Employment Judge RossMr Ibraheem (instructed by Solicitor) for claimantMs H Barney (instructed by Counsel) for respondentDate 12 October 2020
JUDGMENT
[1]The claimant’s claim that she was unfavourably treated because of something arising in consequence of disability when she was dismissed pursuant to s 15 Equality Act 2010 is well-founded and succeeds.[2]The claimant's claim for failure to make reasonable adjustments pursuant to sections 20-21 of the Equality Act 2010 is not well-founded and fails.[3]The claimant's claim for “ordinary” unfair dismissal pursuant to the Employment Rights Act 1996 is not well-founded and fails[1]Settlement having been agreed between the parties on the attached terms, this case is stayed in accordance with those terms, namely it is stayed for 49 days from the date the Tribunal sends written reasons of its liability decision to the parties.[2]If by that date (49 days from the date the written reasons on the liability judgment are sent to the parties) no application has been made to the Tribunal by either party, this case will be dismissed on withdrawal by the claimant, her consent having been given to this course of action.
REASONS
Introduction
[1]The claimant was a till operator for the respondent, a major supermarket. She suffered a fracture to her right shoulder in December 2017. She was absent from work until her employment was terminated by reason of her incapacity in November 2017. She brought a claim for unfair dismissal pursuant to s.94, s95 and 89 Employment Rights Act 1996. She also brought a claim that her dismissal was unfavourable treatment pursuant to s.15 Equality Act 2010. She brought a claim that there was a failure to make reasonable adjustments pursuant to s21 Equality Act 2010.[2]There was a case management hearing before EJ Porter on 29 May 2018. At that stage the issues were not finalised.[3]By the time of the hearing the respondent had conceded that the claimant was a disabled person by reason of a shoulder injury from 1 August 2017. It agreed it had knowledge of the disability from that date. At the outset of the hearing the issues were discussed and identified.
The Hearing
[4]We heard from the claimant. For the respondent we heard from Ms Ashton, HR Manager and Mr P Knott, Store Manager. Facts[5]We find the following facts. The facts between the parties were largely undisputed.
The Issues
[6]The claimant suffered a fracture to her right shoulder in December 2016. She underwent an operation in February 2017 which put pins and plates into her shoulder and she seemed to be improving but unfortunately, by July 2017, the pain had increased considerably again, and we rely on the Occupational Health report and the disability statement for this information. The claimant was referred back to her surgeon with an appointment on 29 August 2017 and there was a possibility raised at that time that it was likely the metalwork may need to be removed, and the claimant was placed on a waiting list for an operation to do this.[7]The claimant was concerned about the length of the delay until the operation could take place and so she approached a different consultant to try and expedite the operation: she saw that consultant on 9 October 2017, who said that the facture had not fully healed and suggested a delay before the operation could take place. We know that the claimant subsequently had the operation in March 2018.[8]The claimant sent in fit notes regularly during her absence from work and we note that although GP fit notes have several boxes on them where the doctor can tick if the patient is ready to go back to work or is suitable for adjustments, none of those were ticked in the claimant's case at any time. The fit notes always said that she was unfit for work.[9]We find that it is not clear what the date of the final fit note was which was before the respondent at the time of dismissal. Mr Knott expressly said in his statement that it was the fit note for September at page 114 which was issued on 28 September for a month which states “ fractured clavicle awaiting surgery”. We accept Ms Ashton’s evidence when she told us she believed she had the most recent fit note available. However we find it is unclear whether she did actually have the fit note covering the absence at the point of dismissal because the very brief notes of the dismissal hearing do not make it clear what were the documents before her, the dismissing officer at the relevant time. Within the GP records supplied for this hearing the GP records that a fit note was issued on 27 October to 30.11.17 stating the claimant was not fit for work.P179 and at p211.The reason for absence is “preoperative”.[10]There is no dispute that the claimant was invited to a dismissal hearing on 10 November, and there is no dispute that prior to that there were very regular welfare meetings before this, initially with Mr Knott and then from June with Ms Ashton when she took over responsibility for managing the claimant’s absence. There is no dispute that the claimant was referred to Occupational Health on 19 July. She attended on 27 July and the report was issued on 1 August. The key points we find in this report was that as well as detailing the nature of the claimant's injury the Occupational Health doctor recorded that the claimant had an appointment with her consultant due on 29 August and he noted that the claimant was probably protected under the Equality Act and further treatment was planned. The Occupational Health Report suggested that the claimant be re-referred back when she had seen her specialist There is no dispute either that that never happened.[11]We find there was had been some discussion at the meetings in March and April between the claimant and Mr Knott about possible reasonable adjustments. We find that was quite soon after the claimant's first operation relatively speaking because that had happened in February. Unfortunately, the notes of the meetings which were put on the respondent’s Nexus system are not very clear about what exactly was discussed. They are rather scant notes, and understandably memories have faded since that time, but what is not disputed is the claimant’s GP never suggested that the claimant was actually well enough to return to work with any reasonable adjustments or amended duties, and the Occupational Health Advisor who saw the claimant in August was very clear that there were no adjustments that were suitable at that time. The issues Discrimination pursuant to s.15 Equality Act 2010[12]The respondent concedes the claimant was a disabled person from 1 August 2017 and had knowledge of disability from that date. Did the respondent treat the claimant unfavourably because of something arising in consequence of disability? The “something” relied upon by the claimant was her absence from work on long term sick leave. If so can the respondent show the dismissal was a proportionate means of achieving a legitimate aim? Failure to make reasonable adjustments pursuant to s21 Equality Act 2010[13]What is the provision criteria or practice “PCP” relied upon by the claimant? Did it put the claimant at a substantial disadvantage in relation to a relevant matter? Did the respondent take such steps it was reasonable to have to make to avoid the substantial disadvantage? Did the respondent have knowledge of the disability and of the substantial disadvantage?( The respondent concedes disability and knowledge of the condition from 1 August 2017.)[14]We reminded ourselves of the principles in Igen Limited & others v Wong [2005] ICR 931 CA; Anya v The University of Oxford [2001] IRLR 377; Shamoon v The Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 HL; Barton v Investec Securities [2003] ICR 1205; Madarassy v Nomura International PLC [2007] ICR 867; Laing v Manchester City Council [2006] ICR 1519; and Nagarajan v London Regional Transport [1999] ICR 877 HL.[15]In the reasonable adjustments claim the Tribunal had regard to the principles in Environment Agency –v- Rowan 2008 ICR 218 EAT, Project Management –vLatif 2007 IRLR 579 and Smith –v- Churchills Stair Lifts Plc 2006 524 CA. The Tribunal also had regard to paragraphs 4.25-4.30 and 5.11-12 of EHRC Code of Practice.[16]In the Section 15 claim the Tribunal had regard to Pnaiser –v- NHS England and Another 2016 IRLR 170 EAT, O’brien v Bolton St Catherine’s Academy 2017 ICR 737 CA and City of York Council v Grossett 2018 IRLR 746[17]We had regard to to Home Office v Collins 2005 EWCA Civ 598 referred to us by the respondent’s counsel. Unfair Dismissal pursuant to ERA 1996.[18]What was the reason for dismissal? The respondent relied on capability (ill health). Did the respondent act reasonably in treating the claimant’s capability(illhealth) as a ground for dismissal? In particular did they consult with the employee? Conduct a thorough medical investigation? Consider other options such as alternative work? Was the dismissal procedurally fair? Was it within the band of reasonable responses of a reasonable employer? Applying the Law to the Facts[19]We turn now to each of the different claims, and we remind ourselves that although the claimant has brought claims which relates to her dismissal, there are two different legal tests to be applied. The test we apply for an unfair dismissal pursuant to Employment Rights Act 1996 where we must not substitute our own view is different to the test that is applied in a disability discrimination claim. The test in each type of claim is described below.[20]We turn to the section 15 claim: was the claimant unfavourably treated because of something arising in consequence of her disability? We must answer four questions.(1) What is the unfavourable treatment ?(2) What is the “something” which arises in consequence of disability?(3) Is the unfavourable treatment must be because of i.e. caused by, the “something” which arises in consequence of disability?(4) Can the respondent show the unfavourable treatment is a proportionate means of achieving a legitimate aim?[21]There is no dispute that the unfavourable treatment was the claimant’s dismissal. There is no dispute that the “something arising” was her long-term absence from work on sick leave due to her shoulder injury. The next question is: was the claimant dismissed because of the “something arising”, and again the answer is yes. The claimant was dismissed because of her long-term absence from work. That absence resulted from her disability (her shoulder injury.) We rely on Ms Ashton’s letter of dismissal where she explains the reason for dismissal is the claimant had been absent for ten months, a long term absence.[22]The heart of the section 15 claim is in the last question to be answered: can the respondent show that the dismissal was a proportionate means of achieving a legitimate aim? We remind ourselves that the burden is on the respondent to show us this.[23]The respondent relied on the legitimate aim as being the requirement of its employees to provide regular and reliable attendance at work; that aim was identified in the Response to this case at paragraph 27. Having accepted that that is a legitimate aim we must look at whether dismissing the claimant on 13 November 2017, was a proportionate means of achieving that aim, namely the requirement of its employees to provide regular and reliable attendance at work. We are not satisfied that the respondent has discharged that burden.[24]We remind ourselves of the guidance in EHRC in particular 5.12. “It is for the employer to justify the treatment.They must produce evidence to support their assertion that it is justified and not rely on mere generalisations.”[25]We turn to the rationale for dismissing the claimant at the point she was dismissed in November. Ms Ashton told us that one of the reasons she dismissed at that point was that there were operational difficulties caused by the claimant's absence. The Tribunal finds, and indeed it was not disputed, that Store Manager, Peter Knott had left the store where the claimant had worked, in September 2017. Ms Ashton agreed that she had not discussed the staffing levels or any issues arising from staffing levels or resulting problems caused by the claimant’s absence, with the new manager. We find some time had clearly elapsed between the situation as it was when Mr Knott was there, prior to September 2017 and when the claimant was dismissed in November 2017. We are not satisfied Ms Ashton had up to date information about staffing levels at the claimant’s store when she dismissed the claimant.[26]Ms Ashton told us that the respondent found it generally difficult to recruit temporary staff, but the Tribunal finds that is not consistent with the specific evidence of Mr Knott in Tribunal about the store where the claimant worked. When questioned he stated that he had been able to recruit a temporary employee in August. When asked about covering the claimant’s absence he also stated that other staff at the store welcomed working additional hours because they were on a minimum hours contract of 7.5 hours per week. He told us that at that store some of the employees particularly welcomed the chance to work additional hours to pay nursery fees. The Tribunal is not satisfied the respondent has shown us that it was finding difficulty in covering the claimant’s absence.[27]We are slightly puzzled by the respondent’s evidence that it was so difficult to recruit staff. When asked about how the respondent sought to recruit additional temporary staff Mr Knott said it was the practise to advertise in the shop window, which again the Tribunal thought was surprising. If there was real difficulty in recruiting temporary staff, there might be other more successful methods of recruitment.[28]Our final concern in relation to the respondent satisfying us on this point is that there was no reference to staffing levels in the notes of the meeting when the claimant was dismissed. There was no detailed information about staffing in the evidence of Ms Ashton. We were told about the number of employees who worked in that store, but it was not really clear why there was a very real problem for that store in relation to covering the claimant’s absence such that they could not keep the claimant “on the books “any longer when staff in the store were willing to work additional hours.[29]We heard no evidence on cost and perhaps that is not surprising because the cost cannot be a reason on its own for discriminatory treatment. We noted the claimant told us that she was in a no pay situation having exhausted her sick pay and we note that the respondent is a very large employer, a large retailer employing 22,500 people.[30]When considering the proportionate means of achieving the legitimate aim, we had regard to the nature of the meeting that led to the claimant’s dismissal..[31]We find the meeting took place on 10 November and the notes record that it started at 10.00am and concluded ten minutes later at 10.10am, which is an extremely brief meeting to terminate an employee’s employment who has been employed by the business for 5 years. There is no reference in the notes to the Occupational Health report and no explanation as to why the claimant was not referred back to Occupational Health as the Occupational Health Advisor had suggested.P.133. There was no specific reference to the claimant's up-to-date fit note. There was no discussion about alternative roles or adjustments or the reasons why the respondent thought that was not suitable given the information before them.[32]For all those reasons we are not satisfied the respondent discharged the burden of proof to show that dismissing the claimant in November 2017 was a proportionate means of achieving the legitimate aim of regular and reliable attendance at work .We find the proportionate response could have been achieved by referring the claimant back to Occupational Health as the doctor had suggested, and the Occupational Health doctor may or may not have advised keeping the claimant “on the books” for a longer period of time, until she had undergone her second operation and become fit to work.( There is no dispute the claimant is now working in a similar role as a till operator now for another retail employer.)[33]We turn to the reasonable adjustments claim. The first issue for the Tribunal is to identify the provision, criterion or practice, “PCP”. We find that the provision, criterion or practice relied upon by the claimant as defined was not applied by the respondent[34]We turn to the PCP as defined by the list of issues document supplied by the parties and referred to at the outset of the hearing. The PCP was listed as “the respondent’s requirement for consistent attendance at work, the respondent’s requirement for the claimant to work on tills only and the respondent’s requirement for the claimant to provide a likely return to work date.”[35]We find the PCP is factually incorrect because the respondent had tolerated the claimant being absent from work for a period of many months so we are not satisfied they applied a requirement for consistent attendance. We find the respondent did not apply a requirement for the claimant to work only on tills: we heard evidence in this case that although the claimant mainly worked on tills she also stacked shelves and did some light cleaning as part of her job. We find that the requirement for the claimant to provide a likely return to work date is factually incorrect too because although the claimant was asked about a likely return we are not satisfied it was anything so onerous as a provision, criterion or practice. So we find the claim for reasonable adjustments fails at that stage.[36]However if we are wrong about that we turn to substantial disadvantage. The claimant was unable to return to work, work on the till only or provide a likely return date because of her illhealth following her shoulder injury.[37]We turn to the last issue. Did the respondent make such adjustments as was reasonable to make? The answer is yes. The claimant worked in a manual job. She fractured her shoulder and was in a great deal of pain , and required 2 operations. Neither the OH advisor in August nor the claimants GP considered the claimant was well enough to return to work in an adjusted the role. Although the claimant said in evidence she thought she could have done another job, given the manual nature of her job and the serious pain she was in at the relevant time, we find she is mistaken. (See her disability impact statement for her limitations)[38]For the sake of completeness and in terms of being fair and the overriding objective, we find the real PCP applied by the respondent was the requirement for the claimant to do her full duties of a store colleague. We find that would put the claimant at a substantial disadvantage in relation to a relevant matter because her shoulder injury meant she could not do those duties as certified by her GP and the Occupational Health doctor.[39]The last question is: did the respondent make such adjustments as was reasonable to have to make to avoid the disadvantageous effect? Again the answer to that question is yes, because we find there were no adjustments that the respondent could have actually made up to the point where the claimant was dismissed because although the claimant felt she was well enough to return to work, the Occupational Health doctor clearly did not agree in August and her GP never agreed. The claimant had suffered a fracture to her shoulder and it would be a foolhardy employer who allowed her to return to work when there was no medical advice to say that she was fit to do so or a suggestion of adjustments, so in those circumstances the reasonable adjustments claim must fail.[40]For the sake of completeness in relation to the disability, we note the respondent agreed the claimant was a disabled person within the meaning of the Equality Act 2010 and knew the claimant was disabled from the date of the receipt of the Occupational Health Report on 1 August 2017. We do not find that the claimant was disabled before that date or that the respondent could have known of it. Certainly in the early part of the year, although the claimant had suffered a fracture and was absent from work there was no clear indication in the early months that unfortunately her recovery would be prolonged. The claimant was assaulted in December 2016 which caused a fracture to her right shoulder. Initially she was placed in a sling but by February 2017 an operation had taken place to pin and plate the shoulder. Unfortunately, the claimant continued to suffer with severe pain and restricted movement and it became clear that the operation had not been a success. She was referred back for further medical opinion which noted the fracture had not fully healed and in March 2018 she had a second operation to remove the metalwork. She has been able to work in a similar role in retail since obtaining a new job in May 2018.[41]We find the claimant was disabled from 1 August 2017 and we are satisfied the respondent had knowledge of disability at that date and not before.[42]Now we turn to deal with the other type of claim which is the “ordinary” unfair dismissal case.[43]The first issue is: what was the reason for dismissal? The respondent relied on capability (ill health). We are satisfied the respondent has shown the reason the claimant was dismissed was because she had been absent from work since December 2017 due to ill-health and accordingly capability was the reason for dismissal.[44]We turn to the next issue: Did the respondent act reasonably in treating the claimant’s capability(ill-health) as a ground for dismissal? In particular did they consult with the employee? Conduct a thorough medical investigation? Consider other options such as alternative work?[45]At this stage we remind ourselves it is not what we would have done which counts. It is whether a reasonable employer of this size and undertaking could hve dismissed this claimant at the stage it did. It is not for us to substitute our own view.[46]We have to say that we found Ms Ashton and Mr Knott to be honest witnesses and we accept that Ms Ashton, when she dismissed the claimant believed she was unfit to return to work and that the business could not reasonably wait any longer. Ms Ashton relied on the Occupational Health report dated 1 August 2017. It stated the claimant was not fit for work and so no adjustments could be suggested at present but advised “she be re-referred back to Occupational Health when she has seen her specialist and further treatment has been planned. We will then be able to advise.”. Ms Ashton did not follow this recommendation from the OH advisor to refer the claimant back.[47]Her reason for this was that the claimant had told her at a meeting on 4 September 2017 that she had seen her consultant again at the end of August and it had been decided she would have a further operation to remove the pins and plate in her shoulder but this could not be done until the bone in her shoulder had healed. (P136). Ms Ashton noted the claimant was due to see her consultant in December to see if the bone had indeed healed so the operation could be done or whether the operation would be delayed.[48]At the brief dismissal hearing the claimant confirmed she was due to see her consultant in December and Ms Ashton therefore noted that nothing had changed, the claimant remained unfit for work and it was unclear if or when she would be fit enough to return.[49]There is no dispute the respondent held regular meetings with the claimant to consult her about her health on 20 Febrauary,20 March,28 April,26 May,28 June, 31 July, 4 September and the dismissal hearing on 10 November.[50]We find there was no discussion of alternative work at that final meeting but that is unsurprising given that the OH advice was that the claimant was unfit to work and the claimant’s evidence was that she remained unfit, awaiting an appointment with her consultant in December.[51]Was the dismissal procedurally fair? Was it within the band of reasonable responses of a reasonable employer?[52]The respondent consulted the claimant regularly and she had the opportunity to attend a dismissal hearing. Although the dismissal hearing was very brief, the claimant had the opportunity to state her case. The respondent offered the claimant an appeal, which she failed to take up. We find they were operating a procedure which a reasonable employer of this size and undertaking could operate.[53]The key issue was whether the failure of Ms Ashton to refer the claimant back to OH and therefore wait a little longer before dismissing her renders this dismissal unfair. We remind ourselves once again it is not what we would have done which counts. It is whether a reasonable employer in a large retail business could be expected to wait any longer.[54]We accept Ms Ashton considered the fact the claimant had been absent since December 2016 and there was, based on the information the claimant gave her on 10 November, no clear indication what would be said by her consultant when she saw him in December. There was no indication of any possible return to work date. We find that the respondent operates in a busy retail environment. Ms Ashton told us she was not aware of an employee remaining “on the books” for a period of more than 12 months. We therefore find that dismissal was within the range of reasonable responses.[55]So for all of those reasons we find that the ordinary unfair dismissal claim fails.[1]By a claim form presented on 23 March 2018 the claimant brought claims of discrimination arising from disability, failure to make reasonable adjustments and unfair dismissal. These claims arose out of her dismissal on 13 November 2017, which followed a period of long-term sickness absence.[2]This was a re-hearing. The matter had previously been considered before a differently constituted panel of the Employment Tribunal on 2 and 3 October 2018. The resulting Judgment was the subject of a successful appeal (and cross-appeal) to the Employment Appeal Tribunal. By a Judgment dated 13 February 2020 the Employment Appeal Tribunal directed that the matter should be remitted for a rehearing before a differently constituted panel.[3]The Code V in the title of this Judgment indicates that this was a hearing conducted partly by Cloud Video Platform (“CVP”). In this case both non-legal members attended by CVP. The Judge, the parties and their representatives and all witnesses were present in the tribunal room. The Hearing[4]We heard the claim over two days and heard from the following witnesses:(1) For the claimant: Ms Stevenson herself;(2) For the respondent: Ms Linda Ashton, HR Manager.(3) The Tribunal also had regard to the statement of Mr Peter Knott, Store Manager. Mr Knott had given evidence to the Tribunal on the previous occasion. By the time of the re-hearing he had left the respondent’s employment. A witness order was sought by the respondent to compel his attendance. Although the order was granted Mr Knott was later released from it following provision of evidence relating to his current illhealth.[5]The Tribunal had regard to an agreed bundle of documents prepared by the parties. No additional documents were introduced during the hearing.
The issues
[6]The Tribunal had regard to an agreed List of Issues which had been prepared between the parties. We do not set out the issues here as they simply replicated the various elements of the legal tests in respect of the claims the claimant is bringing.[7]The List of Issues indicated that a claim in respect of an alleged failure to make reasonable adjustments (under ss. 20-21 Equality Act 20010) was being pursued by the claimant. That claim had been dismissed by the first tribunal and had not been subject to an appeal. It was not clear from the Order from the Employment Appeal Tribunal whether it was envisaged that the re-hearing would allow the claimant to re-open this part of the claim, but in any event Ms Halsall confirmed at the outset of the hearing that it was not being pursued. We have therefore recorded that complaint as being dismissed upon withdrawal.
Findings of Fact
[8]We were assisted by a list of agreed facts prepared by the parties and indeed most of the factual background of this case is uncontroversial. Early sickness absence[9]Ms Stevenson worked for the respondent as a Sales Assistant in its Accrington store from 11 November 2012 to her dismissal on 13 November 2017. She had had a period of absence during 2015 following the death of her husband, but aside from that, had a good attendance record before the events giving rise to this case. There were no disciplinary or performance concerns at any point.[10]In around December 2016 Ms Stevenson suffered an assault (away from her work) resulting in an injury to her right shoulder. She was treated in hospital; her arm was placed in a sling and immobilised. Subsequently, she was signed off work by her GP.[11]On 17 February 2017 the claimant underwent surgery to have her shoulder “plated and pinned” in order to promote the recovery of the broken bone. This surgery was followed by physiotherapy. Her absence at this point was certified by sick notes from her GP. On each occasion she was signed off sick for a one-month period.[12]The respondent arranged for welfare visits starting on 20 February 2017 and continuing on approximately a monthly basis. Initially these took place with Mr Knott. There was some discussion at these sessions about duties that Ms Stevenson might be able to perform, and also about whether other stores had a back-to-back till setup which would mean that she could use her left hand more than right hand (the till set up at Accrington required her to lift items with her right hand). We are satisfied, however, that these discussions were hypothetical. At no point during the period when she was meeting with Mr Knott would the claimant have been well enough to return to her role. There were no adjustments which would have made a return feasible. Her shoulder was not healing: she remained in significant pain and her mobility remained severely restricted. Mr Knott made only brief notes of his visits with the claimant on the respondent’s electronic HR system, Nexus.[13]Things changed with the visit on 28 June 2017, which was the first visit attended by Ms Ashton, who was the HR Manager for the area that included the Accrington store.[14]Ms Ashton wrote a longer follow-up letter from this meeting which carries the same date. In that letter she summarises the history of the claimant's case and notes that Ms Stevenson had reported her doctor had said it could take up to 12 months for her to recover from the operation (at this point she was five months after the operation). Ms Ashton had proposed a referral to Occupational Health and the letter included a consent form which the claimant duly signed and returned. Ms Ashton concluded by arranging a follow-up meeting on 31 July 2017 at which she hoped the Occupational Health report would be available.[15]Following discussion, the parties agreed that we would not hear evidence or submissions as to remedy, save that, we would hear submissions and reach conclusions as to whether, in principle, there should be any reduction to compensation in accordance with ‘Polkey’ principle. Occupational Health Report[16]In the event, the Occupational Health appointment only took place on 27 July and the report was not available by the time of the 31 July meeting. Ms Ashton’s summary letter from that meeting records that Ms Stevenson had told her she now had an appointment with her consultant on 29 August 2017. It was therefore agreed to arrange a further welfare meeting for 4 September 2017, at which point it was hoped that the Occupational Health report would be available and that Ms Stevenson would have some further information from her consultant.[17]The Occupational Health report was in fact produced on 1 August 2017. It records that the claimant “has now been discharged from physiotherapy” as there was nothing more that physiotherapy could achieve at this point. It records that she “remains in severe pain” and that her movement “is severely restricted”. At this time, as recorded in the Occupational Health report, Ms Stevenson could only undertake activities and movements for short periods of time – for example when she tried to do ironing she only managed to iron three t-shirts before the pain was severe and she had to stop. We find that report accurately reflects the effects of Ms Stevenson’s physical impairment at this time.[18]The report goes on to reference the appointment with her surgeon due on 29 August 2017 and speculates that it is possible that she may need the metalwork removed. Under the heading “Summary and Recommendations” the report includes the following: “She is seeing her surgeon again on 29 August and it is likely that she may require further surgery, if this is not the case and there is nothing more that can be done she may be referred to a pain clinic however until she has seen her surgeon we have no way of offering any further advice. In my opinion Ms Stevenson is currently not fit for work, I am unable to comment on a timescale for a return to work at this time as it will depend on the recommendations of her surgeon and her response to treatment.”[19]There were then some specific questions which had been asked in the respondent’s referral and responses from the Occupational Health adviser. In respect of questions about adjustments and phased return to work, the thrust of the advice is that it is too early to consider this, but it would be appropriate to consider adjustments or a phased return at the point where a return to work might be feasible. In response to the question “is a full recovery expected?” it is stated, “This is unknown and will depend on her response to any further treatment.”[20]The report includes a recommendation that Ms Stevenson is “re-referred back to Occupational Health when she has seen her specialist and further treatment has been planned. We will then he able to advise”.[21]Finally, in response to the question of whether the employee is likely to be covered by the Equality Act the Occupational Health adviser writes: “Ms Stevenson suffered this assault in December 2016 and so has had this issue for the last eight months. It is likely that she is going to have issues with the shoulder for at least another four months and therefore it is likely that she will be covered under the Equality Act 2010.”[22]We pause here to note that the respondent from the outset of this case has conceded that the claimant is a disabled person within the meaning of section 6 of the Equality Act 2010 (EqA) from 1 August 2017. Clearly, this concession is based on the Occupational Health report which was prepared on that date. However, under cross examination Ms Ashton commented that she believed that the claimant would become protected by the Act at the point where she had been incapacitated for 12 months. In re-examination she was referred to the Occupational Health report and asked to comment on the claimant's disability status, but again repeated her understanding that the claimant became protected at the point of hitting 12 months of incapacity. That understanding is at odds with the respondent’s concession and appears to indicate that she was confused in her understanding of when protection under the Equality Act would commence.[23]We find that, as at 1 August 2017, the respondent did not know (and could not know) whether the claimant’s incapacity would be temporary, as had originally been anticipated, or whether the injury would in fact lead her to being permanently incapacitated such that she would be unable to resume her role. Dismissal[24]There was a further meeting with Mr Knott and Ms Ashton on 4 September and Ms Ashton drafted an outcome letter on 8 September. The outcome letter records that Ms Stevenson had reported she was now due to have an operation to remove the pin and plates from her shoulder as her consultant thought this may reduce the pain and increase mobility. Ms Ashton records that she asked if there was a timescale around the recovery period for this operation, and Ms Stevenson responded that the consultant was unable to provide her with that information or whether the operation would be successful. Ms Ashton concluded by suggesting that another meeting took place in four weeks’ time “to see if your operation had improved the pain you are currently suffering with and increase the movement in your shoulder”.[25]That meeting took place on 10 October 2017. The follow-up letter is dated 9 October 2017 (which is evidently a dating error as noted by Ms Ashton in her witness statement). We accept that the letter would have been sent no more than a few days after the meeting, which was in line with Ms Ashton’s practice following earlier meetings. The letter stated: “During this meeting you explained you had not had the operation to remove the pins and plates from your shoulder that we had discussed when we last met as you had been referred to another consultant, who told you this operation could not be done until the bone in your shoulder had healed. Therefore the consultant had arranged to see you in December to see if it had healed and decide whether this operation could be done or whether he would have to delay it again.”[26]The letter went on to rearrange a further meeting for 13 November, but this time it was made clear to Ms Stevenson that the next meeting would be considering the termination of her employment on the grounds of incapability through continued ill health. It also set out her right to be accompanied at that meeting.[27]We pause to make findings on matters as they stood as at 10 October 2017. Again, it remained unknown whether this would be a temporary disability, as hoped from the outset, or whether it would actually turn into a permanent disability. It remained the case that the claimant was unable to work and that there were no adjustments which would have facilitated a return to work at that time. As things stood at this point, the soonest reasonable date when a return might be possible would be some weeks into 2018: that would allow for the December appointment to review Ms Stevenson, possible surgery after that, and recovery period for the operation. That would take the absence to over the 12 month period which had been the initial prognosis.[28]We also find that there was nothing that could reasonably be done before the December review to get more certainty on prognosis or timescale. It has been suggested that it would have been appropriate to refer back to Occupational Health at this point. Although it would often be the practice for employers to refer back to Occupational Health before making a final decision on a capability dismissal, particularly where the last Occupational Health report had been inconclusive, there is nothing in this case that would allow us to find that the conclusion would have been any different if a further Occupational Health referral had been made in September, October or November.[29]The final meeting went ahead on 13 November 2017. It was a very short meeting and we were referred to handwritten notes taken at the time and signed by both Ms Ashton and Ms Stevenson. Ms Ashton is recorded as noting that the last time they met the claimant had seen the consultant and the operation could not be done. Ms Stevenson then responds, “I have an appointment in December. The break in my shoulder is still broken. This will be reviewed at the appointment. I received a letter regarding this”. The notes then record Ms Ashton saying, “Nothing has changed, it is still the same, so based on what you have said today you have been off for ten months alongside with the medical reports. There is no timescale of when you are going to return at this stage, therefore based on these reasons we have to make that decision of dismissal on the grounds of ill health”. There is then a discussion about notice pay and Ms Ashton notes that it is not a dismissal based on performance and that Ms Stevenson would be welcome to reapply for a role with the respondent in the future if her health should improve. The outcome of the meeting was confirmed in a letter of the same date. The second paragraph of that letter reads as follows: “During this meeting I asked if anything had changed since we last met on 10 October 2017. You said nothing had changed, as you were still waiting to see the consultant in December, and as your shoulder bone was still broken he would decide at this appointment whether they would be able to operate at this time or wait until it had healed.”[30]The Tribunal finds, in accordance with the handwritten notes, that it was in fact Ms Ashton who had said at the meeting that nothing had changed and not the claimant. Ms Ashton did not ask to see the letter Ms Stevenson had about the December appointment, nor did she question her further about her expectations for the period after December. The claimant told the Tribunal that she felt that Ms Ashton had walked into this meeting with her mind made up that she was going dismiss Ms Stevenson. We agree that Ms Ashton attended the meeting having made the decision to terminate the claimant's employment. The fact that she had attended the meeting with this decision already in mind and the short length of the meeting, however, must be set against the relatively extensive background of previous meetings.[31]Ms Ashton emphasised to the Tribunal that the reason for the dismissal in her mind was the length of time that the claimant had been off for combined with the fact that there was by this point still no fixed date for her to return. We find that any consideration about the impact of this absence on the Accrington store was very much secondary to Ms Ashton. By this point, Mr Knott was no longer the manager of the Accrington store. Ms Ashton had not sought to involve the new manager in any of the later absence meetings with Ms Stevenson, nor had she discussed with the new manager the impact that the absence was having on the store in practice.[32]There was nothing in the invitation letter or the outcome letter which framed the dismissal procedure against any sort of company policy. Ms Ashton referred us to some passages in the Employee Handbook with deal with long-term sickness absence. The only thing said in the handbook about termination related to long-term sickness absence is this: “Please be aware that persistent absence and/or failure to report in accordance with the company absence policy, may result in disciplinary action.”[33]We were also referred to the attendance policy and long-term sickness absence procedure which deal with matters such as sick pay and return to work, however none of these policy documents set out the circumstances in which the company will consider dismissal for an employee on long-term ill health absence, nor do they set out the factors which should be taken into account in deciding if (and when) dismissal may be appropriate in such a case.[34]Ms Ashton informed us that she applies a ‘rule of thumb’ whereby she will begin to consider dismissal once an employee has been absent through ill health for a period of six months. She will at that point consider whether there is a defined timescale for the employee’s return. This fits in with what happened in Ms Stevenson’s case whereby Ms Ashton became involved in June, which was seven months after the claimant's absence started and five months after her surgery. From the point of becoming involved Ms Ashton’s focus was on identifying a definite timescale within which a return could be expected. Ms Ashton told us that the six month rule came from her own previous experience with Iceland and at other employers. As will be apparent from what we have said above, there is nothing to this effect in Iceland’s company policies (or at least not in the 2017 policies presented in the bundle of documents for this case).[35]Although the dismissal letter was dated 13 November 2017 Ms Stevenson did not receive it until December 2017. She did not appeal the decision to dismiss. In her witness statement she said she did not appeal the decision as she did not think that an appeal would make any difference. In her oral evidence she said that she did not appeal the decision as she thought that she was too late to do so. The letter had stated that an appeal was available within five days of receipt of the letter. We find that the primary reason Ms Stevenson did not appeal is because she felt that such an appeal would be pointless. The delayed receipt of the letter may have played a part in that conclusion on her part, but it was mainly based on her perception that she had not listened to by Ms Ashton and that Ms Ashton had made an irrevocable decision to terminate her employment.[36]After her dismissal Ms Stevenson did have the review with her consultant and was told that an operation could go ahead. That operation happened in March 2018. The claimant was signed off sick until 1 May 2018 at which point she commenced employment with another retail business, B&M. There was a suggestion from the claimant that she had been looking for work following her operation and may have been fit to start work a little before 1 May 2018. Given the chronology of the case, if she was fit to start work before 1 May 2018 it can only have been by a short period of time. For the purposes of these proceedings we find that the claimant would not have been fit to return to the respondent before 1 May 2018, but that at that point she would have been able to return to her role. Of course, these findings do not undermine our findings that, at the time of dismissal, neither the respondent nor the claimant knew what the timescale for the claimant’s recovery would be (or even if she would recover at all). The Accrington Store[37]We also found it necessary to make some findings of fact about the working arrangements at the Accrington store, and those are as follows.[38]The claimant was contracted to work a minimum of 7.5 hours a week. Her colleagues in sales assistant roles had the same contract, however it is the practice of the respondent to offer more hours and the claimant (it was agreed by both parties) worked an average of around 25 hours a week. The average hours worked by colleagues would depend on both the needs of the store at any particular time and also on their individual needs and availability. By employing sales assistants on minimum hours contracts such as these, the respondent retains flexibility to cover its changing operational needs without incurring excess staffing costs.[39]Each store has a store profile which determines the overall number of staff that will be employed in various roles. The store profile for the Accrington store determined that 18 or 19 staff members were needed. By having the claimant filling one of these positions, albeit unable to offer any hours during her long-term sickness absence, the respondent would have reduced flexibility to cover the sales assistant hours required for this store. Store Managers required permission from Area Management to recruit, and would not be able to recruit additional staff above the profile for the store.[40]Paragraphs 14 and 15 of Mr Knott’s witness statement set out some background about the staffing arrangements for the store. Having set out arrangements around opening hours and the number of staff required in the store at any one time, he described that two members of staff resigned in February 2017. He therefore considered he was three members of staff short (bearing in mind the claimant’s absence). He said he was able to recruit another member of staff in February but the remaining employees in the store were required to pick up the additional hours. It was not clear to the Tribunal (and Ms Ashton and the claimant were unable to help us) whether Mr Knott was only able to recruit one additional member of staff in February because he had only been authorised to recruit one additional member of staff at that time, or whether he was authorised to recruit for an extra role which went unfilled. He went on to describe recruiting two further assistants in August 2017 but also losing one assistant at that time. We accept this evidence about staff changes which was not challenged.[41]We were taken to spreadsheets showing fluctuations in staff numbers over a period of time towards the end of Ms Stevenson’s employment. Ms Halsall sought to use this to demonstrate that the store was not ‘down’ on staff. We didn’t find this evidence particularly helpful as it doesn’t shed light on whether the existing staff could adequately cover the hours (Ms Stevenson, for example, was part of the headcount but was obviously covering no hours).[42]Mr Knott’s witness states that covering extra hours using existing members of staff did not normally cause a problem in the short-term but did cause a problem in the longer term. Staff may be reluctant to pick up such hours due to, for example, childcare issues. Ms Stevenson’s evidence, in contrast, was that most staff members were keen to pick up extra hours and maximise their income.[43]There was considerable discussion during the hearing about the fact that Mr Knott was not present and the extent to which we could have regard to the evidence that he had given to the hearing on the last occasion. Mr Hignett cautioned that the first Tribunal’s approach to making findings of fact had been subject to criticism in the EAT decision and that we risked being led into error by adopting findings of fact that had been made by the earlier Tribunal. Whilst we accepted the validity of that argument up to a point, it seems to the panel that if there were matters in respect of which Mr Knott gave evidence on the last occasion which were departed from his witness statement, and were significant enough to be recorded in the Tribunal’s Judgment, it would be proper for us to have regard to those matters. That would not be the same as adopting the previous Tribunal’s findings on a contested issue of fact but rather would prevent either party from being deprived of relying on relevant evidence which had come from Mr Knott, simply due to the fact that Mr Knott was unable to be in attendance on this occasion. The Tribunal must base its findings on the best available evidence. Mr Knott’s witness statement augmented by his evidence from the last hearing, as recorded in that judgment, is better evidence than Mr Knott’s witness statement alone.[44]Ms Halsall sought (and we consider it was proper of her to do so) to direct Ms Ashton as the respondent’s only live witness to the relevant sections of the first Tribunal’s Judgment to allow her the opportunity to comment on these factual matters. After some considerable argument about the appropriateness or otherwise of referring Ms Ashton to the Judgment, in the event the only reference that was made was to one paragraph, that is paragraph 26, which reads as follows: “Ms Ashton told us that the respondent found it generally difficult to recruit temporary staff, but the Tribunal finds that it is not consistent with the specific evidence of Mr Knott in Tribunal about the store where the claimant worked. When questioned he stated that he had been able to recruit a temporary employee in August. When asked about covering the claimant's absence he also stated that other staff at the store welcomed working additional hours because they were on a minimum hours’ contract of 7.5 hours per week. He told us that at that store some of the employees particularly welcomed the chance to work additional hours to pay nursery fees. The Tribunal is not satisfied that the respondent has shown us that it was finding difficulty in covering the claimant's absence.”[45]After Ms Ashton had been referred to the paragraph by Ms Halsall, we questioned her on whether she had any knowledge of the willingness (or otherwise) of staff in the Accrington store in 2017 to pick up extra hours. Her answer was that she could not comment.[46]Taking into account the evidence we have heard from the claimant and the evidence of Mr Knott as recorded in the Tribunal’s Judgment from the last hearing, we reject the contention in Mr Knott’s witness statement that he had difficulty in covering the hours and find that, generally, staff in Accrington at this time were keen to pick up additional hours. That does not necessarily mean that Mr Knott or the successor store manager would always have found it easy to cover every shift (we suspect there are very few retail store managers who always it easy to cover every shift).[47]Mr Knott also made comments in his witness statement about it being difficult to recruit to the Accrington store. However, as touched on above, there was no specific evidence of positions being advertised which could not be filled within a reasonable time frame. We understand that Mr Knott (and perhaps those above him) were reluctant to authorise the recruitment of temporary staff due to the training cost, and were reluctant to take on extra permanent staff and potentially end up with ‘too many’. However, choosing not to recruit additional shop floor staff is not the same as being unable to recruit additional shop floor staff.[48]There is no evidence of Mr Knott feeding any concerns about staffing back to Ms Ashton in the context of her decision about the claimant’s employment. Mr Knott moved to another store in September 2017 and Ms Ashton did not find it necessary to even speak to his successor at the Accrington store about whether there were any problems with recruitment and/or covering shifts to help her make the decision to terminate Ms Stevenson’s employment. There was no discussion with Ms Stevenson in any of the meetings about any difficulties being faced by the respondent due to the continued absence. Indeed, Ms Ashton’s evidence was very clear that it was not such practical difficulty that she based her decision to dismiss on, but rather it was the length of time that the claimant had been absent for combined with the lack of a firm timescale for her return.[49]On the basis of those findings we conclude that the respondent has not demonstrated any specific difficulty that the claimant's long-term absence led to as regards the staffing of the Accrington store.
The Law
[50]We have had regard to the EHRC Code of Practice on Employment (2011) (“the Code”). Section 15 – Discrimination arising from disability[51]Section 15 Equality Act 2010 (“EqA”) provides: “(1) A person(a) (A) discriminates against a disabled person(b) (B) if-- (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”[52]The elements of discrimination arising from disability can be broken down as follows:(a) unfavourable treatment causing a detriment;(b) because of “something”;(c) which arises in consequence of the claimant’s disability.[53]The respondent will have a defence if it can show:(a) The unfavourable treatment is a proportionate means of achieving a legitimate aim – “objective justification”; or(b) It did not know and could not reasonably have been expected to know that Ms Stevenson had the disability – the “knowledge defence”.[54]In this case the respondent accepts that the dismissal was unfavourable treatment that arose from the claimant's long-term absence which itself arose in consequence of her disability. There was no reliance on the knowledge defence, therefore the only issue which falls to be determined was whether the dismissal was justified. This being the case we have not set out the relevant law relating to the other parts of the test.[55]The respondent will successfully defend the claim if it can prove that the unfavourable treatment is a proportionate means of achieving a legitimate aim. This is the same test as for indirect discrimination and for direct discrimination on the grounds of age. Although there is limited legal authority on justification in the context of s.15 claims, principles developed from the application of the test in those other jurisdictions will be highly relevant.[56]The burden of proof in establishing both elements of the justification test lies with the respondent. In many cases the aim may be agreed to be legitimate but the argument will be about proportionality. This will involve an objective balancing exercise between the reasonable needs of the respondent and the discriminatory effect on the claimant as tests established in the context of indirect discrimination in Hampson v Department of Education and Science [1989] ICR 179 CA.[57]We had regard to paragraph 5.12 of the Code: “It is for the employer to justify the treatment. They must produce evidence to support their assertion that it is justified and not rely on mere generalisations.”[58]In conducting this balancing exercise any failure to comply with the duty to make reasonable adjustments will be relevant. Paragraph 5.21 of the Code states: “If an employer has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment it will be very difficult for them to show that the treatment was objectively justified.”[59]Mr Hignett relies on this principle to make the obverse point – that where an employer has not failed to make adjustments (because there were no adjustments which could be made) that should be taken into account in their favour. We accept that that must be correct, as far as it goes, but do not consider that there is any authoritative support for it being a strong factor.[60]Where ill-health absence results from an injury sustained at work, or for which there employer is in some way to blame, there may be an obligation on the employer to “go the extra mile” before dismissal (RBS plc v McAdie [2008] ICR 1087).[61]Cost alone will not provide a justification for discriminatory treatment (Woodcock v Cumbria Primary Care trust [2012] ICR 1126 CA).[62]For the purposes of objective justification there is no rule that justification has to be limited to what was consciously and contemporaneously taken into account in the decision-making process (see Cadman v Health and Safety Executive [2004] EWCA Civ 1317).[63]The relationship between the test of objective justification and the band of reasonable responses test (applied in unfair dismissal claims) has proved to be a problematic issue. It is not necessarily any error of law for a tribunal to find that a claimant succeeds in a section 15 claim but fails in the unfair dismissal that runs alongside it (see City of York Council v Grossett [2018] IRLR 746 CA).[64]However, the Court of Appeal in O’Brien v Bolton St Catherine’s Academy [2017] IRLR 547 had this to say about such cases where they arise from long-term sickness absence: “53. However the basic point being made by the tribunal was that its finding that the dismissal of the appellant was disproportionate for the purpose of s.15 meant also that it was not reasonable for the purpose of s.98(4). In the circumstances of this case I regard that as entirely legitimate. I accept that the language in which the two tests is expressed is different and that in the public law context a 'reasonableness review' may be significantly less stringent than a proportionality assessment (though the nature and extent of the difference remains much debated). But it would be a pity if there were any real distinction in the context of dismissal for long-term sickness where the employee is disabled within the meaning of the 2010 Act. The law is complicated enough without parties and tribunals having routinely to judge the dismissal of such an employee by one standard for the purpose of an unfair dismissal claim and by a different standard for the purpose of discrimination law. Fortunately I see no reason why that should be so. On the one hand, it is well established that in an appropriate context a proportionality test can, and should, accommodate a substantial degree of respect for the judgment of the decision-taker as to his reasonable needs (provided he has acted rationally and responsibly), while insisting that the tribunal is responsible for striking the ultimate balance; and I see good reason for such an approach in the case of the employment relationship. On the other, I repeat – what is sometimes insufficiently appreciated – that the need to recognise that there may sometimes be circumstances where both dismissal and 'non-dismissal' are reasonable responses does not reduce the task of the tribunal under s.98(4) to one of 'quasi-Wednesbury' review: see the cases referred to in paragraph 11 above2. Thus in this context I very much doubt whether the two tests should lead to different results.3This part of the Judgment in O’Brien does not appear to have been considered by the first Tribunal hearing this case, which resulted in inconsistent decision with different conclusions reached in respect of the section 15 claim and the unfair dismissal claim. We have paid close regard to the O’Brien Judgment and also to the Judgment of the EAT in this case in our attempt to apply the correct analysis to the facts we have found.[65]We take from this both a caution - that we must afford the proper “substantial degree of respect” to the respondent’s judgment in taking the steps that it considered to be proportionate in furtherance of its aim - and also an indication that it is likely in long-term absence situations that the same result should be reached whether the dismissal is viewed through the lens of justification or the lens of reasonableness. The fact that the first Tribunal reached conflicting conclusions, without providing a robust explanation as to why, lies behind the success of the appeal and cross-appeal in this case. We have also, therefore, paid close regard to the judgment of the EAT in this claim (Iceland Foods Limited v Stevenson UKEAT/0309/18).[66]Finally, we had regard to various other authorities which the parties referred to as being relevant to how we should apply the test of justification, including Hardys & Hansons PLC v Lax [2005] IRLR 726 CA, Unfair dismissal[67]Subject to what we have said above about the inter-relation of the two tests, in a claim of unfair dismissal involving an ill-health capability dismissal we must determine, in accordance with equity and the substantial merits of the case, whether the employer acted reasonably in treating the absence as a sufficient reason for the dismissal of the employee. The essential framework for such an enquiry was described as follows by Eady J in Monmouthshire County Council v Harris EAT 0332/2014 as follows: ‘Given that this was an absence-related capability case, the employment tribunal’s reasoning needed to demonstrate that it had considered whether the respondent could have been expected to wait longer, as well as the question of the adequacy of any consultation with the claimant and the obtaining of proper medical advice’.[68]Ms Halsall brought to our attention the list of factors set out in Lynock v Cereal Packaging Ltd [1988] ICR 670 as matters which might weigh one way or the other when considering whether dismissal was appropriate. Although that is a case of intermittent (rather than long-term) absence, we consider that this portion of Wood J’s judgment remains of considerable value in a case such as this: “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 facts, 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 it 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 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.” (page 675, B-E).[69]Again, we had regard to other authorities referred to by the parties including East Lindsey District Council v Daubney [1997] ICR 566, BS v Dundee City Council [2014] IRLR 131 (which also includes factors which may be relevant in determining whether the respondent ought to have waited longer before dismissing) and Hart v R Marshall & Sons (Bulwell) Limited [1977] IRLR 51. Submissions[70]The claimant and the respondent both produced written skeleton arguments which were amplified in oral submissions. We are grateful to both representatives for the considered and careful way in which they presented their cases. Discussion and Conclusions Discrimination arising from Disability
Discussion and Conclusions
[71]Although these matters were not disputed, we record for completeness that the claimant was (at least from 1 August 2017) a disabled perspn within s.6 of the EqA by reason of her shoulder injury. She was dismissed due to her continuing illhealth absence, which was itself something which arose in consequence of her disability. The decision to dismiss was in furtherance of the respondent’s legitimate aim of ensuring that employees provided regular and reliable attendance at work.[72]The only real issue, therefore, is whether dismissal was a proportionate means of achieving that aim, or whether a more proportionate means would have been to permit a longer period of absence in the hope of a return at a later date.[73]Having regard to the discussion above, we weighed up the following factors for and against the decision to dismiss the claimant. We found the following points were in favour of it being proportionate to allow the claimant to continue to remain “on the books”:(1) The nature of the illness: it was a physical injury which had the potential to recover, and from which a full recovery had initially been expected within twelve months. It was not a chronic or recurring illness;(2) At the time of dismissal, there remained a realistic possibility of a recovery and return to work within a few months;(3) There was a specific date when more information would be forthcoming i.e. at the consultant’s appointment scheduled for the end of December. This was only a few weeks away from the point of dismissal;(4) The claimant was by this time a disabled person entitled to protection under the Equality Act 2010;(5) The respondent had, in fact, been able to cover Ms Stevenson’s absence using hours from other staff;(6) Related to the above point, the nature of this employment meant that the claimant's hours were interchangeable with the hours of colleagues doing the same job in the same store. This type of role is easier to cover than a specialist role, for example a teacher teaching a particular discipline within a school, or a role such as store manager where there is only one person employed in that role at the establishment;(7) There was no crisis or change in circumstances that made it more difficult to cover the claimant's hours than had been during the already extended period of her absence;(8) The ongoing costs of retaining the claimant on the books (for example in terms of holiday pay, administration and occupational health costs) were minimal, particularly for an organisation of this size;(9) This was a valuable job from the perspective of the claimant. She was continually emphasising that she was keen to come back and although it was a contract for only a low number of hours she had in fact been working 25 hours a week;(10) There were no concerns with the claimant's performance and the respondent had indicated that it would be happy to re-employ her;(11) The claimant was a reasonably long-serving employee: that reflects both the value of the job to her and the fact that the employer could expect good service again once she was able to resume her role.[74]We also weighed up the following points in favour of dismissal being a proportionate step as at November 2017:(1) The initial prognosis that the claimant might be absent for up to 12 months had proved wrong. By November it was clear that she was going to be off for longer than 12 months and there was no fixed timescale for when she would be back;(2) This is not a case where the employer was in any way responsible for the industry (which might give rise to an obligation to “go the extra mile”);(3) We agree that there had been no failure to make reasonable adjustments;(4) We accept that managing staff to fulfil rotas is an ongoing issue in a retail environment and that, even without specific evidence of difficulty, having one staff member within the staff profile who is unavailable to be called on for an extended period will have made the job of Mr Knott and his successor broadly more difficult;(5) There will have been upfront costs of the claimant's absence, specifically her holiday pay that she was accruing on the 7.5 hours in her contract and her continued access to staff discount;(6) There are also background costs to maintaining employees on long-term sickness absence. This would include the managerial resource devoted to absence reviews and meetings and associated paperwork, occupational health fees, and also the fact that as employees accrue length of service the value of their potential cost in terms of notice and redundancy pay increases. Both the upfront and background costs are increased with a longer period of absence;(7) We agree that the claimant had been off for a very significant period of time at November.[75]In addition, we considered the following factors but did not consider that they weighed heavily in one direction or the other:(1) The effect of absences on others in the store: taking the evidence as a whole, we are unable to reach a firm conclusion as to whether colleagues would have felt under pressure to cover hours for the claimant, or whether they would have been glad of the opportunity to do so. It may well have been that this varied from colleague to colleague and from week to week.(2) It was also suggested that we should place weight on the fact that the position in the Accrington store was not at the forefront of Ms Ashton’s mind and was not discussed with the claimant at the final absence review meeting. Although normally an employer is under an obligation to fully inform an employee about the reasons for their dismissal, we have some hesitation in suggesting that it is appropriate for an employee who is unfit to work and who is experiencing ill health absence to be involved in discussions about how that work is being covered, particularly in a work set-up such as this one. That could burden the employee and it is difficult to see that she could have done or suggested anything to alleviate any problems that there might be. We consider that comments in some of the cases about the importance of making the employee aware that the employer is experiencing difficulties caused by the absence are more directed to ensuring that the dismissal is not ‘sprung’ on the employee at a point where it is too late for them to argue their case. We consider that the repeated welfare meetings and Ms Ashton’s follow-up letters, meant that by the time of dismissal the claimant was well aware that dismissal was in the respondent’s mind. We do not feel that sharing details with her about cover arrangements would have assisted. We do not feel that this factor assists either side.[76]The Tribunal did find this a difficult balance to weigh up. There are strong factors pointing in both directions. Ultimately, however, we were unanimously of the view that that the dismissal in November 2017 was not a proportionate means of achieving the respondent’s legitimate aim of “requiring its employees to provide regular and reliable attendance at work”. The claimant was an employee who had provided such attendance in the past and who, if and when she recovered, could be expected to provide such attendance in the future. At the time of dismissal there was a clear date on which further information would be available i.e. following the consultant’s appointment in December. Taking into account all of the factors outlined above, we find that it would have been more proportionate for the respondent to wait to hear the outcome of that consultant appointment. We reach this view taking account of the respect that should be afforded to the respondent’s own assessment, but we disagree with that assessment.[77]If, after that appointment had taken place, there was a further delay or if it appeared that surgery was not going to be available, then the balance of factors may have been different at that later point. However, we are also satisfied that when it became apparent that the claimant was going to be offered further surgery in the early part of 2018, it would have been appropriate for the respondent to wait further for the outcome of that surgery. Had they done so then the claimant would have been able to return to work at approximately the same time as she was in fact able to take up her new role with B&M.[78]Given those findings, we find that the claimant has succeeded in establishing that her dismissal was discriminatory under s.15 EqA. We find that no reduction should be made to the claimant’s compensation to reflect the possibility that, absent this dismissal, there would have been a non-discriminatory dismissal at some later date up to May 2018 when she was fit to return to work. Unfair Dismissal[79]We are satisfied that the respondent has established a potentially fair reason for dismissal in this case. Specifically, that it was a capability dismissal brought about by the claimant’s long-term sickness absence.[80]Having regard to the findings that we have made above and to the dicta from the O’Brien case, we are satisfied that the respondent did not act reasonably in dismissing the claimant in November 2017. In view of the balance of factors set out above, we find that no reasonable employer would have discriminated against Ms Stevenson on the grounds of her disability (as we have found occurred in relation to her successful s.15 claim) and that a reasonable employer would instead have waited for the outcome of the consultant appointment in December.[81]We therefore find that the claimant's claim of unfair dismissal succeeds. We find that no reduction should be made to the claimant’s compensation to reflect the possibility that, absent this dismissal, there would have been a fair dismissal at some later date up to May 2018 when she was fit to return to work.
Remedy
[82]At the conclusion of the hearing we agreed a provisional remedy hearing date with the parties of 10 December 2020. That remedy hearing will now go ahead unless the parties manage to reach an agreed resolution of the matter in the meantime. A notice of hearing and some short case management directions will be sent under separate cover. Employment Judge Dunlop Date: 12 October 2020