Mr P Brittain v Nottingham City Homes Ltd: 2601808/2016

EMPLOYMENT TRIBUNALS

Case No 2601808/2016

Between

Mr P BrittainClaimant

Nottingham City Homes LtdRespondent

Before

Employment Judge P Britton

Mr M Hardiman (instructed by Counsel) for respondent

Date 31 August 2017

JUDGMENT

[1]This claim having been presented out of time, it is permitted to proceed, it being just and equitable so to do.

[2]Directions are set out after the reasons to this judgment.

REASONS

[1]The hearing today is for me to determine whether it is just and equitable to extend time for what is a disability discrimination claim. It is not in dispute that the claim was presented out of time pursuant to Section 123(1) (a) of the Equality Act 2010 (the EqA). Therefore, what I have to determine is whether I exercise my discretion to permit the claim to be presented out of time on the basis of “such other period as the employment tribunal thinks just and equitable” - Section 123(1) (b).

[2]Although, I am aware of the legal authorities for the purposes of this exercise, may I say from the outset I am most grateful for Mr Hardiman’s written opening submissions in which he refers to some of them. I am also aware that the onus is on the Claimant to persuade me that I should extend time because to permit the extension of time is the exception rather than the rule.

[3]In making my decision, I have adopted the guidance which I always find very useful in cases of this nature to be found in British Coal Corporation v Keeble & others [1997] 336 EAT. Findings of fact The length and reasons for the delay

Findings of fact

[4]I have heard evidence from the Claimant under oath; evidence-in-chief by way Page 1 of 7 of a written witness statement. He has been asked further questions by Mr Hardiman and myself in order that I may understand more about the factual matrix engaged in this case. He has been accompanied by his wife; and although she has not given evidence it is quite obvious (she simply observing at the back of the room) that the whole scenario in terms of what I am about to deal with has been deeply upsetting within the family and very stressful indeed. For reasons which I shall come to from what we now know that could not but be obvious in terms of the scenario. I am most grateful in that respect for the reasonable and sensitive approach taken by Mr Hardiman once we had all the evidence.

[5]I have before me a joint agreed bundle. I will refer to it as Bp followed by the page number.

[6]The Claimant commenced his employment on 10 January 2010 with the Respondent (NCH) as an electrical technical officer. He was dismissed for capability reasons by letter dated 11 March 2016. (Bp46). The decision had been taken by Mr Pashley. In terms of where prejudice may lie between the parties in exercising my discretion to extend time or not as the case may be, Mr Pashley still remains in the employment of NCH; Dawn Baker, who was the HR person involved, does not but Mr Hardiman has fairly told me that she is contactable should I permit the case to proceed.

[7]The Claimant unsuccessfully appealed. The hearing took place on 5 May 2016. The decision was published by letter on 11 May 2016 (Bp 52). The decision to not uphold the appeal was made by Mr Walters. He is no longer in the employment but again Mr Hardiman has made plain that he is contactable. Cross referencing to the Claim (ET1) and it is plain that the appeal is part of the complaint of disability discrimination.

[8]Pursuant to s123 of the EqA the proceedings, subject to the ACAS EC (early conciliation) requirement, therefore needed to be presented within three months of the act to which the complaint relates and in relation to conduct extending over a period commencing with the last act relied upon. Thus time at latest would have run out on 10 August 2016. The ACAS EC extension of time provision cannot ride to the rescue pursuant to s140B because the ACAS EC certificate runs between 31 August 2016 and 1 October 2016.

[9]Thus when the claim when it was presented to the tribunal on 7 October 2016 it was substantially out of time. That it was out of time was made plain by Mr Benson in the particulars of claim to the ET1.

[10]The question then becomes as to why. The Claimant was at the time of his dismissal recovering from cancer; namely merkel cell carcinoma. There is a substantial medical history in this matter all the way through from at least the beginning of 2015 and continuing, as to which see for a summary the report of Dr P A Lawton, Consultant Clinical Oncologist dated 1 July 2016 at Bp 56 - 57. There were complications in the treatment of the cancer, all of which is covered in that report. There was surgical intervention; there was then an infection; complications thereafter as to which the Claimant continues to suffer from limitations in mobility and is in considerable pain in terms of his left leg. There is still something of an uncertain prognosis; he will be the subject of regular check ups for the next 4/5 years.

[11]As a consequence I have no doubt whatsoever (and it is covered by that report and the other reports in the bundle) that from around about the end of 2015, Page 2 of 7 the Claimant began to suffer from severe depression. In that period he was having the support of Macmillan who gave him some help in that direction but then via his GP he was put with the Primary Care Trust Mental Health Team (known as Wellbeing) and he had sessions of counselling. He would like to have had more but because of shortage of resources, he is now at the back of the queue so to speak.

[12]Throughout the period thereafter and continuing he remains on antidepressant medication. From what I have learned today, and using my experience as a Judge, it would appear to me that the medication is strong and I note even so, and in terms of the report of Dr Lawton, that he remains a depressed individual and indeed it is not unusual for people coping with the stress of cancer to suffer from depression.

[13]Also by the time of the dismissal, the Claimant was now in a situation where due to abdominal problems it was considered that he might be at risk of bowel cancer. Although Dr Lawton opines in his report that it is unlikely that there is a malignant tumour, the Claimant was not given the all clear until last November.

[14]The third factor is that the circa 12 May, so the day after the appeal, the Claimant suffered a collapse. It was thought that he might have had a heart attack. He was therefore taken to accident and emergency and then remained an inpatient for tests for about a day. The upshot of that was that he in due course received a heart monitor and during the period which I am referring to up until circa 5 August, the Claimant was facing that he might have on top of the merkel cell cancer the possibility of additional bowel cancer; and that he might have heart disease. It is therefore not at all surprising that he was clinically depressed.

[15]Macmillan had suggested to the Claimant when he was dismissed that they might be able to assist him with a lawyer, but circa that time the Claimant contacted his household insurers. He learned that he was covered, certainly in terms of initial advice. Therefore, he went along with the insurance company placing him in the hands of one of its panel lawyers, Lyons Davison. There was then a delay. Of course during that period, the Claimant was also hoping he might succeed in his appeal. Unlike in unfair dismissal cases, it is not necessarily fatal in terms of the just and equitable test, to wait upon the outcome of an appeal. In any event, he would still have been in time had he acted shortly after the appeal outcome.

[16]As at 1 June, so still within time, the Claimant having had considerable problems getting any meaningful advice out of Lyons Davison as to whether or not his case was going to be taken on, he received an outcome, which was that the insurance company would not support his claim and so if he wanted to use Lyons Davison, he would need to pay their fees, which he would not be able to afford. Of course as at 1 June he would still just have been in time. He knew what the time limits were because he had been told that by Lyons Davison, I detect when he first had a conversation with one of their legal team.

[17]Faced with that outcome and without the financial wherewithal to fund the claim, the Claimant sat down with his family. Amongst other things, he is devoted to his grandson; he and his wife look after the little boy every Monday. There were all these different health issues; the family’s view was that the Claimant simply could not cope with undertaking litigation in relation to his dismissal. The Claimant could not face it; he was worried that if he put himself through that additional stress and he suffered a fatal heart attack, given of course he was worried that he had heart problems at that time, then he would lose seeing his grandson grow up. Page 3 of 7

[18]Having heard all that evidence and Mr Hardiman does not stand in my way, I am absolutely persuaded that there was a fundamental impediment in the way of this Claimant from proceeding, which was his health including his state of mind.

[19]Circa 5 August of course he got the all clear on the heart front. He felt a bit better, although his mood remained low. He spoke to a friend who suggested he contact the MP. Of course he had to make an appointment to see her at her surgery. This he did and she wrote around about the 23 August to the local authority (Nottingham City Council), which in term owns NCH, wanting to know what was happening particularly on the pension front, an issue that need not concern me today.

[20]The Claimant was also told by her when he saw her (which was about a week or so before that letter) that he should get himself an appointment with the Nottingham Law Centre. This he did and he was able to see Mr Benson on 25 August.

[21]Let me stop there and deal with the delay in that respect. As a Judge, I am of course aware that there are few ports of call these days for persons who are without the necessary financial means to obtain legal advice. The Nottingham Law Centre provides it but it runs on a shoestring. Mr Benson, who previously was in legal practice as a qualified solicitor, post retirement, has made himself available to Nottingham Law Centre (for which he is to be commended) so that he holds an advice surgery, so to speak, on a Thursday afternoon. He is the only member of NLC who provides employment advice, the rest deal with such things as housing and benefits and matters of that nature. That of course explains why the Claimant could not get to see him until 25 August.

[22]Mr Benson does not take many cases on because of limited resources. Nevertheless he had decided that the Claimant’s case was worthy of merit. However he knew that it could not proceed to the employment tribunal until it had first been though the ACAS early conciliation process. So he promptly contacted ACAS. Early conciliation then took place between 31 August and 1 October. Mr Benson has told me (and Mr Hardiman has not got instructions on the point and thus cannot help) that the early conciliation period continued for this period because there was some indication (and I will not go behind the veil) that NCH might be willing to discuss matters in a meaningful way. Of course the whole purpose of the ACAS early conciliation regime is to facilitate conciliation in the hope that it might thus avoid claims coming to tribunal.

[23]It follows that I am not persuaded that the delay during that period would be something that would render it such that it adds to the equation, in terms of whether or not the Claimant could have brought his claim before he did. To turn it around another way, it would be just and equitable to permit that ACAS early conciliation period because otherwise what is the point of ACAS early conciliation?

[24]The claim was presented to the tribunal on 7 October. The reason for that is that Mr Benson had to find the time to prepare it, given the understandable limit of resources.

[25]Given these findings of fact in terms of the length and reasons for the delay it would be just and equitable to extend time. Page 4 of 7 The balance of prejudice and the interests of justice

[26]Of course if I allow the claim to proceed, NCH loses that otherwise it is spared the expense of having to defend it and run the risk that it might be held liable if the Claimant were to succeed. But it is a substantial organisation. Furthermore there is a prima facie case to answer. Thus in terms of the interest of justice the scales lie in favour of the Claimant.

[27]The prejudice, as Mr Hardiman was instructed to principally submit, is that such has been the turnover of staff at NCH that key players are no longer in its domain. Therefore, does that mean that the cogency of the evidence, its ability to defend, is now so limited because of the lack of witnesses on the issue, that it must mean that it is prejudiced to the extent that it cannot defend, which it would have been able to do if the claim had been brought in time?

[28]I do not know when any of the players so to speak left. What I do know is that there is at least one of them still in the NCH (Mr Pashley). The Respondent was able to give its solicitors sufficient detail to file a detailed Response in terms of the merits of the claim; and Mr Hardiman has honourably told me today that other players (and I have referred to the two key ones) are in fact contactable. I read into that that they can be therefore deployed.

[29]Therefore there is no prejudice on this front.

Conclusion

[30]Accordingly I exercise my discretion and permit this claim to proceed, it being just and equitable so to do. ORDERS of DIRECTIONS The hearing is already listed to take place between 2 and 4 May at Nottingham. The current directions have been stayed pending the outcome of this preliminary hearing. By consent, I now make the following directions. 1. The discovery process1.1 By way of first stage discovery, the Respondent will send by 3 March 2017 to the Claimant its proposed trial index, double spaced and in chronological format.

1.2 By 17 March 2017 the Claimant will reply thereto, adding at the appropriate space by short description, any additional documents he wants in the bundle. if he has a copy, he will send it to the Respondent with his completed trial index. If he believes it to be in the Respondent’s possession or control, he will make that plain requiring that they place it in the trial bundle.

1.3 By not later than 24 March 2017, a single bundle of documents is to be agreed. The Respondent will have conduct for the preparation of the same. The bundle is to be bound, indexed and paginated. The bundle should only include the following documents: Page 5 of 7  the Claim Form, the Response Form, any amendments to the grounds of complaint or response and case management orders if relevant;  documents which will be referred to by a witness;  documents which will be referred to in cross-examination;  other documents to which the tribunal’s attention will be specifically drawn or which they will be asked to take into consideration. In preparing the bundle the following rules must be observed:  unless there is good reason to do so (e.g. there are different versions of one document in existence and the difference is material to the case or authenticity is disputed) only one copy of each document (including documents in email streams) is to be included in the bundle o the documents in the bundle must follow a logical sequence which should normally either be simple chronological order or chronological order within a number of defined themes e.g. medical reports, grievances etc o correspondence between the tribunal and the parties, notices of hearing, location maps for the tribunal and other documents which do not form part of either party’s case should never be included. Unless an Employment Judge has ordered otherwise, bundles of documents should not be sent to the tribunal in advance of the hearing. 2. Statements 2.1 By not later than 21 April 2017, there is to be mutual exchange of witness statements. The witness statements are to be cross-referenced to the bundle and will be the witness’s main evidence. The tribunal will not normally listen to witnesses or evidence not included in the exchanged statements. The Claimant’s witness statement must include a statement of the amount of compensation or damages they are claiming, together with an explanation of how it has been calculated and a description of their attempts to find employment. If they have found a new job, they must give the start date and their take home pay. Witness statements should not routinely include a précis of any document which the tribunal is to be asked to read. Witnesses may of course refer in their witness statements to passages from the documents which are of particular importance, or to the inferences which they drew from those passages, or to the conclusions that they wish the tribunal to draw from the document as a whole. 3. The hearing itself

3.1 The first morning will be a reading in period; the parties will have agreed a chronology and a cast list. There will be deposited, via the Respondent in good time before the first day of the hearing in order that the tribunal panel has the same to read, in triplicate, the following:3.1.1 the trial bundle;

3.1.2 a combined witness statement bundle;

3.1.3 the chronology;

3.1.4 the cast list.

3.2 As the first morning is a reading in period, the attendance of the parties is not required; they must be ready to start the live hearing at 2pm prompt. Page 6 of 7

The relevant law

[32]The letter written by Mr Edlin was then delivered at a meeting with the Claimant on 23 March 2016 also in attendance was his wife, Dawn Baker and George Pashley. The only notes of the meeting were the notes prepared by Mrs Britton. There were no notes of the meeting prepared by the Respondent. We have accepted Ms Britton's notes as an accurate record of that meeting. In summary the main points of significance arising from that meeting was that Dawn Baker informed the Claimant that Medigold stated his condition would not allow return to his substantive role, though he may be able to undertake other work with a less strenuous role. The Claimant confirmed that he was making progress with the pressure garments and that he had found an antidepressant that suited him. He was offered and accepted counselling by Dawn Baker. There was a discussion around why tier 3 had been decided upon and not tier 1. The Claimant asked if he could return to work with adjustments to allow for his condition. Dawn Baker informed him that this would not be permitted and that he was retired on the grounds of ill health as at the date of his report. There was to be no job return as he had been retired on these grounds and a capability hearing had been dispensed with.

[33]What happened at the meeting on 23 March 2016 was contrary to what was outlined in the letter from Mr Edlin on 10 March 2016. This stated that the Respondent would do everything they could to keep the Claimant employed. There was no pre-warning of dismissal, and we find the Respondent failed to follow their own absence management procedure. There was no management case prepared and no opportunity for the Claimant to comment or discuss on the decision that had been taken by the Respondent. We also find that the prospect or possibility of reasonable adjustments was rejected outright by Dawn Baker. The dismissal letter stated that Mr Edlin was advising not to proceed with the decision without convening a formal capability hearing and sought the Claimant's agreement on this. No such agreement was ever discussed with the Claimant either by Mr Pashley and Dawn Baker at the meeting on 23 March or by Mr Edlin after the meeting. Neither Mr Edlin nor Mr Pashley could explain first of all why they sought to obtain the Claimant's agreement to dispense with a capability hearing and then when that agreement was not forthcoming proceeded in any event to dismiss the Claimant.

[34]The Claimant subsequently lodged an appeal and it was evident that the focus of the Claimant's appeal was initially why he had not received tier 1 retirement. This caused the Claimant considerable distress as he maintained that the doctors who had assessed him at tier 3 did not in the Claimant's view take into account that his type of cancer only had a 25% survival rate after 5 years. 35.0n 29 March 2016 Dawn Baker wrote to Dr Coles to raise the issue of reasonable adjustments. In the email, Ms Baker asked for clarification from Dr Coles earlier comment that it would be more reasonable for the Claimant to be employed in a predominantly sedentary capacity. Ms Baker went onto ask if this were possible would the Claimant be fit to return to work now or can he give an indication if this would be in the foreseeable future. The next sentence stated: "We are trying to ensure that the decision to terminate will not be challenged in relation to making reasonable adjustments.”

[36]We find that Ms Baker did not make any serious enquiries as to what adjustments might enable the Claimant to return to work, rather that the enquiry was to ensure that the decision to terminate could not be challenged. We do not go as far as to find that Ms Baker was deliberately trying to manipulate Dr Coles reply but there was no genuine attempt to obtain advice on what reasonable adjustments might have enabled the Claimant to return to work. Page 7 of 12 37.A reply was sent on behalf of Dr Coles in which he stated that although he did not think the Claimant likely to be capable of an immediate return to work, he may improve with further treatment and may be capable of a sedentary role within the next six months. The Claimant first discovered about these further enquiries in the course of these proceedings. The Claimant was asked in cross examination why his appeal had focussed on tier 1 and why he had not initially appealed the actual dismissal. The Claimant said he had sought advice from Macmillan Cancer support about the tiers and was advised that he should qualify for tier 1 because of his cancer prognosis. He accepted that he missed not raising an appeal against the actual dismissal. There was evidently a possible contradiction in the Claimant's position at this point. On one hand the Claimant was appealing on the grounds he should qualify for tier 1 which meant he was totally unfit. On the other hand he was saying he could return with reasonable adjustments. He accepts under cross examination he sounded confusing. However we accepted the explanation that he subsequently gave in re-examination about the level of confusion that he was experiencing at that time. Furthermore we took into account that the Claimant understandably thought that the early health retirement was the only option on the table. This can be explained by the advice that the Claimant had been given from Macmillan and also the outright rejection of the possibility of reasonable adjustments to enable the Claimant to return in any event. We find that no criticism should be made of the Claimant regarding the grounds for his appeal for these reasons.

[38]There then set in motion various arrangements for a second opinion on the tier 3 early health retirement. By 18 April 2016 the Claimant informed the Respondent that in addition to the grounds to his appeal he wanted to appeal the decision to terminate his contract and clarified that on 4 May 2016 the grounds for discrimination/constructive dismissal and the way the whole situation was handled. An appeal hearing took place on 5 May 2016. In attendance was Jonathan Shaw, Dawn Baker, the Claimant and his companion Steve Walters. Mr Shaw helpfully accepted that the detailed notes that had been taken by the Claimant of that appeal hearing were accurate. The Claimant also found the appeal process very distressing and became very emotional.

[39]There was an extensive discussion at the appeal. Mr Shaw is recording as asking the Claimant what duties he felt he could do and both in the Claimant and Respondent notes of that appeal meeting the Claimant informed Mr Shaw that he could sit at a desk and do computer work. The Claimant accepted that he would struggle with manhole, roof spaces and ladders but reiterated he could work from home, elevate his leg and made a suggestion that a more junior member of the team does the difficult physical access work. We find that the Claimant did agree at that appeal hearing that he was currently unfit for work but that should be considered in the context of the preceding conversation where the Claimant had gone through the elements of the role that he could not do. In other words the Claimant accepted he was not fit for his substantive role with no adjustments.

[40]Mr Shaw followed up with the appeal with Dawn Baker and asked her if she had any copies of e-mails sent to the Claimant to inform him he was at risk of losing employment and any e-mails that informed the Claimant if ill health retirement qualified, his employment would terminate. Ms Baker did not answer Mr Shaw's question. She did inform him that it was normal practice to dispense with capability hearings due to the circumstances of his condition. Mr Shaw upheld the decision to dismiss the Claimant on 11 May 2016. Mr Shaw concluded in summary that as the Claimant had qualified for early ill health retirement there was a likely inability for him to return to work. This had the effect that there was no need for any reasonable adjustments Page 8 of 12 to be considered. This was a consistent theme across the Respondent's evidence and the position they took at the time.

[41]There was a further referral by Dr Jackson who was an occupational health practitioner from Nottingham City Council this time to the Claimant's oncologist Dr Lawson and we have carefully considered Dr Lawson's reports at page 194 of the bundle which was dated 1 July 2016 after he had reviewed the Claimant on 15 June 2016. Dr Lawson reported that the Claimant was feeling well with no recurrent tumour. Lymphedema was recorded as very mild with a possibility it might improve and whilst he noted that in order to ask what type of employment the Claimant would be capable of he referred back to a Dr Keely, he said he was not aware of any side effects from the radiation that would have an impact on his ability to work. He also commented that his psychological effects with appropriate support treatment he would hope that would not prevent patients with cancer from working

[42]We find that between April and June 2016 the Claimant would have been fit to return on a phased return with adjustments sought. There was evidence of improvement by 23 March 2016 which the Respondent were on direct notice of and further evidence of further improvements as at the appeal hearing. These were that the Claimant was responding well to antidepressants, he was receiving counselling and was trialling different compression garments. There was only one medical report that sought to properly investigate whether there were any reasonable adjustments that could facilitate a return to work and that was two months earlier when the Claimant was referred to Mr Disney-Spiers. By the time of dismissal, given the improvements in the Claimant's health since that report in January 2016, there were some simple adjustments that could have been made to enable the Claimant to return such as a phased return to office based duties, provision of equipment to enable him to keep a leg raised, home working, temporary allocation of the physical work to other members of the team but none of these were even considered by the Respondent before deciding to dismiss the Claimant.

[43]A list of vacancies that were available between March and June 2016 was provided to the Tribunal and we heard some evidence from the Claimant about which of these vacancies he possibly could have been redeployed toe We find it would be too speculative to have embarked in a process of saying which of those roles would have been suitable for the Claimant but we do find that the Claimant may have been suitable for the Technical Project Manager role that Graydon Peacock had been promoted to on or around March 2016. Mr Peacock had previously occupied the same role as the Claimant 3 grades lower and therefore we did not accept Mr Pashley's evidence that it was unlikely the Claimant would have been successful in applying for this role. The Respondent did not consider the possibility of redeployment to a sedentary post before dismissing the Claimant. 44.Mr Evelyn gave evidence that the team was under pressure from covering the Claimant's absence and Mr Pashley gave evidence that the absence figures for the Respondent were higher than the local authority average but not about how the Claimant's absence impacted on these figures. Mr Pashley gave further evidence which was not evidence in chief and therefore the Claimant had not had the opportunity to cross examine Mr Pashtey that the Respondent had lost contracts due to their absence levels. Whilst we did not disbelieve Mr Pashley on this there was simply no evidence to support this. The Claimant had exhausted his sick pay yet the Respondent had not explored the opportunity of engaging additional help for the team. Whilst the team may have been stretched due to the Claimant's absence the Respondent took no steps to address this other than dismiss the Claimant where there were other alternatives that could have been explored. Page 9 of 12

[45]We find the Respondent held a genuine yet misguided belief that early ill health retirement would be in the best interests of the Claimant but they did so without taking into account the Claimant's wishes. The Respondent simply did not listen to the Claimant's wishes and proceeded down a route that had been instigated by Dawn Baker. No one at the Respondent including Mr Edlin, Mr Pashley or Mr Shaw properly considered the medical evidence that was available and applied their own minds to what the Claimant was saying about his improvements and his progress. There was a total acceptance of the medical reports even when the purpose of the report was not to give advice on whether adjustments could enable the Claimant to return to work but was simply in respect of the ill health retirement question which was a quite different question that should have been asked. There was a failure to obtain up to date medical evidence on whether there were any reasonable adjustments that could have enabled the Claimant to return to his role. Conclusions Discrimination arisinq from disability

Conclusions

[46]The Respondent conceded that the dismissal of the Claimant amounted to a substantial disadvantage and accordingly the only matter the Tribunal had to determine in respect of the Section 15 claim was whether the Respondent could show that the decision to dismiss was a proportionate means of achieving a legitimate aim. First legitimate aim "Needing certainty in its employee headcount and identity, finances and sickness figures, particularly at a time of restructure across the organisation"

[47]In relation to first of all whether or not the dismissal was a proportionate means of achieving a legitimate aim, we find that it was not so for the following reasons.

[48]It was not proportionate to dismiss the Claimant as the Respondent failed to follow their own absence management procedure in reaching that decision. The Respondent failed to consult with the Claimant or hold a stage 3 meeting within their sickness absence management process. There was no management report for consideration of dismissal and no explanation of the process and implications to the Claimant.

[49]There was also no compliance with the policy whereby the Director or Assistant Director will consider the management report and decide whether a hearing is appropriate to consider if dismissal is appropriate. No hearing was arranged, the Claimant was simply informed he would be dismissed on 23 March 2016.

[50]The Respondent also failed to follow their policy at 9.3 that the Manager in conjunction with HR and Occupational Health and in discussion with the employee will need to consider whether the employee has a disability within the definition of the Equality Act 2010 and consider any reasonable adjustments that may enable the employee to return to work. 51.The failure to consult with the Claimant and listen to his concerns despite promising to do so as late as 10 March 2016 meant that the Respondent were not and could not have been fully in possession of sufficient medical evidence to be reasonably informed and draw reasonable conclusions. The Respondent followed the ill health retirement medical health advice but did not make any proper enquiries of that advice and whether or not in fact a number of simple reasonable adjustments could have enabled the Claimant to return to his substantive role and did not obtain up to date advice in relation to reasonable adjustments. The Respondent did not follow the advice in the report from Mr Disney Spiers which was dated 19 January 2016 and recommended a review Page 10 of 12 in 3 months. This was not a proportionate means of achieving the legitimate aim.

[52]We also find that this is not a case where there was no reasonable prospect or likelihood or knowledge or information that the Claimant would be fit to return in the foreseeable future. There was information available to the Respondent that the Claimant was improving and accordingly there was a chance that return in a foreseeable future was likely. Had proper enquiries been made of the Claimant or that evidence had been considered or revisited in an up to date occupational health report, such a conclusion would have been reached. Second legitimate aim "Ensuring that employees with long term ill health are suitably provided for in a situation where they are unfit to work in the role for which they were employed"

[53]We find that dismissal was not a proportionate means of achieving this aim for reasons set out above in terms of the failure to comply with the sickness policy and failure to consult and engage with the Claimant and properly asses the medical evidence. Further, the aim could have been achieved by other means rather than dismissal such as removing the physical elements to his role or redeployment but no such other means were explored.

[54]Moving on to the legitimate aims we accepted the Claimant's representative's submissions in this regard that there was no evidence from the Respondent on the legitimate aims other than the evidence I have referred to above from Mr Edlin and Mr Pashley about absence figures and pressure on the team. 55.Counsel for the Respondent submitted that there does not need to be concrete evidence for justification (relying on Mr Justice Elias President, in Seldon v Clarkson Wright & Jakes

[2009] IRLR 267

at para 73). We do not accept that this means where this is very little or no supporting evidence the Respondent need do no more. In particular there was no evidence on why there was a need for certainty in employee headcount or how this would have applied to people with disabilities. The legitimate aim relied upon was not in our view an explanation which it was immediately obvious or where common sense could be applied as Mr Justice Elias President referred to in Seldon.

[56]Further, the second legitimate aim was not achieved by dismissing the Claimant. He has not ended up being suitably provided for as he was dismissed and ending up receiving a Tier 3 pension. The decision on the pension was a matter totally beyond control of the Respondent — it was a matter for the pension trustees. Therefore this particular legitimate aim was one that could not even be achieved by the Respondent. Section 20 and 21 — Failure to make reasonable adjustments

[57]The Respondent submitted that the duty to make reasonable adjustments was never triggered in this case as the Claimant was unable to give an indication of when he would be able to return to work (Doran v Department of Work and Pensions

UKEATS/0017/14

[58]We conclude that the point at which the duty to make adjustments was triggered. Had the Respondent made the appropriate enquiries of both the medical evidence and the Claimant and consulted with the Claimant then they would have found that the trigger point was engaged. His health had improved between January 2016 and March 2016 and the Respondent was on notice this was the case. Prior to his dismissal the Claimant had suggested a number of adjustments that could have made a return to work possible with adjustments. There was evidence that the proposed adjustments of work from home, elevating his leg and a more junior member of the team doing the difficult Page 11 of 12 physical access work would have been reasonable and would have eliminated or reduced the disadvantage.

[59]The Respondent should not benefit from their own neglect to consider these adjustments. If an employer fails to consider reasonable adjustments and as a result the employee is not fit to return to work it would render the duty pointless to permit the employer to say his duty was not triggered in the first place.

[60]We went on to consider whether the adjustments would have prevented the disadvantages and we find that they would have done. In respect of both removing the physical elements of the role and moving the Claimant into a sedentary tasks or role, we found that given the occasional nature of the physical elements once a week at most and the fact that Mr Ruston and Mr Jackson had discussed this in detail with the Claimant and concluded this was indeed possible in October and November 2015, that this was sufficient for us to conclude that the adjustments would have prevented the disadvantage. This was also supported by all of the medical evidence where the various practitioners commented that it was the physical elements of the role that would give the Claimant the difficulty. We did not accept the Respondent's Counsel's submission that what was discussed in October/November 2015 was irrelevant as the situation had changed. The Claimant's underlying condition of Merkel Cell cancer had not changed. His symptoms and effects from the cancer including the lymphedema had improved and it was this particular condition that was impacting on his ability to do the physical elements of his role. Failure to make reasonable adjustment to the holiday policy 61.The Claimant had requested to return to work on a phased return and / or to use holidays to make up his salary. We did not hear any evidence from the Respondent about why this suggestion was rejected but it was, The only evidence we had was an e-mail from Dawn Baker saying that holidays had to be taken only as one whole working day and could not be taken as half days. We find this was not an adequate explanation and such an arrangement would have been a reasonable adjustment to ameliorate the financial disadvantage being experienced by the Claimant due to his absence from work. Further, had the Claimant been permitted to use his accrued holiday either being used half or full days, this could have facilitated a phased return to work for the Claimant.

[62]For these reasons we find in favour of the Claimant in that the Respondent did not take such steps as was reasonable in the circumstances to prevent the PCPs having the disadvantageous effect.