Ms R Muller v Mid and South Essex NHS Foundation Trust: 3200142/2023
EMPLOYMENT TRIBUNALS
Case No 3200142/2023
Between
Ms R MullerClaimantMid and South Essex NHS Foundation TrustRespondent
Before
Employment Judge B BeyzadeDate 15 May 2026
REASONS
[1]The claimant, Ms Ruth Muller, presented complaints arising from the termination of her employment by Mid and South Essex NHS Foundation Trust. The complaints pursued to the Final Hearing comprised complaints of disability discrimination under the Equality Act 2010, namely direct discrimination contrary to section 13, discrimination arising from disability - 1 - contrary to section 15, indirect discrimination contrary to section 19, failure to make reasonable adjustments under sections 20–21, and harassment related to disability contrary to section 26, together with a complaint of unfair dismissal under sections 94 and 98 of the Employment Rights Act 1996. All complaints were resisted by the respondent.[2]The claimant relied on disabilities of i) dyslexia and dyspraxia, ii) anxiety, iii) depression, and iv) osteoarthritis. By the commencement of the Final Hearing, the respondent accepted that the claimant was disabled within the meaning of section 6 of the Equality Act 2010 throughout the material period by reason of dyslexia and dyspraxia, anxiety, depression, and osteoarthritis. The respondent accepted knowledge of dyslexia and dyspraxia from 21 October 2019, and of osteoarthritis from March 2019. Knowledge in respect of anxiety and depression remained in dispute.[3]The Tribunal consisted of Employment Judge Beyzade sitting alone, in accordance with Regulation 5(1) of the Employment Tribunals and Employment Appeal Tribunal (Composition of Tribunal) Regulations 2024.[4]The procedural course of the Final Hearing was as follows. The Final Hearing commenced with sitting days conducted by Cloud Video Platform (“CVP”) on 15, 16, 17, 18, 19, 22, 23, and 24 September 2025, during which the Tribunal dealt with case management matters, refined and agreed the List of Issues, heard oral evidence from the claimant and the respondent’s witnesses, and issued further directions. A continuation hearing listed for December 2025 did not proceed due to an administrative oversight, which was later explained to the parties. The Final Hearing was thereafter relisted and resumed on 27–30 January 2026 by CVP. The morning of 27 January 2026 was conducted in public, with the remainder of that day, together with 28 and 29 January 2026 and the morning of 30 January 2026, reserved for deliberations. The Tribunal reconvened in public on the afternoon of 30 January 2026, when an oral judgment was delivered.[5]The Tribunal was provided with, and relied upon, a Reading List, Chronology and Cast List prepared by the parties. These included the principal documents relied upon, including medical records and Occupational Health records, redeployment documentation, meeting notes, capability and appeal materials, internal correspondence and contemporaneous records spanning 2002 to 2023.[6]During the September 2025 sitting days, the List of Issues was revisited in detail and finalised, taking account of concessions and clarification of the pleaded complaints. The Tribunal recorded the agreed List of Issues as those requiring to be investigated and determined at the Final Hearing, the parties’ representatives being in agreement with that List. The agreed List of Issues is appended to this Judgment at Annex A.[7]The claimant was represented by Mr Joel McMillan, counsel, instructed by Ms Alexandra Stoneham, solicitor. The claimant was accompanied by her brother, Mr Jonathan Muller, who also gave oral evidence, and they both - 2 - provided written statements. The respondent was represented by Ms Jainie Whiteley, Solicitor Advocate, assisted by Ms Abigail Hampden, trainee solicitor, and attended by Mr Dean Smith (Interim Head of HR) and Ms Rebecca Durham (Senior Employee Relations Adviser). The Tribunal records that the representatives conducted the hearing cooperatively and in accordance with the overriding objective.[8]The Tribunal heard oral evidence from the claimant and from Mr Jonathan Muller, and thereafter, from the respondent’s witnesses Mr Alexander Robin Johnson, Ms Rebecca Durham, Ms Rebecca Ghuske, Ms Josephine Chesney Smith, Ms Justine Wren, and Ms Lyn Wilson, all of whom provided written statements. Ms Cheryl Snell did not give evidence, the respondent explaining that she had left its employment on 25 April 2021, that attempts to contact her were unsuccessful, and that no witness order was sought. Ms Elaine Taylor did not give oral evidence for medical reasons; her written statement was admitted by agreement and given appropriate weight.[9]At the outset of the September 2025 hearing, the Tribunal admitted two additional documents, namely a letter dated 18 December 2017 and a handwritten note, subject to relevance, and directed the provision of an updated bundle index. It was agreed by the parties’ representatives that the originally listed days were insufficient for the just disposal of the case and that further hearing dates were required.[10]During the same period, the Tribunal determined an application concerning the evidence of Ms Elaine Taylor. The respondent sought an adjournment to permit her recovery and attendance. Directions were given providing for a split procedure, including a possible short, resumed hearing if she became fit. Ms Taylor later remained medically unfit, and the case proceeded without her live evidence.[11]The Tribunal made detailed and tailored reasonable adjustment directions to support the claimant’s participation, having regard to an intermediary report, the latest version of the Equal Treatment Bench Book, and the parties’ representatives’ representations. These included a structured and topic-based approach to questioning, with clear signposting during crossexamination, avoidance or explanation of technical language, breaks between topics with flexibility as to length according to the claimant’s needs, provision of written outlines and page references in advance of each topic, permission for assistance from the claimant’s solicitor with locating documents while giving evidence, and clear ground rules for witnesses attending to give evidence by CVP. Those adjustments were recorded by the Tribunal and implemented throughout the hearing. The Tribunal is satisfied that, as a result, the claimant was able to participate as effectively as could reasonably be achieved.[12]Consistent with these directions, the Tribunal checked regularly whether the claimant required breaks, permitted breaks of varying length to allow the claimant to read documents, and allowed short essential questions at the end of each topic where necessary. - 3 -[13]During her oral evidence, the claimant’s representative applied for permission to amend one passage of the claimant’s witness statement relating to whether concerns had previously been raised about her performance or conduct, the amendment being linked to the late-admitted letter dated 18 December 2017. The amendment was permitted and the content of the amended witness statement was taken into account.[14]Against that procedural background, and by reference to the agreed List of Issues at Annex A, the documentary evidence, the oral evidence, and the oral and written submissions of the parties’ representatives, the Tribunal proceeded to determine liability and remedy together, in accordance with the parties’ agreement and the Tribunal’s directions.
Findings of Fact
[15]On the documentary and oral evidence presented, the Tribunal makes the following essential findings of fact. They are confined to those necessary to determine the agreed List of Issues settled on 16 September 2025 and appended at Annex A. Background and role[16]The claimant commenced employment with the respondent on 8 August 2002 as a Band 2 Healthcare Assistant on John Ray Ward within Trauma and Orthopaedics. She worked a 35-hour week. The role was patient-facing and physically demanding, involving manual handling, escorting patients to investigations, ward-based clerical tasks, and telephone duties.[17]On 13 June 2018 an Occupational Health referral was made, and advice was provided on 17 June 2018. That advice included completion and review of a manual-handling risk assessment and avoidance of long working days pending recovery. Those recommendations thereafter informed rostering and, later in 2019, redeployment discussions. Occupational Health advice and knowledge[18]In February and March 2019, the claimant’s GP fit notes recorded right knee pain and advised avoidance of prolonged standing and heavy lifting. In March 2019 Occupational Health advised: an individual manual-handling risk assessment; no night shifts; no more than three short shifts consecutively followed by a rest day; and consideration of redeployment to less physically demanding work. The respondent determined to adopt those recommendations for shift sequencing and role selection.[19]A further Occupational Health referral was made on 11 April 2019. In its report dated 17 June 2019, Occupational Health reported that redeployment to administrative or ward-clerk-type duties represented the best way forward, alongside continuation of the March 2019 adjustments. - 4 - Policy framework[20]Redeployment was conducted by reference to the Redeployment Procedure effective January 2019 (“the Redeployment Procedure”). The procedure required an individualised approach and identification of roles matching skills and restrictions (paragraph 6.1.1), and set out sequential steps including skills assessment, identification of suitable vacancies and support with applications (paragraph 9.1). Those provisions were explained to the claimant during meetings in July and August 2019 and revisited thereafter. The respondent recorded that it would provide TRAC access, application assistance and interview feedback to give effect to paragraph 9.1.[21]Long-term sickness management and progression to capability were governed by the Sickness Management (Long-Term Sickness) Policy. That Policy required recourse to Occupational Health advice (section 19.6) and consideration of redeployment and adjustments before progression to an illhealth capability hearing, taking Occupational Health advice into account (section 19.7). The respondent relied on those provisions from September 2019 onwards and again at the capability hearing in January 2022. In particular, the respondent paused redeployment on Occupational Health advice in September 2019, sought updated Occupational Health opinions before the January 2022 capability hearing, and adjourned that hearing to obtain further current medical evidence before reconvening. The policy sequencing, reasonable adjustments and redeployment in light of Occupational Health advice, followed (where adjustments could not sustain the role) by progression to capability, was reflected in the outcome letter dated 19 January 2022 and in the further Occupational Health referral cycle in Spring 2022 prior to dismissal. Rostering[22]Evidence was heard concerning rostering guidance and the operational feasibility of maintaining the recommendation of no more than three consecutive short shifts. Mr Alexander Robin Johnson accepted that there were rare departures from that recommendation in 2019 due to service pressures but stated that the respondent sought to apply an individualised approach consistent with Occupational Health advice. Attendance by family members at meetings[23]Evidence was also heard concerning attendance at meetings. The Tribunal finds that there was no blanket prohibition on family members attending meetings. Arrangements varied depending on the purpose and stage of the process. At formal capability and appeal hearings, specific adjustments were permitted and implemented as recorded below. During redeployment meetings, the respondent applied its usual practice concerning attendance but sought to explain processes and provide support through Human Resources and written materials. - 5 - Redeployment mechanism (TRAC)[24]TRAC was the platform through which redeployment support was delivered. The respondent created and maintained the claimant’s TRAC account, resolved access issues, demonstrated role searches and filters, provided prompt-sheets aligned with Occupational Health and Access to Work recommendations, accompanied the claimant to meetings with hiring-managers, obtained written feedback, and used that feedback in coaching and re-drafting applications. The Tribunal finds that contemporaneous hiring-manager feedback identifying gaps in role-specific administrative knowledge, clarity of motivation and required IT proficiency was recorded and used by Human Resources to tailor interview preparation and application revisions. The feedback included remarks that the claimant was unfamiliar with clinical coding, expressed uncertainty about the nature of the role applied for (summarised by one manager as “just need a job”), and did not demonstrate the specific administrative workflows and IT proficiency sought. Redeployment meetings and trials[25]A number of redeployment meetings were held by the respondent with the claimant between July 2019 and April 2021 as part of the redeployment process.[26]The first redeployment meeting took place on 30 July 2019. TRAC access was created, role searches were demonstrated and filtered to Broomfield Hospital, and relevant administrative vacancies were identified for consideration.[27]The second redeployment meeting was convened on 9 August 2019. IT support was arranged to address workplace TRAC access issues. Lorenzo training and stress-management training were discussed, and four clerical/administrative roles were reviewed against the Occupational Health recommendations.[28]The third redeployment meeting took place on 15 August 2019. Five administrative job descriptions were reviewed. Earlier finishes were arranged to permit the claimant to work on applications, and Human Resources introduced prompt-sheets to assist the claimant in mapping her existing duties to person-specifications before uploading applications on TRAC.[29]The fourth redeployment meeting occurred on 23 August 2019. TRAC searching and draft applications were demonstrated. The claimant was shown how to request and retain hiring-manager feedback through TRAC messaging. Immediate administrative vacancies were discussed against Occupational Health constraints.[30]A further redeployment meeting took place on 6 September 2019. Roles discussed included ward-clerk and other administrative posts. The claimant - 6 - reported back symptoms, and a referral to Occupational Health was proposed. Human Resources undertook to chase hiring-manager feedback and upload it to the TRAC notes.[31]The redeployment meeting on 12 September 2019 recorded that the claimant reported stress and unwellness. On Occupational Health advice, the redeployment process was paused for a period of time pending review.[32]The redeployment meeting on 20 September 2019 resulted in agreement to a short trial in an RBMS Administrative Assistant role. A housekeeping trial with adjusted duties was also proposed, but the claimant did not wish to pursue housekeeping as a permanent role.[33]At the redeployment meeting on 18 October 2019 the claimant withdrew from the RBMS trial. She returned to John Ray Ward on amended supernumerary duties combining housekeeping and ward-clerk support. Human Resources undertook to obtain feedback from the trial and convert it into evidence points for future TRAC submissions.[34]The redeployment meeting on 3 December 2019 reviewed timelines and responsibilities under the redeployment and long-term sickness policies. Surgical Appliances administrative duties were discussed. A Lorenzo refresher was offered, and Human Resources agreed to distil the refresher content into bullet-point material to support TRAC applications.[35]As part of the claimant’s redeployment into administrative roles, including during the RBMS and Surgical Appliances trials, the claimant was offered and undertook training relating to the Lorenzo electronic patient record system. Lorenzo formed part of the administrative functions of those roles, including booking and associated clerical tasks. The contemporaneous trial records show that, notwithstanding induction, refresher input and learning-difficulty adjustments described below, the claimant experienced ongoing difficulties with pace, multitasking and accuracy when undertaking administrative IT-based tasks, including those involving Lorenzo. The training and adjustments provided did not result in the claimant being able to sustain an administrative role on a long-term basis.[36]In late December 2019, during the Surgical Appliances trial, dyslexia-focused adjustments were implemented including the use of printed alphabet, coloured paper/overlays, and written guidance for double-barrelled names. The trial was extended to evaluate those interventions.[37]Documentation from the RBMS and Surgical Appliances trials records induction and shadowing, the claimant’s preference for face-to-face reception work, and ongoing difficulties with pace, multitasking and administrative IT tasks. The Surgical Appliances records further document supervision, the multitasking demands of the role (including filing clinic notes, front-desk duties and Lorenzo booking), difficulties with pace and accuracy, the implementation of learning-difficulty adjustments, and the - 7 - ultimate conclusion that the trial was unsuccessful notwithstanding those adjustments.[38]Redeployment activity was disrupted during 2020 and early 2021 by the COVID-19 pandemic. During this period the claimant undertook entrance-screening and other supernumerary amended duties.[39]Redeployment meetings resumed in the early part of 2021. The eleventh redeployment meeting took place on 29 March 2021. A Band 3 ward-clerk vacancy was considered. Essential criteria, including Lorenzo proficiency, were explained. It was recorded the claimant did not meet the essential criteria. Contact was made with a swabbing unit hiring manager, and a Human Resources rewrite task was agreed to align the claimant’s duties to Band 2 person-specifications.[40]The twelfth redeployment meeting was convened on 8 April 2021. Ill-health retirement was discussed. The claimant did not apply for ill-health retirement. The claimant elected to continue with redeployment and pursue administrative roles. Human Resources undertook targeted interview practice and preparation of model answers by reference to recent hiringmanager feedback. Ward-clerk vacancy[41]Consideration of the ward-clerk vacancy arose following Occupational Health advice indicating that ward-clerk-type duties might be suitable, in particular advice given in November 2020 and again in May 2021. The claimant contended that she was, in practice, undertaking aspects of ward-clerk duties and that she was discouraged or insufficiently supported to pursue the vacancy. The respondent contended that the ward-clerk role fell outside the scope of redeployment at that stage and that no formal application was made. The Tribunal finds that a Band 3 ward-clerk vacancy was discussed explicitly at redeployment meetings on 29 March 2021 and 8 April 2021. At those meetings the banding and essential criteria were explained, including the requirement for Lorenzo proficiency. It was recorded that the claimant did not meet the essential criteria for the role, and no application was submitted. This was despite the relevant managers having indicated that a late application would be considered if the claimant wished to apply. Further redeployment meetings[42]The thirteenth redeployment meeting occurred on 16 April 2021. Three administrative roles were identified and mapped against Occupational Health recommendations. An anxiety incident was recorded. Managers signposted the health and wellbeing pack and GP support, and Human Resources scheduled and provided one-to-one practice using TRAC prompt sheets. - 8 -[43]The fourteenth redeployment meeting took place on 25 May 2021. The Clinical Coding Assistant role was discussed. Hiring-manager feedback recorded the claimant saying she had “no idea” what clinical coding was. Practical preparation focussing on the job-description and example-based answers were agreed.[44]The fifteenth redeployment meeting occurred on 1 June 2021. The claimant confirmed that she was fit for work and was awaiting a MIND appointment. Human Resources agreed further interview drills derived from earlier feedback and from Access to Work recommendations (Access to Work documents at pages 517–524 and 531–538 of the Hearing Bundle). A swabbing role, by then fixed term, was discussed.[45]The sixteenth redeployment meeting took place on 8 June 2021. The swabbing role had been withdrawn from NHS Jobs for service reasons. Alternative administrative opportunities in Radiology and Imaging were discussed. Hiring-manager feedback recorded that the claimant expressed general availability or motivation for employment (summarised by the hiring manager as ‘just need a job’) and noted that the service sought candidates able to demonstrate specific administrative workflows and IT proficiency. Human Resources recorded that feedback to the TRAC notes and confirmed that the redeployment period had concluded in accordance with paragraph 9.1 of the Redeployment Procedure.[46]In making the above findings, the Tribunal had regard to the contemporaneous documentary record of the redeployment process, including redeployment meeting outcome letters, email correspondence and TRAC records, together with stress risk assessments, trial documentation and hiring-manager feedback generated and relied upon during redeployment. Those materials are contained within Section D of the hearing bundle, in particular the redeployment correspondence, meeting outcome letters, stress assessments and trial documentation from July 2019 to June 2020 (Hearing Bundle pp. 323–530), and the later redeployment records, hiring-manager feedback and outcome letters relating to administrative, ward-clerk, clinical coding, swabbing and Radiology/Imaging roles between March and July 2021 (Hearing Bundle pp. 570–705). The Tribunal considered those documents alongside the witness evidence.[47]By the conclusion of the redeployment period in June 2021, the respondent had identified and discussed a substantial number of alternative roles with the claimant across administrative, clerical and support functions. The Tribunal finds that the claimant declined to pursue a number of roles at the stage of initial consideration, withdrew from some applications following engagement or interview feedback, and did not meet essential criteria following interview for others. Two trial placements, in RBMS and Surgical Appliances respectively, were undertaken but were discontinued by the claimant or were assessed as unsuccessful notwithstanding adjustments directed to dyslexia and learning difficulty. Those outcomes occurred in the context of sustained and individualised support by Human Resources, - 9 - adjustments informed by Occupational Health and Access to Work, and a redeployment period that extended beyond the respondent’s standard timescales and concluded in accordance with paragraph 9.1 of the Redeployment Procedure. Outpatients transfer[48]In December 2020 certain outpatients’ functions previously undertaken by the claimant were reassigned to another staff member. The Tribunal finds that this occurred in the context of service reconfiguration arising from pandemic-related operational pressures and formed part of wider staffing changes affecting other employees. The Tribunal does not find that the claimant’s disabilities played any part in the decision to reallocate those duties. The Tribunal further finds that the reallocation of outpatient duties in late 2020 occurred in the context of wider operational changes implemented during the pandemic period and was consistent with service-level adjustments being made at that time.[49]On or around 10 December 2020 the claimant was admitted to hospital due to appendicitis. From 11 December 2020 the claimant was unfit to work as a result of her post-operative recovery period. Fit notes indicating that the claimant was unfit to work for reasons relating to this matter were presented on 11 December 2020 for a period of 2 weeks, and thereafter again for the period between 04 January 2021 and 03 February 2021. A sickness absence and wellbeing meeting took place on 25 February 2021, and a follow-up letter was sent to the claimant dated 27 February 2021. In that letter, Mr Johnson listed a number of examples of tasks, in nine detailed bullet points, which the claimant could carry out. The claimant was also sent a copy of her job description. Disability impact, Access to Work, Stress Risk Assessment[50]The claimant’s disability impact evidence explained that dyslexia and dyspraxia affected reading speed, alphabetisation (including filing of double-barrelled names), multi-tasking and handwritten note taking. Strategies identified as assisting included structured step-by-step tasking, written prompts and checklists, colour overlays, reduced background noise and clear signposting. During the claimant’s employment and the redeployment process, Access to Work recommendations included colour overlays matched to an assessed tint, assistive technology (speech-to-text), explicit written instructions, structured task breakdown, and practical aids to reduce cognitive load.[51]Individual Stress Risk Assessments identified redeployment-related stressors and proposed control measures, including monitoring through wellbeing meetings and line-manager oversight. During the pandemic period, file notes record that the claimant undertook entrance screening and other supernumerary amended duties. It was also recorded that the claimant did not wish to reduce her hours below approximately 30–35 per week for financial reasons and did not move to four longer shifts, as longer - 10 - shifts would exacerbate her knee symptoms. Those matters were consistent with Occupational Health advice concerning shift length and sequencing.[52]A wellbeing meeting in September 2021 reviewed the extended redeployment period, the number of roles considered and applied for, the two trial placements in RBMS and Surgical Appliances, training undertaken, and whether any further adjustments could enable a return to the Healthcare Assistant role having regard to Occupational Health constraints, including avoidance of heavy manual handling, limits on consecutive shifts and avoidance of night work. The claimant acknowledged that longer working days would worsen her knee symptoms. It was agreed that the redeployment process would continue to its conclusion in accordance with the respondent’s policy.[53]In reaching the above findings, the Tribunal had regard to the claimant’s evidence and the contemporaneous medical and occupational documentation concerning osteoarthritis of the knee and, from October 2019, dyslexia and dyspraxia, including fit notes, Occupational Health reports, stress risk assessments and related correspondence contained within the Hearing Bundle. The Tribunal finds that osteoarthritis was known to the respondent from March 2019, and dyslexia and dyspraxia from 21 October 2019, and that those conditions informed the Occupational Health advice, adjustments considered and implemented, and the approach taken to redeployment and wellbeing management, as described above. Although the documentation contained references to stress, counselling and low mood, the Tribunal does not find that knowledge of anxiety or depression, as qualifying disabilities for the purposes of the Equality Act 2010, was established at any material time.[54]The Tribunal finds that, prior to any progression to capability, the respondent undertook an extended and individualised redeployment exercise in accordance with its policies. That process included: creation and maintenance of TRAC access; assistance with identifying and applying for suitable vacancies; obtaining and using hiring-manager feedback to support applications; interview preparation and coaching; training and refresher opportunities, including Lorenzo training; trial placements with adjustments; and pauses or extensions to redeployment informed by Occupational Health advice. Those steps were taken over a prolonged period and alongside consideration of reasonable adjustments and Access to Work recommendations. The respondent prepared a management statement of case setting out the background to the capability process and the reasons relied upon in support of dismissal. The document formed part of the internal documentation for the capability process. Although a letter dated 21 December 2021 records that the claimant was already in possession of management statement of case documentation, the evidence does not establish that it was presented to her as a stand-alone document in connection with the act of dismissal, nor that it contained language directed to humiliating or demeaning the claimant. - 11 - Capability hearing (January 2022)[55]The long-term sickness review capability hearing on 5 January 2022 was chaired by Ms Josephine Chesney Smith. The claimant was accompanied by Dee Hannis, her Unison Representative (who had been assisting the claimant at various stages since around November 2019). Adjustments for the claimant’s participation were explained and implemented, including breaks on request, the use of short and plain-English questions, avoidance or explanation of technical terminology, and provision of principal page references in advance of each topic.[56]During the hearing, the claimant was asked for her honest view about fitness for the substantive Healthcare Assistant role. The claimant confirmed that she was not able to undertake her substantive Healthcare Assistant role, explaining that due to the manual-handling requirements. The hearing was adjourned in order to obtain up-to-date Occupational Health advice and specialist medical input before any decision was taken. Outcome letter and further Occupational Health advice[57]The outcome letter dated 19 January 2022 records that Occupational Health and specialist input had been reviewed and that the claimant’s position had not materially changed and was unlikely to do so in the near future. The letter recorded that, given the length of the redeployment period and the adjustments already attempted, and the incompatibility of the Healthcare Assistant role with the claimant’s functional restrictions, the capability process would proceed to its next stage. It further recorded that updated Occupational Health advice would be obtained prior to any reconvened capability hearing.[58]On 24 January 2022 Occupational Health advised that heavy manual handling and prolonged standing or walking requirements were incompatible with the claimant undertaking the Healthcare Assistant role and recommended sedentary or administrative duties with appropriate adjustments. In a further report dated 13 April 2022, Occupational Health advised that core Healthcare Assistant tasks remained incompatible with the claimant’s functional limitations, that she should not work more than eight hours per shift, and that any duties undertaken should be sedentary or administrative in nature with adjustments. Dismissal on capability grounds[59]The capability process reconvened on 11 August 2022 and resulted in dismissal on grounds of capability. At the meeting on 11 August 2022 the claimant was accompanied by Dee Hannis. The dismissal letter dated 24 August 2022 records that careful consideration had been given to the prolonged redeployment process, the Occupational Health advice obtained over time, and the adjustments implemented. It further records that the claimant had confirmed she was unable to perform her substantive Healthcare Assistant role due to manual-handling requirements, that nearly - 12 - three years of attempts to identify and support her into alternative roles had been undertaken, and that no suitable alternative employment had been identified. Payment in lieu of notice was confirmed. The claimant had been informed at the meeting on 11 August 2022 that she would not be required to work during her notice period.[60]The claimant attended work on 17 August 2022 under the belief that she was required to work her notice. The letter from the claimant’s solicitor dated 14 September 2022 indicated that the claimant was informed during the meeting on 11 August 2022 that she would be required to work her notice period, she attended work on 11, 12, 15, 16 and half day on 17 August 2022 as discussed with her line manager, and that on 17 August 2022, the claimant was informed that she was unable to continue working as the hospital’s insurance would not cover her. Appeal[61]The claimant, through her solicitors, lodged grounds of appeal on 14 September 2022 contending that the Occupational Health recommendations were not consistently implemented; that she was not adequately informed or supported during redeployment, including assistance through TRAC tailored to her learning difficulties; that the ward-clerk opportunity identified by Occupational Health had not been properly considered; and that dismissal was disproportionate given the adjustments made and alternatives available.[62]A copy of the letter appears at pages 925-929 of the Hearing Bundle.[63]The respondent’s appeal response pack summarised the redeployment chronology, including that approximately thirty roles had been considered and two trial placements undertaken; the Occupational Health advice obtained between 2019 and 2022; the redeployment support provided; and the capability decision. The appeal response pack annexed key documents including the notes and transcript of the 5 January 2022 capability hearing, the outcome letter dated 19 January 2022, Occupational Health correspondences dated 24 January 2022 and 13 April 2022, and the dismissal letter dated 24 August 2022.[64]Email correspondence in November 2022 records that listing the appeal was delayed due to a significant serious incident affecting the availability of Occupational Health assessments. A subsequent email confirmed that the Occupational Health referral for the appeal had been submitted and that a further update would be provided when Occupational Health issued its opinion.[65]On 22 November 2022 Ms Tracy Cline, Employee Relations Manager, contacted the claimant directly to verify that she wished to proceed with her appeal and to confirm the appropriate route for correspondence whilst she was represented, citing the need to deal with matters individually and to ensure clear and accurate communications pending written authority. - 13 -[66]On or shortly before 16 January 2023, the claimant was contacted by Occupational Health and asked what her current role was. That enquiry arose because Occupational Health had not at that point been informed that the claimant’s employment had ended following dismissal on 11 August 2022 and the conclusion of the appeal process. I accept that this caused the claimant some upset. I am satisfied, however, that the enquiry was administrative in nature and not directed at the claimant because of any disability. On 16 January 2023 Occupational Health wrote to Ms Cline confirming that sedentary or administrative duties with appropriate adjustments remained compatible with the claimant’s functional capacity, and that heavy manual handling and prolonged standing or walking should continue to be avoided. For the purposes of the appeal hearing, Occupational Health advised that the claimant had good insight, was fit to attend with no further adjustments required beyond family attendance and transcript provision and indicated that any return to clinical work would require a workplace risk assessment to assess functional capabilities.[67]As part of the appeal process, and following receipt of updated Occupational Health advice in January 2023, consideration was given to whether a functional assessment might assist in determining whether a return to a Band 2 Healthcare Assistant role could be feasible and, if so, what support or adjustments might be required. That possibility was addressed during the appeal process and subsequently set out in the appeal outcome correspondence.[68]The first appeal hearing took place on 14 February 2023, chaired by Ms Justine Wren. The claimant attended with her representative (which was her brother, Mr Jonathan Muller), and relevant management witnesses were in attendance. It was determined that a second meeting was required in order to consider whether a functional-assessment route to potential re-engagement at Band 2 might be feasible. The second appeal hearing took place on 17 February 2023.[69]By letter dated 22 February 2023, Ms Wren, Associate Director of Nursing, upheld the original decision to dismiss. The letter records “When asked in the hearing, you said that you did not think that you could complete the expectations of an HCA role even with the adjusted manual handling and working pattern changes.”[70]The letter further records that, having carefully reviewed the documentation, the redeployment history and the Occupational Health opinions, dismissal on grounds of capability was upheld as reasonable in all the circumstances. The letter further stated that the respondent was willing to consider Band 2 roles subject to a functional assessment to determine what adjustments might be required and invited the claimant to confirm if she wished to proceed so that such an assessment could be arranged.[71]The letter encouraged the claimant to reflect on this opportunity and stated that, if she wished to proceed, a functional assessment would be arranged - 14 - in line with Occupational Health advice, which would in turn guide any adaptations that might be required within a Band 2 Healthcare Assistant role and inform whether re-engagement was possible. The letter explained that this would delay the reaching of a final conclusion on the appeal but was offered to enable a decision to be taken on the basis of all relevant information. The letter further identified that, as at the end of January 2023, Band 2 vacancies were reported on the Endoscopy Unit, General Intensive Care, Burns Adult Ward, Heybridge Ward, Rayne Ward, Baddow Ward, Braxted Ward, Barfield Ward, Writtle Ward and Billericay Ward, noting that care demands varied across those wards. The claimant was invited to respond in writing by 1 March 2023 indicating whether she wished to pursue this opportunity.[72]Thereafter, the letter stated, “As I explained at the outset of our meeting the decision that I reached regarding Matron Smith’s decision is final and you have now exercised your right of appeal under the Trust’s Capability Procedure.”[73]A copy of the appeal outcome letter appears at pages 1039-1044 of the Hearing Bundle.[74]By letter dated 8 March 2023, at page 1048 of the Hearing Bundle, Ms Minal Backhouse of Backhouse Solicitors acknowledged receipt of the appeal outcome, addressed the proposed functional-assessment, and set out the claimant’s position that redeployment alternatives and the proposals advanced on appeal were unclear with no genuine assurance that adjustments would be made. The respondent’s offer was not accepted.[75]By further letter dated 21 March 2023, at page 1051 of the Hearing Bundle, Ms Wren confirmed the appeal outcome and recorded that the dismissal decision remained upheld. The letter recorded that the claimant declined to participate in the proposed functional assessment. It stated that, in light of that decision, the respondent was unable to give further consideration to a possible return to work, as to do so would not appropriately take account of the claimant’s health and wellbeing. The letter confirmed that the appeal process was concluded and that there was no further right of appeal. The claimant’s appeal against dismissal was lodged in August 2022 and concluded in or around March 2023, taking approximately seven months. The evidence shows that the timeframe was affected by the availability of Occupational Health, the sequencing of updated medical advice, and wider operational pressures within the respondent. I did not hear evidence that the delay was deliberate or targeted at the claimant, and I accept that it arose from administrative and resourcing factors rather than for any discriminatory reason. Post-dismissal mitigation[76]In her witness statement and oral evidence the claimant stated that, following her dismissal on 17 August 2022, she actively sought alternative employment compatible with the functional parameters identified by - 15 - Occupational Health, namely sedentary or administrative duties with appropriate adjustments, avoidance of heavy manual handling, and reduced standing or walking. The Tribunal finds that the materials provided do not include a documentary log of post-dismissal job applications, interview invitations or outcomes. The claimant’s mitigation case therefore rests principally on her account of job-search activity, considered alongside the contemporaneous health evidence relied upon. That evidence included her impact statement, describing the effects of dyslexia and dyspraxia on reading speed, alphabetisation, multi-tasking and note-taking, and of anxiety and depression on stamina and confidence, together with Occupational Health advice issued around and after dismissal.[77]Occupational Health advice following dismissal continued to state that core Healthcare Assistant duties were incompatible with the claimant’s functional limitations, that she should not work shifts exceeding eight hours, and that any suitable role would need to be sedentary or administrative in nature with adjustments. Occupational Health also advised that the claimant was fit to participate in appeal proceedings with minimal adjustments, while continuing to advise against heavy manual handling and prolonged standing or walking. The Tribunal finds that those health constraints are relevant factors in assessing the reasonableness and scope of the claimant’s post-dismissal mitigation efforts. Remedy claimed[78]The claimant’s Schedule of Loss sets out the heads of loss and the calculations relied upon. In her witness statement and oral evidence the claimant explained that she continues to suffer loss following dismissal and seeks either re-engagement into a Band 2 role with appropriate adjustments or, if that is not practicable, compensation reflecting ongoing loss. The Tribunal records that the claimant’s date of birth is 27 August 1971, her effective date of termination was 17 August 2022 (aged 50 at dismissal), and her gross weekly pay is stated as £326.92 for the purpose of calculating any basic award.[79]In considering mitigation for remedy purposes, the Tribunal notes the absence of a contemporaneous documentary log of post-dismissal job-search activity and has therefore had regard to the claimant’s account as summarised at paragraphs 76 - 78 above, together with the Occupational Health constraints relied upon during the relevant period.[80]For compensatory award purposes, the claimant relies on net loss calculations set out in the Schedule of Loss. No separate documentary evidence of net weekly earnings was produced or relied upon. Procedural dates[81]ACAS Early Conciliation commenced on 7 November 2022 and the ACAS Early Conciliation certificate was issued on 19 December 2022. - 16 -[82]The ET1 was presented on 19 January 2023 and the ET3 was lodged on 22 February 2023. Observations[83]On the documents and oral evidence presented, the Tribunal makes the following essential observations on the evidence, restricted to those necessary to determine the agreed List of Issues.[84]The standard of proof is the balance of probabilities. If, on the evidence, an event is more likely than not to have occurred, then the Tribunal is satisfied that it did occur.[85]Where there was a dispute of fact, the Tribunal resolved it on the balance of probabilities by preferring accounts set out clearly and consistently and supported by contemporaneous documents and emails in the Hearing Bundle (including but not limited to redeployment outcome letters, Occupational Health correspondence and records, meeting records and other records, and other correspondences to which reference was made during witness evidence).[86]A substantial proportion of the material within the findings of fact was derived from documents. By way of example the Tribunal found the following informative: Occupational Health letters dated 24 January 2022 and 13 April 2022 setting clinical recommendations; the Surgical Appliances notes and emails evidencing pacing difficulties and adjustments; and the outpatients operational material recording late-2020 changes.[87]The Tribunal also bore in mind the Supreme Court’s guidance in Royal Mail Group Ltd v Efobi [2021] UKSC 33, in particular that questions of evidential weight and inference are matters of ordinary, rational fact-finding, to be determined by reference to the evidence as a whole. The Tribunal therefore assessed the contemporaneous documents and the tested oral evidence in the round, applying the balance of probabilities to the specific issues in dispute.[88]The Tribunal noted the claimant’s dyslexia and dyspraxia, together with wellbeing and intermediary materials generated for, and relied upon during, the later stages of the redeployment process, the appeal proceedings, and the hearing itself. Those materials recorded difficulties with recall, processing and sequencing information, and included evidence of mental ill health in the form of stress, counselling and low mood arising during that later period. The Tribunal had regard to that material for the specific purpose of assessing how the claimant was able to recall, process and present her evidence, and the weight to be attached to her recollection where it was not supported by contemporaneous documentation. The material did not establish knowledge for the purposes of the Equality Act 2010 in respect of anxiety or depression, as it did not form part of the Occupational Health framework, adjustment identification or management decision-making at the material times, as explained at paragraph 53 above. Recollection was - 17 - assessed bearing in mind Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), while also having regard to Popplewell LJ’s COMBAR speech on 16 November 2023 during which he made observations cautioning against an over-rigid application of Gestmin that undervalues tested oral testimony.[89]In practice, the claimant’s answers on matters of sequence and timing were at times inconsistent or lacked chronological detail. That pattern was borne out in the Tribunal’s observation of the evidence. The claimant frequently needed to revisit documents and experienced difficulty recalling matters she was asked about until directed to specific pages, including during the structured breaks adopted to support her participation. Where her account on such matters conflicted with contemporaneous materials, particularly in relation to the Occupational Health constraints in early 2022 and the Surgical Appliances trial record, the Tribunal gave greater weight to the contemporaneous documents, while recognising and taking into account the claimant’s cognitive and emotional vulnerabilities.[90]The respondent’s live witnesses gave detailed written statements and, in oral evidence, were largely clear, consistent and aligned with the documentary record. The Tribunal noted the sustained, focussed cross-examination in particular of Mr Johnson and Ms Durham, with both witnesses providing direct answers and ready references to meeting outcomes and Occupational Health advice. Their evidence cohered with relevant documents including the Occupational Health letters of 24 January 2022 and 13 April 2022 and with the Surgical Appliances documents.[91]The Tribunal considered both internal and external consistency. In particular, Mr Johnson’s account of redeployment support and shift-pattern constraints was largely consistent with recorded outcome letters and Occupational Health advice. Where minor discrepancies appeared (for example, whether short-shift sequencing departed on two or three occasions), they were plausibly explained by rostering pressures and did not undermine the overall reliability given the wider documentary support.[92]Evidence was also heard concerning attendance at meetings and whether family members were permitted. Where this arose, the Tribunal assessed the evidence by reference to contemporaneous records of meeting arrangements and the stage and purpose of the process. In the absence of contemporaneous documentation supporting a blanket refusal, and where adjustments were demonstrably implemented at formal hearings, the Tribunal approached these allegations with caution and resolved them by reference to the overall documentary record.[93]The claimant alleged she was required to undertake manual-handling duties “around 24 January 2022” contrary to Occupational Health advice. The Occupational Health letters reiterate the constraints (24 January 2022; and 13 April 2022). This was contrasted with the position in the respondent’s witness evidence. - 18 -[94]The Hearing Bundle contains Occupational Health letters setting out the applicable clinical constraints on manual handling and prolonged standing or walking, together with nearby wellbeing and assessment materials recording functional limitations. The Tribunal was not referred to any contemporaneous record confirming that a manual-handling task was allocated to the claimant during the relevant period, including on or around 24 January 2022, or specifying the nature of any such task.[95]No contemporaneous rota, incident report or comparable record was identified to the Tribunal as confirming that a manual handling task was allocated to the claimant during the relevant period. In the absence of corroborating documentary evidence, and with the parties’ positions differing, the Tribunal preferred the respondent’s evidence that duties were managed within Occupational Health parameters, notwithstanding acknowledged ward-level and service-related operational pressures of the type described at paragraph 22 above.[96]The claimant further alleges that, during the Surgical Appliances trial in late 2019, managers including Ms Cheryl Snell, Mr Rupesh Acharya and Ms Elaine Taylor failed to provide adequate support and required tasks to be completed without appropriate adjustments or sufficient time allowances. The respondent disputes that allegation. The Hearing Bundle contains contemporaneous Surgical Appliances emails and notes relating to that period and to adjustments which were introduced, including materials at pages 428–430, 446, 451–452 of the Hearing Bundle. Those documents record difficulties with pace, accuracy and multi-tasking, and the introduction of learning-difficulty adjustments.[97]The contemporaneous documents also show that learning-difficulty related adjustments were introduced, including colour overlays or coloured paper, a printed alphabet, and guidance on the use of double-barrelled surnames, and that the relevant trial was extended in order to evaluate those interventions. Having considered the documentary evidence together with the witness evidence as a whole, the Tribunal preferred the respondent’s account that structured support was offered and monitored. The Tribunal did not accept that the documents evidenced insufficient support or time allowances, or that fault was attributable to the named managers.[98]The claimant alleged that, in December 2020, her role in the outpatients department was transferred to another member of staff without consultation. The Tribunal accepts that the contemporaneous documents to which it was referred show that outpatients arrangements were altered during the pandemic period. However, those documents do not record, or otherwise evidence, the consultation process described by the claimant or support her account of how the decision was taken. In the absence of contemporaneous material substantiating that consultation narrative, and having considered the evidence as a whole, the Tribunal preferred the respondent’s evidence that the reallocation of duties formed part of a wider, service-driven reconfiguration implemented in response to pandemic-related operational pressures. - 19 -[99]The claimant’s witness statement alleges that at a meeting on 9 September 2021, she raised the possibility of applying for ill-health retirement and was discouraged from doing so. The respondent denies any discouragement. The Hearing Bundle contains contemporaneous wellbeing materials and correspondence from September 2021 relating to that discussion, which record that ill-health retirement was mentioned as part of wider discussions about the claimant’s health and future at work, but they do not record any advice discouraging an application, nor any decision that the claimant should not pursue ill-health retirement. The documents show that the issue was discussed but not progressed beyond that point. Having considered the contemporaneous documentation and the witness evidence as a whole, the Tribunal did not accept that the claimant was discouraged from pursuing ill-health retirement.[100]The Tribunal also noted that much of the appeal evidence consisted of contemporaneous written correspondence rather than disputed oral recollection, and that this correspondence provided a reliable record of what was proposed and decided at that stage.[101]The Tribunal considered the evidence of all witnesses carefully. Where the respondent’s witness evidence was supported by contemporaneous documentary material, the Tribunal accepted that evidence. By contrast, where aspects of the claimant’s narrative were inconsistent with, or unsupported by, the contemporaneous record, the Tribunal, on the whole, did not accept those aspects. In resolving conflicts of evidence, the Tribunal placed primary weight on contemporaneous documentation.[102]Ms Elaine Taylor was expected to attend the hearing to give live evidence. The respondent applied to split the hearing owing to her hospitalisation following a fall and a diagnosed subarachnoid/subdural haemorrhage, with ongoing in-patient treatment. The Tribunal proceeded without Ms Taylor’s live evidence. Any uncorroborated aspects of her reported views were treated with caution; however, her role and actions were corroborated in part by contemporaneous documents and by Mr Johnson’s tested evidence.[103]The Hearing Bundle contains contemporaneous material from late 2019 relating to Surgical Appliances. An internal email from Ms Taylor to Mr Johnson in late 2019 referred to concerns about the claimant’s personal hygiene and whether that should be addressed. The claimant was not a recipient of that email and became aware of it only later through her solicitors, as was confirmed during cross-examination. Later documents record meetings in which the issue was raised directly with the claimant, who acknowledged it, with the discussion recorded as having been conducted in a measured way (Hearing Bundle pages 439–440). The Tribunal distinguished between internal emails not seen by the claimant at the time, and communications or meetings in which she participated.[104]Emails authored by managers about the claimant’s personal appearance were treated as contemporaneous documents. Where the claimant was not - 20 - a recipient, such emails were capable of bearing moderate weight as to managerial purpose and context but were given reduced weight as to effect unless corroborated. Where discussions occurred directly with the claimant, contemporaneous records were given greater weight as to effect and reasonableness.[105]Ms Cheryl Snell did not attend the hearing and provided no written witness statement. The Tribunal recorded that she left the Trust on 25 April 2021 and that attempts to contact her elicited no response. Any untested assertions attributed to Ms Snell were treated with caution. Weight was placed only where her role or actions were corroborated by contemporaneous documents or by the tested evidence of other witnesses.[106]Hiring-manager feedback included remarks that the claimant was unfamiliar with clinical coding, that she had stated that she “just needed a job”, and that she had not demonstrated the required administrative workflows and IT proficiency. The Tribunal treated those remarks as feedback given by hiring managers explaining unsuccessful applications, rather than as findings about the claimant’s character or motivation.[107]In summary, the Tribunal found the respondent’s witnesses, taken as a whole, to be clear, consistent and credible, with their accounts generally supported by contemporaneous documentation. By contrast, the claimant’s evidence was affected by difficulties of recall and was, in material respects, inconsistent with the contemporaneous record. Where conflicts arose, the Tribunal preferred the respondent’s evidence, particularly where supported by the contemporaneous record, and treated untested assertions attributed to absent witnesses with appropriate caution.
The Law
[108]To those facts the Tribunal applied the law. Equality Act 2010 (EqA) S. 6 Equality Act 2010 definition of disability[109]Disability is one of the protected characteristics identified in Section 4 of the Equality Act 2010 (“EqA”). It is further defined in Section 6(1): A person (P) has a disability if-(a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-today activities. Section 212(1) defines “substantial” as meaning “more than minor or trivial”; while Schedule 1, paragraph 2, further defines “long-term effects”.[110]The effect of 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, or(c) it is likely to last for the rest of the life of the person affected. If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. The word “likely” has been interpreted by the - 21 - then House of Lords to mean “could well happen”: SCA Packaging Ltd v Boyle [2009] IRLR 746.[111]The time at which to assess the disability is the date of the alleged discriminatory act (Richmond Adult Community College v McDougall [2008] ICR 431 (para 24) and Cruickshank v VAW Motorcast Ltd 2002 ICR 729, EAT). In Goodwin-v-Patent Office [1999] IRLR 4, the Employment Appeal Tribunal (“EAT”) gave detailed guidance as to the approach which ought to be taken in determining the issue of disability. A purposive approach to the legislation should be taken.[112]A Tribunal ought to remember that, just because a person can undertake day-to-day activities with difficulty, that does not mean that there was not a substantial impairment. The focus ought to be on what the claimant cannot do or could only do with difficulty and the effect of medication ought to be ignored for the purposes of the assessment.[113]It is not always possible or necessary to label a condition, or collection of conditions. The statutory language always had to be borne in mind; if the condition caused an impairment which was more than minor or trivial, however it had been labelled, that would ordinarily suffice. In the case of mental impairments, however, the value of informed medical evidence should not be underestimated.[114]Appendix 1 to the Equality and Human Rights Commission (“EHRC”) Code of Practice of Employment states that there is no need for a person to establish a medically diagnosed cause for their impairment. What is important to consider is the effect of the impairment and not the cause: Ministry of Defence v Hay [2008] ICR 1247.[115]In Aderemi v London and South Eastern Railway Limited [2013] ICR 591, the EAT held that the Tribunal “has to bear in mind the definition of substantial which is contained in section 212(1) of the Act. It means more than minor or trivial. In other words, the Act itself does not create a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial but provides for a bifurcation: unless a matter can be classified as within the heading “trivial” or “insubstantial”, it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other.”[116]An impairment can vary in its effects over time, and it is a matter for the Tribunal, having regard to all the evidence, to consider whether it has been established that there has been a substantial adverse effect over the relevant period (Sullivan v Bury Street Capital Ltd UKEAT/0317/19/BA).[117]Likelihood of the effect lasting 12 months or more is to be assessed at the time of the alleged contravention as confirmed by the Court of Appeal in All Answers Ltd v W & R [2021] EWCA Civ. 606 at paragraph 26: “The question, therefore, is whether, as at the time of the alleged discriminatory acts, the effect of an impairment is likely to last at least 12 months. That is - 22 - to be assessed by reference to the facts and circumstances existing at the date of the alleged discriminatory acts. A tribunal is making an assessment, or prediction, as at the date of the alleged discrimination, as to whether the effect of an impairment was likely to last at least 12 months from that date. The tribunal is not entitled to have regard to events occurring after the date of the alleged discrimination to determine whether the effect did (or did not) last for 12 months. That is what the Court of Appeal decided in McDougall v Richmond Adult Community College: see per Pill LJ (with whom Sedley LJ agreed) at paragraphs 22 to 25 and Rimer LJ at paragraphs 30-35. That case involved the question of whether the effect of an impairment was likely to recur within the meaning of the predecessor to paragraph 2(2) of Schedule 1 to the 2010 Act. The same analysis must, however, apply to the interpretation of the phrase “likely to last at least 12 months” in paragraph 2(1)(b) of the Schedule. We note that that interpretation is consistent with paragraph C4 of the guidance issued by the Secretary of State under section 6(5) of the 2010 Act which states that in assessing the likelihood of an effect lasting for 12 months “account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood”.” Direct discrimination – s 13 EqA[118]Further, direct discrimination is defined at Section 13(1) of the EqA as follows:- “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” The protected characteristic of disability is listed at section 4 of the EqA (as defined in section 6, see above).[119]The concept of treatment being less favourable inherently suggests some form of comparison and in such cases section 23(1) of the EqA applies: “On a comparison of cases for the purposes of section 13, 14, 19 or 19A there must be no material difference between the circumstances relating to each case.”[120]The effect of section 23 of the EqA as a whole is to ensure that any comparison made must be between situations which are genuinely comparable. The case law, however, makes it clear that it is not necessary for a claimant to have an actual comparator to succeed. The comparison can be with a hypothetical person.[121]Further, as the EAT and appellate courts have emphasised in a number of cases, including Amnesty International v Ahmed [2009] IRLR 884, in most cases where the conduct in question is not overtly related to [the protected characteristic], the real question is the “reason why” the decision maker acted as he or she did.[122]Answering that question involves consideration of the mental processes (whether conscious or subconscious) of the alleged discriminator, and it may be possible for the Tribunal to make a finding as to the reason why a - 23 - person acted as he or she did without the need to concern itself with constructing a hypothetical comparator.[123]The basic question in a direct discrimination case is: what are the grounds or reasons for treatment complained of? In Amnesty International v Ahmed [2009] IRLR 884 the EAT recognised two different approaches from two (then) House of Lords authorities -(i) in James v Eastleigh Borough Council [1990] IRLR 288 and(ii) in Nagarajan v London Regional Transport [1999] IRLR 572. In some cases, such as James, the grounds or reason for the treatment complained of is inherent in the act itself.[124]In other cases, such as Nagarajan, the act complained of is not discriminatory but is rendered so by discriminatory motivation, being the mental processes (whether conscious or unconscious) which led the alleged discriminator to act in the way that he or she did. The intention is irrelevant once unlawful discrimination is made out. That approach was endorsed in R (on the application of E) v Governing Body of the Jewish Free School and another [2009] UKSC 15.[125]The Tribunal should draw appropriate inferences from the conduct of the alleged discriminator and the surrounding circumstances (with the assistance, where necessary, of the burden of proof provisions) – as explained in the Court of Appeal case of Anya v University of Oxford [2001] IRLR 377.[126]In Glasgow City Council v Zafar [1998] IRLR 36, also a (then) House of Lords case, it was held that it is not enough for the claimant to point to unreasonable behaviour. He must show less favourable treatment, one of whose effective causes was the protected characteristic relied on.[127]Thus, the reason for the treatment need not be the main or sole reason but must have at least a significant (or more than trivial) influence on the treatment to amount to an effective cause of it. In “reason why” cases the matter is dispositive upon determination of the alleged discriminator’s state of mind. In “criterion cases” there is no need to consider the alleged discriminator’s state of mind when the treatment complained of is caused by the application of a criterion which is inherently or indissociably discriminatory (R (E) v Governing Body of JFS [2010] 2AC 728, SC).[128]In Shamoon v Chief Constable of the RUC 2003 IRLR 285, a (then) House of Lords authority, Lord Nichols said that a Tribunal may sometimes be able to avoid arid and confusing debate about the identification of the appropriate comparator by concentrating primarily on why the complainant was treated as she was and leave the less favourable treatment issue until after they have decided what treatment was afforded. Was it on the prescribed ground or was it for some other reason? If the former, there would usually be no difficulty in deciding whether the treatment afforded the claimant on the prescribed ground was less favourable than afforded to another. - 24 -[129]Direct discrimination may be intentional or it may be subconscious (based upon stereotypical assumptions). The Tribunal must consider the conscious or subconscious mental processes which caused the employer to act. This is not necessarily a question of motive or purpose and is not restricted to considering ‘but for’ the protected characteristic would the treatment have occurred (see Shamoon).[130]The EHRC: Code of Practice on Employment (2011) states, at paragraph 3.5 that: “The worker does not have to experience actual disadvantage (economic or otherwise) for the treatment to be less favourable. It is enough that the worker can reasonably say that they would have preferred not to have been treated differently from the way the employer treated – or would have treated – another person.”[131]For direct discrimination to occur: “The characteristic needs to be a cause of the less favourable treatment, but does not need to be the only or even the main cause” (paragraph 3.11, EHRC: Code of Practice on Employment (2011)). The protected characteristic does however require having a “significant influence on the outcome” (Nagarajan). Burden of proof[132]The burden of proof provisions in relation to discrimination claims are found in Section 136 of the EqA. Section 136(2) of the EqA provides that “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.”[133]However, Section 136(3) of the EqA goes on to provide that: “But subsection (2) does not apply if A shows that A did not contravene the provision.[134]Finally, in terms of Section 136(6), a reference to “the court” includes a reference to an Employment Tribunal.[135]The burden of proof is considered in two stages. Giving the judgment of the Court of Appeal in Igen Limited v Wong [2005] ICR 931 (CA), Peter Gibson LJ said in paragraph 17: “The statutory amendments clearly require the employment tribunal to go through a two-stage process if the complaint of the complainant is to be upheld. The first stage requires the complainant to prove facts from which the tribunal could, apart from the section, conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant. The second stage, which only comes into effect if the complainant has proved those facts, requires the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld.” - 25 -[136]The Court of Appeal, in Igen Limited v Wong, set out the position with regard to the drawing of inferences in discrimination cases.[137]It is unusual to have direct evidence as to the reason for the treatment (discrimination may not be intentional and may be the product of unconscious bias or discriminatory assumptions) (Nagarajan v London Regional Transport [1999] 4 All ER 65). Evidence of the reason for the treatment will ordinarily be by reasonable inference from primary facts. At Stage 1 proof is of a prima facie case and requires relevant facts from which the Tribunal could infer the reason. Relevant facts in appropriate cases may include evasive or equivocal replies to questions or requests for information; failure to comply with a relevant code of practice; the context in which the treatment has occurred including statistical data; the reason for the treatment (See Madarassy v Nomura International Plc [2007] ICR 867 (CA)). “In so far as this [information] was in the hands of the employer, the claimant could have identified the information required and requested that it be provided voluntarily or, if that was refused, by obtaining an order from the Tribunal” (Efobi v Royal Mail Group [2019] EWCA Civ. 19).[138]Assessment of Stage 1 is based upon all the evidence adduced by both the claimant and the respondent but excluding the absence of an adequate (i.e. non-discriminatory) explanation for the treatment (which is relevant only to Stage 2) (See Madarassy). All relevant facts should be considered but not the respondent’s explanation, or the absence of any such explanation (Laing v Manchester City Council [2006] ICR 1519, EAT and Efobi). The respondent’s explanation for its conduct provides the reason why he has done what could be considered a discriminatory act. “Most cases turn on the accumulation of multiple findings of primary fact, from which the court or tribunal is invited to draw an inference of a discriminatory explanation of those facts” (See Madarassy). “In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts” (See Igen v Wong [2005] ICR 935).[139]The employer must seek to rebut the inference of discrimination by explaining why he has acted as he has (See Laing). The treatment must be “in no sense whatsoever” because of the protected characteristic (Barton v Investec 2003 IRC 1205 EAT). The explanation must be sufficiently adequate and cogent to discharge the burden and this will depend on the strength of the Stage 1 prima facie case (Network Rail Infrastructure Limited v Griffiths Henry 2006 IRLR 865). The Tribunal may elect to bypass Stage 1 and proceed straight to Stage 2, if they are satisfied that the reason for the less favourable treatment is fully adequate and cogent (See Laing).[140]In Madarassy, the Court of Appeal found that the words “could conclude” must mean “a reasonable Tribunal could properly conclude” from all the evidence before it, meaning that the claimant had to “set up a prima facie case”. That done, the burden of proof shifted to the respondent (employer) who had to show that they did not commit (or is not to be treated as having committed) the unlawful act. The bare facts of a difference in status and a - 26 - difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal could conclude that, on balance of probabilities, the respondent had committed an unlawful act of discrimination.[141]The Supreme Court, in Hewage v Grampian Health Board [2012] ICR 1054 (SC), held that Tribunals should be careful not to approach the Igen guidelines in too mechanistic a fashion, and the Court of Appeal has confirmed that approach under the EqA in its Judgment in Ayodele v Citylink [2018] IRLR 114 (CA). The Supreme Court stated at paragraph 32 of their decision: “The points made by the Court of Appeal about the effect of the statute in these two cases could not be more clearly expressed, and I see no need for any further guidance. Furthermore, as Underhill J pointed out in Martin v Devonshires Solicitors [2011] ICR 352, para 39, it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.” Discrimination arising from disability - Section 15 EqA[142]The definition of discrimination arising from disability in EqA is as follows: “Section 15 Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”[143]Guidance as to how to apply the test under section 15 was given in Pnaiser v NHS England [2016] IRLR 170, EAT:-a. Was there unfavourable treatment and by whom?b. What caused the treatment, or what was the reason for it?c. Was the cause/reason 'something' arising in consequence of the claimant's disability? This stage of the test involves an objective question and does not depend on the thought processes of the alleged discriminator. - 27 -d. The knowledge requirement is as to the disability itself, not extending to the 'something' that led to unfavourable treatment.[144]Knowledge for the purposes of section 15(2) is knowledge of the disability itself, whether actual or constructive, and does not require knowledge of the particular “something” said to arise in consequence of the disability. Something arising[145]The EAT held in Hall v Chief Constable of West Yorkshire Police [2015] IRLR 893: The “something arising” did not need to be the sole or principal cause of the treatment, but required to be at least an effective cause, or have a significant influence on, the treatment. The EAT considered in in terms of the Tribunal’s reasoning: “Firstly, it appeared to consider that it was necessary for the Claimant’s disability to be the cause of the Respondent’s action in order for her claim to succeed. Secondly, it made a contrast between the cause of the action and a background circumstance. This leaves out of account a third logical possibility, which, it seems to me, is present on the looser language of section 15(1); i.e. a significant influence on the unfavourable treatment, or a cause which is not the main or the sole cause, but is nonetheless an effective cause of the unfavourable treatment.”[146]The process applicable under a section 15 claim was explained by the EAT in Basildon & Thurrock NHS Foundation Trust v Weerasinghe [2016] ICR 305: “The current statute requires two steps. There are two links in the chain, both of which are causal, though the causative relationship is differently expressed in respect of each of them. The Tribunal has first to focus upon the words ‘because of something,’ and therefore has to identify ‘something’ – and second upon the fact that that ‘something’ must be ‘something arising in consequence of B's disability,’ which constitutes a second causative (consequential) link. These are two separate stages.''[147]In City of York Council v Grosset [2018] IRLR 746, Lord Justice Sales held that: “it is not possible to spell out of section 15(1)(a) a … requirement, that A must be shown to have been aware when choosing to subject B to the unfavourable treatment in question that the relevant ‘something’ arose in consequence of B's disability”.[148]The EAT held in Sheikholeslami v University of Edinburgh [2018] IRLR 1090 that: “the approach to s 15 Equality Act 2010 is now well established and not in dispute on this appeal. In short, this provision requires an investigation of two distinct causative issues:(i) did A treat B unfavourably - 28 - because of an (identified) something? and(ii) did that something arise in consequence of B's disability? The first issue involves an examination of the putative discriminator's state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found. If the ‘something’ was a more than trivial part of the reason for unfavourable treatment then stage (i) is satisfied. The second issue is a question of objective fact for an employment tribunal to decide in light of the evidence.”[149]In iForce Ltd v Wood UKEAT/0167/18 the EAT held that there could be a series of links but required that there was some connection between the something and the disability.[150]In Dunn v Secretary of State for Justice [2019] IRLR 298 the Court of Appeal considered within the background law to that case that “It is a condition of liability for disability discrimination both under section 13 and under section 15 that the complainant should have been treated in the manner complained because of either (under section 13) his or her disability or (under section 15) the "something" which arises in consequence of that disability. ” This will typically involve establishing that the disability or relevant related factor operated on the mind of the putative discriminator, as part of his conscious or unconscious mental processes. This is not, in this context, the same as examining 'motive'.[151]In Robinson v Department of Work and Pensions [2020] EWCA Civ. 859, the Court of Appeal held it is not enough that but for their disability an employee would not have been in a position where they were treated unfavourably – the unfavourable treatment must be because of the something which arises out of the disability. In consequence of disability[152]Paragraph 5.9 of the Equality and Human Rights Commission Equality Act 2010 Code of Practice states “The consequences of a disability include anything which is the result, effect or outcome of a disabled person’s disability. The consequences will be varied and will depend on the individual effect upon a disabled person of their disability. Some consequences may be obvious, such as an inability to walk unaided or inability to use certain work equipment. Others may not be obvious, for example, having to follow a restricted diet.” Unfavourable treatment[153]In Williams v Trustees of Swansea University Pension and Assurance Scheme [2017] IRLR 882 the Court of Appeal did not disturb the EAT’s analysis, in that case, that the word “unfavourable” was to be contrasted with less favourable, the former implying no comparison, the latter requiring it. That was undisturbed by the Supreme Court when it later considered the case. The Equality and Human Rights Commission Equality Act 2010 Code of Practice states at paragraph 5.7 that the phrase means that the disabled person “must have been put at a disadvantage.” Reference to the - 29 - measurement against an objective sense of that which is adverse as compared to that which is beneficial was made in T-System Ltd v Lewis UKEAT/0042/15.[154]In the Williams case, Lord Carnwath stated at paragraph 27: “Since I am substantially in agreement with the reasoning of the Court of Appeal, I can express my conclusions shortly, without I hope disrespect to Ms Crasnow’s carefully developed submissions. I agree with her that in most cases (including the present) little is likely to be gained by seeking to draw narrow distinctions between the word “unfavourably” in section 15 and analogous concepts such as “disadvantage” or “detriment” found in other provisions, nor between an objective and a “subjective/objective” approach. While the passages in the Code of Practice to which she draws attention cannot replace the statutory words, they do in my view provide helpful advice as to the relatively low threshold of disadvantage which is sufficient to trigger the requirement to justify under this section.” Proportionate means of achieving a legitimate aim[155]An employer also has a defence to a claim under s 15 if it can show that the unfavourable treatment was a proportionate means of achieving a legitimate aim. If the aim is legitimate, the Tribunal must consider whether the means used to achieve it correspond to a real need of the undertaking, are appropriate with a view to achieving the aim in question and are necessary to that end: Stott v Ralli Ltd (EA-2019-000772-VP) at [79]. Assessing proportionality involves an objective balancing of the discriminatory effect of the treatment on the employee and the reasonable needs of the party responsible for the treatment: Hampson v Department of Education and Science [1989] ICR 179, CA and other cases summarized recently in Department of Work and Pensions v Boyers (UKEAT/0282/19/AT) at [29] per Matthew Gullick (sitting as Deputy High Court Judge). The test is an objective one, not a range of reasonable responses test (Stott, ibid, at [80]).[156]In terms of justification, the EAT in MacCulloch v ICI [2008] IRLR 846 set out four principles to be applied by the Tribunal. These have since been approved by the Court of Appeal in Lockwood v DWP [2013] IRLR 941:- ''(1) The burden of proof is on the Respondent to establish justification: see Starmer v British Airways [2005] IRLR 862 at [31]. (2) The classic test was set out in Bilka-Kaufhaus GmbH v Weber 15 Von Hartz (case 170/84) [1984] IRLR 317 in the context of indirect sex discrimination. The ECJ said that the court or tribunal must be satisfied that the measures must “correspond to a real need … are appropriate with a view to achieving the objectives pursued and are necessary to that end” (paragraph 36). This involves the application of the proportionality principle, which is the language used in reg. 3 itself. It has subsequently been emphasised that the reference to “necessary” means “reasonably necessary”: see Rainey v Greater - 30 - Glasgow Health Board (HL) [1987] IRLR 26 per Lord Keith of Kinkel at pp.30–31. 25 (3) The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it: Hardys & Hansons plc v Lax [2005] IRLR 726 per Pill LJ at paragraphs [19]– [34], Thomas LJ at [54]–[55] and Gage LJ at [60]. (4) It is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer's measure and to make its own assessment of whether the former outweigh the latter. There is no “range of reasonable response” test in this context: Hardys & Hansons plc v Lax [2005] IRLR 726, CA.''[157]The Supreme Court confirmed in Homer v Chief Constable West Yorkshire Police [2012] ICR 704 at [22] that “to be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so.”[158]Pill LJ in Hardy & Hansons Plc v Lax [2005] ICR 1565 at [32]: “It must be objectively justifiable (Barry v Midland Bank plc [1999] ICR 859) and I accept that the word “necessary” used in Bilka-Kaufaus [1987] ICR 110 is to be qualified by the word “reasonably”. That qualification does not, however, permit the margin of discretion or range of reasonable responses for which the appellants contend. The presence of the word “reasonably” reflects the presence and applicability of the principle of proportionality. The employer does not have to demonstrate that no other proposal is possible. The employer has to show that the proposal, in this case for a full-time appointment, is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary.”[159]In Hensman v Ministry of Defence [2014] UKEAT/0067/14/DM, Singh J referred to the above passage and stressed at [44] that in applying this approach the Tribunal, “must have regard to the business needs of the employer.”[160]In Blackburn and anor v Chief Constable of West Midlands Police 2009 IRLR 135, Court of Appeal in the context of an equal pay claim, Lord Justice Maurice Kay said at paragraph 25: “In this as in any similar case the focus must be on the aim of the employer. It is abundantly clear from the guidance that the Secretary of State approved a structure which envisaged 'local schemes being tailored to the requirements of local circumstances'. - 31 - Indirect disability discrimination – s 19 EqA[161]Section 19 of the EqA states: “(1) A person(a) (A) discriminates against another(b) (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if – (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,(c) it puts, or would put, B at that disadvantage, and(d) A cannot show it to be a proportionate means of achieving a legitimate aim.”[162]The list of relevant protected characteristics per section 19(3) of the EqA includes disability and sex.[163]As indicated above, s23 of the EqA states: “On a comparison of cases for the purposes of section…19 there must be no material difference between the circumstances relating to each case.”[164]Lady Hale in the Supreme Court gave the following guidance in R (On the application of E) v Governing Body of Jewish Free School [2010] IRLR 136: “Indirect discrimination looks beyond formal equality towards a more substantive equality of results: criteria which appear neutral on their face may have a disproportionately adverse impact upon people of a particular colour, race, nationality or ethnic or national origins.”[165]In the more recent case of Essop v Home Office; Naeem v Secretary of State for Justice [2017] IRLR 558 SC, at [25] Lady Hale stated: “‘Indirect discrimination assumes equality of treatment – the PCP is applied indiscriminately to all – but aims to achieve a level playing field, where people sharing a particular protected characteristic are not subjected to requirements which many of them cannot meet but which cannot be shown to be justified. The prohibition of indirect discrimination thus aims to achieve equality of results in the absence - 32 - of such justification. It is dealing with hidden barriers which are not easy to anticipate or to spot.”[166]The Equality and Human Rights Commission Code of Practice on Employment (the EHRC Code) at paragraph 4. 5 states as follows: “The first stage in establishing indirect discrimination is to identify the relevant provision, criterion or practice. The phrase 'provision, criterion or practice' is not defined by the Act but it should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions. A provision, criterion or practice may also include decisions to do something in the future - such as a policy or criterion that has not yet been applied - as well as a 'one off' or discretionary decision.”[167]The PCP must have been applied or would have been applied to the worker and others. Indirect discrimination may therefore arise where a PCP has not yet been applied.[168]It is for the claimant to identify the PCP relied upon in making the complaint. The words “provision, criterion or practice” are cumulative and do not require an absolute bar (British Airways plc v Starmer [2005] IRLR 862, EAT) but do not include every act that results in inequality (Ishola v Transport for London [2020] EWCA Civ. 112).[169]A one-off decision may amount to a practice if that decision would be applied in similar situations in the future (Ishola).[170]Group disadvantage arises where the application of the PCP did or would put persons who share the claimant’s protected characteristic to a particular disadvantage in comparison with persons who do not share it. The disadvantage does not require to be serious, obvious or significant and includes any type of disadvantage.[171]Paragraph 4.17 and 4.18 of the EHRC Code state: “4.17 The people used in the comparative exercise are usually referred to as the ‘pool for comparison’. 4.18 In general, the pool should consist of the group which the provision, criterion or practice affects (or would affect) either positively or negatively, while excluding workers who are not affected by it, either positively or negatively. In most situations, there is likely to be only one appropriate pool, but there may be circumstances where there is more than one. If this is the case, the Employment Tribunal will decide which of the pools to consider.” - 33 -[172]The comparison is with persons whose relevant circumstances are the same, or not materially different from the claimant, apart from the protected characteristic (Section 23(1) EA 2010). However, the pool must not be artificially restricted by reference to the characteristic itself (because “such an approach would drive a coach and horses through the indirect discrimination provisions”) (Spicer v Government of Spain [2004] EWCA Civ. 1046, Court of Appeal). The pool must suitably test the discrimination complained of and “the pool should not be so drawn as to incorporate the disputed condition” (Naeem v Secretary of State for Justice [2017] UKSC 27). Once the PCP has been identified “there is likely to be only one pool which serves to test its effect” as a matter of logic (Allonby v Accrington and Rossendale College and others [2001] ICR 1189).[173]All the workers to whom the PCP is applied should be included within the pool. In general the pool for comparison should consist of the group which the PCP affects (or would affect) either positively or negatively, while excluding workers who are not affected by it, either positively or negatively (4.18 EHRC Code) (Essop). The pool is all persons who would satisfy the relevant criteria apart from the PCP in question (University of Manchester v Jones 1993 ICR 474, CA). The pool may be external where the PCP affects potential applicants for work, or it may be internal where the PCP only affects a section of an existing workforce, provided it is properly representative.[174]The EHRC Code states “Looking at the pool, a comparison must be made between the impact of the provision, criterion or practice on people without the relevant protected characteristic, and its impact on people with the protected characteristic” (paragraph 4.19 EHRC Code).[175]“Particular disadvantage” essentially means something more than minor or trivial. That was determined in R. (on the application of Taylor) v Secretary of State for Justice [2015] EWHC 3245 (Admin) where the following comments were made: “The term ‘substantial’ is defined in section 212(1) to mean ‘more than minor or trivial’. I do not perceive any significant difference between the phrase ‘substantial disadvantage’ and the phrase ‘particular disadvantage’ used in section 19 of the Act.”[176]Particular disadvantage may be established by quantitative and/or qualitative means e.g. by statistical evidence, personal testimony or expert evidence (Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15). However, “Sometimes, a provision, criterion or practice is intrinsically liable to disadvantage a group with a particular protected characteristic” (paragraph 4.10 EHRC Code).[177]The application of the PCP must put the claimant to the same disadvantage as the group. There must be a causal link between the PCP and the disadvantage suffered by the individual (Essop). - 34 -[178]In terms of the recent decision of the (then) President of the EAT, Mrs Justice Eady DBE, in British Airways v Rollett [2024] EAT 131 the headnote states: “The Employment Tribunal made no error of law in concluding that it had jurisdiction to consider indirect discrimination claims under section 19 EqA where there is a PCP applied by an employer that puts people with a particular protected characteristic at a disadvantage, where the claimant in such a case must also suffer that disadvantage, but where that claimant need not have the same protected characteristic as the disadvantaged group”.[179]A particular disadvantage may be objectively justified it is a proportionate means of achieving a legitimate aim.[180]The onus is upon the respondent to establish justification. The test is objective and is therefore not limited to what the respondent considered at the time of its application. Although judged at the time of application the justification does not have to have been consciously and contemporaneously considered by the respondent. Justification may be established by reasoned and rational judgement (Chief Constable of West Yorkshire Police and anor v Homer 2009 ICR 223, EAT).[181]The EHRC Code states, “The aim of the provision, criterion or practice should be legal, should not be discriminatory in itself, and must represent a real, objective consideration. The health, welfare and safety of individuals may qualify as legitimate aims provided that risks are clearly specified and supported by evidence.” (paragraph 4.28 EHRC Code). In addition, the EHRC Code states: “Although reasonable business needs and economic efficiency may be legitimate aims, an employer solely aiming to reduce costs cannot expect to satisfy the test. For example, the employer cannot simply argue that to discriminate is cheaper than avoiding discrimination.” (paragraph 4.29 EHRC Code).[182]In deciding whether the means adopted to achieve the legitimate aim are proportionate the Tribunal must apply an objective test based upon a fair and detailed analysis of the working practices, business considerations and needs of the employer and the discriminatory effect of the means adopted (Hardy and Hansons plc v Lax 2005 ICR 1565, Court of Appeal).[183]The Tribunal must conduct a balancing exercise between the discriminatory effects of PCP against the employer’s legitimate aim taking into account all relevant facts (paragraph 4.30 EHRC Code). An objective balance must be struck between the discriminatory effect and reasonable need (Hampson v Department of Education and Science 1989 ICR 179, Court of Appeal) The PCP must be justified having regard to the quantitative and qualitative effective on the disadvantaged group (including the claimant) rather than just the individual claimant (University of Manchester v Jones 1993 ICR 474, Court of Appeal). - 35 -[184]As the EHRC Code explains, EU law views treatment as proportionate if it is an appropriate and necessary means of achieving a legitimate aim (paragraph 4.31 EHRC Code). “Necessary” means reasonably necessary – the employer does not have to demonstrate that no other means are possible (Chief Constable of West Yorkshire Police v Homer [2012] UKSC 15, [2012] IRLR 590) but there must not be a less discriminatory measure which would have achieved the legitimate aim. An exception may be made to accommodate a protected group but not if doing so would undermine the aim (Blackburn and anor v Chief Constable of West Midlands Police 2009 IRLR 135, Court of Appeal).[185]Cost can only be taken into account as part of the employer’s justification if there are other good reasons for adopting the PCP (paragraph 4.32 EHRC Code). It is an objective test. Unlike the test for unfairness of dismissal, there is no range of reasonable responses (Hardy). The Tribunal must make its own fair and detailed analysis of the working practices and business considerations in order to determine whether the PCP was reasonably necessary. As such a discriminatory dismissal may nevertheless be fair and a non-discriminatory dismissal may nevertheless be unfair.[186]The Tribunal may take EHRC Employment Code of Practice into account where relevant (Equality Act 2006, section 15(4)). The Code explains “something arising in consequence” (paras 5.8–5.9) and indicates that failures to make reasonable adjustments may weigh against justification under section 15(1)(b). The Court of Appeal in Grosset drew on those explanations consistently with the statute in particular at paragraph 57 of their decision in the following terms “A particularly strong factor underlying the ET's conclusion that the dismissal was not proportionate was its unchallenged assessment that, if the respondent had put in place reasonable adjustments as required by sections 20 and 21 EqA, by reducing the work pressure on the claimant, he would not have been subjected to the same level of stress. In its judgment on remedies, given at a later date, the ET explained that had such reasonable adjustments been made, it would have been "unlikely in the extreme" that the incident of the film would have occurred. Although the ET did not refer to the Code of Practice on this issue, paragraph 5.21 of the Code of Practice, set out above, makes it clear that a link between a failure to put in place reasonable adjustments and the unfavourable treatment in issue under section 15(1)(a) EqA may be an important factor to be taken into account under section 15(1)(b). By virtue of section 15(4) of the Equality Act 2006 the Code of Practice should "be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant". The ET was plainly entitled to give the weight it did to the impact of the respondent's failures to make such reasonable adjustments as it should have put in place.”[187]The burden of proof is on the claimant to prove the PCP, group and individual disadvantage. If established, the burden of proof is on the respondent to prove objective justification. - 36 - Failure to make reasonable adjustments – s 20 & 21 Equality Act 2010[188]Section 20 (1) of the Equality Act 2010 (“EqA”) states: “(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.”[189]Section 20(2)-20(5) of the EqA provides that the duty comprises three requirements: “(2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.”[190]In the present case, only the first requirement under section 20(3) of the EqA is engaged.[191]Section 21 of the EqA provides that: “(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. (3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purposes of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.” - 37 -[192]Further provisions in Schedule 8, Part 3, of the EqA provide that the duty is not triggered if the employer did not know or could not reasonably be expected to know that the claimant had a disability and that the provision, criteria or practice is likely to place the claimant at the substantial disadvantage referred to in the first requirement (referred to above).[193]The importance of a Tribunal going through each of the constituent parts of section 20 was emphasised by the Employment Appeal Tribunal in Environment Agency v Rowan 2008 ICR 218 and reinforced in Royal Bank of Scotland v Ashton 2011 ICR 632.[194]As to whether a “provision, criterion or practice” (“PCP”) can be identified, the EHRC Code at paragraph 6.10 says the phrase is not defined by the EqA “…but should be construed widely so as to include for example any formal or informal policy, rules, practices, arrangements or qualifications including one-off decisions and actions (see also paragraph 4.5)”. The question of what will amount to a PCP was considered by the Employment Appeal Tribunal in Nottingham City Transport Limited v Harvey UKEAT/0032/12 and Ishola v Transport for London [2020] EWCA Civ 112.[195]For the duty to arise, the employee must be subjected to “substantial disadvantage in comparison to a person who is not disabled” and with reference to whether a disadvantage resulting from a provision, criterion or practice is substantial, section 212(1) defines “substantial” as meaning “…more than minor or trivial”. The question is whether the PCP has the effect of disadvantaging the disabled person more than trivially in comparison to those who do not have the disability (Sheikholeslami v University of Edinburgh, [2018] IRLR 1090).[196]The obligation to take such steps as it is reasonable to have to take to avoid the disadvantage is one in respect of which the EHRC Code provides considerable assistance, not least the passages beginning at paragraph 6.23 to 6.29. A list of some of the factors which might be taken into account when deciding what is a reasonable step for an employer to have to take appears at paragraph 6.28 and includes:• whether taking any particular steps would be effective in preventing the substantial disadvantage;• the practicability of the step;• the financial and other costs of making the adjustment and the extent of any disruption caused;• the extent of the employer’s financial or other resources;• the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and• the type and size of the employer. - 38 -[197]Paragraph 6.29 of the EHRC Code makes clear that ultimately the test of the reasonableness of any step is an objective one depending on the circumstances of the case. It is for the Tribunal to assess this issue. Examples of reasonable adjustments in practice appear from paragraph 6.33 onwards.[198]The Employment Appeal Tribunal in Project Management Institute v Latif [2007] IRLR 579 observed that while the nature of the adjustment that is lacking need not itself come from the claimant, it does seem that there must at least be before the Tribunal facts from which, absent any innocent explanation, it could be inferred that a particular adjustment could have been made. Otherwise, the respondent would be placed in the 'impossible position' of having to prove the negative proposition that there was no reasonable adjustment that could have been made. Further, the Employment Appeal Tribunal emphasised the importance of Tribunals confining themselves to findings about proposed adjustments which are identified as being in issue in the case before them in Newcastle City Council v Spires UKEAT/0034/10, [2011] All ER (D) 60 (May).[199]In Linsley v HMRC UKEAT/0150/18/JOJ the Employment Appeal Tribunal noted (at paragraph 38) that: “For any given disadvantage there may be a number of adjustments that could be made, each of which might individually be reasonable. One could, of course, also have a situation where a number of adjustments are made, each one being inadequate in isolation but the cumulative effect of which is that the adjustment, overall, is reasonable. An employer is not required to select the best or most reasonable of a selection of reasonable adjustments, nor is it required to make the adjustment that is preferred by the disabled person. The test of reasonableness is an objective one: see the case of Smith v Churchill’s Stairlifts PLC [2005] EWCA Civ 1220 at [44], in which it is said that “So long as the particular adjustment selected by the employer is reasonable it will have discharged its duty”.[200]HHJ Hand QC in Jennings v Barts and the London NHS Trust UKEAT/0056/12, [2013] EqLR 326, warned that Latif did not require the application of the concept of shifting burdens of proof, which 'in this context' added “unnecessary complication in what is essentially a straightforward factual analysis of the evidence provided” as to whether the adjustment contended for would have been a reasonable one. Harassment related to disability - s 26 EqA[201]Harassment is defined in s26 of the EqA:- “(1) A person(a) (A) harasses another(b) (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of – - 39 - (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (2) … (3) … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case;(c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are – … disability”[202]There are accordingly three essential elements of a harassment claim under section 26(1) of the EqA, namely(i) unwanted conduct,(ii) that has the proscribed purpose or effect and(iii) which relates to a relevant protected characteristic.[203]In Hartley v Foreign and Commonwealth Office UKEAT/0033/15 (27 May 2016, unreported) it was held that the question whether there is harassment must be considered in the light of all the circumstances of the case. Where the claim is based on things said it is not enough only to look at what the speaker may or may not have meant by the wording.[204]However, even where certain elements of the test for harassment are met (for example, unwanted conduct and the violation of the claimant’s dignity), the Tribunal must still consider the “related to” question and make clear findings as to why any conduct is related to a protected characteristic (UNITE the Union v Nailard [2018] IRLR 730; Tees, Esk and Wear Valleys NHS Foundation Trust v Aslam [2020] IRLR 495, EAT).[205]At paragraph 22 of Richmond Pharmacology Ltd v. Dhaliwal [2009] IRLR 336, the EAT stated: “We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on - 40 - other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”[206]The EHRC Code states at paragraphs 7.7 and 7.8 “7.7 Unwanted conduct covers a wide range of behaviour, including spoken or written words or abuse, imagery, graffiti, physical gestures, facial expressions, mimicry, jokes, pranks, acts affecting a person’s surroundings or other physical behaviour. 7.8 The word ‘unwanted’ means essentially the same as 'unwelcome' or 'uninvited'. ‘Unwanted’ does not mean that express objection must be made to the conduct before it is deemed to be unwanted. A serious one-off incident can also amount to harassment.”[207]In Pemberton v. Inwood [2018] EWCA Civ. 564, Underhill LJ gave the following guidance in relation to section 26: “In order to decide whether any conduct falling within sub-paragraph (1)(a) of section 26 EqA has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section 4(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section 4(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also take into account all the other circumstances (subsection 4(b)).''[208]As set out in the Equality and Human Right’s Commission’s Employment Statutory Code of Practice (the “EHRC Code”), “unwanted conduct” can include “a wide range of behaviour” (at paragraph 7.7) and it is not necessary for the employee to expressly state that they object to the conduct (at paragraph 7.8). Unwanted means unwanted by the employee (Thomas Sanderson Blinds Ltd v English EAT 0316/10).[209]The claimant is not required to possess the protected characteristic relied upon, provided that the unwanted conduct is related to the characteristic, nor does the conduct have to be directed at the employee. (EBR Attridge LLP (formerly Attridge Law) and anor v Coleman 2010 ICR 242 and Thomas Sanderson Blinds, above). In Moxam v Visible Changes Ltd and anor EAT 0267/11, it was held that “it does not matter what racial group the claimant comes from, for she is entitled to be offended and to bring claims where she suffers as a result of any discriminatory language and conduct”. - 41 - Time limits[210]Section 123 of the EqA deals with time limits. Section 123(1) provides that proceedings on a complaint under Section 120 may not be brought after the end of(a) the period of 3 months starting with the date of the act to which the complaint relates, or(b) such other period as the Employment Tribunal thinks just and equitable.[211]Section 123(3) provides that(a) conduct extending over a period is to be treated as done at the end of the period, and(b) failure to do something is to be treated as occurring when the person in question decided on it.[212]The time limit in Section 123 is, however, subject to Section 140B, which provides for an extension of the time limit to facilitate conciliation before institution of Tribunal proceedings.[213]Day A is the day on which the worker concerned complies with the requirement of Section 18A of the Employment Tribunals Act 1996 to contact ACAS in relation to the matter in respect of which the proceedings are brought, and Day B is the day on which the worker receives or is treated as receiving the ACAS certificate issued under Section 18A.[214]In working out when the time limit expires, the period beginning with the day after Day A and ending with Day B is not to be counted. If the time limit set would, if not extended, expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.[215]As to conduct which 'extends over a period' the Court of Appeal in Hendricks v Metropolitan Police Commissioner [2003] IRLR 96, sets out that the burden is on the claimant to prove, either by direct evidence or inference, that the numerous alleged incidents of discrimination were linked to one another and were evidence of a continuing discriminatory state of affairs covered by the concept of 'an act extending over a period'.[216]In South Western Ambulance Service NHS Foundation Trust (appellant) v King (respondent) - [2020] IRLR 168 Chaudhury P in the EAT stated in the context of a continuing act at [36-38] “It will be necessary, in my judgment, for at least the last of the constituent acts relied upon to be in time and proven to be an act of discrimination in order for time to be enlarged.”[217]Whether there is conduct extending over a period was considered to include where an employer maintains and keeps in force a discriminatory regime, rule, practice, or principle which has had a clear and adverse effect on the complainant - Barclays Bank plc v Kapur [1989] IRLR 387. The Court of Appeal has cautioned Tribunals against applying the concepts of 'policy, rule, practice, scheme or regime' too literally, particularly in the context of an alleged continuing act consisting of numerous incidents occurring over a lengthy period (Hendricks v Metropolitan Police Commissioner, [2003] IRLR 96). - 42 -[218]Where a claim is submitted out of time, the burden of proof in showing that it is just and equitable to allow it to be received is on the claimant (Robertson v Bexley Community Centre [2003] IRLR 434).[219]Moreover the EAT stated in Dr Nicholas Jones v The Secretary of State For Health and Social Care [2024] EAT 2 that: “It remains a common practice for those who assert that the primary time limit should not be extended to rely on the comments of Auld LJ at paragraph 25 of Bexley Community Centre (t/a Leisure Link) v Robertson [2003] EWCA Civ. 576, [2003] IRLR 434, that time limits in the Employment Tribunal are “exercised strictly” in employment cases and that a decision to extend time is the “exception rather than the rule” as if they were principles of law. Where these comments are referred to out of context, this practice should cease. Paragraph 25 must be seen in the context of paragraphs 23 and 24”. The EAT stated that the propositions of law for which Robertson is authority are that the Employment Tribunal has a wide discretion to extend time on just and equitable grounds and that appellate courts should be slow to interfere.[220]In any event this does not, however, mean that exceptional circumstances are required for the Tribunal to exercise its discretion and the test remains what the Tribunal considers to be just and equitable (Pathan v South London Islamic Centre UKEAT/0312/13).[221]In exercising the just and equitable discretion, the Tribunal is entitled to have regard both to the explanation for delay and to the substantive merits of the claim, without treating either factor as determinative, in its assessment of all the circumstances.[222]Even if the Tribunal disbelieves the reason put forward by the claimant it should still go on to consider any other potentially relevant factors such as the balance of convenience and the chance of success: Rathakrishnan v Pizza Express (Restaurants) Ltd [2016] IRLR 278, following Pathan v South London Islamic Centre UKEAT/0312/13 and Szmidt v AC Produce Imports Ltd UKEAT/0291/14. We also considered the EAT’s decision in Habinteg Housing Association Ltd v Holleran UKEAT/0274/14 holding that where there was no explanation for the delay tendered that was fatal to the application of the extension, which was followed. In Edomobi v La Retraite RC Girls School UKEAT/0180/16 in which the Judge added that she did not “understand the supposed distinction in principle between a case in which the claimant does not explain the delay and a case where he or she does so but is disbelieved. In neither case, in my judgment, is there material on which the Tribunal can exercise its discretion to extend time. If there is no explanation for the delay, it is hard to see how the supposedly strong merits of a claim can rescue a claimant from the consequences of any delay.”[223]Per Langstaff J in Abertawe Bro Morgannwg University Local Health Board v Morgan UKEAT/0305/13 (18 February 2014, unreported), a litigant can hardly hope to satisfy that burden unless he provides an answer to two questions (paragraph 52): ''The first question in deciding whether to extend - 43 - time is why it is that the primary time limit has not been met; and insofar as it is distinct the second is [the] reason why after the expiry of the primary time limit the claim was not brought sooner than it was.''[224]In Wells Cathedral School Ltd (2) Mr M Stringer v(1) Mr M Souter(2) Ms K Leishman: EA-2020-000801 the EAT did not directly address those authorities but stated that, in relation to the issue of delay, “it is not always essential that the tribunal be satisfied that there is a particular reason that it would regard as a good reason”.[225]In Rathakrishnan there was a review of authority on the issue of the just and equitable extension, as it is often called, including the Court of Appeal case of London Borough of Southwark v Afolabi [2003] IRLR 220, in which it was held that a Tribunal is not required to go through the matters listed in s.33(3) of the Limitation Act, in the context of a personal injury claim, provided that no significant factor is omitted. There was also reference to Dale v British Coal Corporation [1992] 1 WLR 964, a personal injury claim, where it was held to be appropriate to consider the plaintiff's (claimant's) prospect of success in the action and evidence necessary to establish or defend the claim in considering the balance of hardship. The EAT concluded: “What has emerged from the cases thus far reviewed, it seems to me, is that the exercise of this wide discretion (see Hutchison v Westward Television Ltd [1977] IRLR 69) involves a multi-factoral approach. No single factor is determinative.”[226]That said, the Limitation Act checklist as modified in the case of British Coal Corporation v Keeble includes as possible relevant factors: i) the relative prejudice to each of the parties; ii) all of the circumstances of the case which includes: iii) The length and reason for delay; iv) The extent that cogency of evidence is likely to be affected; v) The cooperation of the respondent in the provision of information requested, if relevant; vi) The promptness with which the claimant had acted once she knew of facts giving rise to the cause of action, and vii) Steps taken by the claimant to obtain advice once she knew of the possibility of taking action.[227]In Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194 the Court of Appeal held: “First, it is plain from the language used ("such other period as the employment tribunal thinks just and equitable") that Parliament has chosen to give the employment tribunal the widest possible discretion.”[228]That was emphasised more recently in Adedeji v University Hospitals Birmingham NHS Foundation [2021] EWCA Civ. 23, which discouraged use of what has become known as the Keeble factors, in relation to the Limitation Act referred to, as a form of template for the exercise of discretion. - 44 - Complaints under the EqA and Remedy[229]Section 120 of the EqA provides that an Employment Tribunal has jurisdiction to determine a complaint relating to a contravention of Part 5 (work) of that Act and, subject to the time limit provisions of Section 123, as detailed above, are subject to the remedies set forth in Section 124 of the EqA, if an Employment Tribunal finds that there has been a contravention of the EqA.[230]In that event, the Tribunal may, as per Section 124(2),(a) make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate;(b) order the respondent to pay compensation to the claimant; and(c) make an appropriate recommendation, as defined in Section 124(3) of the EqA.[231]In terms of Section 124(6) of the EqA, the amount of compensation which may be awarded under Section 124(2)(b) of the EqA corresponds to the amount that could be awarded by the County Court under Section 119 of the EqA and, as per Section 119(4) of the EqA, an award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis).[232]The Tribunal is empowered to award interest under the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (SI 1996/2803), and we also considered Section 207(a) of the Trade Union and Labour Relations Consolidations Act 1992. We took into account the ACAS Code of Practice on disciplinary and grievance procedures as a relevant Code of Practice. Unfair Dismissal - Employment Rights Act 1996[233]The Tribunal considered the complaint of unfair dismissal. The Tribunal had regard to the terms of section 98 of the Employment Rights Act (“ERA”) which set out how a tribunal should approach the question of whether a dismissal is fair. There are two stages: first, the employer must show the reason for the dismissal and that it is one of the potentially fair reasons set out in section 98(1) and (2). If the employer is successful at the first stage, the tribunal must then determine whether the dismissal was fair or unfair under section 98(4). This requires the tribunal to consider whether the employer acted reasonably in dismissing the employee for the reason given. Capability is one of the potentially fair reasons for dismissal.[234]The respondent asserted that the reason for dismissal was capability.[235]Capability is defined in s.98(3) of the ERA by reference to “skill, aptitude, health or any other physical or mental quality”. Thus, incapacity deriving from ill health is a potentially fair reason for dismissal as it relates to the employee’s capability of performing the work he was employed to do. Selfevidently, different considerations apply to ill-health related capability dismissals to those that apply to performance related capability dismissals. - 45 -[236]Section 98(4) of the ERA provides that where the employer has fulfilled the requirements of subsection (1), the question whether the dismissal is fair or unfair depends on whether, in the circumstances, including the size and administrative resources of the employer’s undertaking, the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissal. This is to be determined in accordance with equity and the substantial merits of the case.[237]The Tribunal must also consider whether a fair procedure has been followed, which requires consultation with the employee and obtaining medical reports to ascertain the employee’s medical condition and likely prognosis as well as the consideration of other options open to the employer (BS v Dundee CC 2014 IRLR 131).[238]The Tribunal has regard to ACAS guidance on distinguishing conduct and capability, the use of informal resolution and support, and on adjusting procedures for disabled and neurodivergent employees (for example, allowing a supporter, clear written records, additional time to process information), as relevant benchmarks when assessing procedural fairness and justification.[239]The ACAS guidance supports the distinction between conduct (behaviour within the employee’s control) and capability (ability typically not within the employee’s control), and the need to explore support and adjustments before formal action. The Tribunal treats ACAS guidance as non-binding but relevant guidance, capable of informing the assessment of procedural fairness, reasonableness, and proportionality where appropriate. Other relevant case law relating to unfair dismissal[240]City of York Council v Grosset [2018] EWCA Civ. 1105 confirms the section 15 EqA two-stage causation analysis; the knowledge defence sits in section 15(2); proportionality is an objective Tribunal assessment; and further, that a breach of section 15 can co-exist with a fair dismissal under the ERA section 98 because the relevant legal tests under the EqA and the ERA differ. Employment Rights Act 1996 — remedies[241]Where unfair dismissal is established, the Tribunal may order reinstatement (sections 112–114) or re-engagement (sections 115–116). Failing that, it awards compensation (sections 118–124), comprising the basic award and compensatory award, subject to statutory limits and reductions.[242]In fixing any compensatory award the Tribunal must have regard to loss of earnings, benefits and pension; prospects of future employment; mitigation; and any Polkey reduction (where dismissal would have occurred in any event had a fair procedure been followed). Contributory conduct and other statutory adjustments may be considered where appropriate. - 46 - Polkey principle[243]It is difficult in some cases to be certain whether the dismissal would have occurred had the employer acted fairly. Classically this problem arises in circumstances where the employer has failed to act fairly because it has failed to apply certain procedural safeguards which might, had they been applied, have led to the employee retaining their job. Prior to the decision in Polkey v AE Dayton Services Ltd [1987] IRLR 503 HL, the courts took the view that, if on the balance of possibilities the dismissal would have occurred, then the dismissal should be held to be fair; the House of Lords in Polkey held that this was not good law. Lord Bridge indicated, however, that the chances of whether or not the employee would have been retained must be taken into account when calculating the compensation to be paid to the employee. Accordingly, if the prospects of the employee having kept their job had proper procedures been complied with were slender, then there would be a significant reduction in compensation: this is sometimes referred to as “the Polkey reduction” or simply as “Polkey.”[244]Tribunals are required to take a common-sense approach when assessing whether a Polkey reduction is appropriate and the amount of any such reduction (Software 2000 Limited v Andrews [2007] IRLR 568); the nature of the exercise is necessarily “broad brush” (Beatt v Croydon Health Services NHS Trust [2017] IRLR 274); and the assessment is of what the actual employer would have done had matters been dealt with fairly not how a hypothetical fair employer would have acted (Hill v Governing Body of Great Tey Primary School [ 2013] IRLR 274).[245]At paragraph 54 of the Judgment in the Software 2000 LTD case, a summary of the relevant principles that emerge from the case law was provided in the following terms: “54 Summary The following principles emerge from these cases:(1) In assessing compensation the task of the tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice. In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal.(2) If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely. However, the tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself. (He might, for example, have given evidence that he had intended to retire in the near future). - 47 -(3) However, there will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made.(4) Whether that is the position is a matter of impression and judgment for the tribunal. But in reaching that decision the tribunal must direct itself properly. It must recognise that it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.(5) An appellate court must be wary about interfering with the tribunal's assessment that the exercise is too speculative. However, it must interfere if the tribunal has not directed itself properly and has taken too narrow a view of its role.(6) The s.98A(2) and Polkey exercises run in parallel and will often involve consideration of the same evidence, but they must not be conflated. It follows that even if a tribunal considers some of the evidence or potential evidence to be too speculative to form any sensible view as to whether dismissal would have occurred on the balance of probabilities, it must nevertheless take into account any evidence on which it considers it can properly rely and from which it could in principle conclude that the employment may have come to an end when it did, or alternatively would not have continued indefinitely.(7) Having considered the evidence, the tribunal may determine: (a) That if fair procedures had been complied with, the employer has satisfied it – the onus being firmly on the employer – that on the balance of probabilities the dismissal would have occurred when it did in any event. The dismissal is then fair by virtue of s.98A(2). (b) That there was a chance of dismissal but less than 50%, in which case compensation should be reduced accordingly. (c) That employment would have continued but only for a limited fixed period. The evidence demonstrating that may be wholly unrelated to the circumstances relating to the dismissal itself, as in the O'Donoghue case. - 48 - (d) Employment would have continued indefinitely.”[246]In Ms N Brown v Castlerock Group Ltd [2022] EAT 5 the employee who was employed as a field care worker had been dismissed following allegations that she stole money from a client. The Tribunal found that the dismissal was unfair due to a number of procedural errors (in particular there should have been an adjournment of a final disciplinary hearing). However, the Tribunal concluded that the employee was not entitled to any compensation because applying Polkey, if a fair procedure had been followed it was inevitable that she would have been dismissed and/or the compensatory award was reduced by 100% pursuant to section 123(6) of ERA. The EAT dismissed the appeal and found that the Employment Judge was entitled to set compensation at nil under Polkey.[247]The basic award cannot be reduced under Polkey (unless it is an exceptionally rare case where such a (fair) dismissal might have taken place virtually contemporaneously with the unfair dismissal which actually occurred [Grantchester Construction (Eastern) Ltd v Attrill UKEAT/0327/12/LA, at paragraph 19]. In terms of the basic award, the statutory test per section 122(2) of the ERA (referred to above) is whether any of the employee’s conduct before the dismissal was such that it would be just and equitable to reduce or further reduce the award to any extent. Approach to Evidence from Absent Witnesses[248]In assessing the evidence, the Tribunal had regard to the established principles governing the evaluation of evidence where a potentially relevant witness does not attend to give evidence. The absence of a witness does not give rise to any automatic adverse inference. The weight to be attached to assertions attributed to an absent witness depends on the particular circumstances, including the reason for the non-attendance, the nature of the evidence said to be attributable to that witness, and the extent to which it is supported by contemporaneous documentation or other tested evidence. These matters are not governed by rigid rules but are questions of ordinary, rational fact-finding and evaluation. This approach is consistent with Wisniewski v Central Manchester Health Authority [1998] PIQR P324, as explained in Royal Mail Group Ltd v Efobi [2021] UKSC 33, and illustrated in Ahuja Investments Ltd v Victorygame Ltd [2021] EWHC 2382 (Ch). Submissions[249]The respondent’s representative and the claimant’s representative provided written submissions after the conclusion of the evidence, and they supplemented those by oral submissions. This is a summary, not intended to be a full record, and the Tribunal confirms that it considered both parties’ written and oral submissions in their entirety.[250]The claimant’s representative’s written submissions referred to sections 13 and 136 of the EqA and invited the Tribunal to focus on the effects of - 49 - impairment when applying section 15, rather than diagnostic labels. Reliance was placed on City of York Council v Grosset (two-stage causation under section 15; objective justification by the Tribunal) and, by way of analogy, Urso v Department for Work and Pensions (that harassment can, in principle, encompass the handling of disciplinary and grievance processes). The claimant’s representative also relied on ACAS guidance regarding adjustments to procedures (for example, additional reading time and support in meetings) as relevant to both sections 20–21 of the EqA and fairness under section 98(4) of the ERA.[251]The respondent’s representative’s written submissions contended that: first, as to unfair dismissal, the decision fell within the range of reasonable responses under section 98(4) of the ERA, given the nature of the concerns addressed; secondly, as to section 15 of the EqA, even if the claimant established the “something arising” limb, dismissal (and earlier steps) were a proportionate means of achieving legitimate aims (namely service safety and operational integrity), distinguishing Grosset on its facts; thirdly, the Tribunal should give significant weight to documentary consistency in contemporaneous emails, outcome letters and Occupational Health reports; and fourthly, ACAS guidance on distinguishing conduct and capability supported the respondent’s approach to managing performance and redeployment before escalation to formal action.[252]In oral submissions, the claimant’s representative emphasised that the Occupational Health letters (24 January 2022; 13 April 2022) and the redeployment/adjustment records provided objective anchors for limitations on manual handling and shift pattern, and that these constraints were not consistently honoured. It was submitted that the March–June 2019 adjustments and later welfare materials corroborate that the claimant’s difficulties were disability-related; and that under Pnaiser v NHS England the “something arising” need not be dominant provided it has a more-than-trivial, effective influence on unfavourable treatment.[253]The respondent’s representative’s oral submissions answered paragraph 252 by reference to documented steps: regular redeployment meetings; structured support offers; training opportunities; and the sequencing of management letters and Occupational Health referrals. It was submitted that the respondent’s witnesses’ evidence was clear and consistent with the paper-trail; that the claimant’s participation difficulties were accommodated through pauses, reading time and support, in line with good practice; and that, even if section 15 of the EqA was engaged, the steps taken were justified and proportionate, given operational needs and safety considerations reflected in the documents and testimony.[254]As to harassment and the relevance of ACAS guidance, the claimant’s representative relied on Urso to submit that process handling (including dismissal) could amount to unwanted conduct with the requisite purpose or effect, assessed under section 26(4) of the EqA, and argued that procedural adjustments (for example, extra reading time, clear signposting and supporter attendance) are integral both to the section 20 duty and to a fair - 50 - capability process. The respondent’s representative submitted that concerns were raised and recorded in a measured manner linked to legitimate aims, often experienced by the claimant as supportive (for example, meeting arrangements, training and redeployment opportunities), and that the respondent’s approach aligned with ACAS Step 1 / Step 2 expectations on informal resolution, capability (as distinct from conduct), and progressive support, such that the section 26 threshold was not met.[255]On credibility and consistency, the claimant’s representative submitted that, where oral testimony conflicted with contemporaneous documents, the documentary record should be preferred, particularly where it recorded Occupational Health advice, adjustments, or recognised difficulties linked to disability. It was further submitted that the body odour or personal appearance issue was raised in a manner capable of having a humiliating effect, with unseen emails attracting limited weight compared with in-person discussions and trial period notes. The respondent’s representative emphasised the primacy of contemporaneous documentation and further submitted that late-2019 trial and departmental notes and emails demonstrated measured handling and phased adjustments, and that the overall paper trail aligned with the respondent witnesses’ accounts of support.[256]Certain issues were narrowed or conceded. During submissions, the parties’ representatives confirmed the case-management position recorded at the outset of the hearing: disability was conceded as to the four conditions identified; the dispute concerned knowledge timing for some conditions and the legal consequences for the EqA heads of claim; and the scope of the List of Issues was refined in the hearing per Annex A.[257]In terms of authorities cited, in addition to Grosset, Urso and ACAS guidance, the claimant’s representative relied on Pnaiser v NHS England (section 15 of the EqA “something arising” may be a more than trivial, effective influence; objective proportionality). The respondent relied on Grosset (the distinction between section 15 of the EqA and section 98 of the ERA tests) and on established capability and procedural fairness principles, together with ACAS conduct and capability guidance, in support of its case.[258]In terms of time limits and continuing acts, both parties’ representatives addressed section 123 EqA and the concept of a continuing act (that is, conduct extending over a period treated as done at the end of that period). The claimant’s representative submitted that the pleaded sequence should be viewed as a course of conduct. The respondent’s representative contended that discrete acts should not be aggregated and, in any event, the just-and-equitable discretion should not be exercised in the claimant’s favour. - 51 - Discussion and decision[259]On the findings of fact made, and having applied the law to those facts, the Tribunal disposes of each matter in the agreed List of Issues as set out Issues not pursued[260]It is recorded that the claimant no longer seeks reinstatement or re-engagement. Further, in light of the oral evidence, the claimant’s representative indicated that they made no submissions on the following issues in the agreed List of Issues: 6a; 6d; 18h; 18i; 19b; 19c; 19h; 19l; 21b; 21c; 23j; and 30c. Those issues are accordingly treated as no longer pursued. General approach[261]In reaching these decisions, the Tribunal has carefully reviewed the whole evidence, including the oral evidence, the written witness statements, the contemporaneous documents to which the Tribunal was referred at the Final Hearing (including but not limited to notably Occupational Health letters and reports, redeployment outcomes, meeting records and correspondences), and the written and oral submissions of both parties’ representatives. Equality Act: Disability (Section 6) and Knowledge Disability – s 6[262]Disability was conceded in respect of dyslexia, dyspraxia, anxiety, depression and osteoarthritis at the material times. I accept the concessions recorded in the agreed List of Issues. I am satisfied that the clamant was disabled at all material times in respect of all of those medical conditions under s 6 of the EqA. Respondent’s knowledge of disability[263]In terms of knowledge, I find that the respondent knew of osteoarthritis from March 2019 (as conceded), and of dyslexia and dyspraxia from 21 October 2019 (as conceded). The claimant contends that the respondent knew, or ought reasonably to have known, of her dyslexia and dyspraxia from March 2019. I am not satisfied on the evidence that the respondent had actual or constructive knowledge of the claimant’s dyslexia and dyspraxia conditions prior to 21 October 2019. The material before that date does not establish that the respondent knew, or ought reasonably to have known, that the claimant had any such impairments meeting the statutory definition of disability within section 6 of the EqA. As to anxiety and depression, I find that the respondent’s knowledge was not established on the evidence at any material time. While references to “stress” and wellbeing concerns appear in the contemporaneous records, they do not establish that the respondent knew, or ought reasonably to have known, that the claimant had a mental impairment which had a substantial and long-term adverse effect - 52 - on her ability to carry out normal day-to-day activities within the meaning of section 6 of the EqA at any material time. Although the claimant’s evidence describes symptoms of anxiety and depression, I am not satisfied that, at the material times, it demonstrates that the respondent knew or ought reasonably to have known that she had a mental impairment meeting the statutory definition of disability.[264]In relation to the matters below, insofar as relevant, I adopt my findings on knowledge at paragraph 263 above. Equality Act: Direct Discrimination (Section 13)[265]I deal with each act identified at paragraph 6 of the List of Issues in turn. Paragraph 6a[266]This matter corresponds to issue 6a in the List of Issues. For the reasons recorded at paragraph 260 above, this issue was not pursued and is dismissed. In any event, had it been pursued, I would not have upheld the complaint. In December 2020 the claimant was not permitted to continue in the outpatient’s department. I accept the respondent’s evidence that outpatient’s arrangements changed during the pandemic period, and that the claimant was off work with appendicitis from 5 December 2020 until 3 February 2021. The reallocation of duties was a service-driven decision, and I find that it was not because of disability within the meaning of section 13 of the Equality Act 2010. Paragraph 6b[267]Around January 2021 the claimant was not offered the ward clerk role. I accept the respondent’s witnesses’ evidence that the role was band 3, whereas the claimant was band 2. Suitability was considered but not established, and the claimant did not successfully apply. I find that the decision not to offer the ward clerk role was not taken because of disability, but because the claimant did not meet the role requirements and the role fell outside the redeployment parameters. This complaint is not upheld. Paragraph 6c[268]On 11 August 2022 the claimant was dismissed. I find that the dismissal followed an extended redeployment process and capability assessment, and that the reason for the claimant’s dismissal was her capability, and not her disability. Applying section 23 of the EqA, I am satisfied that a hypothetical non-disabled comparator whose circumstances are not materially different from the claimant’s circumstances would have been treated in the same way. This complaint is not upheld. - 53 - Paragraph 6d[269]This matter corresponds to issue 6d in the List of Issues. For the reasons recorded at paragraph 260 above, this issue was not pursued and is dismissed. In any event, had it been pursued, I would not have upheld the complaint. I accept the explanation that the delay was caused by Occupational Health availability and a serious incident, for the reasons given in the respondent’s evidence. I find that the delay was not because of disability and was not influenced by disability in any way.[270]In relation to the matters determined above, I find that the claimant has not established facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent treated her less favourably because of disability within the meaning of section 13 of the EqA. If I am wrong about that, and a prima facie case is established, I am satisfied that the respondent has shown that the treatment in question was not because of disability, and that the respondent has provided cogent, and non-discriminatory explanations. These complaints are not upheld. Time limits – S 13 EqA[271]I have applied section 123 of the EqA, including section 123(3) on conduct extending over a period. I am not satisfied that the out-of-time acts form part of a continuing discriminatory state of affairs within the meaning of Hendricks v Metropolitan Police Commissioner. I find that there were no acts that were both in time and actionable so as to anchor any earlier conduct. In relation to any just and equitable extension, I am not satisfied that there is any good or sufficient reason to extend time. I have weighed the balance of prejudice to the claimant and to the respondent, and, having considered the explanations advanced and the existence of in-time complaints, I decline to exercise that discretion. The acts dismissed on time-bar grounds are the December 2020 outpatients decision and the January 2021 ward clerk non-offer (issue 6a, which was not pursued, and issue 6b). The dismissal on 11 August 2022 (issue 6c) and the subsequent appeal delay (issue 6d, also not pursued) are in time and fail on their merits for the reasons given above. I have, in any event, considered the out of time complaints on their merits in the alternative. Equality Act: Indirect Discrimination (Section 19) and Justification[272]I address the pleaded PCPs and justification in turn. PCP – paragraph 9a[273]Firstly, the alleged PCP that family members cannot attend capability meetings was not established as a written policy as asserted. Even if a PCP existed limiting companions to colleagues or trade union representatives, the evidence shows that the claimant’s brother attended the appeal, and that adjustments to participation were available. I am not satisfied that any such PCP placed persons sharing the claimant’s disability at a particular - 54 - disadvantage, nor that the claimant herself suffered such disadvantage. In any event, it pursued the legitimate aim of orderly and efficient conduct of procedures and was applied with a degree of flexibility. Any disadvantage was proportionate in all the circumstances. This complaint is not upheld. PCP – paragraph 9b[274]Secondly, I consider the alleged PCP that employees will be dismissed following an unsuccessful redeployment process. I find that, on the evidence, there was a policy or practice that dismissal may follow where redeployment is unsuccessful, rather than an automatic rule of dismissal in every case. I accept that such a PCP is capable of placing persons sharing the claimant’s disability at a particular disadvantage. The policy or practice pursued legitimate aims of patient safety, service effectiveness and the appropriate use of public resources by releasing posts that cannot be filled by an employee who is unable to perform them. Its impact was mitigated by repeated Occupational Health assessments, adjustments to shifts and tasks, supported trials, and consideration of alternatives before dismissal. I find that it was a proportionate means of achieving those aims. This PCP – paragraph 9c[275]Thirdly, I consider the alleged PCP that the respondent did not refer individuals to Occupational Health/ill-health retirement during the redeployment process. I am not satisfied on the evidence that any such practice existed. There were multiple and appropriate Occupational Health referrals relating to the claimant, and ill-health retirement was discussed as set out earlier in this Judgment. The claimant did not apply for ill-health retirement. This complaint is not upheld.[276]The remaining PCPs relied upon by the claimant arise under the reasonable adjustments case and do not form part of the pleaded case for indirect discrimination in the agreed List of Issues. In any event, for the reasons set out elsewhere in this judgment, I am not satisfied that such PCPs existed as alleged therein, or that they gave rise to any actionable disadvantage or disproportionate impact under section 19. None of these matters affects my conclusions above. Time limits – s 19 EqA[277]In terms of time limits regarding section 19, I have applied section 123 of the EqA, including section 123(3) in relation to conduct extending over a period and any alleged failures to act. In relation to any just and equitable extension, I am not satisfied that there is any good or sufficient reason to extend time. I have weighed the balance of prejudice to the claimant and to the respondent and, having considered the explanations advanced and the availability of in-time complaints, I decline to exercise that discretion. All PCP-based complaints premised solely on events before 8 August 2022 are dismissed on time-bar grounds. Insofar as any continuing PCP or omission - 55 - is alleged, I find that there are none that are both in time and actionable on the facts of this case. In any event, and in the alternative, for the reasons given above, the section 19 complaints fail on their merits. Equality Act: Failure to Make Reasonable Adjustments (Sections 20–21)[278]I adopt my findings on knowledge at paragraph 263 above. I address each pleaded adjustment and the application of section 20 of the EqA, considering whether the duty arose and, if so, whether any reasonable steps were not taken. For these purposes, I consider the relevant PCPs and any substantial disadvantage said to arise from them as part of the analysis Disability and knowledge[279]For the purposes of sections 20 and 21 of the Equality Act 2010, I proceed on the basis of my findings above in relation to disability and knowledge. In summary: the respondent had actual or constructive knowledge of the claimant’s disabilities of osteoarthritis (from March 2019) and dyslexia and dyspraxia (from October 2019) but did not have knowledge of anxiety or depression at the material time. I consider below the PCPs relied upon by the claimant and whether they placed her at a substantial disadvantage compared with non-disabled persons, before turning to assess whether any reasonable steps were required to avoid such disadvantage. Alleged PCPs at paragraph 18 of agreed List of Issues[280]In relation to the PCPs relied upon by the claimant as set out at paragraph 18 of the agreed List of Issues, I find as follows:(a) Expectations of manual handling are inherent features of Healthcare Assistant and similar roles. Those expectations were modified following Occupational Health advice, including by avoiding heavy handling and allocating lighter duties.(b) I am not satisfied that there was any universal or generally applicable requirement for staff to work without rest breaks between shifts or more than three short shifts in a row; the records show occasional rostering anomalies rather than a standing requirement.(c) Any requirement to work night shifts did not apply to the claimant once Occupational Health advised that she should not undertake night work.(d) The requirement to commence redeployment where an employee could not perform their substantive role is established and reflected normal management practice.(e) I am not satisfied that there was any formal or inflexible requirement limiting attendance at meetings to trade union representatives or - 56 - colleagues, as alleged. In any event, to the extent that any such requirement existed, it was not applied inflexibly; in practice, arrangements were made to support the claimant’s participation, including permitting a family member to attend the appeal and making procedural adjustments to assist her engagement.(f) Expectations as to pace or efficiency were inherent in the administrative roles trialled and were not applied rigidly; adjustments were considered in practice.(g) I am not satisfied that there was any general practice of not informing the claimant of all available roles during the redeployment process.(h) The alleged practice of not reviewing Occupational Health assessments was not pursued by the claimant. In any event, and if it had been pursued, I would not have been satisfied on the evidence that any such practice existed.(i) The alleged practice of not putting individuals forward for ill-health retirement was not pursued by the claimant. In any event, and if it had been pursued, I would not have been satisfied on the evidence that any such practice existed, the contemporaneous materials showing that ill-health retirement was discussed with the claimant. Alleged substantial disadvantage and knowledge of the same[281]I have considered each of the alleged substantial disadvantages relied upon at paragraph 19 of the agreed List of Issues. My findings are as follows.(a) I find that the claimant was redeployed on 27 June 2019 because she was unable to undertake manual handling. That reflects a limitation arising from her osteoarthritis. However, I am not satisfied that the redeployment itself constituted a substantial disadvantage arising from a PCP; rather, it was a consequence of the respondent addressing those limitations through a managed redeployment process.(b) The allegation that the claimant was required to work long hours, impacting on her disability, was not pursued. In any event, and if it had been pursued, I would not have been satisfied that this amounted to a substantial disadvantage arising from any relevant PCP, particularly given the absence of evidence of any uniform requirement of the kind alleged and the subsequent adjustments to her working arrangements.(c) The allegation that the claimant was required to work night shifts before July 2019 was not pursued. In any event, and if it had been pursued, I would not have been satisfied that it gave rise to a - 57 - substantial disadvantage, noting that night working ceased following Occupational Health advice.(d) I am satisfied that the claimant was placed in a redeployment process from June 2019. However, I am not satisfied that the process was conducted without support, nor that it placed her at a substantial disadvantage as compared with employees not sharing her disability. The evidence shows that the process was structured and supported, including Occupational Health involvement and trial placements.(e) I am not satisfied on the evidence that the claimant was prevented from bringing a family member to meetings. In any event, I do not find that any restriction on attendance constituted a PCP which placed her at a substantial disadvantage, given the flexibility shown in practice and the support available to her.(f) I accept that the claimant experienced difficulty with pace and efficiency in July 2019 in the Administration Assistant role. The contemporaneous trial records show ongoing difficulties with pace, multitasking and administrative IT tasks, and I accept that those matters were linked to the claimant’s dyslexia and dyspraxia, for which adjustments were introduced during the trial. To the extent that the role required tasks to be performed at a particular pace, that amounted to a PCP. I accept that this placed the claimant at a substantial disadvantage within the meaning of section 212 of the EqA. I am also satisfied that the respondent knew, or ought reasonably to have known, of that disadvantage through Occupational Health advice and the trial process. I address below whether any reasonable steps were required and whether they were taken.(g) I make a similar finding in relation to the claimant’s difficulties in October 2019 in the Surgical Appliances role. The contemporaneous trial records document ongoing difficulties with pace, multitasking and administrative IT tasks, and I accept that those matters were linked to the claimant’s dyslexia and dyspraxia, for which adjustments were introduced. To the extent that the role required tasks to be performed at a particular pace and with multitasking demands, that amounted to a PCP. I accept that this placed the claimant at a substantial disadvantage within the meaning of section 212 of the EqA. I am also satisfied that the respondent knew, or ought reasonably to have known, of that disadvantage. I address below whether any reasonable steps were required and whether they were taken.(h) The allegation that, on or after 9 September 2021, the claimant did not apply for ill-health retirement and was dismissed was not pursued. In any event, and if it had been pursued, I would not have been satisfied that this established any substantial disadvantage arising from a PCP. The evidence shows that ill-health retirement - 58 - was discussed with the claimant, and that she did not make an application.(i) I am not satisfied that the claimant was not informed of the Ward Clerk position as alleged, nor, in the alternative, that any such failure constituted a PCP giving rise to substantial disadvantage.(j) The fact that the redeployment process was ultimately unsuccessful and led to dismissal on 11 August 2022 does not, in my judgment, constitute a substantial disadvantage arising from any PCP. Rather, it reflects the outcome of the claimant’s inability to perform her substantive role and the absence of a suitable alternative role within the respondent’s redeployment process.(k) I am satisfied that the claimant was not appointed to the Ward Clerk role notwithstanding Occupational Health indications that she might be suitable. However, I am not satisfied that this establishes a substantial disadvantage arising from a PCP. The claimant did not meet the essential criteria for the role and did not make a successful application, for the reasons set out above. Whilst it is not clear what other Occupational Health recommendations the claimant contends were not implemented, I do not accept that the respondent failed to implement any such recommendations in a way that gave rise to a substantial disadvantage.(l) The allegation that the claimant did not apply for ill-health retirement was not pursued. In any event, and if it had been pursued, I would make the same finding as at sub-paragraph (h).[282]Drawing those matters together, I am not satisfied that the claimant was placed at a substantial disadvantage by reason of any PCP, save to the limited extent that her disabilities affected her ability to perform roles involving pace and multitasking requirements. Those matters were recognised and addressed by the respondent through Occupational Health involvement, adjustments to duties, targeted support and training, and through the redeployment process, including trial placements with adjustments. To the extent that any such substantial disadvantage arose, I am satisfied that the respondent knew, or ought reasonably to have known, of it.[283]In any event, and in light of the matters relied upon by the claimant, I proceed to consider whether any of the adjustments identified at paragraph 21 of the agreed List of Issues were reasonable and whether any such steps were not taken. Paragraphs 20 and 21 agreed List of Issues – Reasonable Adjustments Paragraph 21a[284]I turn to the reasonable adjustments relied upon at paragraph 21 of the agreed List of Issues. The adjustment to remove all manual handling from - 59 - the substantive HCA role was not reasonable in the circumstances. In any event, and insofar as this step is said to arise from a substantial disadvantage, the evidence does not show that there was sufficient work of that kind to constitute a viable role if all manual handling were removed. The respondent made lesser adjustments, including avoidance of heavier manual handling and provision of lighter duties where possible, and then moved to redeployment to identify roles whose core functions the claimant could perform safely.[285]In assessing the reasonableness of the proposed step, I have considered all the circumstances, including the extent to which it would have alleviated any disadvantage to the claimant, the practicability of the step, and its impact on the respondent’s ability to maintain safe and effective service delivery. Having regard to operational feasibility, patient safety and the need to maintain essential functions of the role and weighing those matters against the needs of the claimant, I find it was not reasonable to remove all manual handling permanently. This complaint is not upheld. Paragraph 21b[286]The proposed adjustment to reduce contractual hours was not pursued by the claimant, and no submissions were made in support of it. In any event, and if it had been pursued, the adjustment was not requested by the claimant, who made it clear that she did not wish to reduce her hours. Nor was there evidence that a reduction in hours was necessary to avoid or alleviate any substantial disadvantage of which the respondent knew or ought reasonably to have known at the material times. The respondent did adjust the claimant’s working arrangements in line with Occupational Health advice, including ceasing night-shift working and addressing short shift sequencing where practicable. In those circumstances, I am not satisfied that this was a reasonable step which the respondent was required to take, nor that there was any failure to take reasonable steps. This complaint is Paragraph 21c[287]The proposed adjustment to work day shifts only was not pursued by the claimant, and no submissions were made in support of it. In any event, and if it had been pursued, the adjustment was implemented following Occupational Health advice and night working ceased. In those circumstances, the respondent took the step identified and there was no failure to make a reasonable adjustment. This complaint is not upheld. Paragraph 21d[288]The adjustment relied upon is allowing the claimant’s brother to attend meetings with her. I am not satisfied on the evidence that such a request was refused at the material stages of the process. I have considered the meetings relied upon by the claimant in paragraphs 21 and 34 of the ET1 in this regard. The documentary record shows that arrangements varied - 60 - depending on the stage of the process, and the claimant’s brother attended the appeal hearing. The claimant expressed no concerns at the material time relating to the adequacy or the limitations of the support provided. In those circumstances, I do not find that there was any failure to take a reasonable step that was requested and refused.[289]In any event, and if it had been required to consider the matter more broadly, I am not satisfied that it was reasonable to require the respondent to permit attendance of a family member at all meetings as a reasonable adjustment. In reaching that conclusion, I have considered all the circumstances, including the extent to which the proposed step would have alleviated any substantial disadvantage, the support already available to the claimant through trade union accompaniment and procedural adjustments, and the practical operation of the respondent’s processes. Weighing those matters together, I am satisfied that the support in place was sufficient and that it was not reasonable to require the respondent to propose or implement this adjustment of its own initiative. This complaint is not upheld. Paragraph 21e[290]The adjustment relied upon is allowing a family member to attend meetings in order to explain matters clearly to the claimant. I have considered the meetings relied upon by the claimant in paragraphs 21 and 34 of the ET1 in this regard. I am not satisfied on the evidence that such an adjustment was requested and refused at the material time. The claimant had the benefit of trade union accompaniment, structured breaks, additional time to read and consider documents, and written outcome letters explaining decisions and next steps. Where clarification was required, it could be and was sought between meetings. In those circumstances, I do not find that there was any failure to take a reasonable step that was requested and refused.[291]In any event, and if it had been required to consider the matter more broadly, I am not satisfied that it was reasonable to require the respondent to permit a family member to attend meetings for the purpose of explaining matters as a reasonable adjustment. In reaching that conclusion, I have considered all the circumstances, including the extent to which the proposed step would have alleviated any substantial disadvantage, the support already available to the claimant, and the practical operation of the respondent’s processes. Weighing those matters together, I am satisfied that the respondent took reasonable steps to explain matters to the claimant and that it was not reasonable to require it to propose or implement this additional adjustment of its own initiative. This complaint is not upheld. Paragraph 21f[292]The adjustment relied upon is that the claimant should have continued working in the John Ray Ward between 2019 and 2022. I am not satisfied that this step was required to avoid any substantial disadvantage arising from a PCP identified above. In particular, the claimant’s inability to carry out core elements of the Healthcare Assistant role, including manual - 61 - handling, meant that the substantive role could not be performed safely or effectively whilst preserving its essential functions. The claimant had worked on the John Ray ward for a substantial period with adjustments, but that arrangement was not operationally sustainable.[293]In those circumstances, I do not find that there was any failure to take a reasonable step that was required to avoid a substantial disadvantage.[294]In any event, and if it had been required to consider the matter more broadly, I am not satisfied that it was reasonable to require the respondent to continue the claimant in the John Ray Ward on the basis of modified or bespoke duties over a prolonged period. In reaching that conclusion, I have considered all the circumstances, including the extent to which the proposed step would have alleviated any disadvantage, the claimant’s needs, the practicability of maintaining such an arrangement, the impact on service delivery and patient safety, and the need to preserve the essential functions of the role. Weighing those matters together, I am satisfied that redeployment, including supported trial placements, was a reasonable and proportionate course which the respondent pursued. This complaint is not upheld.[295]In assessing overall compliance with the section 20 duty, I have weighed the extent of the claimant’s substantial disadvantages as identified above against the practicability, effectiveness and cost of the proposed steps, together with the impact on patient safety and colleagues and the availability of alternative roles. The respondent took a structured approach to managing the claimant’s circumstances, including making procedural adjustments (for example, additional time to process information and clear written records) and considering changes to work and hours. Where steps were not taken, it was because they would have removed essential functions, created unacceptable risks, or were not necessary at the material times on the evidence available. In that context, I am satisfied that the respondent complied with its duties under sections 20 and 21 of the EqA. These complaints are not upheld. Time limits – s 20-21 EqA[296]In terms of time limits and sections 20–21, I have applied section 123 of the EqA. Pursuant to section 123(3), I am not satisfied that there was conduct extending over a period so as to bring earlier matters within time. In relation to alleged failures to make reasonable adjustments, any such failure is to be treated as occurring when the respondent is taken to have decided not to take the step in question.[297]By reference to section 123(4), I am not satisfied that there was any act by the respondent which was inconsistent with making a reasonable adjustment so as to evidence that decision, nor that there was any identifiable point at which the respondent can be taken to have decided not to act by the expiry of a period in which it might reasonably have been expected to do so. On the facts of this case, the respondent did not reach a - 62 - settled position refusing any relevant reasonable adjustment step at an earlier stage but continued to consider and implement adjustments through the redeployment process that ultimately led to the claimant’s dismissal.[298]There is no good or satisfactory reason to extend time. Having weighed the balance of prejudice to the claimant and to the respondent, I decline to exercise the just and equitable discretion. Alleged failures before 8 August 2022 are dismissed as out of time.[299]Insofar as it is contended that any failure to make a reasonable adjustment continued, I am not satisfied that there was any actionable failure subsisting within the limitation period. In any event, and in the alternative, the reasonable adjustments complaints fail on their merits for the reasons given above. Equality Act: Harassment (Section 26)[300]I have considered each pleaded act of harassment separately at paragraphs 23a to 23t of the agreed List of Issues. For each, I set out my findings as to whether the alleged conduct occurred, and if so whether it amounted to unwanted conduct related to disability and, further, whether it had the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.a. A. Redeployment was initiated and continued between 27 June 2019 and 11 August 2022. That conduct occurred. I accept that the initiation and continuation of the redeployment process arose in the context of the claimant’s health and therefore was related to disability within the meaning of section 26. However, the redeployment process was managerial and operational in nature, pursued for legitimate service reasons and, on the findings of fact, was structured and supported. It did not have the purpose of violating the claimant’s offensive environment. Nor, assessed subjectively and taking into account all the circumstances and the requirement of objective reasonableness, did it have that effect. Whilst the claimant may have experienced the process as stressful or unwanted, that does not of itself meet the statutory threshold for harassment. This complaint isb. B. The claimant alleges that during the redeployment process she was not provided with appropriate support in relation to interviews and trial periods, including a lack of preparation support, insufficient time to complete tasks, inadequate explanation of the process, and not being permitted to bring a family member to assist her understanding. I do not accept these allegations as pleaded. On the findings of fact, the respondent did provide support during the redeployment process and trial periods, including managerial oversight, Occupational Health involvement, and adjustments directed to the claimant’s needs. The evidence does not establish that the claimant was denied - 63 - support for interviews or that she was systematically refused additional time during trial placements. Nor do I accept that the process was not explained; rather, information was conveyed through meetings, written correspondence and ongoing engagement. As to accompaniment, I have addressed that issue separately in relation to paragraph 21(d) of the agreed List of Issues (above) and found that arrangements were applied flexibly and did not prevent a family member from attending meetings. In those circumstances, I am not satisfied that the respondent subjected the claimant to the conduct alleged. To the extent that any of the matters relied upon did occur in a more limited way, they do not amount to 26. In any event and taking the claimant’s perception into account reasonableness, I am satisfied that the respondent’s conduct did not have the purpose or effect of violating the claimant’s dignity orc. C. Between 27 June 2019 and 11 August 2022 it is alleged that the respondent ignored recommendations made by Occupational Health to ensure that the claimant worked short shifts, did not carry out manual handling or night shifts, continued in her role with reasonable adjustments, was allowed more time to complete tasks, and was permitted to apply for the ward clerk role. I do not accept that Occupational Health recommendations were ignored. The evidence shows that Occupational Health advice was repeatedly obtained, considered and, where practicable, implemented, including cessation of night shifts, adjustments to duties including lighter tasks where this was practicable in the operational context, additional time allowances and structured redeployment. Where recommendations were not implemented in full, this was for operational reasons explained in the evidence and related to the essential requirements of the roles concerned. On the facts as I have found them, this does not amount to unwanted conduct related to disability, nor did it have the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment when assessed subjectively and objectively. Even where the claimant may have experienced frustration or distress, that falls short of the statutory threshold for harassment under section 26. This D(i) In April 2019 Occupational Health advised that the claimant should not work more than three consecutive days. It is alleged that this adjustment was not made and that the claimant continued to be expected to work five consecutive days throughout her employment. I do not accept that this occurred in the manner alleged. The evidence does not establish that the recommendation was ignored in the wholesale or continuous way contended for by the claimant. Rather, as I have found elsewhere, Occupational Health advice was - 64 - considered and acted upon within the operational context of the ward. In those circumstances, I am not satisfied that the respondent ignored the Occupational Health recommendation as alleged. I am not satisfied that this amounted to unwanted conduct related to the respondent’s conduct did not have the purpose or effect of D(ii) On 21 October 2019 Occupational Health noted that the claimant was experiencing difficulty participating in the redeployment process due to her learning difficulties. It is alleged that no help was provided to enable her to participate effectively. I do not accept that this occurred in the manner alleged. The evidence shows that the respondent continued to engage with the claimant, including through meetings, written communication and ongoing managerial support, and that steps were taken to assist her participation in the redeployment process. I do not accept that no help was provided. In those circumstances, I am not satisfied that the respondent subjected the claimant to the conduct alleged. To the extent that the claimant considers that the support provided was insufficient, I am not satisfied that this amounts to unwanted conduct related to disability D(iii) On 2 November 2020 and 17 May 2021 Occupational Health identified the claimant as potentially suitable for a Ward Clerk role. It is alleged that this was ignored by the respondent in January 2021. I do not accept that this occurred in the manner alleged. The evidence shows that the possibility of a Ward Clerk role was considered within the redeployment process. The fact that the claimant was not appointed to that role reflects the outcome of that process, including considerations of banding and role requirements, rather than a failure to consider or a disregard of Occupational Health advice. In those Occupational Health recommendation as alleged. The decision relating to that role did not amount to unwanted conduct related to the respondent’s conduct did not have the purpose or effect of - 65 - D(iv) From May 2021 Occupational Health provided advice regarding the claimant’s ability to work with adjustments. It is alleged that this advice was ignored by the respondent. I do not accept that this occurred in the manner alleged. The evidence shows that Occupational Health advice was considered and that adjustments were implemented where practicable. The fact that the claimant did not return to or continue in her substantive role reflects the operational requirements of the role and the limitations identified, rather than any disregard of Occupational Health advice. In those Occupational Health responses as alleged. I am not satisfied that this D(v) Around 24 January 2022 it is alleged that the claimant was required to carry out manual handling contrary to Occupational Health recommendations because no other member of staff was available. I have considered the claimant’s witness evidence together with the respondent’s evidence. I am not satisfied on the balance of probabilities that this incident occurred in the manner alleged. The evidence does not establish that the claimant was required to undertake manual handling in breach of Occupational Health recommendations, and there is no contemporaneous record supporting the allegation. In those circumstances, I am not satisfied that the respondent subjected the claimant to the conduct alleged. In any event, even if an isolated incident of that kind had occurred, it would not, on the facts of this case, amount to unwanted conduct related to disability within the meaning of section 26. Further, taking into account the claimant’s perception together with all the D(vi) On 13 April 2022 Occupational Health provided further advice regarding the claimant’s capability to work with adjustments. It is alleged that this advice was ignored by the respondent. I do not accept that this occurred in the manner alleged. The evidence shows that Occupational Health advice was considered as part of the ongoing management of the claimant’s role. The fact that the claimant did not return to or continue in her substantive role reflects - 66 - the operational requirements of that role and the limitations identified, rather than any disregard of Occupational Health advice. In those advice as alleged. I am not satisfied that this amounted to unwanted conduct related to disability within the meaning of section 26. In any event, taking into account the claimant’s perception together with all the circumstances and the requirement of objective reasonableness, I am satisfied that the respondent’s conduct did not have the purpose D(vii) On 11 August 2022 it is alleged that Jo Smith disregarded Occupational Health advice when deciding to dismiss the claimant. I do not accept that this occurred in the manner alleged. The evidence shows that Occupational Health material was available and was taken into account as part of the capability process. The decision to dismiss was taken on capability grounds having regard to the claimant’s role requirements and the evidence as a whole. In those circumstances, I am not satisfied that the respondent disregarded Occupational Health advice as alleged. I am not satisfied that this E. On 27 June 2019 it is alleged that Alex Johnson and Rebecca Berry refused to allow the claimant to bring a family member with her to the meeting. I am not satisfied on the evidence that such a request was made and refused at that time. The documentary and witness evidence does not establish that the respondent refused a request of that kind. I also note that a family member attended a later appeal hearing. In those circumstances, I am not satisfied that the respondent subjected the claimant to the conduct alleged. I am not satisfied that there was any unwanted conduct related to disability F. In or around September 2019 it is alleged that the claimant was expected to carry out the administration assistant role without support, was not given sufficient time to complete tasks, and was left unsupervised to run the clinic. I do not accept that this occurred in the manner alleged. The evidence shows that support, supervision - 67 - and adjustments were provided during this period, including oversight by managers and allowances for the claimant’s needs. While the claimant may have experienced the work as demanding, I am not satisfied that she was left without support or required to perform the role in the way alleged. In those circumstances, I am not satisfied that the respondent subjected the claimant to the conduct alleged. I am not satisfied that this amounted to unwanted conduct G. In December 2019 it is alleged that senior management failed or refused to provide support to the claimant in her role within Surgical Appliances, including by not allowing sufficient time to complete tasks and by failing to adjust for difficulties with multi-tasking. I do not accept that this occurred in the manner alleged. The evidence shows that the claimant was supported during this period, including through managerial oversight, adjustments to duties and allowances directed to her needs. Whilst the role was demanding and required the performance of multiple tasks, I am not satisfied that the claimant was left without support or that no adjustments were made in response to her difficulties. In those circumstances, I am not satisfied that the respondent subjected the claimant to the conduct alleged. To the extent that the claimant experienced the working environment as difficult or pressurised, I am not satisfied that this amounted to 26. In any event, taking into account the claimant’s perception reasonableness, I am satisfied that the respondent’s conduct did not have the purpose or effect of violating the claimant’s dignity or H. On 17 December 2019 it is alleged that Cheryl Snell made comments about the claimant’s personal hygiene and the time taken to complete tasks. The documentary evidence shows that comments of this nature appeared in email correspondence. However, those emails were not seen by the claimant at the material time. In person, the discussions with the claimant were conducted in measured terms, and I accept the claimant’s own evidence that they were expressed in a “kind” manner and accompanied by appropriate support. I have considered whether this conduct had the purpose or effect of degrading, humiliating or offensive environment, assessed subjectively and with objective reasonableness. Having regard to the - 68 - totality of the evidence, I am not satisfied that the statutory threshold for harassment is met. This complaint is not upheld. I. On or around 3 April 2020 it is alleged that the respondent failed to provide the claimant and/or her colleagues with adequate guidance about her role in the John Ray Ward, including how to manage situations involving manual handling, and that there was a lack of clarity as to her duties and responsibilities. I do not accept that this occurred in the manner alleged. The evidence shows that guidance and direction were provided in relation to the claimant’s role, including through managerial instruction and ongoing supervision. I am not satisfied that the claimant was left without guidance or clarity in the way alleged. Nor does the evidence establish that there was a lack of clarity within the team of the kind contended for by the claimant. In those circumstances, I am not satisfied that the respondent subjected the claimant to the conduct alleged. I am not satisfied that this amounted to unwanted conduct related to disability J. In December 2020 it is alleged that the claimant’s outpatient department role was transferred to another member of staff without consultation. The claimant made no submissions in support of this allegation and I treat it as not pursued. In any event, I am satisfied that the reallocation took place as an operational measure (see paragraphs 48 and 49 above) while the claimant was absent due to a short-term illness unrelated to her disability. In those circumstances, I am not satisfied that this amounted to unwanted conduct related to disability within the meaning of section 26. In any event, taking into account the claimant’s perception together with all the circumstances and the requirement of objective reasonableness, I am satisfied that the respondent’s conduct did not have the purpose K. In January 2021 it is alleged that Alex Johnson and Rebecca Ghuske did not inform the claimant of the Ward Clerk role, despite her carrying out duties on an acting basis. I am not satisfied on the evidence that this allegation is made out. The evidence shows that the Ward Clerk role was advertised through the respondent’s usual processes and was visible to the claimant, who became aware of it and discussed it with management. In those circumstances, I am not satisfied that the respondent failed to inform the claimant of the role in the manner alleged. In those circumstances, I am not satisfied that the respondent subjected the claimant to the conduct alleged. In any - 69 - event, even if there had been a failure to inform the claimant of a particular role, I am not satisfied that this would amount to unwanted conduct related to disability within the meaning of section 26. Further, L. In or around January 2021 it is alleged that the claimant was informed by Alex Johnson and Rebecca Ghuske that she was unsuitable for the Ward Clerk role without proper consideration or the opportunity to undertake a trial. I am not satisfied that this occurred in the manner alleged. The evidence shows that the Ward Clerk role and the claimant’s potential suitability for it were considered within the redeployment process, including in discussion with the claimant and her representative. Concerns were identified in relation to the requirements of the role, including its duties and banding, and those matters were taken into account. In those circumstances, I am not satisfied that the claimant was assessed as unsuitable without proper consideration. Nor does the evidence establish that the respondent failed to provide an opportunity of the kind alleged. I am not satisfied that the respondent subjected the claimant to unwanted conduct M. Around February 2021 it is alleged that the claimant was asked by Alex Johnson and Rebecca Ghuske to train the Ward Clerk. I accept that the claimant assisted a newly appointed Ward Clerk by demonstrating routine processes and aspects of the role on the ward. I do not accept that she was required to undertake a formal training role in the manner alleged. In those circumstances, I am not satisfied that the respondent subjected the claimant to the conduct alleged. I am not satisfied that this amounted to unwanted conduct related to the respondent’s conduct did not have the purpose or effect of N. On 9 September 2021 it is alleged that the claimant raised the possibility of applying for ill-health retirement and was dissuaded - 70 - from doing so by Rebecca Ghuske. I do not accept that this occurred in the manner alleged. The evidence shows that the possibility of ill-health retirement was discussed with the claimant, including the need for appropriate medical evidence and involvement of Occupational Health. The claimant did not pursue an application. In those circumstances, I am not satisfied that the respondent discouraged the claimant from applying for ill-health retirement in the way alleged. I am not satisfied that the respondent subjected the claimant to the conduct alleged. I am not satisfied that this amounted to unwanted conduct related to disability within the meaning of section 26. In any event, taking into account the claimant’s perception together with all the circumstances and the requirement of objective reasonableness, I am satisfied that the respondent’s conduct did not have the purpose or effect of violating the claimant’s O. On 11 August 2022 it is alleged that Rebecca Ghuske prepared a management statement of case supporting the decision to dismiss the claimant. I am satisfied that a management statement of case was prepared as part of the respondent’s internal capability process. That was a procedural step within that process. In those circumstances, I am not satisfied that the preparation of the management statement of case amounted to unwanted conduct am satisfied that this did not have the purpose or effect of violating humiliating or offensive environment. Although the claimant may have found the dismissal process distressing, the statutory threshold for harassment is not met. This complaint is not upheld. P. On 11 August 2022 it is alleged that Rebecca Ghuske and Jo Smith dismissed the claimant. It is not in dispute that the claimant was dismissed. I am satisfied that the dismissal formed part of the respondent’s capability process and was taken on capability grounds. In those circumstances, I am not satisfied that the dismissal dismissal did not have the purpose or effect of violating the claimant’s Q. On 17 August 2022 it is alleged that the claimant was informed that she would not work her notice period. I am satisfied that the claimant was informed that she would not be required to work her notice period (see paragraphs 59 and 60 above). That communication formed part - 71 - of the respondent’s management of the termination of the claimant’s employment. In those circumstances, I am not satisfied that this requirement of objective reasonableness, I am satisfied that this did not have the purpose or effect of violating the claimant’s dignity or R. On 14 September 2022 it is alleged that Tracy Cline contacted the claimant directly regarding her appeal. I am satisfied that contact was made. The evidence shows that this formed part of the respondent’s handling of the appeal process, including communication regarding representation and procedural matters. In those circumstances, I am not satisfied that this amounted to unwanted conduct related to this did not have the purpose or effect of violating the claimant’s S. On or shortly before 16 January 2023 it is alleged that, during an Occupational Health assessment, the claimant was asked about her current role and that the assessor was not aware at the time that the claimant had been dismissed. I am satisfied that the claimant was asked about her current role during the assessment and that the assessor was not aware at that time that the claimant had been dismissed. As a result, the claimant had to explain that she was no longer employed. I accept that the claimant may have found that situation upsetting or embarrassing. In those circumstances, I am not satisfied that this amounted to unwanted conduct related to disability requirement of objective reasonableness, I am satisfied that this did not have the purpose or effect of violating the claimant’s dignity or T. It is alleged that the appeal process took approximately seven months to conclude. I am satisfied that the appeal process took approximately seven months. The reasons for that period are explained in the evidence and in my earlier findings. In those circumstances, I am not satisfied that the delay amounted to 26. In any event, taking into account the claimant’s perception reasonableness, I am satisfied that the duration of the appeal process did not have the purpose or effect of violating the claimant’s - 72 - Time Limits – s 26 EqA[301]Relating to time limits and section 26, I have applied section 123 of the EqA and considered the concept of a continuing act. I am not satisfied that there is any proper basis upon which to extend time. I have weighed the balance of prejudice to the claimant and to the respondent and, having considered the explanations advanced and the availability of in-time complaints, I decline to exercise my discretion to extend time on a just and equitable basis. All alleged acts of harassment occurring before 8 August 2022 are out of time, including paragraphs 23 d(i) to (vi) (including d(iv), which is pleaded as arising from May 2021 but which, on the findings of fact, did not extend to 8 August 2022 or beyond that date), E, F, G, H, I, J, K, L, M, and N. To the extent that any allegations at paragraphs 23 A, B and C are said to extend to 8 August 2022 or beyond that date, I have considered them on their merits and, for the reasons given above, they fail.[302]Insofar as a continuing act is alleged, I am not satisfied that there was any continuing course of conduct which was both in-time and actionable on the facts of this case. The in-time allegations (including para 23 d(vii) and O to T) fail on their merits for the reasons set out above. In the alternative, and insofar as it is necessary to do so, the out-of-time allegations would also fail on their merits. Discrimination Arising from Disability (Section 15 EqA) Knowledge[303]I adopt my findings on knowledge at paragraph 263 above. I am satisfied that the respondent had knowledge that the claimant had a disability, in terms of osteoarthritis, at the material time. Unfavourable treatment[304]It is not in dispute that the claimant was dismissed on 11 August 2022 on capability grounds. I am satisfied that dismissal constitutes unfavourable treatment for the purposes of section 15 of the EqA. Something arising[305]The claimant relies on potential frequent absences and an inability to carry out manual handling as the “something” arising in consequence of her disability. I am satisfied that the claimant’s inability to carry out manual handling, and her reduced capacity to perform the full duties of a Healthcare Assistant, arose in consequence of her osteoarthritis, as reflected in the Occupational Health evidence. To the extent that reliance is placed on “potential frequent absences”, I treat this as referring to the claimant’s - 73 - functional limitations and any consequent absence arising from her condition, rather than as a finding of a distinct pattern of frequent absence. Any such absence, where it occurred, arose in consequence of the claimant’s disability. Something arising in consequence of disability[306]I have considered whether the dismissal was because of an identified “something” arising in consequence of the claimant’s disability and, if so, whether it was justified. The claimant relies on potential frequent absences and an inability to carry out manual handling. I am not satisfied that there was any causative link between potential frequent absences and the decision to dismiss. I am satisfied that the claimant’s inability to carry out manual handling, and her resulting limitations in performing the full duties of a Healthcare Assistant, did arise in consequence of her osteoarthritis, as reflected in the Occupational Health evidence. However, I am not satisfied that the dismissal was because of that pleaded “something” arising in consequence of the claimant’s disability within the meaning of section 15(1)(a) of the EqA. On the findings of fact, the dismissal followed an extended redeployment process and was based on the claimant’s overall inability to meet the essential requirements of available roles, notwithstanding adjustments. If I am wrong about that, I go on to consider justification under section 15(1)(b). Legitimate aims[307]The respondent relied on the aims of providing a safe and effective service to patients, ensuring that staff were able to perform their roles safely and competently, and ensuring the appropriate use of public funding. I am satisfied on the evidence that these were the respondent’s aims in taking the decision to dismiss, including in light of the Occupational Health material and the approach taken to redeployment. I am further satisfied that those aims are legitimate. I proceed below to consider whether dismissal was a proportionate means of achieving them. Proportionate means[308]Before deciding to dismiss, the respondent took extensive steps over a significant period. These included repeated Occupational Health referrals, removal of night working, avoidance of heavier manual handling, provision of lighter duties, and a prolonged redeployment exercise with supported trial periods in alternative roles. Support provided during that process included additional time for tasks, practical aids such as colour overlays and alphabet prompts, structured supervision, and opportunities to practise routine workflows. Despite those measures, the claimant was unable to sustain the essential requirements of the alternative roles.[309]I have considered less discriminatory alternatives, including continuing redeployment searches beyond August 2022, permanent redesign of the Healthcare Assistant role to remove core functions, transfer to a higher - 74 - band ward clerk role despite not meeting essential criteria, extended sickness absence or a career break, and ill health retirement.[310]On the evidence, I am not satisfied that further redeployment was likely to identify a role the claimant could safely and effectively perform. Redesigning the substantive role would have removed essential functions. Transfer to the ward clerk role would have required substantial training and would have displaced recruitment priorities. Extended absence would not have addressed the underlying inability to perform essential duties. Ill health retirement was discussed but was not pursued by the claimant.[311]Weighing the impact of dismissal on the claimant against the importance of the respondent’s aims, and having regard to the steps taken prior to dismissal, I am satisfied that a fair balance was struck and that dismissal was a measure of last resort.[312]Accordingly, even if the dismissal had amounted to unfavourable treatment because of something arising in consequence of disability, the respondent has shown that the treatment was a proportionate means of achieving legitimate aims. This complaint is not upheld.[313]I have considered the submissions of both parties, including the claimant’s reliance on Pnaiser v NHS England and O’Brien v Bolton St Catherine’s Academy, and the respondent’s submissions on causation and justification. Those submissions have been taken into account in my reasoning above but do not alter my findings or lead me to a different conclusion. Time limits – s 15 EqA[314]I have applied section 123 of the EqA. The section 15 complaint relates to the dismissal on 11 August 2022 and was presented in time. There is therefore no issue as to extension of time. For the reasons given above, the complaint fails on its merits. Employment Rights Act 1996: unfair dismissal Potentially fair reason to dismiss the claimant[315]The Tribunal must determine whether the respondent has shown a potentially fair reason for dismissal under section 98(1)–(2) of the ERA and, if so, whether the dismissal was fair or unfair within the meaning of section 98(4) of the ERA.[316]I find that the respondent has shown a potentially fair reason for dismissal, namely capability. I accept the dismissal officer’s evidence as to the reason for dismissal and find that her reason in her mind was the claimant’s inability to perform the essential duties of her substantive role, notwithstanding extensive efforts made over a prolonged period to support her, including adjustments and redeployment trials. That conclusion is consistent with the - 75 - respondent’s stated reason and the contemporaneous documentation. The respondent therefore satisfies section 98(2) of the ERA. Fairness within the meaning of s98(4) of the ERA[317]I turn to section 98(4) of the ERA. The claimant’s representative advanced four grounds of alleged procedural unfairness, each of which I address. Paragraph 30a[318]The first ground concerns the claimant not being allowed to bring a family member to meetings. The evidence does not support the assertion that the respondent refused such a request. There is no evidence that the claimant sought permission to be accompanied by a family member at earlier meetings and was refused. In contrast, a family member attended the appeal hearing. There was no contractual, statutory or procedural requirement on the respondent to propose such accompaniment. I am satisfied that the respondent’s approach fell within the range of reasonable responses.[319]The claimant was represented by her trade union representative (including Dee Hannis, Unison Representative at the capability hearing on 11 August 2022, who had been supporting the claimant during the redeployment process from around November 2019) and did not suggest at the time that such representation was inadequate. I have considered paragraph 6 of the claimant’s brother’s statement, but it does not establish that he would have provided any material assistance at the meetings. In any event, even if there had been a procedural omission, which I do not accept, I am satisfied that this would not, of itself, have rendered the dismissal unfair within the meaning of section 98(4). Paragraph 30b[320]The second ground relates to an asserted failure to provide suitable reasonable adjustments during the process, as pleaded in paragraphs 20– 25, 31, 32 and 35 of the Particulars of Claim. I find that suitable adjustments were in fact provided during the capability and redeployment process leading up to dismissal. I accept the respondent’s evidence about the adjustments put in place, which are supported by contemporaneous records. These included removal of night shifts, avoidance of heavy manual handling where practicable, allocation of lighter or modified duties where practicable, structured breaks, provision of additional time to read and process documents at meetings, clearly signposted outcome letters, and practical aids such as coloured overlays and alphabet prompts. Supervision was provided in trial roles, and tasks were broken down and practised.[321]The claimant has not identified any further reasonable adjustments which ought reasonably to have been made at that stage. Accordingly, this ground does not render the dismissal unfair within the meaning of section 98(4), the fairness of the appeal stage being considered separately below. - 76 - Paragraph 30c[322]The third ground alleges that the decision to dismiss was prejudged. The claimant made no submissions in support of this allegation, and I treat it as not pursued. In any event, I am satisfied on the evidence that the respondent carried out genuine and sustained attempts to explore alternatives to dismissal, including redeployment, over a significant period, and there is nothing in the documentation or oral evidence to suggest that the decision to dismiss was prejudged. This ground does not establish unfairness. Paragraph 30d[323]The fourth ground concerns alternatives to dismissal. The claimant suggested continued employment in her substantive role with adjustments, or employment as a ward clerk. I am satisfied on the evidence that alternatives to dismissal were considered and explored. The claimant was offered opportunities to apply for roles and to undertake work trials during the redeployment process, none of which proved to be suitable.[324]In relation to the ward clerk role, I accept the evidence of Ms Ghuske that this was a band 3 role, one grade above the claimant, and that she did not meet the essential criteria. It was not unreasonable for the respondent to decline to appoint or retrain the claimant into that role in those circumstances. The respondent was entitled to have regard to the implications for service delivery.[325]As to continued employment in her substantive role, I am satisfied that the adjustments required would have removed essential core functions of that role. The claimant herself indicated uncertainty about her ability to perform the role and identified that there was insufficient work she could safely undertake.[326]In all the circumstances and having regard to the respondent’s obligations in respect of patient and staff safety and the appropriate use of public resources, I am satisfied that the respondent’s approach to alternatives prior to dismissal fell within the range of reasonable responses. This ground does not establish unfairness. The fairness of the appeal stage, including the consideration of further alternatives at that stage, is addressed separately Fairness under s 98(4) ERA generally[327]I have also considered the fairness of the procedure as a whole. Taking account of my findings on the individual grounds raised by the claimant, I am satisfied that the claimant’s contentions concerning accompaniment by a family member, bringing forward the dismissal date due to insurance considerations (as referred to in the evidence), and the delay in the appeal do not, of themselves, render the decision to dismiss unfair. - 77 -[328]The claimant stated in her witness evidence that she did not accept a Healthcare Assistant role during the redeployment process. Ms Ghuske’s evidence was that the claimant disengaged at a point when a potential role was being discussed. These matters were relevant background context, but they did not absolve the respondent of its obligation to act fairly.[329]After dismissal, and following the lodging of the appeal, the respondent offered further roles and an additional Occupational Health functional assessment, as explained in paragraph 26 of Ms Wren’s statement. However, the appeal outcome letter issued at the same time confirmed that the appeal was not upheld and invited the claimant to indicate whether she wished to pursue those further steps. The claimant, through her solicitor, declined that offer, and the respondent confirmed its position.[330]I find that the appeal handling was procedurally unfair within the meaning of section 98(4) of the ERA. A fair procedure required the respondent to pause the appeal outcome for a reasonable period, and not to confirm dismissal before the claimant had a reasonable opportunity to consider the further roles proposed and to attend the additional Occupational Health assessment. I am satisfied that the approach taken to the appeal stage fell outside the range of reasonable responses.[331]Standing back and bearing in mind the respondent’s size and administrative resources, I find that there was a small but not negligible chance that, had the appeal been conducted fairly, the dismissal of the claimant, a long-serving employee, might have been avoided.[332]I therefore find that the claimant’s dismissal was unfair within the meaning of section 98(4) of the ERA. Time limits – Unfair dismissal[333]The respondent accepts that the unfair dismissal complaint was presented in time. I am satisfied that the complaint was brought within the applicable time limit. There is therefore no issue as to time limits. Remedy (Unfair dismissal)[334]Before proceeding to determine remedy, I indicated my provisional views to the parties, after having delivered the Tribunal’s oral judgment on liability to the parties and their representatives. I emphasised that these views were provisional only and were not intended to fetter the Tribunal’s discretion. In summary, I indicated provisionally that:(i) reinstatement or re-engagement was unlikely to be appropriate;(ii) a substantial Polkey reduction was likely, potentially in the region of 80–90 per cent;(iii) the burden of proof in relation to mitigation lay on the respondent; and(iv) any compensatory award would be limited to the statutory maximum period. - 78 -[335]In light of those provisional views, I directed that the parties be given a short opportunity to address me further on remedy only. I directed that submissions be confined to the following issues:(a) reinstatement or re-engagement, including whether either would be practicable;(b) the appropriate Polkey deduction;(c) mitigation, including job-search efforts and any post-dismissal earnings; and(d) the appropriate period of compensable loss and any statutory deductions. I directed that no new evidence would be admitted without permission. I heard first from the claimant, followed by the respondent.[336]In response to those directions, the claimant’s representative submitted that reinstatement was impracticable, but emphasised the claimant’s length of service, the procedural unfairness at appeal stage, and the impact of dismissal upon her. She submitted that any Polkey reduction should be modest and that she had acted reasonably in seeking to mitigate her loss. The respondent’s representative submitted that dismissal would inevitably have occurred in any event, relied upon the claimant’s inability to perform the substantive role despite extensive adjustments and redeployment attempts, and submitted that a substantial Polkey reduction was appropriate. The respondent’s representative further submitted that there had been an unreasonable failure to mitigate, and that any compensatory award should be limited in duration.[337]Having heard those submissions, I now turn to determine remedy. Statutory framework[338]I turn to the question of remedy under sections 112–124 of the ERA. Reinstatement and re-engagement[339]The claimant does not seek reinstatement or re-engagement, and I am not invited to make an order under sections 113–116 of the ERA. In any event, having regard to my findings on liability, including the nature of the capability concerns, I am satisfied that neither reinstatement nor re-engagement would be practicable. I therefore make no such order. Basic Award[340]The basic award is agreed. I award a basic award in the sum of £8,009.54. I am satisfied that there is no basis for any reduction to the basic award, and no such argument was advanced by the respondent. Compensatory award and Polkey[341]I turn to the compensatory award under section 123 of the ERA. I find that a substantial Polkey deduction must be made.[342]I remind myself that it is for the respondent to establish what would have happened had a fair procedure been followed. The exercise is necessarily - 79 - evaluative and does not require certainty. The question is whether, and with what likelihood, the claimant would have been dismissed in any event.[343]I have found that the dismissal was unfair solely by reason of procedural unfairness at the appeal stage. I have otherwise found that the respondent had a potentially fair reason for dismissal, namely capability, and that the dismissal decision prior to appeal fell within the range of reasonable responses.[344]The factual context leading to dismissal is highly material. The claimant was unable to perform the essential duties of her substantive role despite extensive support over a prolonged period. Adjustments were wide-ranging and included repeated Occupational Health referrals, substantial modification of duties and working patterns, practical aids, enhanced supervision, and a lengthy redeployment process with supported trials in alternative roles. None of those arrangements proved sustainable.[345]The claimant accepted in evidence that she did not take up an HCA role during redeployment. I accepted Ms Ghuske’s evidence that, at a point when a potential opportunity was being explored, the claimant did not pursue that option. The claimant’s limited engagement with redeployment opportunities materially increases the likelihood that dismissal would ultimately have occurred whether or not the appeal process had been handled fairly.[346]I also take into account, for Polkey purposes, the claimant’s overall level of engagement with the redeployment process. The evidence showed that, over an extended period during which multiple potentially suitable vacancies were discussed, the claimant applied for only a limited number of roles. Some vacancies were not pursued by the claimant because of concerns about confidence, hours, location, perceived stress, or IT demands. While I make no adverse moral judgment about those decisions, they are relevant to the counterfactual assessment. They indicate that, even within a procedurally fair framework, the practical scope for successful redeployment was limited. They materially reduce the likelihood that a different procedural path would have resulted in successful redeployment.[347]Further, the respondent did not simply identify theoretical alternatives. It facilitated supported work trials in a range of alternative roles, with adjustments and extensions. None of those trials resulted in a sustainable role for the claimant. In assessing the Polkey counterfactual, I take into account not merely the availability of potential alternatives but also their demonstrated viability in practice, both in the claimant’s substantive role with adjustments and in the supported work trials undertaken during the redeployment process. The repeated inability of different arrangements to resolve the underlying difficulties strongly indicates that the outcome would not have been materially different even had the appeal process been conducted fairly. - 80 -[348]The Occupational Health evidence throughout the period leading to dismissal was broadly consistent. It recorded ongoing functional limitations, an inability to return to full Healthcare Assistant duties, and an uncertain or guarded prognosis. There was no clear medical indication that further time or further procedural steps were likely to alter the claimant’s capacity to undertake either her substantive role or any similar role or vacancy on a sustained basis. That medical context weighs heavily in favour of a finding that dismissal was, in any event, highly likely.[349]I also attach weight, in the Polkey analysis, to the length and depth of the process already undertaken before dismissal. The claimant remained employed for a prolonged period during which adjustments, redeployment, and trials were explored well beyond the usual timeframe. By the point of dismissal, the respondent had already tested, in practice, a wide range of realistic options available to it at that stage, through adjustments to the substantive role and supported redeployment trials. This significantly narrows the scope for concluding that compliance with procedural fairness at the appeal stage would have led to a different outcome.[350]Following dismissal, the respondent offered the claimant further potential roles and an additional Occupational Health functional assessment. I have found that the appeal outcome should have been paused to allow the claimant a reasonable opportunity to consider those options. For Polkey purposes, it is relevant that those options were not pursued, as this informs the assessment of what would have happened in any event.[351]In assessing the Polkey counterfactual, I have also taken account of the claimant’s own comments at the appeal hearing, as recorded contemporaneously in the appeal outcome letter, which did not indicate any realistic prospect of a return to the Healthcare Assistant role. I have further had regard to the Occupational Health evidence as a whole, including the most recent report available to the respondent at the appeal stage. No medical evidence available to the respondent at the relevant time indicated that the claimant could perform the Healthcare Assistant role, or similar roles requiring comparable functional capacity, even with adjustments. Nor does the medical evidence before the Tribunal, including any subsequently obtained, indicate that she could at the material time have performed such roles with adjustments. In addition, the claimant’s solicitor declined the opportunity for a further functional assessment following dismissal, as set out in the appeal outcome correspondence. Those matters, taken together and in the context of all the circumstances, materially inform my assessment of what would have happened had the appeal process been conducted fairly.[352]The alternatives proposed by the claimant were not viable. The ward clerk role was a band 3 role for which the claimant did not meet essential criteria and was one grade above her. Retraining to band 3 would have required a structured programme of uncertain duration and cost which, in the context of a publicly funded healthcare employer, went beyond what a reasonable employer could be expected to undertake. Retention in the substantive role - 81 - was not feasible, as the necessary adjustments would have removed essential functions. The claimant herself expressed uncertainty about her day-to-day duties and a lack of sufficient work she could safely perform.[353]Taking all those matters together; I find that there was a very high likelihood that the claimant would have been dismissed in any event. However, given that the appeal process was procedurally unfair and that fairness required a pause and reasonable consideration of the further options proposed, I do not consider that a 100 per cent reduction would be just.[354]In those circumstances, doing the best I can on the evidence, I assess the likelihood of dismissal occurring in any event at 80 per cent. A lower figure would not reflect the strength of the evidence on capability and the high likelihood of dismissal in any event. A higher figure would understate the significance of the appeal stage unfairness. I therefore apply a Polkey reduction of 80 per cent. Mitigation[355]As to mitigation, the burden of proof lies on the respondent. I am not satisfied on the evidence that the claimant unreasonably failed to mitigate her loss. The respondent has not established any basis upon which a reduction should be made for failure to mitigate. Period of loss[356]In the circumstances, and subject to the statutory cap, I assess compensation over the statutory maximum period of 12 months.[357]The compensatory award is thereafter subject to the 80 per cent Polkey reduction, reflecting my finding as to the likelihood that the claimant would have been dismissed in any event. Recoupment[358]I record that I was not invited to consider the application of the Employment Protection (Recoupment of Benefits) Regulations 1996. No schedule of benefits and no submissions on recoupment were provided. In those circumstances, I make no recoupment order. Equality Act 2010 Remedies[359]In light of my findings that all claims under the EqA fail, no order for remedy is made under that Act. Conclusion and disposal (remedy)[360]The Equality Act complaints did not succeed. Direct disability discrimination (section 13), indirect discrimination (section 19), failure to make reasonable - 82 - adjustments (sections 20–21), harassment related to disability (section 26), and discrimination arising from disability (section 15) were all dismissed.[361]Where knowledge was relevant, I accepted the respondent’s concessions on osteoarthritis (from March 2019) and dyslexia/dyspraxia (from October 2019). I did not find that the respondent had the requisite knowledge, for the purposes of the Equality Act 2010, of the claimant’s anxiety or depression disabilities.[362]Time-bar rulings were made in respect of acts or omissions prior to 8 August 2022 (as set out in the Reasons). I further found no continuing acts extending into the relevant period that were both in time and actionable.[363]The unfair dismissal complaint succeeded. I found that capability was the potentially fair reason; however, the dismissal was unfair under section 98(4) as the appeal stage should have been paused and handled differently in order to meet the requirements of fairness and natural justice.[364]On remedy, reinstatement or re-engagement was not pursued. I applied an 80 per cent Polkey reduction to the compensatory award, reflecting the very high likelihood of dismissal occurring in any event, having regard to the claimant’s inability to perform the substantive role, the unviability of proposed alternatives (including the ward clerk role), and the limited extent of her engagement with the redeployment process at key points, as reflected in my findings. The compensatory award period was assessed at 12 months, subject to that 80 per cent reduction.[365]I also award a basic award in the sum of £8,009.54.[366]I record that I was not invited to consider the application of the Employment Protection (Recoupment of Benefits) Regulations 1996. In those circumstances, no recoupment order is made.[367]I direct that parties’ representatives shall liaise and seek to agree the quantum of the compensatory award in light of the Tribunal’s findings, with liberty to apply if agreement cannot be reached by 4pm on 16 February 2026.[368]If agreement cannot be reached, it is likely that a further hearing will be listed to determine remedy. The parties must in that event lodge joint dates of availability for a period of six months.[369]If agreement is reached, parties’ representatives shall intimate and lodge a draft consent order for consideration on paper by the Employment Judge, without the necessity for a further hearing. Parties are reminded of the overriding objective (Rule 3). - 83 - Detailed summary of Tribunal’s decision (to assist the parties) This case was about the claimant’s dismissal and complaints of disability discrimination. The Tribunal has now made its decision.
The Law
[1]Disability discrimination complaints The claimant said the Trust discriminated against her because of her disabilities. The claimant also said they failed to make adjustments, treated the claimant unfairly compared to others, and that several events were harassment. The Tribunal looked at every event the claimant raised, and at all the documents and witness evidence. The Tribunal decided that the discrimination complaints could not succeed. In many cases, the Tribunal found that the events did not happen in the way the claimant described, or that they were not related to the claimant’s disabilities. In other cases (such as the discrimination arising from disability and indirect disability discrimination complaints), the respondent had followed medical advice, made adjustments for the claimant, or had good reasons for their actions. Some of the older complaints were also out of time and legally could not be considered. The Tribunal also found that, in relation to anxiety and depression, the Trust did not have the necessary knowledge for claims based on those conditions. For these reasons, all of the claimant’s Equality Act 2010 discrimination complaints were dismissed.[2]Unfair dismissal complaint The claimant’s unfair dismissal complaint succeeded. The Tribunal accepted that the Trust dismissed the claimant because she could not safely do all parts of her job, even with adjustments. However, the Tribunal found that the appeal stage of the process was not carried out fairly. The appeal decision should have been paused for a period to allow the claimant to consider potential alternative roles, attend a further Occupational Health appointment, and decide how she wished to proceed. As that did not happen, the dismissal was unfair overall.[3]What this means for compensation Even though the dismissal was unfair, the Tribunal also had to decide how likely it was that the claimant would still have been dismissed even if the process had been fair. The Tribunal decided that there was a very high chance (80%) that the claimant would still have been dismissed, because:• The claimant could not perform the full duties of her original job. - 84 -• Adjustments could not safely remove the main duties of the role.• The redeployment roles the claimant tried were not suitable.• The claimant did not take up a Healthcare Assistant role during the redeployment process.• The claimant did not pursue the further options identified at the appeal stage, although these were offered at the same time as the appeal was determined. As a result of this, any compensatory award must be reduced by 80%. The Tribunal did not order reinstatement or re-engagement because the claimant did not wish to be reinstated or re-engaged. In any event, the Tribunal was not satisfied that there was a suitable role that the claimant could safely and sustainably return to on the evidence before it. A basic award was also made in an agreed amount. Approved by: