Mr E Parnaby v Leicester City Council: 2602117/2017
EMPLOYMENT TRIBUNALS
Case No 2602117/2017
Between
Mr E ParnabyClaimantLeicester City CouncilRespondent
Before
Employment Judge AhmedMr Kohanzad (instructed by Counsel) for claimantMr Linstead (instructed by Counsel) for respondentDate 16 December 2021
JUDGMENT
The judgment of the Tribunal is that the Claimant was not at the material time a ‘disabled person’ within the meaning of section 6 and Schedule 1 of the Equality Act 2010.
REASONS
[1]Mr Parnaby was employed by the Respondent from 21 July 2010 as a Head Caretaker. He was dismissed on 18 July 2017 because of long term sickness absence. He brings a separate complaint of unfair dismissal which is not the subject of any issue to be determined today.[2]Mr Parnaby describes his disability as ‘work related stress’ which he says he has suffered from since May 2016. The Claimant’s GP records refer to him suffering from ‘a depressive disorder’. He has been intermittently prescribed antidepressant medication, Citalopram, since May 2016 and continuously since June 2017.[3]The definition of disability is contained in Section 6 of the Equality Act 2010 (“EA 2010”) and is as follows:- “(1) A person (P) has a disability if:-(a) P has a physical or mental impairment, and Page 1 of 4(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.” 4. ‘Substantial’ in section 6(1)(b) of EA 2010 according to section 212 (1) of the same Act means ‘more than minor or trivial’. 5. ‘Long term’ in section 6(1)(b) of EA 2010 is defined in Schedule 1, paragraph 2 as meaning: “ An impairment is long term if – (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months;(c) it is likely to last for the rest of the life of the person affected. (2) If an impairment ceases to have substantial adverse effect on a person’s ability to carry out normal day to day activities, it is to be to be treated as continuing to have that effect if that effect is likely to recur.”[6]Whether a condition has a substantial adverse effect is to be judged by reference to the information and evidence available at the time of the decision which is said to be discriminatory not later (see McDougall v Richmond Adult Community College [2008] ICR 431).[7]The word ‘likely’ means the Tribunal must ask whether itself whether ‘it could well happen’ (see SCA Packaging Limited v Boyle [2009] IRLR 746).[8]In coming to my decision I take into consideration the evidence of the Claimant as set out in his impact statement and also in his oral evidence at this hearing. I also take into account the circular “Guidance on matters to be taken into account in determining questions relating to the definition of disability 2011”, in particular paragraph B12 and B13 which states that the Tribunal must take into consideration the effects of any medical treatment which may have the effect of masking or ameliorating a disability.[9]Insofar as it is disputed, although I understand the position is that the issue of impairment is now conceded, I accept that the Claimant had an impairment which satisfies the definition of disability. I also accept that the impairment was substantial.[10]The real issue in this case is whether the impairment was long term.[11]There was also an issue at the commencement of the hearing as to whether the Claimant could amend his claim to include a ‘depressive disorder’. In determining that issue I have had regard to the guidance in Selkent Bus Company v Moore [1996] IRLR 661. The disability relied on has always been stated as work-related stress. The Claimant has been legally represented throughout. He must have considered carefully the nature of the disability to be relied on and specifically chose work-related stress. To call it depressive disorder is not just another phrase for the same thing because if it was the Claimant would not be seeking an amendment. The application for amendment is made very late, indeed at the hearing itself. There is no valid reason why it could not have been made earlier. The balance of hardship favours the Respondent who would be substantially prejudiced by having to deal with a different impairment to the one identified throughout these proceedings. The application to amend is refused Page 2 of 4
THE FACTS
[12]Mr Parnaby says that he has had intermittent periods of absences due to work related stress since May 2016 with the most recent episode which began on 16 January 2017. He says that the effect of the condition has led to him avoiding everyday situations and scenarios, that his sleeping pattern was disrupted and that he is “a shadow of his former self”. He says he is unable to articulate himself or converse, has lost self-esteem and self-confidence. His appetite has fluctuated from day to day and he has suffered episodes of fatigue, poor concentration, dizziness and feeling light-headed. He says that he is unable to communicate properly and has suffered loss of function. He gave evidence that he has shut himself away at home and avoided going out unless absolutely necessary due to feeling that he is not able to cope. He does not go shopping, do any exercise, ride on his bike as he used to, socialise or carry out tasks at home.[13]Having heard the evidence of the Claimant and upon cross examination, I did not find the Claimant’s evidence as to what he can and cannot do wholly reliable. He has a tendency to exaggerate the effects of what he cannot do. He speaks of his condition both in the statement and oral evidence in the present tense so it is not easy to discern what he was or was not able to do at the relevant time as opposed to what his condition is presently. That is not merely a question of style of writing but the absence of any examples in his witness statements as to what the Claimant could not do at the relevant time is telling.[14]More importantly perhaps, the Claimant’s evidence is inconsistent with his GP medical notes and at times is at sharp variance with them. For example, the Claimant refers to difficulty in sleeping. He did discuss sleeping problems with his GP in January 2018 but it is clear from the medical notes that was because he had a pain in his knee and not the stress. The Claimant says he does not go out shopping or go on his bike or exercise. It is not immediately apparent how the condition of work-related stress would affect his ability to use his cycle or go shopping. The Claimant has multiple conditions. Some of the day to day effects are clearly down to problems the Claimant had with his feet for which he has had medical advice and assistance and that is more likely to be the cause of him not exercising or cycling. The Claimant only complained of a disruption to his sleeping pattern in April 2018. In other words I am not satisfied that the day to day effects he refers to are related to the condition which is the subject of these proceedings. Long term[15]The relevant dates of the acts complained of are between 15 April 2016 and 17 July 2017. There are two distinct phases of work related stress. The first begins in April 2016 and ends in September 2016 at the latest. The second phase started in January 2017 when the Claimant re-started Citalopram. In relation to the first period, the Claimant was absent from work on 15 April to 31 May 2016. It is clear that the stress suffered by the Claimant during this period was resolved by September as this is confirmed by the September occupational health report. The report also confirms that it was unlikely to recur. In the second phase, there are only 3 substantive entries in the Claimant’s GP records, in January, February and June 2017. Nothing in the records supports substantial adverse effect on the Claimant’s ability to carry out day to day activities. Mr Parnaby did suffer from drowsiness in February 2017 but that appears to have been a reaction to medication rather than the condition. Page 3 of 4[16]Mr Kohanzad on behalf of the Claimant disputes that there are two separate distinct phases. However, I am satisfied that they need to be treated separately for the following reasons. Firstly, the most reliable contemporaneous documentary evidence is the second of the two occupational health reports of 23 September 2016. That makes it clear that the Claimant took medication for stress for about a week and then stopped it. There is no reason for the author of that report to lie or mislead. That information could only have come from the Claimant. The Claimant did not seek to correct the report or subsequently amend it. I prefer what is said in the report rather than the Claimant’s recollection of what he said to occupational health as given in his evidence today. The report confirms that the stress was unlikely to recur. It was not a recurring condition. Clearly it did not last 12 months.[17]Secondly, the Claimant’s own GP notes record that the Claimant restarted Citalopram (my emphasis) in January 2017 rather than a continuation through repeat prescriptions. Indeed, there are no repeat prescriptions for Citalopram as there are for other items from the first time it was prescribed. I do not accept that the first entry for a prescription of Citalopram covers the entire period. It is tolerably clear from the GP notes that the Claimant was resuming Citalopram after having stopped it. In other words the Claimant was prescribed Citalopram in May 2016 and was told to stay on it for 6 months but he did not do so. He stopped taking it and did not take it again until January 2017 when it was restarted. I am therefore satisfied that we are talking of two different and distinct periods.[18]I am satisfied that the Claimant did not have a disability from April 2016 to January 2017. The difficulties that the Claimant was having between January 2017 and June 2017 were a reaction to specific difficulties in the workplace. They did not manifest themselves when he was not at work. There is no communication between the Claimant and his GP about mental health issues from mid July 2017 until 10 April 2018 except to say that he has been ‘struggling on and off’. The improvement of the Claimant’s condition in July 2017 coincides with dismissal. There is no medical evidence that the Claimant’s stress condition continued after his final sick certificate ran out in August 2017.[19]I am therefore satisfied that the impairment was not long term and that the Claimant does not meet the definition of being a disabled person.
The Factual Background
[20]For the above reasons, we found the evidence of the Respondent’s witnesses to be more reliable than that of the Claimant.[21]We find the following facts: 21.1. The Claimant commenced employment with the Respondent on 21 June 2010 as a Caretaker. The Respondent is a large City Council employing approximately 16,000 people. There do not appear to have been any issues connected to the Claimant’s employment until the early part of 2016 when there was a deterioration in the relationship between the Claimant and his work colleagues including his Line Manager, Paul Guyan, whose was Operations Manager. 21.2. As well as work related stress, the Claimant suffered from a number of other conditions including high blood pressure and foot pain. 21.3. On 15 April 2016 he went on sickness absence until 31 May 2016 for work related stress (page 385). 21.4. The Claimant returned to work on 31 May 2016 and attended a return to work meeting at which it was agreed he would return on light duties and would not have to climb ladders, do painting or deal with electrical matters. 21.5. Having been referred to Occupational Health, a report was produced dated 24 May 2016 (page 130). The report concluded that his work related stress was unlikely to be considered a disability because it had not lasted longer than 12 months and was unlikely to, did not have a significant impact on his ability to undertake his normal day to day activities and would not have a significant impact on those activities without the benefit of treatment. The report confirmed he would be fit to return to work on a phased return basis with reduced duties. 21.6. The Claimant signed off his stress action plan on 13 July 2016 (page 143). 21.7. Mr Burkama was appointed Workspace Manager and met with the Claimant together with Mr Guyan on 28 July 2016 where the Claimant’s return to full duties was discussed and a timescale agreed (page 149). 21.8. Mr Burkama arranged weekly informal supervision meetings with the Claimant, the first of which was held on 4 August 2016 when Mr Burkama expressed some concern to the Claimant in relation to his lack of management of the jobs given to him and his failure to focus on priority jobs. In an email to Mrs Barai on 4 August 2016 (page 151), Mr Burkama noted these concerns and the fact that it was sometimes hard to account for the Claimant’s time and his attitude was concerning (page 152). On 5 August 2016, Mr Burkama again emailed Mrs Barai indicating that it had been “impossible to find” the Claimant and therefore he could not ascertain whether he was working to schedule. He noted that this was having an impact on service. On the same day, Mr Burkama emailed Mr Guyan with a summary of his discussion with the Claimant which was also attended by Mr Guyan. This included the Claimant’s refusal to paint a whole room (which he had done before) and that he was only prepared to undertake patch painting. The Claimant maintained it was not in his job description to paint whole rooms. 21.9. The weekly supervision meetings continued at which both Mr Burkama and the Claimant were able to discuss the Claimant’s performance in relation to the tasks which had been allocated to him. On 29 August 2016 the Claimant emailed his Union representative, Mr Joyce, to say that he was being bullied by Mr Burkama. In that email (page171) the Claimant said that he was being pestered to paint whole rooms which we find was not the case. 21.10. As he remained concerned about the Claimant’s performance, Mr Burkama referred him once more to Occupational Health and completed the referral at page 178. The subsequent Occupational Health Report from Doctor I Macheridis dated 23 September 2016 (page 204) included the following paragraph, “Mr Parnaby told me that he has no significant difficulties with performing normal day to day activities. He has been diagnosed with high blood pressure over the last 12 months however this is currently not causing any significant functional problems or symptoms. He is currently on one tablet for this problem. Mr Parnaby also acknowledges that about a year ago he developed some stress related symptoms following a dispute at work over his holidays, however, in his view this has now been resolved. He only took tablets for stress for about a week at the beginning and he did not receive further medical input. He reports no significant problems with his mental health or his psychological wellbeing at the moment and todays mental state examination was consistent with that as it was unremarkable”. Further, the report stated that: “Mr Parnaby feels able to perform all his duties including patch painting and all other duties as described in his job description”. The report also mentioned the Claimant’s reference to new paint, which was using causing breathing difficulties, but we accept Mr Burkama’s evidence that there had been no change in the manufacturer of the paint used by the Respondent. 21.11. Towards the end of September, the Claimant complained about Mr Joyce and was then represented by another Union representative, Mr Gary Garner. In an email to Nicola Graham (HR) dated 26 September 2016 (page 212), Mr Burkama discussed painting and also noted that the Claimant appeared to be trying to claim overtime pay for a call out which he had not attended. 21.12. On 29 September 2016 Mr Burkama emailed Miss Graham (page 223) setting out issues with the Claimant’s performance. These included his failure to manages his job well, not taking responsibility for his role, not keeping up with a reasonable workload or accounting for his time, dishonestly trying to claim call out pay and refusing to paint whole rooms. 21.13. On 30 September 2016, Mr Burkama wrote to the Claimant regarding the report from Occupational Health with a view to discussing this and to discuss other issues raised by the Claimant and his Union (page 228). That meeting took place with Mr Garner of UNISON accompanying the Claimant and Miss Graham along with Mr Burkama. As noted above, the report said that the Claimant stated he had no significant difficulties with performing normal day to day activities, had been diagnosed with high blood pressure for which he was taking medication and had developed stress related symptoms following a dispute at work a year previously (page 204). The report also mentioned the issues with the “new” paint being used by the Respondent. The minutes of the meeting are at page 238. During the meeting, the Claimant said he had been covertly recording his meetings with Mr Burkama which he said showed Mr Burkama bullying him. He declined to play the recording when invited to do so by Mr Burkama and also alleged that Mr Burkama was “drinking mates” with his trade union representatives. Mr Burkama was concerned and frustrated by these remarks and suggested that the meeting should be terminated and that there was a really unpleasant breakdown in communications. Although pages 243, 244 and 245 show recordings sent by the Claimant to Mr Guyan, these were not produced in the hearing either as voice recordings or transcripts of those recordings from which we can conclude they did not show any bullying by Mr Burkama. 21.14. On 10 October 2016, Mr Burkama wrote to the Claimant confirming what work he would not be required to undertake which included painting at height, electrical work and painting full rooms (page 247). 21.15. During this period, Mr Burkama continued to have weekly supervision meetings with the Claimant. The Claimant was able to put his point of view on a variety of matters but principally in relation to tasks he had or had not undertaken but continued to suggest Mr Burkama was “attacking him personally” for example, (page 255). 21.16. By 2 December 2016, Mr Burkama remained unsatisfied with the Claimant’s work and wrote to Mrs Barai to confirm that he was considering moving to stage one of the Respondent’s Capability Procedure (page 257). 21.17. On 5 December 2016 (page 261) Mr Burkama emailed Mrs Barai to confirm that he had told the Claimant he was unhappy about his work progress and intended to proceed with stage one of the Capability Procedure. He noted that the Claimant had told him he was joining a new Union who would be in touch in the New Year. 21.18. The last supervision meeting between Mr Burkama and the Claimant took place on 10 January 2017 (page 268). Mr Burkama advised the Claimant in this meeting that he would be writing to him about a disciplinary matter. This he did on 11 January 2017 (page 269) where the Claimant was invited to an investigation meeting regarding “aggressive behaviour and language towards your Line Manager in public place”. This concerned an altercation the Claimant had allegedly had in front of others, including members of the public, with Mr Guyan. The meeting was to be held on 19 January 2017. The Claimant then went on sickness absence with work related stress. His first fitness for work certificate referring to work related stress is at page 271. The Claimant did not return to work again. 21.19. On 23 January 2017, Mr Burkama wrote to the Claimant enquiring what he felt the causes of his stress were (page 280). He also stated that he was enclosing a stress action plan for the Claimant to complete. That plan was not enclosed with the letter and, upon realising this, Mr Burkama sent it to the Claimant with a handwritten letter on 25 January 2017 (page 282). We find that the Claimant received the stress action plan but chose not to complete it. 21.20. Over the course of the next several months Mr Burkama had frequent correspondence with Mrs Barai setting out that the situation had become unmanageable and whether there should be another referral to Occupational Health (page 283). He then texted the Claimant asking him when he planned to return to work (page 286) to which the Claimant replied that his sick note finished on 16 January when he had a further appointment with his Doctor. He also asked the Claimant whether he had managed to complete the stress action plan, but the Claimant ignored this message. On 16 February 2017, Mr Burkama texted the Claimant again to ask when he would be returning to work to which the Claimant replied “sicknote in post” (page 287). 21.21. The Claimant attended a further appointment with Occupational Health on 20 February 2017 (page 289). The report said that the Claimant had advised that “his condition and its symptoms have improved slightly, however, his medication is making him very drowsy”. The Occupational Health Therapist said “I am hopeful that he will improve and be able to return (to work) within four weeks. This will give any medication time to be effective and any side effects to be tolerated allowing for a return to work”. She also said that she did not think that there were any specific workplace adjustments considered likely to affect an early return to work. He was deemed not fit to attend a disciplinary meeting at this time. 21.22. On 17 March, the Claimant sent a text to Mr Burkama saying “sicknote in post”. On 18 April 2017, Mr Burkama wrote to the Claimant to request he attend a meeting with him and Mrs Barai to discuss “your current sickness absence and referral to the Occupational Health Department” (page 299). On the same date Mr Burkama sent a text to the Claimant asking him to get in touch with his plans to return to work to which the Claimant again replied “sicknote in post” (page 300). On 24 April the Claimant sent a text to Mr Burkama saying that he had received the letter of 18 April saying he could not attend the meeting on 25 April as he had a medical appointment and asked whether it was possible to reschedule to another date. The Claimant’s medical records show this to be untrue since he did not attend his GP surgery that day (page 390). Mr Burkama texted the Claimant asking him if he could attend on 2 May in the afternoon to which the Claimant replied, “yes that’s ok”. On the following day, Mr Burkama confirmed the appointment for 4.00pm on 2 April to which the Claimant replied “ok” (page 301). On the day of that meeting, the Claimant sent a text to Mr Burkama saying, “woke up feeling bad so will not be able to make the meeting” (page 301). 21.23. On 2 May 2017, Mr Burkama wrote to the Claimant again with a request that he attend a rearranged meeting on 9 May (page 305). On 8 May the Claimant sent a text to Mr Burkama saying, “I have got legal advice and I am sorry, but I will not be attending your meeting today as a change of medication has made me feel ill again”. This was untrue since the Claimant’s medical records at pages 390-391 show that his medication remained the same throughout April, May, June and July. 21.24. On 12 May 2017, Mr Burkama wrote to the Claimant to advise that a further Occupational Health appointment had been made for him on 30 May at 2.30pm (page 312). On 30 May the Claimant sent a text to Mr Burkama saying, “sorry to say I have had to cancel Occupational Health appointment due to bereavement in the family (sister)” (page 314). No evidence of that bereavement has been produced. A further appointment was made with Occupational Health for 13 June 2017 (page 315) and on that day Mr Burkama received a text saying, “Ernie is not feeling very well today so sorry to tell you he will not be attending his appointment at Occupational Health (wife)” (page 316). 21.25. On 27 June 2017 Mr Burkama again wrote to the Claimant arranging a meeting for 10 July 2017 at 9.00am which said “I will now be meeting with Jagruti Barai…. to consider your current absence and if I can continue to hold the post open…. I must inform you that an outcome of this meeting maybe that you are dismissed from your employment with Leicester City Council” (page 320). On 8 July Mr Burkama texted the Claimant to ask whether he would be attending the meeting to which his wife replied, “Ernie doesn’t know anything about a meeting”. We find that the Claimant did in fact receive that letter. On Sunday 9 July Mr Burkama texted the Claimant to ask whether he would be attending the meeting the following day to which his wife replied, “Sorry. As Ernie is not feeling well this morning, he is unable to attend your meeting…” (page 322). Mr Burkama rearranged that meeting for 17 July and advised the Claimant of this by text. The meeting was due to commence at 9.00am. The Claimant texted at 8.45am saying “Sorry but I have appointment with the Doctor today at 9.15am for a blood test so I will not be attending your meeting unfortunately” (page 323). This was untrue since the Claimant’s GP records make no mention of his attending the surgery for a blood test on that day (page 391). 21.26. Since the Claimant had been offered the opportunity to submit written representations to the meeting if he did not attend and had failed to engage in any discussion about his illness or a return to work, the meeting went ahead in his absence and the decision was to dismiss him on notice (page 327). The Claimant was advised of his right of appeal but did not appeal. Submissions[22]Both Counsel made submissions. Mr Kohanzad made oral submissions and Mr Linstead supplemented his written submissions with oral submissions. Although those submissions are recorded very briefly in this Judgment, we confirm that we considered them in detail in reaching our conclusions.[23]Mr Linstead argued that the dismissal of the Claimant was fair. The Claimant had been absent for 7 months and had failed to attend any meetings or an Occupational Health appointment. Indeed, he totally frustrated the Respondent’s attempts to obtain information. It was perfectly reasonable to ask the Claimant to attend meetings and he had deliberately ignored those invitations. The dismissal was not because of any other reason other than his continued absence. In the circumstances, it was reasonable for the Respondent not to adjourn the dismissal hearing on 17 July 2017 and dismissal was within the range of reasonable responses.[24]In relation to disability, Mr Linstead submitted the Respondent had no information on which to conclude that the Claimant had a disability as it did not have actual or constructive knowledge that the Claimant had a substantial impairment likely to last more than 12 months.[25]Mr Linstead had also submitted that the requirements of knowledge applied equally to the claim under section 15 EqA. In any event, the Respondent’s treatment of the Claimant was objectively justified as, in all the circumstances of this case, it was a proportionate means of achieving a legitimate aim.[26]For the Claimant, Mr Kohanzad concentrated on what he described as Mr Burkama’s euphemistic language in dealing with the Claimant. He submitted that Mr Burkama had lost patience with the Claimant and the documents in the bundle undermined his evidence that his primary concern was for the Claimant’s welfare. Both Mr Burkama and Mrs Barai believed the Claimant’s absence was wilful.[27]He further submitted that the Claimant should have been performance managed from an earlier date, but Mr Burkama had failed to do so. He urged the Tribunal to focus on Mr Burkama’s mindset which was “to get the Claimant gone”. This was particularly the case as Mr Burkama was only looking at things from his own perspective in relation to budgets and getting work done. He failed do understand the Claimant’s lack of engagement and should have written a gentle letter from a welfare perspective. The main reason he did not do this was his frustration with the Claimant and the Claimant’s absence played a much smaller part in the process.
Conclusions
[28]Our conclusions are based on the facts as we have found them. We have already noted that we found some of the Claimant’s evidence to be unreliable. Indeed, we formed the view that the Claimant had no intention of returning to work evidenced by his deliberate failure to engage with Mr Burkama who did his best to engage with the Claimant in relation to his illness, its cause and when he would be likely to return to work. On occasion he failed to attend meetings because he said he was feeling “bad”. He gave no further information as to whether his condition was because of his work-related stress or the other conditions from which he suffered. His evidence in relation to Doctor’s appointments is not borne out by his GP records. We do not accept that he did not receive invitation letters sent to him by Mr Burkama. Indeed, we conclude that he deliberately frustrated Mr Burkama’s attempts to engage with him. He can clearly be a prickly character evidenced by on two occasions answering questions put to him by Mr Lindstead with the response “That’s your opinion”.[29]Mr Kohanzad referred on many occasions in cross-examining Mr Burkama and in his closing submissions to the euphemistic language used by Mr Burkama in his correspondence with the Respondent’s HR Team. We consider that referring to the correspondence as euphemistic is only one interpretation that may be attached to it. Another is that it is ambiguous and could be taken as being genuinely concerned for his welfare, when he would return to work and on what basis. Given that Mr Kohanzad conceded that Mr Burkama was composed and answered difficult questions well, which accords with our own view, we prefer the latter interpretation of his correspondence with HR.[30]Mr Kohanzad also argued that Mr Burkama should have performance managed the Claimant sooner. We reject that assertion because it is clear from the documents disclosed that, from a very early stage, Mr Burkama held weekly supervision meetings, duly noted, with the Claimant. We further accept Mr Burkama’s evidence that, notwithstanding these weekly supervisions, the Claimant still underperformed. Neither are we surprised that Mr Burkama was frustrated and even possibly angry when he learned that the Claimant had been covertly recording his conversations with him and accused him of drinking with Union representatives. We consider it significant that none of these recordings were produced to us.[31]Mr Kohanzad also took issue with the procedure followed by Mr Burkama. He submitted he had not acted in the interests of the Claimant’s welfare; he was too quick to invoke a formal procedure and then did not follow it precisely. Further, he argued that the meeting on 17 July 2017, which the Claimant did not attend, should have been adjourned. He submitted that Mr Burkama should have realised that the Claimant’s non-attendance at these meetings was a symptom of work-related stress. We do not accept these arguments. We note, for example, that in relation to two meetings, the Claimant said he could not attend and asked for it to be rearranged. This suggests he was able to attend meetings but chose not to. All of these matters add fuel to the argument that, no matter what Mr Burkama had done, the Claimant would have continued to frustrate his efforts. The Claimant’s failure to attend an Occupational Health appointment, ostensively because of his sister’s death, and his failure to attend the rearranged appointment, speaks volumes for his mindset of complete lack of cooperation.[32]In relation to unfair dismissal, Mr Linstead referred to BS v Dundee City Council wherein the Court considered long-term sickness absence and held, firstly, that it is essential to consider the question of whether the employer could be expected to wait longer; secondly, the need to consult the employee and take his views into account; and, thirdly, the requirement to take steps to discover the employees medical condition and his likely prognosis. This third requirement does not require the employer to pursue detailed medical examination but to ensure that correct question is asked and answered.[33]In our findings of fact, we have noted the many attempts of Mr Burkama both to obtain evidence from the Claimant and Occupational Health and his attempts to consult with the Claimant. All of these attempts were rebuffed by the Claimant. He simply failed to engage, making up fictitious appointments for a blood test, other medical appointments and, according to his witness statement and his answers to questions in cross-examination, feeling ill because of a change in medication of which there is no record at all. We shall say more about the impact of the Claimant’s evidence on Mr Burkama’s Team below but, in the context of unfair dismissal, it is apt to consider how the Respondent was supposed to operate effectively and economically when the Claimant was on long-term sickness absence with no indication of when he would be able to return to work while Mr Burkama had to engage contractors at considerable expense and cost to the public purse to cover the Claimant’s absence.[34]The Claimant describes Mr Burkama’s attempts to engage with him as “pestering”. We could not disagree more. The Respondent’s Absence Management Policy and Procedure (page 336) states at clause 5.2 “where an employee is absent due to stress and does not feel able to have contact with the manager themselves, it is acceptable for them to communicate via a representative” (page 338). At clause 9.3 it states, “the frequency of contact should be determined by the manager in consultation with the employee, taking account of all the circumstances. Whilst managers have a duty of care to keep in contact with the employee, and keep them up to date on the developments of work, they should act with sensitivity and satisfy themselves that contact is appropriate” (page 340). We note that Mr Burkama seems to have contacted the Claimant principally on the day each of his fitness to work certificates ran out. The Claimant ignored correspondence but did at least communicate by text message. Those communications gave absolutely no insight into to his illness, recovery or return to work. Mr Kohanzad argues that a more gentle letter should have been addressed to the Claimant and that, instead of dismissal, a warning in the first instance would have been more appropriate. We reject that suggestion. The Claimant had been absent for over 6 months at the time of his dismissal and had not responded in any meaningful way to any correspondence in whatever form sent to him by Mr Burkama. There is clearly a limit to how far an employer is expected to go before an employee is dismissed on the grounds of sickness absence. Mr Kohanzad’s suggestions would have been far more pertinent had the Claimant engaged with Mr Burkama in any meaningful way.[35]Mr Kohanzad also submitted that the reason the Claimant failed to attend meetings was that he was unfit to do so but that argument falls down when the Claimant did not even give a hint as the difficulties he was allegedly experiencing and failed to even take advantage of trade union representation to do this for him or even ask his wife to do so as opposed to just sending text messages on his behalf and which he said in evidence he dictated to her.[36]A further strand of Mr Kohanzad’s attack on the procedure followed by the Respondent was that the Claimant’s dismissal was because of performance and conduct issues which pre-dated the start of his sickness absence. In particular, he suggested that Mr Burkama’s failure to take action on a conduct issue against the Claimant when it was suggested he had falsely claimed overtime for a call out he did not attend, was due to his desire to hold on to that alleged misconduct and retain it for use against the Claimant at a later date. Indeed, Mr Kohanzad went so far as to suggest that the reason disciplinary proceedings were not taken against the Claimant in this instance was because Mr Burkama had investigated it and found there was no substance to the allegation. There is absolutely no evidence that this was the case and we accept Mr Burkama’s evidence that, in asking HR whether he should raise it as a disciplinary matter immediately or hold on to it, he was merely asking for advice as to whether something should be done about it immediately or not at all.[37]We have already found that the Claimant received the letters inviting him to the absence hearing. In relation to the receipt of letters generally, the Claimant’s evidence, as already noted, was confused which further persuaded us that he had in fact received all correspondence from Mr Burkama. There was thus no imperative on Mr Burkama to rearrange the meeting at which the Claimant was dismissed, having already rearranged it once.[38]In all the circumstances, with Mr Burkama having done all he conceivably could to engage with the Claimant and the Claimant having failed to cooperate at any stage of the process, Mr Burkama was entitled to conclude that the Claimant had deliberately failed to engage in the process. Further, there was no indication of when the Claimant would likely to be able to return to work. It would have been in the Claimant’s interests and, possibly, a factor in his favour had he attended an Occupational Health appointment. We find he deliberately failed to do so and, and bearing in mind all of these matters, find that the decision to dismiss the Claimant was within the range of reasonable responses. The principal reason for dismissal was capability.[39]Moving on to disability discrimination, we first consider whether the Respondent had actual or constructive knowledge of the Claimant’s disability. Employment Judge Clark found that the Claimant was disabled during June and July 2017 thus any duty imposed on the Respondent in respect of that disability could not arise before those dates (Wilcox v Birmingham CAB).[40]Following Donelien v Liberata, it is also the case that an employer must take its own view and not simply rely on an Occupational Health report. Whilst such reports are useful in assisting an employer to make a decision as to an employee’s disability, it is also incumbent upon the employer to consult with the employee. It is crystal clear in this case that the Respondent, through the efforts of Mr Burkama, attempted to do precisely that without success due to the Claimant’s complete lack of cooperation.[41]Accordingly, following the decision in Donelien, it was unreasonable to expect the Respondent to know that the Claimant suffered an impediment to his mental health which had a substantial and long-term effect on his ability to carry out normal day to day activities. We bear in mind, that the Occupational Health reports produced in the bundle show that the Claimant had seemingly made a complete recovery from his first bout of work related stress in 2016 and that in 2017 it was anticipated that he would be fit to return to work within a matter of weeks. There is, of course, a line of authorities (Herry v Dudley Metropolitan Council and J v DLA Piper UK LLP) which consider the value of an employee’s representations in relation to the cause of his absence but, in this case, the Claimant made none.[42]In his written submissions, Mr Linstead makes the point that it is not enough for an employer to show they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Given our findings of fact above and our concerns about the reliability of the Claimant’s evidence, having done everything he could to obtain information from the Claimant without response, including a referral to Occupational Health in respect of which the Claimant did not participate, there is no evidence before us which suggests the Respondent could have reasonably been expected to know the Claimant was disabled at anytime during his absence from work from January to July 2017.[43]As we find that the Respondent had no actual or constructive knowledge of the Claimant’s disability, his claims of disability discrimination must fail.[44]If we are wrong in this conclusion, for the following reasons, we consider that his claims must still fail.[45]In relation to reasonable adjustments, Section 20 EqA requires a provision criterion or practice of the employer putting a disabled person at a substantial disadvantage in relation to a relevant matter (including employment) in comparison with persons who are not disabled. If this is the case, the employer must take such steps as it is reasonable to have to take to avoid the disadvantage. The Claimant relies on the following provisions, criteria and practices (PCP’s): i) The requirement to attend work; ii) The requirement to meet with Occupation Health; and iii) The requirement to attend capability/disciplinary meetings. The Respondent accepts that i) and ii) above amount to PCP’s but disputes that iii) is a PCP because there was no requirement to attend a disciplinary meeting or capability meetings.[46]The reasonable adjustments that the Claimant claims the Respondent should have made are: i) Provided a written and detailed response to the stress action plan which the Claimant completed in June 2016 confirming what support would be available to him on his return to work; ii) Rearrange the meeting on 17 July 2017 at which the decision to dismiss was made; iii) Invoked a lesser sanction than dismissal at that meeting.[47]In RBS v Ashton, the EAT held that a Tribunal must be satisfied that the PCP placed the disabled person concerned not simply at some disadvantage viewed generally, but at a disadvantage which is substantial and which is not to be viewed generally but to be viewed in comparison with persons who are not disabled.[48]Mr Linstead makes valid points in relation to whether the claim to PCP’s put the Claimant at a substantial disadvantage. The Respondent disputes that the requirement to attend capability/disciplinary meetings is a PCP at all since there was no requirement to attend a disciplinary meeting or capability meetings. The Claimant was never invited to attend a disciplinary meeting, only an investigatory meeting, and that meeting scheduled for 19 January 2017 did not happen and was not rearranged by the Respondent. In relation to capability meetings, the Claimant was given the opportunity to be represented by his Union representative or to make written submissions and ignored both of those opportunities. In the circumstances, the requirement relied upon by the Claimant does not amount to a PCP.[49]In relation to the requirement to meet with Occupational Health, it is difficult to see how this could have placed the Claimant at a substantial disadvantage in comparison with non-disabled persons. Occupational Health appointments are for the purpose of making a medical assessment which can be helpful for both employer and employee. Even those without disabilities may routinely be invited to attend such appointments for purposes which include ascertaining when an employee is likely to be able to return to work and whether any adjustments are necessary to achieve this. We consider that making a referral to Occupational Health was entirely appropriate both for the Respondent and the Claimant and, far from being a substantial disadvantage to the Claimant, it could well have been extremely advantages.[50]In relation to whether the adjustments required by the Claimant were reasonable, the Claimant’s suggestion that there should have been a more detailed response to the stress action plan is not, in our view, a sustainable argument. Firstly, the Claimant’s evidence about the stress action plans sent to him by the Respondent was extremely confused. We found that he received the second document but ignored it. In relation to the first completed in 2016, it was considered by the Claimant and his Line Manager in some detail at the time and, following on from the appointment of Mr Burkama, regular supervision meetings were held on a weekly basis. These set out fairly precisely what the Claimant could and could not do. There had already been a reasonable adjustment made by the Respondent in this regard.[51]In terms of rearranging the meeting on 17 July 2017, the Respondent had, of course, already rearranged it once. The Claimant had failed to attend any meeting either on the original date scheduled or on a rearranged date. In these circumstances, the Respondent was entitled to reach the conclusion that the Claimant was deliberately avoiding any engagement in the capability process. Accordingly, having already made reasonable adjustments by rearranging meetings which the Claimant did not then attend, it would not have been a reasonable adjustment to rearrange for the second time the meeting at which the Claimant had been advised (again for the second time) that he might be dismissed.[52]The third adjustment suggested by the Claimant, that a lesser sanction than dismissal should have been given is not supported by the evidence. In his pleaded case, the Claimant does not say what lesser sanction he envisaged but Mr Kohanzad submitted it should have been a written warning. We do not agree that that would have been a reasonable adjustment. The Claimant had been absent from work for over 6 months with no indication whatsoever of when he would be likely to return to work or on what basis. He had failed to attend any meetings either with the Respondent or Occupational Health and offered no information other than his fitness to work certificates. He had been advised that failure to attend the final meeting on 17 July 2017 would mean that a decision as to his future employment might have to be made on the information available to the Respondent which amounted to nothing apart from the fitness to work certificates. It would not have been a reasonable adjustment to give the Claimant a written warning or some other lesser sanction in circumstances where the Respondent, and with every justification, was of the view that he was merely attempting to prolong his employment.[53]We considered the claim under Section 15 EqA to be equally weak. The Claimant relies on his absence and the likelihood of having periods of absence and fatigue as the “somethings” arising in consequence of his disability. Mr Linstead challenges these matters and makes the point that no duty could have arisen prior to the start of the Claimant’s disability in June 2017 as he was already on long-term sickness absence and the likelihood of absence did not arise in consequence of his disability. In relation to fatigue and insomnia, it has already been established before Employment Judges Ahmed and Clark that the Claimant has a tendency to exaggerate his symptoms and these are not supported by his medical evidence. The Claimant maintains that being subjected to the Respondent’s formal management procedure and meetings (although he did not attend them) and his dismissal were unfavourable treatment. But even if we are to accept that submission, we have to consider whether the treatment was a proportionate means of achieving a legitimate aim.[54]In this case, Mr Burkama gave evidence both in his witness statement and orally of the extent of the financial implications to the Respondent of the Claimant being absent from work. He said the cost to the Respondent was in excess of £20,000 and there was the additional impact of the Claimant’s absence on his colleagues and the inconvenience of having to engage contractors. Avoiding such issues clearly amount to a legitimate aim. In determining whether the means used by the Respondent were proportionate, we bear in mind the attempts to engage with the Claimant and to consult with him, the regular contact by Mr Burkama and the fact that the Claimant had been absent for more than 6 months before he was dismissed. Mr Linstead submits that at the point of making the decision the Respondent had no other realistic choice. We agree with that submission. The Claimant had totally and deliberately failed to give the Respondent any detail about his condition or potential return to work date. We agree with Mr Linstead that dismissal was proportionate in the circumstances. The Claimant had been warned this was a possibility but ignored that warning. Further, he was given a right of appeal against the decision and, unreliably, gave evidence that he did not appeal because he did not read all of the dismissal letter. We do not see that the Respondent could be expected to incur further costs and issues with covering the Claimant’s work indefinitely. Accordingly, dismissal was a proportionate means of achieving a legitimate aim.[55]For the above reasons, the Claimant’s claims are not well founded and are dismissed.