight was also provided with the fit notes, including the latest one which ran to 28 December. No one provided a set of the relevant documents to the claimant. It was Mr Eve’s evidence that the claimant could access the information on the system, although he agreed when asked that, if he was absent from work, he could only do so by telephoning shared services. Mr Eve did not provide the claimant with a set of the documents which he provided to Mr Knight.[56]At annex C to the attendance management policy (316), there was a checklist for a referral to a decision manager. That listed a number of things which it said should normally be provided to the decision manager to enable them to make a decision. We have already referred to the documents provided, but some of the recommended information was not. One of the things recommended was that the decision-maker be provided with copies of any letters issued. They were not in this case. It is unfortunate they were not obtained and provided as, if they had been, Mr Eve or Mr Knight would have been likely to have identified that what was recorded on the SOP system was an error and the letters provided to the claimant had not given the relevant warning or final written warning. The list also said that the decision-maker should be provided with the reasons why the business could no longer support the sickness absence. That was not specifically done in this case. Mr Knight considered that the full timeline provided by Mr Eve was his way of providing the reasons for the referral.[57]In his evidence, Mr Knight said that when looking at the documents produced for the purposes of these Tribunal proceedings, he learned that the two attendance warnings issued to the claimant were not properly issued and he said they were not effective. At the time, he believed that the claimant was at the final warning stage.[58]The formal attendance review meeting was held on 11 December 2023 and was conducted by Mr Knight. We were provided with notes (234). At the start of the meeting, Mr Knight introduced the attendees and noted that dismissal was a formal option which could be discussed. He read from the November occupational health report. He noted that the claimant’s condition would be likely to be a disability. He asked the claimant how he was feeling. The claimant’s response was detailed in the notes. He said he was feeling better than he had been three weeks before. The notes went on to record, “MA explained that sometimes he felt great and then sometimes he had bad days. MA explained that bad days could happen at any time, but he could have periods of days, weeks or months when he felt fine. MA stated that he believed he was productive when he was carrying out his duties as a Prison Officer and he liked his job … MA explained that he had stopped taking his medication when he had been feeling better”[59]In response, the notes recorded that Mr Knight raised his concerns about the claimant’s sickness absence record, “noting that it was terrible. RK noted that there was a spectrum of reasons for the numerous absences, and asked if it was likely that most of these absences were due to PTSD and not what had been reported. MA confirmed that he had covid a couple of times and a couple of times was ill with other things, but otherwise the absences were all due to PTSD, anxiety and depression”[60]We would observe that nothing in the meeting notes or Mr Knight’s evidence recorded that any attempt had been made to look at the precise periods of absence or the reasons for each absence (such as distinguishing between discounted absences for Covid, injury from work, and/or identifying those which were due to the PTSD and when those absences had occurred).[61]After the claimant was asked about what his doctor advised, he provided a lengthy answer in which he explained that he had not known that he had to ween himself off the medication slowly rather than having stopped it. He said he was trying to manage his symptoms as best he could.[62]The notes then recorded the following, which was erroneous as it was based upon what was recorded on the respondent’s system rather than what had been said in the letters sent to the claimant, “RK explained that if MA was back at work he would be on a level 3 warning. RK explained that he needed to decide what to do with MA. RK stated that MA would be aware of the difficult situation in the prison with regards to staffing and so many staff being off sick … RK explained that he could not sustain this level of sickness absence. RK asked if there was anything that could change this situation or any assurance that MA could give that his attendance would improve. MA stated that he could sometimes go through long periods without having any issues”[63]The claimant’s evidence was that he felt like everything he said in the meeting fell on deaf ears. We would observe that Mr Knight did not appear to have entered into any discussion with the claimant about when he would be able to return to work. In his witness statement, the claimant also said that he was not in the right frame of mind for the meeting, and he felt that, as soon as he went in the office, he could tell that the decision had already been made. Mr Eve, in his evidence, suggested that the FARM meeting was the opportunity for the claimant to explain things. Mr Eve’s view was that the claimant made no effort in the meeting. Mr Eve also emphasised that he attended the meeting to support the claimant, and we noted that he said nothing at all in the meeting and certainly did nothing to highlight any points which would assist the claimant.[64]It was the claimant’s evidence that after a two-minute adjournment he was called back into the meeting and was informed by Mr Knight that he was to be dismissed. He highlighted the limited time taken to decide on his career. The notes (235) recorded that the meeting was adjourned for a few minutes before resuming, which Mr Eve agreed was the time he recalled it having taken.[65]After the adjournment, the notes recorded Mr Knight as having stated that, “he had been through all the information and had decided to dismiss MA because his absence levels were too high”.[66]In his evidence to us, Mr Knight explained that the meeting considered the claimant’s continuous absence and what he described as the occupational health advice that the claimant would not be returning to work in the foreseeable future. He contrasted that with what would have been considered in a hearing considering absence levels. We did not accept that such a clear contrast existed, for a meeting in which Mr Knight had expressly addressed what he described as a terrible absence record and where he was recorded as having stated that he had dismissed the claimant because his absence levels were too high.[67]In his witness statement for this Tribunal hearing, Mr Knight listed eleven reasons as being those why his decision was taken. We will not list them all in this Judgment (but considered them all). He relied upon the claimant’s ninety-eight consecutive days of absence and his previous absences (described as being significant). He emphasised the high levels of absence in the prison. When asked about that, he emphasised the particular challenges which arose for a prison from staff absences which could result in prisoners being locked in for longer and which could have an impact on staff and prisoner safety.[68]Mr Knight said that the claimant had offered no reassurances that his attendance would improve, and he said the claimant gave him the impression that he had no intention of returning to work. He contrasted that with the usual experience in a FARM where employees attempt to persuade him that they wanted to return and could see themselves as returning.[69]Within the reasons given, Mr Knight stated that the prison’s process for recruitment did not allow him to recruit to cover ongoing absence. A recruitment could only be initiated where a resignation or dismissal had been confirmed.[70]As the last of his reasons, Mr Knight described that delaying the decision to dismiss to give the claimant more time to recover felt to him to be a poor option for the prison, where he said the position was that he was without any indication of progress being made or adjustments that could support a return to work.[71]As part of his decision, Mr Knight also decided what compensation the claimant should be awarded under the relevant scheme. He decided to award him 100% compensation. He did not reduce it.[72]The decision and the reasons for it were set out in a letter dated 14 December (237). Mr Knight commented on the claimant’s honesty about his condition and how it manifests. After commenting on re-grade and ill health retirement, the letter said, “I could not sustain the absence further as there was no indication of a return to work and additionally there was a likelihood of relapse in the future. I also noted that your current absence would have triggered a stage 3 formal meeting for consideration of the above options had you returned to work. After a short break we reconvened and I decided that I would dismiss you on the grounds medical inefficiency as there was no reasonable prospect of a return to work in the near future or the ability to give regular and effective service going forward” The claimant appealed on 3 January 2024 (252).[74]The claimant was invited to an appeal hearing. In his evidence, Mr O’Malley listed the documents he considered prior to the appeal hearing.[75]The appeal hearing was conducted by Mr O’Malley, who was a senior manager removed from HMP Manchester. We were provided with notes (273). The claimant accepted that they were an accurate reflection of what was said in the meeting. Mr O’Malley summarised and went through each of the grounds of appeal which the claimant had raised. Near the start of the appeal meeting, after being asked if he was seeking reinstatement, the claimant said the following (276), “I think everything’s been broken to be honest. And I’ve seen the prison service for what it is. And how you get treated not just as this case, but just in general. On the day-to-day basis”[76]The claimant was asked if the remedy he was seeking was purely financial and he replied “yeah”.[77]The notes record the claimant as having spoken at some length and then he confirmed that he had said everything that he wished to. He criticised the content of the final occupational health report, saying he felt it contradicted itself, and saying that the OH advisor had exaggerated. The claimant said that whilst it said it could be a few months, he had always tried to get back as soon as possible. In the meeting the claimant referred to having wanted to have got back by Christmas. It was Mr O’Malley’s evidence that he asked the claimant whether he considered himself currently unfit for work and he replied that he did. The claimant provided Mr O’Malley with the names of comparators A and B when asked about those he considered had been treated more favourably than he had been.[78]Following the appeal hearing, emails were exchanged between Ms White (Mr O’Malley’s secretary) and Mr Knight asking about comparators A and B who had been referred to in the appeal. Mr Knight provided a response (325). In doing so, he attached the relevant notes and letters for the two comparators. Those attachments were not disclosed to us. It was said that there was very little direct comparison.[79]For comparator A it was said, “I did adjourn the first FARM whilst we await IHR, but she was too ill to continue working … was dismissed under medical inefficiency once IHR refused … I can see no evidence of … treatment being more favourable, she was ill and unable to work, I only delayed her dismissal whilst we explored IHR (as policy dictates)”[80]For comparator B he compared the situation with the claimant and said, “does have a poor sick record, but he pleaded for another chance stating that many of the absences related to a domestic situation and his wife suffering with [details provided] …. I decided to give him a final chance, extending his final warning … he pleaded for a further chance and was given clear instruction that any similar continued absences would result in dismissal, whilst Morgan offered me very little in terms of wanting to keep his job. Morgan could not provide assurance that his attendance would improve, he was clear that he suffered with PTSD and this meant he could not deliver consistent and effective service moving forward.”[81]For this Tribunal hearing we were not provided with any documents about the comparators, save for the further information provided by the respondent in two emails and two tables, with one of the emails and the tables being provided in compliance with the order made for the provision of further information. The respondent chose not to provide us with any evidence about the lengths of time for which the comparators had been absent when decisions were made. He did confirm on 9 May 2025 (353) that one of the comparators had had twenty-seven absences between 2019 and 2023.[82]Whilst giving evidence, Mr Knight was asked about the comparators. He provided more detailed evidence about why it was that he considered the circumstances to not be comparable to the claimant. Comparator B was somebody in work but with a significant absence record (the twenty-seven occasions of absence documented), for which Mr Knight decided to give him a further chance at a FARM meeting and not dismiss him. After doing so, his absence did not improve, and he was subsequently dismissed following a further FARM. It was Mr Knight’s evidence that the reason why he decided not to dismiss comparator A at a FARM was so that her entitlement to ill health retirement could be fully explored, which involved obtaining relevant medical reports for the independent assessor. After reports were obtained and ill health retirement was not possible, she was dismissed. Mr Knight explained why it was always considered appropriate to explore ill health retirement first before dismissing, where ill health retirement had been identified as a possibility.[83]The appeal outcome was provided in a letter of 20 February 2025 (265). The written decision was brief and only explicitly addressed some of the points which the claimant had raised in his appeal. Reliance was placed on the letter inviting the claimant to the FARM dated 28 November 2023 which had advised the claimant of the possible outcomes to be considered in the meeting, which was considered to have meant that the claimant had been made aware of the outcomes to be considered within the meeting. Mr O’Malley upheld the decision to dismiss.[84]In his evidence at this hearing, Mr O’Malley explained that he could have overturned the dismissal decision and could have asked for a further occupational health report (both being things he has done in other cases). He explained that, under the relevant policy in place at the time, he considered that the appeal hearing was a re-hearing of the claimant’s dismissal (whilst being one that took into account the grounds of appeal being pursued). In the notes of the hearing, Mr O’Malley described it as looking at the case with a fresh pair of eyes. Mr O’Malley’s conclusion was that the claimant’s dismissal was dealt with under the continued absence procedure, and, for that part of the procedure, a warning did not need to be issued prior to dismissal. In his evidence, Mr O’Malley also relied upon the fact that the claimant remained unfit for work five months after his absence had commenced as supporting the decision, albeit that from his statement and evidence that appeared to be based in part upon a mistaken belief that the claimant had remained employed pending his appeal, when in fact it was not in dispute that his employment had in fact been terminated with immediate effect (and pay in lieu) on 11 December 2023.[85]When the respondent entered his response at the Tribunal on 23 May 2024, he pleaded (30) that the claimant had been given a final written warning on 7 February 2023 and (32) expressly relied upon that warning (said to be that if the claimant’s attendance did not improve, he would be liable for dismissal), as being one of the factors which rendered the dismissal fair. At the preliminary hearing (case management) on 19 August 2024, the claimant’s position was that he was unaware of that final written warning. When he amended his response, the respondent deleted the statement that there had been a final written warning (53) and deleted the reliance placed upon it as being one of the factors which rendered the dismissal fair (55). He expressly pleaded that, as a final written warning had not been issued to the claimant, there could be no direct discrimination as a result (56).[86]In an email from the paralegal representing the respondent in the proceedings sent on 8 July 2025 in response to the order made by Employment Judge Leach (358), he said that comparator A had been dismissed on 3 February 2023 and comparator B had been dismissed on 28 February 2023.[87]We were also provided with two spreadsheets which showed warnings given to the two comparators. For comparator A (345) it was recorded that they were given a first written warning on 4 February 2021. For comparator B (346) they had been issued with a first written warning on 29 July 2021, a first written warning on 3 October 2022, a final written warning on 8 December 2022, there had been consideration of dismissal in October 2023 (recorded as no – auto closed), a first written warning had not been imposed on 5 August 2024, a first written warning was then recorded on both 9 December 2024 and 7 January 2025 with the outcome being said to be yes-dismissal. Mr Knight acknowledged that the information provided from the SOP system was not very informative as it did not show the precise dates when decisions had been made.[88]From the spreadsheets, it was clear that the respondent had made an incorrect statement when responding to the Tribunal’s order about the dismissal date of comparator B, as it was impossible for both the date of dismissal and the dates of warnings provided to have been correct.[89]We found that all of the witnesses who attended the hearing and gave evidence (including the claimant), gave honest and truthful evidence. We accepted that they told us the truth, or at least what they believed to be the truth (we have separately addressed the basis for Mr Knight’s decision upon which we made findings).[90]This Judgment does not seek to address every point about which we heard or about which the parties disagreed. It only includes the points which we considered relevant to the issues which we needed to consider in order to decide if the claims succeeded or failed. If we have not mentioned a particular point, it does not mean that we have overlooked it, but rather we have either not considered it relevant to the issues we needed to determine or we have not considered it necessary to refer to in these reasons.
The Law
[91]Section 98 of the Employment Rights Act 1996 provides:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show — (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) ...(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,(3) In subsection (2)(a) — (a) “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, …(4) [Where] the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends 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 (b) shall be determined in accordance with equity and the substantial merits of the case.[92]In an unfair dismissal claim, the respondent bears the burden of proving, on the balance of probabilities, that the dismissal was for capability (health), being the reason relied upon. If the respondent fails to persuade us that it dismissed the claimant for that reason, the dismissal will be unfair.[93]If the respondent does persuade us that it did dismiss the claimant for that reason, the dismissal is only potentially fair. We must then go on and consider the general reasonableness of the dismissal under section 98(4) of the Employment Rights Act 1996. That section provides that the determination of the question of whether a dismissal is fair or unfair depends upon whether in the circumstances (including the respondent’s size and administrative resources) the respondent acted reasonably or unreasonably in treating capability as a sufficient reason for dismissing the claimant. That is to be determined in accordance with equity and the substantial merits of the case.[94]The proper application of the general test of fairness in section 98(4) has been addressed in a number of cases. We must not substitute our own decision for that of the employer. We must resist the temptation to test matters according to what we would have decided if we were in the respondent’s shoes. The question is rather whether the employer’s decision fell within the band of reasonable responses which a reasonable employer acting fairly could reach (the claimant’s representative reminded us of Iceland Frozen Foods Ltd v Jones [1983] ICR 17 in his submissions).[95]For a fair capability dismissal, a fair procedure is required. There is a need to consult the employee before making a decision and the employer should take account of the employee’s views. The employer must also take steps to find out about the true medical position and the likely prognosis. There should be consideration of other options. A fair process should be followed. In his submissions, the claimant’s representative referred us to East Lindsey District Council v Daubney [1977] ICR 566 and Polkey v AE Dayton Services Ltd [1987] IRLR 503 on the importance of consultation and discovering the true medical position.[96]It is essential, in every case, to consider whether, in all the circumstances, the employer could be expected to wait any longer for the employee to return (Spencer v Paragon Wallpapers Ltd [1977] ICR 301). We must expressly address that question and balance the relevant factors in all the circumstances of the individual case (BS v Dundee City Council [2014] IRLR 131).[97]Dismissing an employee before they have exhausted their right to contractual sick pay will not necessarily be unfair, but it is one of the factors which can be taken into account when evaluating the overall fairness of the dismissal (Coulson v Felixstowe Dock & Railway Co [1975] IRLR 11).[98]In Lynock v Cereal Packaging Ltd [1988] IRLR 510 (a case which addressed dismissal for frequent absence rather than long-term continuing absence) Mr Justice Wood said: “The approach of an employer in this situation is, in our view, one to be based on those three words which we used earlier in our judgment – sympathy, understanding and compassion … every case must depend upon its own fact, and provided that the approach is right, the factors which may prove important to an employer in reaching what must inevitably have been a difficult decision, include perhaps some of the following – the nature of the illness; the likelihood of recurring or some other illness arising; the length of the various absences and the spaces of good health between them; the need of the employer for the work done by the particular employee; the impact of the absences on others who work with the employee; the adoption and the exercise carrying out of the policy; the important emphasis on a personal assessment in the ultimate decision and of course, the extent to which the difficulty of the situation and the position of the employer has been made clear to the employee so that the employee realises that the point of no return, the moment when the decision was ultimately being made may be approaching.”[99]We can review and take into account that there may have been reliance upon an erroneous warning when considering the fairness of the dismissal. We can consider whether reliance on the warning was unreasonable given the employer’s size and administrative resources. However, where the employer has erred in the operation of the policy is not conclusive (Sakharkar v Northern Foods Grocery Group Ltd (t/a Fox’s Biscuits) UKEAT/0442/10). The question is whether the respondent acted reasonably in dismissing the claimant.[100]In Polkey the House of Lords held that the fact that the employer can show that the claimant would have been dismissed anyway (even if a fair procedure had been adopted) does not make fair an otherwise unfair dismissal. However, such evidence (if accepted) may be taken into account when assessing compensation and can have a severely limiting effect on the compensatory award. If the evidence shows that the employee may have been dismissed properly in any event, if a proper procedure had been carried out, we should normally make a percentage assessment of the likelihood and apply that when assessing the compensation. In applying a Polkey reduction, we may have to speculate on uncertainties to a significant degree. The issue is what the respondent would have done and not what a hypothetical reasonable employer would have done in the circumstances. The onus is on the respondent to adduce evidence to show that the dismissal would (or might) have occurred in any event. However, we must have regard to all the evidence when making that assessment.[101]There will be circumstances where the nature of the evidence on which the respondent seeks to rely, is so unreliable that a Tribunal may take the view that the whole exercise of seeking to reconstruct what might have been, is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made. Whether that is the position is a matter of impression and judgment for us to decide. But in reaching that decision we must recognise that we should have regard to any material and reliable evidence which might assist us in fixing just compensation, even if there are limits to the extent to which we can confidently predict what might have been; and we must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence (Software 2000 Ltd v Andrews [2007] IRLR 568).[102]The direct discrimination claim relies on section 13 of the Equality Act 2010 which provides that: “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[103]Section 39(2) of the Equality Act 2010 provides that an employer must not discriminate against an employee. It sets out various ways in which discrimination can occur, and these include any other detriment and dismissal. The characteristics protected by these provisions include disability.[104]In this case the respondent will have subjected the claimant to direct discrimination if, because of his disability, he treated him less favourably than he treated or would have treated others. Under Section 23(1) of the Equality Act 2010, when a comparison is made, there must be no material difference between the circumstances relating to each case. The requirement is that all relevant circumstances between the claimant and the comparator must be the same and not materially different. It is not a requirement that the situations have to be precisely the same.[105]Section 136 of the Equality Act 2010 sets out the manner in which the burden of proof operates in a discrimination case and provides as follows: “(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 sub-section (2) does not apply if A shows that A did not contravene the provision”[106]In short, a two-stage approach is envisaged:a. At the first stage, we must consider whether the claimant has proved facts on a balance of probabilities from which we could conclude, in the absence of an adequate explanation from the respondent, that the respondent committed an act of unlawful discrimination. This can be described as the prima facie case. However, it is not enough for the claimant to show merely that he has been treated less favourably than his comparator and that he has a particular disability which they do not have; there must be something more.b. The second stage is reached where a claimant has succeeded in making out a prima facie case. In that event, there is a reversal of the burden of proof: it shifts to the respondent. Section 123(2) of the Equality Act 2010 provides that we must uphold the claim unless the respondent proves that it did not commit (or is not to be treated as having committed) the alleged discriminatory act. The standard of proof is again the balance of probabilities. However, to discharge the burden of proof, there must be cogent evidence that the treatment was in no sense whatsoever because of the protected characteristic.[107]In most cases there is a need to consider the mental processes, whether conscious or unconscious, which led the alleged discriminator to do the act. Determining this can sometimes not be an easy enquiry, but we must draw appropriate inferences from the conduct of the alleged discriminator and the surrounding circumstances (with the assistance where necessary of the burden of proof provisions). The subject of the enquiry is the ground of, or the reason for, the alleged discriminator’s action, not his motive.[108]We need to be mindful of the fact that direct evidence of discrimination is rare, and that Tribunals frequently have to infer discrimination from all the material facts.[109]The protected characteristic does not have to be the only reason for the conduct, provided that it is an effective cause or a significant influence for the treatment.[110]The explanation for the less favourable treatment does not have to be a reasonable one. Unfair or unreasonable treatment by an employer does not of itself establish discriminatory treatment.[111]Section 15 of the Equality Act 2010 provides:(1) A person (A) discriminates against a disabled person (B) if — (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[112]For unfavourable treatment there is no need for a comparison, as there is for direct discrimination. However, the treatment must be unfavourable, that is there must be something intrinsically disadvantageous to it.[113]The correct approach to be taken in such claims was set out by the Employment Appeal Tribunal in Pnaiser v NHS England [2016] IRLR 170. As those issues were not in dispute, we will not reproduce what was said in this Judgment. The claimant’s representative relied upon City of York Council v Grosset [2018] IRLR 746 in his submissions on dismissal arising from discrimination.[114]Section 15(1)(b) provides that unfavourable treatment can be justified where it is a proportionate means of achieving a legitimate aim. That requires: identification of the aim; determination of whether it is a legitimate aim; and a decision about whether the treatment was a proportionate means of achieving that aim. The test is an objective one, for which we must make our own assessment. We need to balance the real needs of the organisation against the discriminatory effect of the thing being justified.[115]For cases arising from a dismissal following absence, where there is both a discrimination arising from disability claim and an unfair dismissal claim, previous case law has indicated that the outcome is often the same, but It is also clear that there is not a necessary inconsistency between rejecting the claim of unfair dismissal and upholding a claim under Section 15 of the Equality Act 2010 in respect of that same dismissal.[116]We took account of the guidance in relation to objective justification contained in paras 5.11, 4.37 and 4.30 to 4.32 of the EHRC Code of Practice on Employment. It is for the respondent to justify the practice, and it is up to the respondent to produce evidence to support its assertion that it is justified. We must ask ourselves whether the aim is legal non-discriminatory and one that represents a real, objective consideration? We must then ask ourselves whether the means of achieving the aim is proportionate? Treatment will be proportionate if it is ‘an appropriate and necessary’ means of achieving a legitimate aim. Necessary does not mean that it is the only possible way of achieving the legitimate aim, it will be sufficient that the same aim could not be achieved by less discriminatory means.[117]Section 20 of the Equality Act 2010 imposes a duty to make reasonable adjustments on an employer. Section 20(3) provides that the duty comprises the requirement that where a provision, criterion or practice of the employer’s puts a person with a disability at a substantial disadvantage in relation to a relevant matter in comparison with people who do not have a disability, to take such steps as it is reasonable to have to take to avoid the disadvantage.[118]Section 21 of the Equality Act 2010 provides that a failure to comply with the requirement set out in section 20 is a failure to comply with a duty to make reasonable adjustments. Schedule 8 of the same Act also contains provisions regarding reasonable adjustments at work.[119]Environment Agency v Rowan [2008] IRLR 20 is authority that the matters a Tribunal must identify in relation to a claim of discrimination on the grounds of failure to make reasonable adjustments are:a. the provision, criterion or practice applied by or on behalf of an employer;b. the identity of non-disabled comparators (where appropriate); andc. the nature and extent of the substantial disadvantage suffered by the claimant, including: i. the nature of the claimant’s disability; ii. why this disability placed the claimant at a substantial disadvantage; iii. what the substantial disadvantage was.[120]The requirement can involve treating the person with the disability more favourably than others.[121]We are to objectively assess the issue of whether the person with the disability has been put at a substantial disadvantage and there must obviously be some causative nexus between the disability relied upon and the substantial disadvantage. We must consider the overall picture.[122]In assessing the efficacy of any proposed step, it is only necessary to establish that there was a real prospect of the step avoiding or reducing the relevant disadvantage.[123]The claimant’s representative reminded us of Archibald v Fife Council [2004] IRLR 651 in his submissions on the scope of the duty to make reasonable adjustments.[124]A duty to consult or consider adjustments is not of itself imposed by the duty to make reasonable adjustments, the only question is, objectively, whether the respondent has complied with its obligations to make reasonable adjustments or not. The duty involves the taking of substantive steps, rather than consulting about or considering what steps might be taken. The EHRC Code of Practice on Employment provides some information about when an adjustment is reasonable.[125]It is not necessary for us to outline the law on jurisdiction and time limits at any length in this Judgment. The claimant’s representative reminded us of Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96. Section 123 of the Equality Act 2010 provides that proceedings must be brought within the period of three months starting with the date of the act to which the complaint relates (subject to the extension for ACAS Early Conciliation). If the thing alleged is part of a continuing series of events, then the time runs from when the continuing series ceased. If the claim was otherwise brought out of time, we must decide whether it was brought in such other period as we think is just and equitable (section 123(1)(b). The most important part of determining whether it is just and equitable is to balance the respective prejudice to the parties, but we must assess all the relevant factors in the case including the length of, and the reasons for, the delay. The Limitation Act 1980 sets out the factors which are usually considered as confirmed in British Coal Corporation v Keeble [1997] IRLR 336 (which we will not reproduce), but Tribunals have been warned that those factors only illuminate the task, they are not a checklist which must be rigidly adhered to.[126]In his submissions, the respondent’s counsel did not refer us to any specific case law. Conclusions – applying the Law to the Facts Unfair dismissal[127]We started by considering issue one which recorded the issues in the unfair dismissal claim.[128]Issue 1.1 recorded that it was not in dispute that the principal reason for dismissal was capability (ill health). We found that was the principal reason for the decision to dismiss the claimant. That is a potentially fair reason under section 98 of the Employment Rights Act 1996.[129]The list of issues at 1.2 set out the question which we were required to answer applying section 98(4) of the Employment Rights Act, namely whether the respondent act reasonably in all the circumstances, including the size of the organisation and administrative resources available, in treating capability (ill health) as a sufficient reason for the claimant’s dismissal. Issues 1.2.1 to 1.2.3 set out three particular issues which were part of that broader question. We considered all of those issues together.[130]As we have set out in the section on the law above, we took account of the importance of not substituting our own decision for that of the respondent. We reminded ourselves that we must resist the temptation to test matters according to what we would have decided if we were in the respondent’s shoes.[131]In determining whether the dismissal was unfair applying the test in section 98(4), we considered that the following factors were important or of particular relevance: 131.1. We must take account of the size and administrative resources of the respondent. The organisation for which the respondent is responsible is of a very significant size. We also noted the number of employees at HMP Manchester, where we were told that there were approximately three hundred band 3 Prison Officers employed; 131.2. On the 11 December 2023, being the date when he was dismissed, the claimant was certified as not fit for work under a fit note which expired on 28 December 2023; 131.3. On the date of dismissal, the claimant had been continuously absent from 4 September 2023 until 11 December 2023, which we were told was a total of ninety-eight days of continuous absence (that appearing to be actual days not working days). We considered that to be a lengthy period, but not a particularly lengthy period when considering the likelihood of dismissal by a comparably sized employer; 131.4. At the date when he was dismissed, the claimant was still in receipt of full contractual sick pay (218) and SSP. That was something which we were able to take into account as a factor; 131.5. The decision-maker thought that, and took into account that, the claimant had been given a formal warning and a final written warning about absence, when he had not. We understood that it was contended that Mr Knight only took account of the period of continuous absence, but we did not find that to have been the case from what was recorded in the notes of the FARM meeting on 11 December 2023. Soon after the meeting started, Mr Knight referred to the claimant’s absence record as being “terrible”. Mr Knight referred to whether some period of absence was unauthorised. Later in the meeting and shortly before adjourning, Mr Knight referred to the (erroneous) fact that the claimant would return to work to a level three warning. When he gave his decision orally (236), the words used by Mr Knight were that the decision was because the absence levels were too high. Those things being raised/said by Mr Knight in the FARM meeting were inconsistent with the argument that the decision was only about the period of continuous absence and meant that we found that the dismissal decision took into account the record of absences (and therefore the erroneous belief in warnings) as well as the period of continuous absence. The fact that the decision was based in part on an erroneous belief that the claimant had been given both a written warning and a final written warning, was something we viewed as a significant factor when determining the fairness of it; 131.6. If the claimant had not been erroneously recorded on the respondent’s systems as having received a warning and a final written warning, it was Mr Eve’s evidence that the SOP system would not have proposed a FARM meeting before the Governor, the next FARM meeting would have been one before Mr Eve (which could not have resulted in dismissal); 131.7. The impact of the claimant’s absence on the organisation of HMP Manchester was a relevant factor. Mr Knight evidenced the particular impact which absence had on the operation and that was a part of his reasoning. We accepted his evidence that absence and staffing is a particular issue when operating a prison, particularly because of the impact it may have on prisoners, and the safety of staff and prisoners; 131.8. We noted that, as the claimant was not given a final written warning, there was an absence of it being clearly and unequivocally made clear to the claimant in the way that a final written warning would, the effect which his absence had on the prison and that he was likely to be dismissed if his absence was repeated/sustained. That was a factor because of the reliance placed upon the absence record. However, we also found that the invitation to the FARM with the Governor did explicitly state what the outcome of that meeting could be; 131.9. Whilst we accepted the evidence we heard about absence levels generally; we noted that continuous absence has less of an impact on the operation of any organisation than frequent intermittent absence because continuous absence can be planned for more easily (particularly than the level of intermittent absence shown by one of the comparators). We also noted that where there were approximately three hundred employees at the same grade employed with the flexibility to be able to work in any area of the prison, the impact of one person’s ongoing absence will be less than it would be for a smaller employer or for someone with bespoke skills/duties; 131.10. We accepted the importance which the respondent placed on addressing attendance and absence, as evidenced by Mr Knight and as demonstrated by Miss Metcalfe and the regular senior management team absence meetings which she chaired; 131.11. As we have recorded in the facts when considering the SOP absence record (101) and so far as it was possible to identify what that showed, the claimant had been absent for a total of thirty-nine working days over the three year period from March 2019 to March 2022 (ignoring Covidrelated absence as it appeared to be agreed should be the approach). Some of that absence was disability related. The claimant had also been absent for seventeen days over two periods in April and August 2022 and eight days in January 2023, as those absences were recorded and appended to the letters sent to the claimant (which said no formal action was being taken). We did not find that to be a terrible level of absence, as it was described; 131.12. On 4 December 2023 the claimant told his manager that he was intending to return to work before his current fit note ran out, that is he envisaged returning to work before the end of December (and Mr Knight had a record of that when he made his decision); 131.13. The reason for the claimant’s absence at the time of his dismissal was PTSD. For somebody who had suffered from PTSD since before he started employment with the respondent, there had been spaces of good health between the disability-related absences; 131.14. The respondent had obtained recent advice from an occupational health advisor, having obtained three reports in a relatively short space of time. The respondent had taken steps to find out the true medical position; 131.15. Mr Knight placed some emphasis in his evidence on the fact that two previous occupational health reports had indicated that the claimant would be returning to work two weeks after they were written, and he had not done so. That appeared to be considered to show the claimant as being unreliable in returning or saying when he would return. We considered that the third occupational health report of 29 November 2023 (214) provided an explanation for why the previous belief/optimism had not transpired, when the explanation was provided that the claimant had stopped taking his medication and that had had a significant adverse effect. That explained why the claimant had not returned in the time previously indicated; 131.16. In the occupational health report of 12 October 2023 (165), the respondent was advised that uncertainty about the claimant’s position and the outcome of his expression of interest was having an adverse impact on his health. The respondent did not address that uncertainty, as it could and should have done by confirming the position in an email or document. There was, generally, a lack of transparency and poor communication about the claimant’s expression of interest in the Externals group/role and, where occupational health had identified the uncertainty as a potential additional stressor, the failure to address that was a relevant factor. Mr Eve did speak to the claimant about his understanding in the meeting on 9 November (but did not entirely resolve the uncertainty); 131.17. Clearly the occupational health report of 29 November 2023 (213) was of particular importance. That said that the claimant was hoping to return to work when his symptoms improved. It said that the claimant was unfit for work. No management actions or workplace adjustments would expedite his recovery. We found the key sentence in the final paragraph of the first page (213) about when the occupational health adviser anticipated his return to work, to be unclear and ambiguous, but it did say it could take a few months (an unclear phrase which could mean two months but obviously could mean more). However, on the second page of the report (214), it was said that there was no indication of a long-term, permanent incapacity and the expectation was that the symptoms would improve over time, and he would return to his full operational role. In his submissions, the respondent’s counsel said that the report confirmed that the claimant was unfit in any capacity and there was no indication that it might change. We did not find that to be correct, that was not what the report said at all. Mr Knight made reference to what was said about prognosis in the report in various ways during his evidence, including suggesting that it said there was no reasonable prospect of the claimant returning to work, which was also not what it said. The claimant’s representative questioned why the respondent could not have waited longer, with which we agreed (albeit we did not agree that should have been coupled with some form of reduced compensation arrangement, as was also suggested). We found that the report was not as clear as the respondent considered it was, felt that it was uncertain about recovery, and for a full and fair process it could have been clarified, or a further period could have been allowed to ascertain what the claimant’s prognosis for return was; 131.18. The claimant was given the opportunity to attend a meeting at which the position and the report was discussed, and he was allowed to have his say (we will address a particular issue with this in more detail when explaining what we considered in the discrimination arising from disability claim); 131.19. We considered that the claimant went into the FARM meeting effectively blind, as he was not provided with any of the documents which the decision-maker was considering (even if he could have requested them, someone in his position could not reasonably be expected to do so). It was very difficult for the claimant to effectively raise issues and highlight points, when the documents were not provided to him (such as the absence record being used when the “terrible” observation was made). In any event, the pack of documents was incomplete as it included the erroneous SOP record of warnings and not the actual warning letters; and 131.20. We did take account of the fact that there was a full appeal process with an independent decision maker. We accepted the respondent’s submission that Mr O’Malley had a thorough and encyclopaedic knowledge of the policies. The appeal was conducted fairly, albeit Mr O’Malley appeared to have been under the misapprehension that the claimant was still employed at the time, when he wasn’t. We did note what the claimant said about his health at the appeal and what he was seeking from it but also noted that those (at least in part) reflected the decision to dismiss.[132]We considered all relevant factors including all of those we have explained above. We found that the respondent did not act reasonably in all the circumstances, in treating capability (ill health) as a sufficient reason for the claimant’s dismissal. It was not within the range of reasonable responses of a reasonable employer to have dismissed in the circumstances we have set out. Balancing all the relevant factors, and in the claimant’s personal circumstances, we found that the employer could have been expected to wait longer for the claimant’s return. We took account all relevant factors and all of the matters which we have described, but, of the relevant factors those which had the greatest significance in reaching our decision that the dismissal was unfair, were the misplaced belief and consideration of a record that the claimant had been given a warning/final written warning when he had not, the possibility that the claimant could return to work in late December 2023, January 2024 or shortly after (prior to, or only shortly after, his full sick pay ran out), and the length of the period of continuous absence.[133]As a result, we found that the dismissal of the claimant was unfair. Direct disability discrimination[134]We next considered issue 4. Issues 4.1 to 4.3 set out the issues in the direct discrimination claim.[135]In issue 4.1.1 the claimant alleged that he had been given a final written warning on or around 7 February 2023. The claimant was not given a final written warning. As a result, that allegation of direct disability discrimination did not succeed.[136]In issue 4.1.2 the claimant alleged that the respondent had taken away his role in Externals. As we have addressed in the section on the facts, we found that the communication around the decisions made following the expression of interest, was somewhat lacking. However, we found that the role (or work in that area) was not taken away. The claimant was not appointed to work in the Externals area as he had requested to be.[137]It was Miss Metcalfe’s evidence that when the allocation of roles was decided on 10 August 2023, there was no discussions about levels of sickness absence, medical conditions or disabilities. We accepted that evidence. Those matters were not a factor in the decisions made and no account was taken of them (therefore including the claimant’s PTSD). As a result, we did not find that a hypothetical comparator without PTSD but otherwise in the same material circumstances as the claimant, would have been treated any differently. The decision on work allocation was not because of the claimant’s disability. There was not the required something more which shifted the burden of proof to show that it had been (or that a hypothetical comparator would have been treated more favourably).[138]Issue 4.1.3 was the dismissal. We found that a hypothetical comparator in the same material circumstances as the claimant but without PTSD would still have been dismissed by Mr Knight as the claimant was. We found that Mr Knight dismissed the claimant as a result of his absence (we found that to have been a decision about both absence levels and continuous absence). A comparator in the same material circumstances as the claimant would have had the same absence history, the same wrongly perceived warning and final written warning, the same period of continuous absence, and the same occupational health advice about return. Mr Knight would have also dismissed that hypothetical comparator without PTSD.[139]We did consider carefully what Mr Knight had said in his email of 20 February 2024 (325) explaining the dismissal, when he was asked about comparators by Mr O’Malley during the appeal process. In that email, Mr Knight did make an express reference to PTSD when explaining his decision. When asked about it, Mr Knight explained that he did so to differentiate what was being considered for the claimant in contrast to what was being considered for the comparators. As a result, we did not find that the statement used shifted the burden of proof or otherwise proved that the decision had been made because the cause of the claimant’s absence was PTSD.[140]We heard evidence and argument about the comparators. In practice, neither of the comparators were in materially the same circumstances as the claimant. One of the comparators had been absent very frequently but was not on a period of longterm absence when the initial decision not to dismiss was made. The other comparator was not dismissed because ill health retirement was to be further explored, something which did not apply to the claimant. Both were in fact dismissed eventually. As neither comparator was in materially the same circumstances as the claimant, he could not rely upon them as actual comparators. We did take into account what we heard when considering the position of a hypothetical comparator as the frequently absent comparator did show that Mr Knight did not always dismiss at a Governor’s FARM, but we did not find that Mr Knight’s acceptance of one employee’s commitment to improve their attendance showed that a hypothetical comparator in the same circumstances as the claimant without PTSD would have been treated differently.[141]As a result, we did not find that the respondent directly discriminated against the claimant in the ways alleged. Discrimination arising from disability[142]We then considered the discrimination arising from disability complaint, for which the issues were set out at issues 5.1 to 5.4.[143]As we have already said, the claimant did not have the Externals role taken away from him as issue 5.1.1 asserted. However, we did consider that not being given a role for which he had completed an expression of interest and which he had worked in a lot when doing overtime, was unfavourable for the claimant. Obviously, being dismissed (5.1.2) was unfavourable treatment.[144]It was not in dispute that the claimant’s absence from work arose in consequence of the claimant’s disability (issue 5.2).[145]Issue 5.3 asked whether the unfavourable treatment was because the claimant was absent from work? The dismissal was (at least in part) because the claimant was absent from work. However, the decision not to place the claimant in Externals was not because the claimant was absent from work. We have already explained why the evidence of Miss Metcalfe meant that the answer to question 5.3, when considering 5.1.1, was no. Absence was not part of the decision-making process for role allocation at all.[146]We then needed to consider issue 5.4 as it applied to the dismissal. The issue was whether the dismissal was a proportionate means of achieving a legitimate aim? The aim relied upon (it was not entirely clear whether it was contended to be one aim or multiple aims, but it would not appear that anything material turned upon it): was set out by the respondent in his amended grounds of response at paragraph 35 (58) as: the need to ensure staff fitness for work in the light of medical advice, to ensure health and safety of all staff and service users, in compliance with the respondent’s policies, to manage staffing including ensuring adequate numbers of officers throughout the prison and ensuring proper operation of the prison. We found that to be a legitimate aim (or aims). It was legal, non-discriminatory, and one that represented a real objective consideration (or considerations).[147]What we then needed to decide was whether the dismissal of the claimant was a proportionate means of achieving that legitimate aim (or aims). We were required to balance the real needs of the respondent/prison against the discriminatory effect of the thing being justified (the dismissal). Dismissal of the claimant at the meeting on 11 December 2023 was clearly something which had a significant discriminatory effect for him. Undertaking the balance, we found that the dismissal at that point in time at that FARM meeting, was not a proportionate means of achieving the aim identified (or aims identified). In making that decision we considered the same factors as we have set out for the unfair dismissal complaint, and which we will not reproduce here. Applying those factors, we did not find the dismissal to be a proportionate means of achieving the aim (or aims) identified. We understood that the question was slightly different to that of fairness and considered that the procedural factors had slightly less importance when considering proportionality.[148]In his evidence, Mr Knight explained that the claimant’s demeanour at the FARM had been blasé and that appeared to have been a factor in his decision. He said that the claimant offered no reassurances that his attendance would improve, and he contrasted the claimant’s approach in the meeting to others who attempt to persuade him that they want to return and see themselves as doing so. We would observe that what Mr Knight might have been interpreting was the demeanour that would be expected of somebody with anxiety, depression and PTSD, particular someone who was having issues with their medication at the time. That was an observation which we had of the evidence heard. It was not a significant factor in our decision on discrimination arising from disability (the more significant factors have been set out in detail when determining the fairness of the dismissal), but it was something which we considered alongside those factors.[149]As a result, we found that the dismissal of the claimant was discrimination arising from disability. The decision made about the Externals role was not. Breach of the duty to make reasonable adjustments[150]We then considered the claim for breach of the duty to make reasonable adjustments, and the issues set out at6.1 to 6.5. It was not in dispute that the respondent did apply the PCPs as set out in the list of issues at6.1.1 and6.1.2 (and which we will not reproduce). It was also not in dispute that the PCPs placed the claimant at a substantial disadvantage compared to someone without his disability (issue6.2 ). Knowledge was not an issue (6.3). That meant that the issue which determined the complaint was 6.4, whether the respondent had failed to make a reasonable adjustment (which would have avoided the disadvantage)?[151]The adjustment set out as issue 6.4.1 was not dismissing the claimant. We considered the adjustment to more specifically be not dismissing the claimant on 11 December 2023. The relevant factors in reaching that determination have already been set out when considering the fairness of the dismissal and whether the dismissal amounted to discrimination arising from the disability. We considered those same factors when determining the reasonableness of the adjustment (but will not reproduce them here). We found that the respondent did fail to make a reasonable adjustment when it dismissed the claimant on 11 December 2023 rather than not dismissing him at that meeting. The reasonable adjustment would have been to have deferred the decision to dismiss to a later date, taking account of the length of the fit note, the claimant’s commitment to returning to work in the near future, and what was said in the occupational health reports and the positive statements about future recovery. A further FARM could have been arranged in the future, and we found it would have been a reasonable adjustment to have done so (where the reason for the claimant’s absence at the time was PTSD, a disability).[152]The adjustment sought at issue 6.4.2 was extending the period before a decision was made. We have effectively already addressed that potential adjustment when considering issue 6.4.1 and therefore did not need to address it separately.[153]The adjustment contended at 6.4.3 was adjusting the trigger points. The claimant had been ordered to set out in further particulars how he contended they should have been adjusted, but he had not done so. The application of this adjustment to the claimant’s circumstances was not as clear as it might have been for other similar cases. It was not clear to us which of the absences recorded (101) had been considered and whether any adjustments had been made (including for those recorded as null). The arrangement of a FARM before the Governor had, on Mr Eve’s evidence, been made in error based upon what had erroneously been recorded on the SOP system (not as a result of the application of the trigger points in the procedure). Mr Knight did not make a dismissal decision because he considered and applied trigger points, he took an overview of absence and the period of continuous absence. As a result, we did not find that adjusting the trigger points would have avoided the disadvantage which the claimant suffered as a result of his disability. To the extent that it was contended that the trigger points should have been adjusted earlier in the process, we did not find that it was a reasonable adjustment to delay earlier meetings and discussions with the claimant about absence.[154]What was claimed as adjustment 6.4.4, was letting the claimant carry on doing the Externals role. The claimant never undertook the Externals role as his regular substantive duties (he did undertake considerable overtime doing that work), so that adjustment would not really have been letting him carry on with that work as alleged. There was evidence that resolving the uncertainty would have assisted the claimant as was said in the 12 October occupational health report. As at the time of the dismissal, the advice of both the occupational health advisor and the GP was that the claimant was not fit for work. The medical advice was not that the claimant would have been fit for work if he was able to return to working in Externals. The adjustment sought would not have addressed or avoided the substantial disadvantage which the claimant suffered by the application of the PCPs relied upon (as he would have remained unable to attend and perform his duties due to his health on 11 December 2023 irrespective of where it was, he was due to return to work when fit).[155]In determining the reasonable adjustment claims, we limited our decision to the adjustments set out in the list of issues. As we have identified in the section on the law, the question was whether the respondent made the required reasonable adjustments or not (rather than being about whether they considered them). As the respondent’s counsel submitted, the respondent did agree to a phased return when advised and did discuss it with the claimant in the meeting on 9 November 2023, when he said that was not something which he wanted. One particular issue raised by the claimant’s representative, was the contention that allowing Mr Howard (who had moved roles) to have remained the claimant’s line manager during absence would have been a reasonable adjustment. We noted that Mr Eve arranged for Mr Howard to attend the 9 November meeting in the light of the claimant’s request. The claimant did not appear to have continued to have objected to Mr Eve being his line manager by the end of that meeting. We considered that Mr Eve handled the claimant’s absence and absence meetings quite reasonably (save, of course, for relying upon what the SOP system recorded in error about the warnings). In any event, had that been a reasonable adjustment contended for by the claimant in the proceedings, it would not have been an adjustment which addressed or avoided the substantial disadvantage which the claimant suffered by the application of the PCPs relied upon. Whether the claimant had been allowed to be line managed by his preferred manager did not address that disadvantage even if it was something the claimant wanted.[156]As a result, we found that the respondent did breach his duty to make reasonable adjustments when the claimant was dismissed on 11 December 2023, but did not breach the duty in the other ways alleged. Time limits and jurisdiction[157]Issue 2 in the list raised time limits and jurisdiction. That was only an issue in relation to the allegation about a final written warning in February 2023. The discrimination complaints found related to the dismissal decision, which were brought within time. As we found that the claimant was not given a final written warning, we did not need to consider the time/jurisdiction issue. If found (and as the claimant contended) it is possible (or indeed likely) that we would have found it to have been part of a continuing series of events with the in-time dismissal. As there was no identified prejudice to the respondent who has successfully defended the complaint, it is also possible that we would have found it to have been just and equitable to extend time for that allegation. However, as we found for the respondent on that complaint, we did not need to determine those issues. Issue 8.3[158]The one other issue which we needed to determine was that set out in the list of issues at 8.3. We were not determining any other remedy issues, but it was agreed what we would determine that issue (commonly known as Polkey) alongside the liability issues. In his submissions, the respondent’s counsel contended that even if we found that the dismissal was unfair, we should nonetheless find that any compensation should be reduced 100%.[159]We did not find the determination of this issue (8.3) to be straightforward in this case. As we have set out in the section on the law, we are required to determine this issue even where it involves a degree of uncertainty, or an element of speculation is involved.[160]Considering the decision to dismiss made on 11 December 2023, which we found to have been unfair, we did not find that it could be said that the claimant would certainly have been fairly dismissed and/or not have returned to work had a fair process been followed and a fair decision reached.[161]The respondent placed some reliance upon the appeal hearing on 16 February 2024 and what the claimant said at that meeting and his health at the time of that meeting. We did take into account the fact that the claimant informed Mr O’Malley that he was not fit for work at the time of that meeting. We did not find that it followed from that fact, that the claimant would have been in the same health position at that meeting if he had not been dismissed. It was clear that the dismissal (which of course we have found to have been unfair and discriminatory) had meant that the claimant no longer wished to return to work with the respondent. Undertaking the element of speculation which is required when considering this issue, we accepted that where there was an intervening dismissal we could not conclude that the claimant’s health at the appeal hearing was the same as it would have been had he not been dismissed.[162]We found that, taking account of the evidence about the claimant’s health and the fact that the claimant was not fit to work at the time of the appeal hearing (whilst noting the reservations we have about what that proved when considering the position if the claimant had not been dismissed), there was some realistic possibility that the claimant would not have been fit to return work at a later date when a fair and non-discriminatory decision to dismiss might have been made by this employer. That meant that it was appropriate to reduce the compensation by a percentage to represent that possibility (albeit something which required speculation). We noted the positive longer-term prognosis in the final occupational health report (213) that there was no indication of long-term permanent incapacity and the expectation that over time he would return to his full operational role. We did not find this to be a case where we could identify a date or dates as a way of limiting the compensation, it was a case where we needed to apply a percentage reduction to the compensation to reflect the chance that the claimant could ultimately have been fairly dismissed. We decided that the appropriate reduction was 40%, given the significant possibility that the claimant would not have been fit to return to work (or be soon to be fit to return to work) when a fair decision could have been made by this employer, considered alongside the claimant’s commitment to return and the positive longer-term prognosis for doing so. Summary and remedy[163]For the reasons explained above, we found that the claimant had been unfairly dismissed, and we found that he had suffered unlawful discrimination arising from his disability in one of the ways alleged and the respondent had breached its duty to make reasonable adjustments in one of the ways alleged. We did not find for the claimant in his other discrimination complaints (including those of direct disability discrimination). Remedy will need to be determined.[164]The claimant was ordered to prepare and provide to the respondent an updated schedule of loss by 15 December 2025.[165]The respondent was ordered to prepare and provide to the claimant a counter-schedule of loss by 12 January 2026 (showing, as far as possible, which figures are agreed, and which are in dispute).[166]A remedy hearing has been listed for 25 and 26 January 2026 at Manchester Employment Tribunal (in-person to be heard by the same Tribunal panel) with two days allocated to it. The parties will need to ensure that the Tribunal is provided with four copies of the revised schedule and counter-schedule for that hearing.[167]The parties were reminded that the services of ACAS remain available.[1]The Judgment was issued after a lengthy hearing. A significant amount of documentation was considered. A large amount of evidence was heard and considered, including the evidence given by the claimant personally.[2]The application for reconsideration does not provide any information about events which have occurred since the hearing, or detail that evidence/documents have come to the claimant’s attention since the hearing. The application appears to be based upon facts and arguments about which the claimant was aware at the time of the hearing. All the arguments are those which were pursued on his behalf at the hearing and were considered at the time that the Judgment was reached.[3]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the Judgment (rule 70). The Court of Appeal in Ministry of Justice v Burton [2016] EWCA Civ 714 has emphasised the importance of finality, which militates against the discretion being exercised too readily. In exercising the discretion, I must have regard not only to the interests of the party seeking the reconsideration, but also to the interests of the other parties to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.[4]In Ebury Partners UK v Davis [2023] IRLR HHJ Shanks said: “The employment tribunal can therefore only reconsider a decision if it is necessary to do so 'in the interests of justice.' A central aspect of the interests of justice is that there should be finality in litigation. It is therefore unusual for a litigant to be allowed a 'second bite of the cherry' and the jurisdiction to reconsider should be exercised with caution. In general, while it may be appropriate to reconsider a decision where there has been some procedural mishap such that a party had been denied a fair and proper opportunity to present his case, the jurisdiction should not be invoked to correct a supposed error made by the ET after the parties have had a fair opportunity to present their cases on the relevant issue. This is particularly the case where the error alleged is one of law which is more appropriately corrected by the EAT.”[5]As is said in that Judgment, it may be appropriate to reconsider a decision where there has been some procedural mishap such that a party has been denied a fair and proper opportunity to present his case.[6]The application for reconsideration raises four issues and I will address each of those (briefly) in turn.[7]Hypothetical comparators were addressed and determined as part of the direct discrimination complaint. What was determined, for the allegations where that was required, was set out at paragraphs 137, 138, 139 and 140 of the Judgment and reasons. The fact that the reconsideration request includes what is said to be an apology that the claimant’s representative was unable to articulate how a hypothetical comparator would have been treated, shows that what is being put forward is a second bite at the cherry, that is a second attempt to argue the case. What the reconsideration request goes on to explain, does not highlight anything which would or could have changed what the Tribunal determined, which was (for the relevant direct discrimination allegations), that a hypothetical comparator without PTSD would not have been treated differently.[8]The application to reconsider regarding the externals role, does not detail which of the allegations it is that it is being proposed should be reconsidered. What is said is also difficult to understand. The Tribunal found as a matter of fact based upon the evidence heard (and Miss Metcalfe’s evidence in particular) that when the roles were allocated on 10 August 2023 there was no discussions about levels of sickness absence, medical conditions or disabilities, and that no account was taken of those things. The claimant’s representative had a full opportunity to say what he wished to about the externals role during the hearing and it appears that what is said now is a request to have a second opportunity to make those arguments.[9]There is nothing whatsoever raised in the reconsideration application about process and witnesses that could possibly form the basis for a meritorious request to reconsider. It appears that reliance is placed upon the representative’s active decision that cross-examining the witnesses about the matter he raises, had proved to be a pointless line of questioning. That cannot be the basis for a reconsideration application. In any event, the representative had the opportunity at the time of submissions in the hearing, to raise any issues or arguments that he wished to about what conclusions should be drawn from the evidence.[10]Paragraphs 158 to 162 of the Judgment and reasons set out the Tribunal’s decision on Polkey (issue 8.3). The parties were told that the Tribunal would determine that issue and the claimant’s representative was able to make the arguments which he now puts forward at the hearing. It is clear that the representative has a different view to the Tribunal about what were the chances that the claimant’s health issues might have stopped him from returning to work, as he asserts that the chances were nil, and the Tribunal concluded that the appropriate reduction was 40%. However, as with the other grounds, it is not a valid basis for the Judgment to be reconsidered that the claimant’s representative wants another chance to argue the issue. To the extent that any of the points raised in the reconsideration application are not about what was decided on that specific issue, but are about remedy issues more generally, the representative will be able to raise those issues at the remedy hearing listed.[11]Rule 70(2) of the rules of procedure empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.[12]Preliminary consideration under rule 70(1) must be conducted in accordance with the overriding objective which appears in rule 3, namely to deal with cases fairly and justly. This includes, so far as practicable, saving expense. Achieving finality in litigation is part of a fair and just adjudication.[13]I do not find that it is necessary in the interests of justice to reconsider the Judgment, based upon the application made by the claimant. There is no reasonable prospect of the original decision being varied or revoked, based upon the reasons given. The application for reconsideration is refused. REMEDY JUDGMENT The unanimous judgment of the Tribunal is that: 1. The respondent shall pay to the claimant a basic award for unfair dismissal of £3,536.50. 2. The respondent shall pay the claimant compensation for injury to feelings of £29,325. 3. The respondent shall pay the claimant damages for loss as a result of the discrimination found (having taken into account the polkey reduction and grossing up) of £41,442.69. 4. The respondent shall pay the claimant interest on the injury to feelings award of £5,000.52. 5. The respondent shall pay the claimant interest on the damages awarded of £2,762.91.[1]The claimant was employed by the respondent as an HM Prison Officer from 11 September 2019 until his dismissal on 11 December 2023. The claimant had a disability at the relevant time (PTSD). In a Judgment made at the end of the liability hearing conducted on 10-14 November 2025 (with the Judgment and written reasons unfairly dismissed by the respondent and that the complaints of discrimination arising from disability and breach of the duty to make reasonable adjustments were wellfounded and succeeded as a result of the dismissal. It was also found that the compensation to be awarded to the claimant should be reduced by 40% applying Polkey, to reflect the chance that the claimant’s employment would have ended in a fair dismissal in any event (that being the only remedy issue which it had been agreed would be determined alongside the liability issues). This was the remedy hearing. Claims and Issues[2]In the liability Judgment, the parties were ordered to provide a schedule of loss and counter schedule of loss prior to this hearing. Both parties had done so. At the start of this hearing, we identified what appeared to be the factors in dispute from reading those documents. The parties agreed they were the issues in dispute. In his schedule of loss, the claimant sought a total of all awards of £1,226,550. The respondent contended that the total awards should be £16,592.20. Procedure[3]The claimant was represented at this hearing by his brother (a non-legal representative), as he had been at the liability hearing. Mr McLean, counsel, represented the respondent, as he had done at the liability hearing.[4]The hearing was held in-person with both parties and the representatives attending Manchester Employment Tribunal.[5]We had in front of us the bundle of documents and witness statements which had been prepared for the liability hearing (the order having been that the bundle and statements should be prepared on the basis that remedy could be determined at that hearing). The bundle had 522 pages. On the morning of the remedy hearing, we were also provided with some additional pages produced by the claimant for this hearing, which we read before the hearing commenced.[6]The claimant’s witness statements for the liability hearing included elements on remedy within them. No additional statement was produced for this hearing. The claimant, under oath, confirmed that the relevant content of his statements was true. He was asked some limited questions by his representative and the Tribunal at the start of his evidence. He was cross-examined by the respondent’s representative. He was also asked further questions by the Tribunal at the end of cross-examination. He was briefly re-examined.[7]Nobody gave evidence at this hearing for the respondent, and no additional documents were provided on his behalf.[8]Each of the parties was given the opportunity to make submissions. They each made their submissions orally.[9]We adjourned the case to reach a decision and reserved our decision. We informed the parties that we would endeavour to reach a decision in the time available and would send them out Judgment and reasons.[10]As a result, this document contains our Judgment on the remedy issues and the written reasons for it. Facts[11]We will not reproduce in this Judgment the facts as we found them and as they were recorded in our liability Judgment.[12]The claimant was previously employed by the army for a long time (prior to his employment by the respondent). That employment ended due to ill-health as a result of PTSD. The claimant commenced working for the respondent approximately six months after his employment in the army ended. He was employed as an HM Prison Officer from 11 March 2019 until 11 December 2023.[13]The claimant commenced an extended period of ill health absence on 4 September 2023. He informed his manager he would return to work at the end of his fit note which was due to expire at the end of December 2023. Before that occurred, he was dismissed on 11 December 2023. Throughout the period of the claimant’s ill health absence which pre-dated his dismissal, he was paid full pay (being full basic pay including an allowance but not including overtime). He had been due to reduce to half pay during ill-health absence had he remained employed and absent, early in 2024.[14]The respondent obtained an occupational health report before the decision to dismiss was made. The key contents of that report were detailed in our previous Judgment. The content of that report was relevant to our remedy decision (and was considered when we made it) but will not be reproduced in this Judgment.[15]We were not provided with copies of any payslips for the period when the claimant had worked for the respondent. That was not helpful in determining and calculating loss. However, as neither party provided those documents, we needed to make our decisions as best as we were able without them.[16]It was the respondent’s position that the claimant’s gross annual salary with the respondent had been £36,056.16, which was £3,005 per calendar month. Net, that equated to £2,388.17. We were not shown any documents which supported those figures (save that the documents from HMRC which the claimant did provide, were broadly consistent with that net figure for the months when he was absent from work on ill-health grounds and had been paid full pay as sick pay but not overtime).[17]When employed by the respondent, overtime was not a contractual right. It was voluntary. Whilst employed (and not absent on ill health grounds), the claimant undertook significant amounts of overtime. It was the claimant’s evidence that as much overtime as he wanted was available. We heard no evidence which contradicted that or showed why overtime would have been limited had he remained employed. The claimant also emphasised that even had overtime not been available at Manchester Prison, he could have undertaken overtime at other prisons and would have been able to do so. The earnings figures provided by the claimant substantiated his evidence that he had undertaken very significant amounts of overtime when he was fit and able to do so, during his employment by the respondent (prior to the latter period of ill-health absence). The vast majority of work which the claimant undertook as overtime was externals work, doing things such as accompanying a prisoner to the hospital, being things which he evidenced that he had particularly enjoyed doing.[18]We were provided by the claimant with the details from HMRC of his earnings with the respondent on a month-by-month basis. The figures from 31 October 2023 onwards reflected his earnings during the lengthier period of ill health absence which preceded his dismissal. The earnings for the months prior to that were higher because they included the overtime which the claimant worked.[19]For the six-month period of April to September 2023, the claimant’s total taxable income was £31,724.59 with total deductions for tax and NI (albeit not any other deductions as they were not recorded on the HMRC information) of £8,671.70, meaning the net earnings for that six-month period were £23,052.89 (equating to £3,842.15 per calendar month).[20]For the twelve-month period from October 2022 to September 2023, the total taxable earnings were £64,768.03 (practically evidencing the very significant amount of overtime which the claimant worked) with total deductions for tax and NI of £18,095.10, meaning the net earnings were £46,672.93 (equating to £3,889.41 per calendar month).[21]The claimant has undertaken a variety of different employment since he left the respondent’s employ. We were not provided with many of the documents which we would have expected to see, which would normally have been provided for work undertaken by a claimant. There were no P45s provided for any of the jobs. With one exception, we were not provided with any letters about why the jobs had ended. We were not provided any offer letters or terms and conditions of employment. A limited number of payslips were provided, but for only some of the jobs. We were provided some documents which showed payments received by the claimant.[22]The first job which the claimant undertook following leaving the respondent, was at Manchester Airport in the baggage checking area. The claimant described the job as low skilled and low paid. He also told us that the social anxiety was too much as caused by the airport environment. He described the work as mind-numbing. He explained in his evidence to us why he considered that, referring to the repetitive nature of the tasks required to be undertaken. The claimant’s verbal evidence was that the salary for the role was £25,000 per annum and he described it dismissively as minimum wage. We were not provided with any payslips which recorded the claimant’s earnings when working at Manchester Airport. One page provided to us, showed a payment which the claimant received from that work as being £1,712.75 on 15 March 2024 (380). We did not know precisely what period it covered, but assumed it was net monthly pay for March. The claimant’s oral evidence was he did three weeks in a classroom, but it was not entirely clear how many weeks thereafter he worked. He resigned from that position.[23]We noted that the claimant appeared to have commenced his second employment very soon after he ceased to work at the Airport. We considered that the limited gap evidenced that the work at the Airport undertaken by the claimant had no ongoing health impact on the claimant. There was no evidence provided (save for what the claimant said in his evidence which we have recorded), which showed that the claimant left his employment at the Airport due to his health, as opposed to choosing to leave for the other reasons he explained.[24]The second employment which the claimant undertook after leaving the respondent’s employment, was undertaking surveillance work. In his oral evidence, the claimant spoke about the travel involved, both for the fifty percent of time spent working at or near to home and the fifty percent of time when he needed to stay away from home. It appeared from the evidence provided that the claimant actively fulfilled that work from April to August 2024, albeit he remained employed until December.[25]We were provided with eight payslips for the claimant’s employment with Mike India 5 Limited (the surveillance work) from 30 April 2024 to 31 December 2024 (327 and 381). His gross basic monthly salary appeared to have been £2,083.33 (being £1,794.70 net) when he worked a full month. He also received quite substantial bonuses in three of the months he worked, but we heard no evidence about what those bonuses were for (and the respondent’s representative asked no questions about them). The later payslips provided for payment of sick pay and holiday pay only.[26]The claimant, in his evidence, explained the driving time required and the mundanity of the work. He also explained the need to share accommodation with a colleague when working away, which he found difficult for reasons he gave. The claimant also referred to the ongoing Tribunal claim against the respondent when giving evidence about the surveillance employment and said that was in part why he had health issues during the time he was employed. We could see no genuine reason why this Tribunal claim had any material impact on the claimant’s ability to remain in that role (and we were provided with no medical evidence which showed otherwise). It appeared that the claimant left that employment voluntarily. The payslips provided appeared to show the claimant being paid sick pay for the surveillance role, at the same time as he was employed in the his next job (albeit we heard no detailed evidence about why that might have been or for what exact period the sick pay recorded on the payslips related).[27]We were provided with a document which showed the claimant being paid by Let Property Sales Limited on 1 November 2024 (392). He was paid £658.51. The claimant’s evidence was that he undertook a phone sales role. It appeared that he fulfilled that role only briefly. The claimant explained why he had moral objections to that role and what he was being asked to do (which we understood and accepted).[28]It was the claimant’s evidence that he undertook two self-employed roles. It was his evidence that once costs and petrol were taken into account, he earnt very little in either role. We understood why he did not persist with those roles. There was no documentary evidence provided to us which detailed those roles or any earnings from them.[29]We were provided with two payslips for the claimant’s employment with QuestGates Limited from 28 February and 31 March 2025 (332). The normal gross and net pay was difficult to identify because of the deductions made. We were also provided with documents showing payments being made to the claimant on 24 January (393). We were shown one page which recorded the claimant as being paid by Personal Group Ben (395). The evidence about those roles was sparse. The claimant did provide oral evidence that one role he commenced was withdrawn after a reference was not provided by the respondent. We were shown an email from an agency (390) on 24 April 2025 in which it said that they had sought a reference from a named individual at the prison but had not received any response. The claimant’s evidence was that he didn’t chase the reference.[30]The one other role about which we heard evidence was with Commando Joe’s. That was a role the claimant fulfilled in autumn 2025. For that role, we had the benefit of the letter which recorded why the employment was being ended (dated 29 September 2025). The claimant’s evidence was that he thought that was a good role. It was for work based in schools. It was the claimant’s evidence that the job was withdrawn because the respondent did not provide a reference. The letter itself gave the reason as being that they had not been able to complete the required clearances to their satisfaction (and the letter listed a number of things including references). The respondent did not provide us with any evidence that he had provided any reference to any of the organisations when requested. The claimant accepted that factual references had been provided to the Airport and the surveillance company.[31]We were provided with the medical report form for an assessment for employment and support allowance for the claimant on 22 May 2025. The conclusion of that report was that the claimant had/has limited capability for work and workrelated activity. The claimant has subsequently received PIP payments on the basis that he is not fit for work, to help with daily living needs.[32]We were also provided with documents which detailed a large number of roles for which the claimant had applied, primarily through Indeed. The documents evidenced a wide variety of roles.[33]It was the respondent’s counsel’s submission that the claimant had been unable to work due to ill health since June 2025. That submission was supported by the benefits documentation. However, the limited period of employment undertaken by the claimant with Commander Joe’s had been undertaken since June 2025.[34]We were not provided with any evidence about the claimant’s taxable earnings in the current tax year and we did not hear any evidence about what elements of the personal allowances the claimant had used. However, with the exception of the very short period of employment with Commando Joe’s, it was not evidenced that the claimant had received any taxable earnings this tax year. We have therefore undertaken the grossing up calculation below on the basis that the claimant had the full personal allowances available for the current tax year as we did not have sufficient information available to us to work on any other basis.[35]This Judgment does not seek to address every point about which we heard or about which the parties disagreed. It only includes the points which we considered relevant to the issues which we needed to consider, in order to decide the remedy due.
The Law
[36]Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102 was the case which established the bands for injury to feelings awards, which have subsequently been modified and updated. In Vento, the Court of Appeal laid down three levels of award: most serious, middle and lower. The Court of Appeal suggested that the top band should apply to the most serious cases, such as where there had been a lengthy campaign of discriminatory harassment on the prohibited ground; that the middle band should be used for serious cases which do not merit an award in the highest band; and the lower band would be appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence. When making an injury to feelings award, we must keep in mind that the intention is to compensate, not punish. We must, therefore, be astute neither to conflate different types of awards nor to allow double recovery. We should not allow the award to be inflated by any feeling of indignation or outrage towards the respondent. Awards should not be set too low as that would diminish respect for the policy of the antidiscrimination legislation.[37]In terms of aggravated damages, the respondent contended that, in order to justify an award, the respondent would have needed to have acted in a “high-handed malicious, insulting or oppressive manner” (that comes from Broome v Cassell & Co Ltd [1972] AC 1027). Aggravated damages are really an aspect of injury to feelings, and we must have regard to the total award made when considering aggravated damages (Commissioner of Police of the Metropolis v Shaw [2012] IRLR 291). We are not required to make one global award, but we need to be careful about the risk of double recovery should we not do so.[38]Remedy for discrimination is governed by section 124 of the Equality Act 2010. We may order the respondent to pay compensation to the claimant. Where compensation for discrimination is awarded, it is on the basis that, as best as money can do it, the claimant must be put into the position he would have been in but for the unlawful conduct (Ministry of Defence v Cannock [1994] IRLR 509).[39]The approach we should take to assessing loss was set out in the decision of the Court of Appeal in Wardle v Credit Agricole Corporate and Investment Bank [2011] ICR 1290. That said that, in the vast majority of cases, a Tribunal will be able to conclude that an employee will, in time, find an equivalently remunerated job and loss should be assessed only up to the point at which the employee would be likely to obtain an equivalent job. In rare cases, a career-long-loss approach is appropriate. Even in those cases, some general reduction should be made on a broad-brush basis for the vicissitudes of life such as the possibility that the claimant would have been fairly dismissed in any event or might have given up employment for other reasons. Where a likely date for obtaining alternative employment is identified, that was acknowledged as being an exercise which was speculative in nature and would rarely be accurate, but it was said it was the best solution which the law can provide, seeking finality at the point where compensation is awarded.[40]A claimant is expected to take reasonable steps to mitigate his loss. Where the respondent contends that a claimant has not mitigated his loss, the burden of proof is on the respondent; a claimant does not have to prove they have mitigated their loss. What has to be proved is that the claimant has acted unreasonably; the claimant does not have to show that what they did was reasonable. What is reasonable or unreasonable is a matter of fact and is our assessment of reasonableness. The claimant’s views and wishes are one of the relevant circumstances to be taken into account, but it is our assessment not the claimant’s. We are not to apply too demanding a standard.[41]Where tax is due on the award made, we need to gross up the award. The guidance on how to undertake grossing up was set out in the case of PA Finlay & Co ltd v Finlay UKEAT/0260/14 and we considered what was said in that Judgment when undertaking the grossing up calculation recorded below (but we will not reproduce what is said in this Judgment).[42]The rules which apply to interest on discrimination awards are set out in the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. Interest for an injury to feelings award is calculated for the period beginning on the date of the contravention or discrimination complained of and ending on the calculation date. Interest for other damages uses a mid-point date between the date of the discrimination and the calculation date.[43]We were determining remedy in both the claimant’s successful discrimination claims and in his unfair dismissal claim. Section 119 of the Employment Rights Act 1996 sets out how a basic award for unfair dismissal should be calculated. Section 126 of the Employment Rights Act 1996 provides that where compensation falls to be awarded both under provisions relating to unfair dismissal and under the Equality Act 2010, we shall not award compensation under either of those Acts in respect of any loss which has been taken into account in the other. The Act does not set out under which Act compensation should be awarded first. We have awarded the claimant his losses as damages for discrimination, so have not also awarded the claimant a compensatory award for unfair dismissal, as all of his losses have been taken into account when awarding damages for discrimination.[44]Section 207A (2) of the Trade Union and Labour Relations (Consolidation) Act 1992 provides that: “If, in the case of proceedings to which this section applies, it appears to the Employment Tribunal that –(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,(b) the employer has failed to comply with that Code in relation to that matter, and(c) that failure was unreasonable, the Employment Tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%.”[45]The code of practice sets out that it is designed to deal with disciplinary and grievance situations in the workplace. It says that disciplinary situations include misconduct and/or poor performance. The code itself does not refer to ill-health situations at all. In Holmes v Qinetiq Limited [2016] ICR 1016 it was held that the ACAS code did not apply to incapability because of health.[46]In his submissions, surprisingly, the respondent’s counsel did not refer to any specific case law at all.[47]The claimant’s representative did refer to case law in his submissions. He placed considerable reliance upon an Employment Appeal Tribunal decision in the case of Secretary of State for Justice v Plaistow UKEAT/0016/20. We considered that Judgment. The facts bore some similarity to those in this case (although the harassment and discrimination found was somewhat different). The claimant had been a prison officer and had suffered PTSD and been found to have suffered discrimination by the respondent. The Tribunal awarded that claimant loss on a career-long basis. The Employment Appeal Tribunal addressed some of the Tribunal’s findings and upheld some of the appeal, but it did not find that the Tribunal had been perverse to decide that it was one of the rare cases in which career-long loss could be awarded. We would observe that the decision in that case was based upon the evidence of consultant forensic psychiatrists about the impact the harassment suffered had on that claimant. The claimant’s representative also emphasised the approach taken in that case to the loss of overtime, which was that the Tribunal had included in the damages awarded the loss of overtime worked, by taking the loss over two years as being indicative of what he had lost (something the Employment Appeal Tribunal decided was not wrong in principle or perverse).[48]The claimant’s representative also referred to the Judgment in the case of Griffin v Plymouth Hospital NHS Trust [2015] ICR 347. He referred to that case in relation to pension loss. In that case the Employment Tribunal had used the simplified approach to pension loss for someone who had been in the NHS pension scheme when faced with an argument about the approach it should take. The Court of Appeal recorded that the final salary pension scheme was of a kind rarely found outside the public sector. On the facts of that case and particularly because the claimant had a specialist skill for which it was said the principal, if not the only, market was the NHS, the only conclusion open to that Tribunal had been that the claimant would have remained in the NHS for the whole of her career. Both parties in this case contended that pension loss should be calculated using the simplified approach (calculated based upon the loss of the employer pension contributions); the claimant did not argue that we should use the substantial loss approach, and no actuarial evidence was obtained or proposed. In his schedule of loss, the claimant claimed the loss based upon the employer pension contributions.[49]In his submissions, the claimant’s representative also said there is case law which says that once we had taken the percentage approach to Polkey which we took in the liability decision, we should not also limit the time for which losses would be awarded. Unfortunately, that was not a submission for which he provided the details of the case upon which he relied. We accept that when taking a Polkey approach (as we had already done in this case), we could not both apply a percentage reduction and a time limit approach, to reflect the chances of or the time in which the claimant would otherwise have been fairly dismissed. However, we were not shown any authority which limited our ability to identify a date when calculation of the claimant’s losses should cease based upon the evidence which we heard about mitigation, where we had already determined a reduction to reflect the chances that he would have been fairly dismissed in any event. As we have already explained, career-long-loss cases are rare; we did not accept that we were bound to take a career-long-loss approach to the claimant’s losses, purely because we had already determined a Polkey reduction and what it should be (on a percentage basis). Conclusions – applying the Law to the
Facts
[50]We started by considering the basic award for unfair dismissal. The parties agreed that, based upon the claimant’s age and length of service with the respondent, the appropriate multiplier was 5.5. The parties disagreed about the amount of a week’s pay which should be used for the calculation. In his schedule, the claimant used the figure of £719 per week, which is the maximum amount of a week’s pay which is to be used in the calculation as at today’s date. In the counterschedule, the respondent said that the week’s pay figure of £643 should be used, because that was the maximum amount of a week’s pay for the calculation as at the effective date of termination (which was 11 December 2023).[51]We found that the respondent’s figure for the basic award was correct. When the amount of a week’s pay to be used in the calculation is increased each year, it is increased within the Employment Rights (Increase in Limits) Order for that year. Those Orders provide that the week’s pay limit which is provided is based upon the effective date of termination. As a result, the relevant maximum amount of a week’s pay to be used for the calculation was £643 (being the maximum amount as at 11 December 2023). That meant that the basic award was £3,536.50 (being five and a half times that amount).[52]We considered the amount which the claimant should be awarded as injury to feelings for the discrimination found. The amounts to be awarded are based upon the bands set out in the case of Vento. Those bands are increased each year. For this case, the seventh addendum to the Presidential guidance applied, as the Employment Tribunal claim was entered on 18 April 2024 (being after 1 April 2024 and before 1 April 2025). The relevant Vento bands were: lower band £1,200- £11,700; middle band £11,700-£35,200; and higher band £35,200-£58,700. The respondent said that the award should be £10,000 (at the higher end of the lower band) and the claimant said the award should be £50,000 (towards the higher end of the highest band).[53]In his submissions, the respondent’s counsel said that the discrimination found revolved around the dismissal. He said that was a limited act and not a campaign. He highlighted what we had found, and that we had not found direct discrimination. He said that our finding arose from a procedural set of circumstances, rather than an attitudinal issue of the personal variety.[54]In his submissions (amongst other things), the claimant’s representative said that an award in the lower band did not equate to the behaviour of the respondent.[55]We were not provided with any medical documents which provided us with a clear opinion on precisely what impact the discrimination found/loss of employment had had on the claimant’s health. The one document which contained any such information, was the report compiled for employment support allowance on 22 May 2025 by a registered nurse. That reported that the claimant had said that his symptoms had gotten worse gradually due to being dismissed. Whilst supportive of the claimant’s evidence, we found that the words used in that report recorded what the claimant had told the nurse, not what she had medically identified herself. There was no other medical evidence which explicitly addressed the medical impact on the claimant of the discrimination or of losing his employment with the respondent. We did have the claimant’s own evidence about what he said had been the impact of the dismissal on him.[56]We did not find that the impact of the discrimination found fell in the lower Vento band. The impact of the discrimination was not that of the less serious cases. We also did not find that the injury to the claimant’s feelings fell in the highest band. It was not equated to the most serious cases and the injury which might arise from long-term discrimination and/or harassment of the most serious kind. We found that the correct band for injury to feelings was the middle band.[57]Within that middle band, based upon the evidence we heard from the claimant about the impact that dismissal had on him (which we accepted), we found that the injury to feelings should fall in the higher part of that band. We thought it was higher than the mid-point, but not at the very highest level of that band. We therefore decided that he should be awarded an amount for injury to feelings which fell at the point three quarters of the way up the band (halfway between the mid-point and the top of the band). That amount was £29,325.[58]We then considered whether the claimant should be awarded aggravated damages. He sought an additional £10,000 as aggravated damages. In practice aggravated damages is an element which is often (although not always) taken into account when determining injury to feelings, and it is also focussed on the injury which the claimant has suffered, it is not punitive.[59]In his submissions, the claimant’s representative cited a number of reasons for awarding aggravated damages. He referred to the fact that the respondent initially pleaded that the claimant had received a final written warning, requiring the claimant to seek to amend his claim to address that incorrect contention, before the respondent later accepted that he had not been given such a warning. We have addressed the arguments about the final written warning in our liability Judgment. The respondent reached the decision to dismiss in part based upon the erroneous belief that the claimant had been given a final written warning, when he had not. The respondent was wrong in that belief, but we did not find that the error or the pleading of that error was such that aggravated damages should be awarded.[60]The claimant’s representative also relied in his argument for an aggravated damages award upon the respondent’s conduct of the proceedings including the late request for an extension of time to provide witness statements (which was granted after the date they were due), his own provision of his statement on time, and the fact that the respondent’s case addressed his evidence and that more witnesses were called than intended. We did not find that any of those things supported an award of aggravated damages. As the respondent’s counsel highlighted, aggravated damages are awarded where there is high handed, malicious or oppressive conduct. We did not find such conduct to have occurred.[61]Turning to the issue of loss, we considered the employment undertaken by the claimant after he left the respondent’s employment. The role the claimant undertook at Manchester Airport required skills not entirely dissimilar to the role which he had with the respondent. From the evidence which we heard, we found that it was the Claimant’s decision to give up that role. There were two factors which were a part of that decision, social anxiety and choice not to do the work. We struggled to understand why the social anxiety in the airport would have been greater than in the role as a prison officer. We found that the primary reason why the claimant chose to end that job was because he chose to, as he found it mindnumbing and repetitive (as that is what he told us). Obviously, that was a choice which he was entitled to make. However, when assessing his mitigation of loss, we concluded that (to the extent that the earnings at the airport mitigated an element of his lost prison service earnings) the claimant’s decision to give up that role meant that he had acted unreasonably and had not taken steps he could and should have done to mitigate his loss (to the extent that his earnings in that role did so). We accordingly found that for the portion of the claimant’s loss which would otherwise have been mitigated had he remained in the employment at the Airport, he should not be awarded that part of his loss. His decision to give up work at the Airport (which is a decision he was of course free to make), meant that he should no longer be awarded that element of his loss. The decision to give up that employment broke the chain of causation for that part of his losses. The claimant’s losses thereafter were in part because the claimant chose not to continue in that role because he did not like the job, they were not (at least to an extent) losses which resulted from ceasing to be employed by the respondent. Alternatively, not remaining in that job meant that the claimant had not taken reasonable steps to mitigate his loss (at least to the extent the earnings in that role did so).[62]The surveillance role appeared to have actively lasted for three to four months, with the actual employment continuing for a couple of months after that. As with the airport role, the claimant’s evidence provided two reasons for giving up the role: his health; and the things which he disliked about the role (including travel, the mundanity of the role, the costs incurred, and the need to stay away with a colleague). We have already explained that we found that the decision to give up the airport role had broken the chain of causation and represented a failure to mitigate (for the element of loss covered). We also found that the decision to give up the surveillance work meant that the claimant had acted unreasonably and had not taken the steps he should have done to mitigate his loss (to the extent that the surveillance role did so). That decision also broke the chain of causation for the proportion of his losses which would not have occurred had he remained in that work.[63]For the other jobs and roles which the claimant undertook, we accepted that there were reasons for the other roles not being successful and therefore the loss of those roles was not a failure to mitigate. The claimant did not act unreasonably for any of the other work which ceased.[64]In calculating loss, the claimant was absent on ill health grounds at the time of his dismissal. The claimant’s evidence was that he would be returning to work at the end of December (or possibly earlier, but we decided that the end of December was realistic).[65]As a result, for the period of half a month (in December 2023), the claimant would have been paid basic pay as sick pay (at full pay). Using the respondent’s net pay figure, his loss to the end of December was £1,194.09 (using half a month to enable a figure to be calculated).[66]If he had remained employed by the respondent, once he returned to work, the initial return would have been likely to have been phased and in a slightly different role. When asked at this hearing, the claimant said he would have taken advice about whether to immediately return to working overtime on his return. We would have found it inconceivable that the advice to the claimant when returning from a lengthy period of absence would have been anything other than not to do overtime for a period (whilst he ensured he was able to return to his substantive hours). We formed the view that a reasonable and sensible period when overtime would not have been undertaken by the claimant, would have been three months. Therefore, for the first three months of 2024, the claimant’s losses were (subject to earnings/mitigation) at the net rate contended by the respondent (based on basic pay) and would have totalled £7,164.51.[67]If the claimant had remained employed by the respondent, we found that he would have returned to working the same significant amounts of overtime as he had previously worked. We had some reservations about any employee working the hours and overtime that the claimant appeared to have done (something in the region of ninety hours a month, being additional hours which reflected a very large proportion of his normal hours). However, we accepted the claimant’s evidence that the overtime was available if he wanted it and he appeared both to want to work the overtime. As a result, from April 2024 onwards, we have calculated the claimant’s losses based upon his average earnings prior to ill health (including overtime). Based upon the claimant’s average monthly earnings in the twelve-month period prior to ill health absence, that was £3,889.41 per calendar month (as we have explained in the facts part of the Judgment) (subject to mitigation/earnings).[68]Based upon the limited information available to us, we found that he started work at Manchester Airport in March 2024. As a result, at least part of his losses ceased in March. The only information which we had about his earnings at Manchester Airport was the fact that in March 2024 he received £1,712.75 net. We have assumed that net amount was a month’s pay, as it appeared broadly comparable to the annual pay figure the claimant evidenced. It is unfortunate that we did not have greater information, but we have needed to make our decision based upon the information we had available.[69]Using those figures, for the period January to March 2024, the claimant’s net losses (as set out in paragraph 66) were reduced to £5,451.76 because of the net pay he received from his work at the Airport.[70]For the period April to December 2024 there were two potential approaches we could have taken. The claimant receive income from Mike India 5 Limited and Let Property Sales during that period. When we calculated the total earned (net) from those two employments from April to December 2024, those earnings were £10,833.05. Notably the claimant was receiving sick pay from Mike India 5 for some period, which confusingly appeared to us to overlap with a period when he was also working for Let Property Sales. For the same period of April to December 2024, had the claimant remained employed with Manchester Airport receiving the same net pay as he received in March, his income would have been higher. Therefore, for that period we used the income he would have received had he remained employed at Manchester Airport to reduce his net loss, rather than what he actually received from Mike India and Let Property.[71]For the period April to December 2024, had the claimant remained employed with the respondent and had he continued to receive earnings from overtime equivalent to those he earned on average prior to his extended period of ill-health absence, he would have earned £3,889.41 net per calendar month. Had he remained employed with Manchester Airport, he would have earned £1,712.75 net per calendar month. The net loss per month was £2,176.66. Over the nine months, that meant the claimant’s net losses were £19,589.94.[72]We had documents which recorded the claimant’s actual earnings whilst employed by Mike India 5 Limited. When in work and not sick, what the claimant earned in that job exceeded what the claimant earned when working at Manchester Airport. Those earnings reduced in later months because he was absent on ill health grounds, however when determining ongoing loss after December 2024 we were able to take into account what he would have earned had he remained in that employment (as we have determined that he failed to mitigate a part of his loss by choosing to give up that employment). When he worked a full month without sickness, the claimant’s net monthly income with Mike India 5 Limited was higher than with Manchester Airport. In June 2024 the net monthly income was £1,794.70 (slightly higher than he earned at the airport). As a result, from January 2025 onwards, we calculated the claimant’s losses each month by deducting the net earnings he would have received from Mike India if he had remained employed (and not sick), from that which he would have received from the respondent (including overtime).[73]For the period from January 2025 to the end of January 2026 (we undertook the calculation using the whole month), had the claimant remained employed with the respondent and had he continued to receive earnings from overtime equivalent to those he earned on average prior to his extended period of ill-health absence, he would have earned £3,889.41 net per calendar month. Had he remained employed with Mike India 5 Limited, he would have earned £1,794.70 net per calendar month. The net loss per month was £2,094.71. Over the thirteen months, that meant the claimant’s net losses were £27,231.23.[74]In submissions, the claimant argued that we should also take into account pay increases which the claimant would have received from the respondent in calculating loss for 2024 and 2025. There was no evidence called by either party of what exactly were the pay increases which would have applied or any effect it would have had on the claimant. We also had no evidence about the pay increases which would have applied had the claimant remained employed at Manchester Airport or Mike India 5. We were not provided with net figures for any increases, in practice making any accurate calculation impossible. The figures which we have used have by necessity been relatively imprecise, based as they are on limited earnings information. In the absence of any actual evidence about the pay increases awarded or the impact that they would have had, we decided that we would not endeavour to factor those increases into our award, as we were unable to do so with any genuine accuracy.[75]On pension loss, both parties agreed that we should use the pension contributions made to assess the loss (that is the simplified approach). The respondent said that the monthly figure was £735, but when asked the respondent’s counsel could not point to anything upon which that figure was based. The claimant claimed that the employer pension contributions were £750 per month. We preferred the claimant’s evidence to the assertion of the respondent, where there was no basis for the respondent’s figure. We accepted that the claimant had been unable to find other employment with such generous pension provision. As a result, in addition to the lost earnings recorded, the claimant’s losses for pension (using the simplified approach) were £750 per month. The total period from dismissal to this hearing was 26 months. Therefore, the pension loss to the hearing date was £19,500. Whilst the claimant also argued that employee pension contributions should be taken into account, we could not see that they were losses to the claimant and such contributions are not usually included in the simplified approach.[76]As a result, we found that the claimant’s losses to this hearing, were £72,967.02, when the lost earnings for December 2023 (£1,194.09), January to March 2024 (£5,451.76), April to December 2024 (£19,589.94) and January 2025 to the end of January 2026 (£27,231.23) were added to the pension loss (£19,500).[77]There were various payments which needed to be deducted from those losses. The claimant was paid £3,374.74 in lieu of notice. He was also paid compensation by the respondent on termination of £9,716.59. He has also received LCWRA of £6,533 (we accepted the claimant’s evidence that was the amount he had received to date rather than the figure the respondent contended should be used). That reduced the claimant’s total losses to date so that the figure was £53,342.69.[78]In our previous Judgment, we decided that the compensation should be reduced by 40% applying Polkey to reflect the chance that the claimant’s employment would have ended in a fair dismissal in any event. That reduction applied equally to an assessment of loss for discrimination damages as it would have done to an assessment of the compensatory award (and it was not argued that it should not). Applying that deduction to the loss figure calculated, meant that the award for loss (to date) would be £32,005.61.[79]Both parties agreed that there should be an award for loss of statutory rights. The claimant contended it should be £500, the respondent contended £300. There was in practice no particular basis for arguing for either amount, both of which fell in the range of awards which could be made. As a result, we awarded £400.[80]The claimant’s representative argued that we should award the claimant career-long-loss. The respondent argued that we should not and that we should limit the award for losses to a date much earlier than the remedy hearing. We decided that this was not one of the rare cases in which career-long-loss should be awarded. Whilst we noted that the claimant asserted that he would have remained in employment with the respondent for the rest of his working life, we decided that did not take account of the vicissitudes of life. The claimant may have become too unwell to continue employment in any event. He might have given up employment for other reasons. He had worked for the respondent for only four years at the date of dismissal. It is the claimant’s evidence that he is currently not fit for work at all. There is a complete absence of evidence which shows that the claimant’s current health issues follow from the dismissal/discrimination, rather than being a recurrence of the PTSD which had led to the end of the claimant’s employment with the army, and to the claimant being unable to work for an extended period with the respondent. The claimant also expressed strong views about some elements of the work which he might have been required to undertake for the respondent within his role.[81]By calculating the claimant’s losses to this remedy hearing, we had awarded the claimant twenty-six months’ loss. We decided that period of loss was an appropriate period. We did not consider it to be correct or appropriate (using the broadbrush approach which we are required to adopt) to award him any further loss. The verisimilitude of life and work must be taken into account. He worked for the respondent for only four years, so twenty-six months loss thereafter represents a substantial period in comparison. We therefore decided that the right approach was to award the claimant his losses to the remedy hearing, but not to award further future loss.[82]The claimant’s representative contended that we should increase the award because he contended that the respondent had unreasonably failed to comply with the ACAS code on disciplinary and grievance procedures. As we have set out in the section on the law above, the ACAS code applies to disciplinary and grievance procedures. What was in issue in this case was ill health. It was neither a disciplinary nor was it a grievance. The ACAS code did not apply to the dismissal in this case. In any event, the respondent followed a process including a hearing and an appeal. There were errors in the process (as we have recorded in our liability Judgment). Those errors did not amount to the respondent unreasonably failing to comply with the ACAS code. In terms of grievances, the claimant did not raise a formal grievance, albeit he made some complaints. The fact that the respondent did not address those matters through a formal process, was not an unreasonable failure to follow the code. As a result, we decided that no uplift applied.[83]In submissions, the claimant’s representative argued that the claimant would have been promoted. We heard no evidence upon which such a submission could be based, including from the claimant himself. We heard no evidence which would enabled us to have determined that the claimant would have been promoted. We did not hear any evidence about opportunities for promotion. We did not find that the claimant’s losses/compensation should be increased as a result.[84]The claimant did not pursue an argument for a personal injury award, although it was referenced in his schedule. There was no evidence available to us which could have supported a personal injury claim.[85]The DWP assessment was submitted as showing that the claimant was incapable of working for the next three years. The documents provided to us did not evidence that. It recorded limited capability for work but was not the compelling evidence submitted which showed he is incapable of working. The PIP documents support that he will receive those benefits to 2029. As we have explained, the evidence of the seriousness of the claimant’s current condition supports in part our decision to limit the losses to the date of hearing, because that appeared to show that the claimant’s chances of remaining in employment with the respondent would have been limited in any event in the light of his current health. There was no evidence, besides a recording of what the claimant told the nurse, which showed his current health is as a result of his dismissal.[86]As a result, the total losses to be awarded, including loss of statutory rights, were £32,405.61. Those losses need to be grossed up.[87]The first £30,000 can be paid without tax deductions and there is a £12,570 personal allowance. The £9,716.59 inefficiency payment/compensation already paid, £3,536.50 basic award and £29,325 injury to feelings award together total £42,578.09, which therefore exceeds (by a minimal amount) the tax free element (including personal allowance).[88]We followed the approach to grossing up set out in the case of Finlay (to which we have referred in the section on the law). That means that most of the current loss figure falls into the 20% tax band, but a small amount falls into the 40% band when grossed up. 88.1. For the 20% tax band, the gross amount to be considered is £37,700. The amount of tax to be added is £7,540. The net amount for that band is £30,160. 88.2. For the 40% tax band, the gross amount is £3,742.68. The amount of tax is £1,497.08. The net sum is £2,245.61. 88.3. That results in the gross total amount of £41,442.69, including tax of £9.037.08, resulting in the net figure of £32,405.61 (being the amount awarded). 88.4. As a result, the grossed up total loss figure awarded for losses to date (calculated as we have explained) is £41,442.69. This calculation has been undertaken using the approach set out in Finlay.[89]We have explained in the section regarding the law, how interest is calculated. The interest on the injury to feelings award is calculated by multiplying £29,325 by 778 (the days since the discrimination), dividing it by 365 and multiplying it by .08 (the relevant rate of interest). That resulted in an interest figure of £5,000.52.[90]The interest to be awarded on the damages awarded is calculated differently. That is calculated by multiplying the loss figure £32,405.61 (the figure before grossing up) by 389 (being the number of days since the mid-point between the date of discrimination and the remedy hearing), divided by 365 and multiplied by .08. That resulted in an interest figure of £2,762.91.[91]In summary, the total amount to be paid by the respondent to the claimant, adding together all of the awards, is £82,067.62. The respondent will, of course, need to make some deductions from that amount prior to payment for tax and national insurance. Employment Judge Phil Allen 13 February 2026