Ms O Kayongo v London Underground Ltd and others: 3201548/2024
EMPLOYMENT TRIBUNALS
Case No 3201548/2024
Between
Ms O KayongoClaimantLondon Underground Ltd and othersRespondent
Before
Employment Judge Massarella
Members
Ms T. JansenMrs A. SmithDate 24 November 2025
JUDGMENT
[1]the claims of indirect disability discrimination is dismissed on withdrawal;[2]the claim of automatically unfair dismissal against the First Respondent is not well-founded and is dismissed;[3]the claim of ordinary unfair dismissal against the First Respondent succeeds, having regard to its failure to establish the medical position before moving to dismissal;[4]the claim of disability-arising discrimination succeeds against the First and Second Respondents in relation to the dismissal, and against the First and Third Respondents in relation to the rejection of the appeal; Case Number: 3201548/2024[5]the claim of failure to make reasonable adjustments is not well-founded and is dismissed; 6. the claim of victimisation is not well-founded and is dismissed;[7]there will be a remedy hearing at which the Tribunal will determine the amount of compensation to which the Claimant is entitled.
REASONS
[1]The claim form was presented on 24 August 2024, after an ACAS early conciliation period between 12 June 2024 and 24 July 2024.[2]The claims are of unfair dismissal, automatic unfair dismissal, disability discrimination (direct, indirect and disability-arising discrimination and failure to make reasonable adjustments), victimisation, and unauthorised deduction from wages.[3]The Claimant was employed by the First Respondent as a Customer Service Manager from 31 March 2004 until her dismissal on 13 March 2024. In her ET1 the allegations relate to her dismissal on capability grounds (relating to longterm sickness absence) and the rejection of her appeal against dismissal.[4]In its ET3 the First Respondent denied all claims, asserting that the dismissal for capability was fair and that no discrimination occurred; it also contended that the claim of unauthorised deduction from wages in relation to sick pay was res judicata, having been determined at a previous Tribunal hearing.[5]This is the fourth claim issued by the Claimant against the First Respondent. The first two claims were compromised in a settlement agreement signed by the Claimant on 15 July 2022.[6]The third claim (Case No. 3205396/2022) was dismissed following a final hearing, which took place between 31 October and 3 November 2023. The Tribunal (EJ Gordon Walker sitting with lay members, Mrs Forrest and Mr Wood (‘the previous Tribunal’) deliberated in chambers on 12 December 2023. The Judge completed and signed the written judgment the next day; however, it was not sent to the parties until 28 March 2024. The claims of direct race and sex discrimination and victimisation were not well-founded and were dismissed. The Claimant’s claim for unauthorised deduction from wages succeeded in respect of one day only (17 December 2022); she was awarded her £584.42 gross.[7]The Tribunal rejected the remainder of the unauthorised deductions claim because it concluded that the Claimant had failed to comply with the employer’s sickness absence procedures, including maintaining contact and providing timely medical certification, and that this justified the suspension of sick pay. It found no evidence that the suspension was discriminatory or retaliatory. The judgment included detailed findings on the contractual sick pay scheme, the Claimant’s attendance record, and the employer’s internal procedures.[8]There was a Preliminary Hearing on 27 January 2025 before Employment Judge Gardiner. The Judge directed the parties to clarify the issues and ordered the Claimant to provide further particulars of her claims, including the basis for her unauthorised deduction from wages claim. The Judge also listed a further Preliminary Hearing to consider potential strike-out and deposit order applications.[9]By emails dated 4 March 2025, the Claimant withdrew claims for breach of contract, direct and indirect race discrimination, and direct and indirect sex discrimination. The Respondent filed Amended Grounds of Resistance on 10 March 2025.[10]A second Preliminary Hearing was listed for 21 May 2025 but was postponed owing to lack of judicial resources. It was relisted for 14 August 2025 and came before EJ Hook. The issues were finalised and case management orders were varied. The Judge dismissed the claims which the Claimant had withdrawn on 4 March 2025, including the claim of breach of contract. The Respondent’s strike-out application[11]Mr Liberadzki (Counsel for the Respondent) applied for the unauthorised deduction from wages claim to be struck out on the grounds that it was res judicata. The application succeeded and oral reasons were given at the hearing. The Claimant asked for written reasons of that decision, which are now provided.[12]S.13 Employment Rights Act provides: Right not to suffer unauthorised deductions.(1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.(2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion. […][13]Cause of action estoppel prevents a party pursuing a cause of action that has been dealt with in earlier proceedings involving the same parties. There is no scope for a claimant to argue that changed circumstances or new evidence should lead to the re-opening of an already-determined cause of action. Thus, the issue in cases where cause of action estoppel is alleged to apply to successive sets of proceedings will generally be whether both sets of proceedings rely on the same cause of action. This was one of the issues before the EAT in British Association for Shooting and Conservation v Cockayne [2008] ICR 185. At a preliminary hearing an employment tribunal had found that C’s second claim differed significantly from his first principally because it included complaints about the grievance process. However, the EAT held that estoppel had arisen: both of C’s claims were for constructive dismissal concerning the same resignation letter with the same termination date. The tribunal had erred in law in deciding that, because C’s two causes of action were not ‘identical’, no estoppel could exist: in all material respects, both claims were the same. The tribunal’s point that employees who allowed employers time to conduct grievance hearings should not lose their right to claim if such hearings were unsatisfactory had no bearing on the test of whether estoppel existed; namely, whether two claims were fundamentally the same.[14]The Claimant confirmed in her witness statement (para 103) that her claim of unauthorised deduction from wages in the case before this Tribunal related to the non-payment of sick pay between 18 June and 17 October 2022, the same period which had already been considered by the previous Tribunal in dealing with her claim for unauthorised deduction from wages in that case.[15]The previous Tribunal found at para 113 of its judgment: ‘We find that claimant was not eligible for company sick pay during the period 18 June 2022 to 26 July 2022; 1 August 2022 to 3 November 2022 and one day on 15/16 December 2022. The claimant failed to comply with the first respondent’s contractual requirement to maintain agreed contact whilst on sick leave and to provide medical certificates. This was a condition precedent to the payment of company sick pay. We find that company sick pay was not properly payable to the claimant during the period 18 June 2022 to 26 July 2022; 1 August 2022 to 3 November 2022 and one day on 15/16 December 2022.’[16]That paragraph decided as a matter of fact that company sick pay during that period in the context of proceedings between the Claimant and the First Respondent was not properly payable to her. As a result of making that finding of fact, the previous Tribunal went on to reject the legal claim of unauthorised deduction from wages in relation to the same period. That creates a cause of action estoppel, which means that a Tribunal in a subsequent case cannot reopen that legal claim.[17]The Claimant argued before this Tribunal that there was a difference between suspending sick pay and permanently withdrawing it. She argued that a decision in respect of the latter could only be made at a disciplinary hearing and that no such hearing had ever taken place. For that reason, this Tribunal could re-open the question of sick pay in relation to the same period considered by the previous Tribunal.[18]The previous Tribunal made detailed findings of fact as to the Respondent’s policies relating to sick pay and the withholding of sick pay. In the course of doing so, they referred to the following at para 22(d)(iv): ‘We find that the final bullet point at page 62 states that the permanent cessation of sick pay should not take place before a disciplinary interview is conducted. We find this is different to “suspension” of sick pay, as referred to at the preceding bullet point. Suspension implies an arrangement that is not permanent, and which can be reversed.’[19]This provision was contained in guidance to managers; Mr Liberadzki submits it was not a contractual term.[20]The list of issues formulated the questions as follows: ‘Further or alternatively, did the terms of the claimant’s contract with the first respondent require this reduction to be reimbursed to the claimant at the time of her dismissal on the basis that no formal disciplinary proceedings had been instigated against the claimant.’[21]Mr Carroll submitted on behalf of the Claimant that, although she accepted the previous Tribunal’s judgment that the suspension of sick pay was authorised at the time, it could not be permanently withdrawn until there had been a disciplinary interview. Once the Claimant had been dismissed, there was no further opportunity for the employer to initiate a disciplinary interview and none was conducted. While the employment relationship was ongoing, there was an opportunity for the Respondent to take that step, but they did not do so and the money which should not have been permanently withdrawn should now be paid to the Claimant.[22]He relied in particular on a note of a return to work meeting which the Claimant had with Mr Blake (who was managing her sick pay at the time), in which there was an allusion to ‘CSP. Explained what will be happening about that.’ He also relied (after the Tribunal had given its oral decision on this question, it should be noted) on an email from Mr Blake to the Claimant dated 7 September 2022, in which he wrote: ‘Your Company Sick pay will remain suspended until you establish and maintain verbal communications with me. Once that happens, your CSP will be reinstated from that day. Regarding the CSP that has been suspended in the intervening time – 16th June onward, that will not be reinstated. A formal meeting will need to take place upon your return to work to establish if that should be reinstated or permanently suspended.’[23]In the Tribunal’s judgment, the argument that this provides a basis on which the Claimant’s claim for unauthorised deduction of wages in relation to the suspended sick pay could properly be considered afresh by this Tribunal, is misconceived. Even if the Claimant is right that the provision referring to the requirement for a disciplinary hearing to consider the position in relation to the suspended sick pay is more than merely guidance and has contractual force (which we doubt in light of the previous Tribunal’s judgment), that would merely be the first step on the road to a fresh justiciable claim for unauthorised deduction from wages. Such a claim would only arise if the following conditions were also met: a disciplinary hearing had taken place; it had decided that the Claimant’s sick pay should retrospectively be paid to her (in other words, that the pay was ‘properly payable’ to the Claimant within the meaning of s.13(3) ERA 1996) - a conclusion which it may or may not have reached; and it was not subsequently paid to her. If all those conditions were met, there would be the potential for a fresh claim for unauthorised deduction from wages.[24]Consequently, the claim for sick pay in this case is not - as the Clamant seeks to persuade us - a different claim, it is the same cause of action which has already been determined by the previous Tribunal: that the non-payment of sick pay for the material period was unauthorised, which the Claimant now seeks to revive on grounds which are misconceived. For these reasons, the Claimant is prevented by the doctrine of res judicata from pursuing it and it is struck out; alternatively, it has no reasonable prospects of success for the reasons set out above and it is struck out.[1]By a judgment dated 24 November 2025 and sent to the parties on 2 January 2026, the Tribunal concluded that 1.1. the claims of indirect disability discrimination were dismissed on withdrawal; 1.2. the claims of breach of contract and direct and indirect race and sex discrimination were dismissed on withdrawal; 1.3. the claim of automatically unfair dismissal against the First Respondent was not well-founded and was dismissed; 1.4. the claim of ordinary unfair dismissal against the First Respondent succeeded, having regard to its failure to establish the medical position before moving to dismissal; 1.5. the claim of disability-arising discrimination succeeded against the First and Second Respondents in relation to the dismissal, and against the First and Third Respondents in relation to the rejection of the appeal; 1.6. the claim of failure to make reasonable adjustments was not wellfounded and was dismissed; 1.7. the claim of victimisation was not well-founded and was dismissed.[2]Reasons for the judgment were given orally at the end of the hearing. The Respondent asked for written reasons by email dated 17 November 2025. They are provided below. Procedural history[3]The claim form was presented on 24 August 2024, after an ACAS early conciliation period between 12 June 2024 and 24 July 2024. The claims are of unfair dismissal, automatic unfair dismissal, disability discrimination (direct, indirect and disability-arising discrimination and failure to make reasonable adjustments), victimisation, and unauthorised deduction from wages.[4]The First Respondent is a public transport operator, part of the Transport for London group. The Second Respondent, Mr McHugh, was at the time Area Manager, Warwick Avenue; he took the decision to dismiss the Claimant. The Third Respondent, Mr Rossi, is employed as Senior Stations Delivery Manager; he was Mr McHugh’s immediate line manager and dealt with the Claimant’s appeal against dismissal.[5]The Claimant was employed by the Respondent as a Customer Service Manager from 31 March 2004 until her dismissal on 13 March 2024. In her ET1 the allegations relate to her dismissal on capability grounds (relating to longterm sickness absence) and the rejection of her appeal against dismissal.[6]In its ET3 the Respondent denied all claims, asserting that the dismissal for capability was fair and that no discrimination occurred; it also contended that the claims in relation to sick pay were res judicata, having been determined at a previous Tribunal hearing. The previous Tribunal claims[7]This is the fourth case issued by the Claimant against the First Respondent. The first two cases were compromised in a settlement agreement signed by the Claimant on 15 July 2022.[8]The third case (Case No. 3205396/2022) was dismissed following a final hearing, which took place between 31 October and 3 November 2023. The Tribunal (EJ Gordon Walker sitting with lay members, Mrs Forrest and Mr Wood (‘the previous Tribunal’)) deliberated in chambers on 12 December 2023. The Judge completed and signed the written judgment the next day; however, it was not promulgated until 28 March 2024. The claims of indirect race and sex discrimination and breach of contract were dismissed on withdrawal. The claims of direct race and sex discrimination and victimisation were not well-founded and were dismissed. The single successful claim was for unauthorised deduction from wages: the Tribunal found that the Claimant had suffered a deduction in respect of one day (17 December 2022) and awarded her £584.42 gross.[9]The Tribunal concluded that the Claimant had failed to comply with the employer’s sickness absence procedures, including maintaining contact and providing timely medical certification, and that this justified the suspension of sick pay. It found no evidence that the suspension was discriminatory or retaliatory. The Tribunal also held that the decision-maker (Mr Blake) was unaware of the Claimant’s previous protected acts and therefore could not have victimised her for them. The judgment included detailed findings on the contractual sick pay scheme, the Claimant’s attendance record, and the employer’s internal procedures. Case management of this case[10]There was a Preliminary Hearing on 27 January 2025 before Employment Judge Gardiner. The Judge directed the parties to clarify the issues and ordered the Claimant to provide further particulars of her claims, including the identity of comparators and the basis for her unauthorised deduction claim. The Judge also listed a further Preliminary Hearing to consider potential strike-out and deposit order applications.[11]On 4 March 2025, the Claimant withdrew claims for breach of contract, direct and indirect race discrimination, and direct and indirect sex discrimination. The Respondent filed Amended Grounds of Resistance on 10 March 2025.[12]A second Preliminary Hearing was listed for 21 May 2025 but was postponed owing to lack of judicial resources. It was relisted for 14 August 2025 and came before EJ Hook. The issues were finalised and case management orders were varied. The Judge dismissed the claims which the Claimant had withdrawn.[13]Disability was conceded in relation to anxiety and ADHD on 9 October 2025; knowledge of ADHD was not conceded.
The hearing
[14]We had a bundle of documents of 729 pages. There was an agreed list of issues, which is set out in the appendix to this judgment.[15]We heard evidence from the Claimant. She relied on two witness statements: her main statement on liability; and her revised disability impact statement. On behalf of the Respondents, we heard from Mr McHugh and Mr Rossi.[16]The Claimant asked for two adjustments at the hearing: being allowed to take a written note of the questions put to her in cross-examination, when necessary; and being able to ask for breaks when needed. Both were agreed. At points in the hearing the Judge proposed additional breaks to the Claimant, which she confirmed she wished to take.[17]The Claimant had made an application in writing to postpone the final hearing earlier in the month, which had not been dealt with. She decided not to renew the application at the hearing.[18]Mr Carroll (the Claimant’s lay representative) made an application on her behalf to admit into evidence documents primarily containing text messages between Mr Carroll himself and Mr McHugh. For the reasons given orally at the hearing, the application was refused.[19]Mr Liberadzki (Counsel for the Respondent) applied for the unauthorised deduction from wages claim to be struck out on the grounds that it was res judicata. The application succeeded and oral reasons were given at the hearing. The Claimant asked for written reasons of that decision, which were set out in a separate judgment, dated 24 November 2025 and sent to the parties on 2 January 2026. Findings of fact The Respondent’s attendance management policies and procedures
Findings of fact
[20]R1 operates an Attendance Standard which is the high-level policy statement explaining R1’s requirement that staff attend for work regularly in order that it can operate an efficient, safe and reliable service to its customers.[21]The associated Attendance at Work Procedure sets out R1’s policy in relation to standards of attendance expected and how employees with unsatisfactory levels of attendance should be managed. Para 5.2 provides as follows: ‘5.2.1 Case Conference A case conference consists of the employee concerned, the employee’s representative (if the employee chooses to be accompanied at the case conference by a Trades Union Representative/fellow worker), the manager, and a representative from Human Resources. The case conference will produce an agreed written action plan that must be abided by all parties. The employee’s case will continue to be monitored by the case conference until it is mutually agreed that this is no longer necessary. 5.2.2 Step One - reasonable adjustments If, in returning to work temporary or permanent adjustments are required to help the employee improve and maintain acceptable standards of attendance at work, the case conference must consider this, taking into account the needs of the individual. Where no adjustments can be made, or adjustments that are made do not satisfactorily improve the employee’s attendance, the case conference should consider the options outlined in 5.2.3 and 5.2.4. For those employees who have a disability that is within the scope of the Equality Act, the Company’s processes developed to ensure compliance with the provisions of the Equality Act must be followed. 5.2.3 Step Two - suitable alternative employment If the employee wishes to remain in employment, the case conference should seek advice and guidance from OH regarding the employee’s ability to do an alternative job. In these circumstances an employee’s service will not be terminated until a minimum of 39 weeks have elapsed from the time he/she first became unable to carry out his/her job for medical reasons. Managers should proceed in accordance with item 6.2.8 of the Main Agreement for Operational Staff and Operational Managers (October 22nd 1992) and the Company’s procedures covering medical redeployment and protection of earnings. An employee’s service may be terminated before 39 weeks have elapsed where:• An employee does not wish to be considered for redeployment, or• It is clear no suitable jobs are likely to be identified, or• The employee refuses a reasonable offer of suitable alternative employment. 5.2.4 Step Three - termination of employment on medical grounds As a last resort, where all other options have been fully exhausted, the case conference will discuss arrangements for termination of employment on medical grounds and advise the employee of his/her right of appeal.’[22]That Attendance at Work Procedure states at its outset: ‘This procedure must be used in conjunction with the Attendance at Work Support Pack’.[23]The Attendance at Work Support Pack provides more detailed guidance for managers on how attendance issues should be managed. In relation to Step 2 it provides as follows: ‘Step Two - Suitable Alternative Employment (Medical Redeployment) on a permanent basis You should proceed in accordance with item 6.2.8 of the Main Agreement for Operational Staff and Operational Managers (October 22nd, 1992) and the Company’s procedures covering medical redeployment and protection of earnings.• Where reasonable adjustments cannot be made, reasonable adjustments that are made do not satisfactorily improve the employee’s attendance or LUOH confirm that an employee is no longer able to do his/her job for medical reasons and is unlikely to become fit again in the foreseeable future, the Case Conference will consider the matter.• If appropriate, the employee will be given notice of termination of employment on medical grounds and advised of his/her right of appeal. The employee will be entitled to be accompanied by a Trades Union Representative/fellow worker at any meeting to discuss this matter.• If the employee wishes to remain in employment, the case conference will seek advice from LUOH regarding the employee’s ability to do an alternative job. The employee’s competences will be identified, in addition to the non-medical requirements for his/her current grade.• The employee will be referred to the SDC (or equivalent) for attempts to be made to match the employee with existing vacancies. If no current vacancies exist, the search will continue and attempt to match the employee with future suitable vacancies.• If a suitable vacancy is identified, the employee will be deployed according to the terms and conditions of the alternative position. Where applicable, the employee will be entitled to protection of earnings on medical grounds in accordance with company policy.• If no suitable alternative job is found, the case conference will keep the position under review for a further three months. If the employee is at work, you will temporarily employ the individual on restricted duties (as advised by LUOH) on normal salary.• If, at the expiry of the three month period, no suitable alternative job has been found, the employee will be advised of this at a meeting of the case conference. If there is a realistic prospect of any such job being found in the near future, the review period will be extended for a maximum of a further month.• If, after this period has elapsed, no suitable job has been identified, the case conference will consider Step 3 – Termination of employment on medical grounds.• The employment of a person in these circumstances will not be terminated until a minimum of 39 weeks has elapsed from the time the employee first became unable to carry out his/her job for medical reasons. However, the employee may find it more advantageous (emotionally and/or financially) to be medically terminated earlier than this. Employees with less than six years' continuous service will only be entitled to 24 weeks full sick pay. The employee may be entitled to statutory or other benefits.• An employee’s service may be terminated before 39 weeks have elapsed where: o the employee does not wish to be considered for redeployment; o it is clear no suitable jobs are likely to be identified; o the employee refuses a reasonable offer of suitable alternative employment.• Instances where the employee wants to remain employed, but all of the evidence indicates that this is not possible, should be handled with the utmost sensitivity. The case conference should consider the employee’s emotional state and any impact in relation to decisions made (e.g. an employee may find it difficult to accept that he/she will not be returning to work/continue to be employed).’[24]In relation to Step 3, the Attendance at Work Support Pack provides as follows: ‘Step Three - Termination of Employment on Medical Grounds As a last resort, where all other options have been exhausted, the Case Conference will discuss termination of employment on medical grounds. The Case Conference will ensure that:• The case has been fully reviewed and all possible options have been considered – Steps One and Two have been exhausted.• The employee be allowed time to take on board this possible course of action and to discuss the matter with their partner and/or family.• The case has been referred to LUOH and they have provided relevant details to support any decision. Medical reports from medical practitioners / specialists / consultants may need to be obtained (with assistance from LUOH).• An ill-health pension estimate has been obtained prior to termination. The Data Protection Act (1998) provides for the employee to give his/her permission to request this. Following this discussion, the Case Conference will agree to disband where it is no longer necessary to continue to monitor the case. Separately, you will make your decision whether to terminate the individual’s employment on medical grounds. If you decide not to terminate, the Case Conference will be reconvened to discuss next steps. If your decision is to terminate the individual’s employment on medical grounds, you will:• Arrange a convenient time to meet with the employee to terminate their employment. You will send a letter to the employee, stating the reasons for the meeting.• Confirm to the employee that he/she is entitled to be accompanied at this meeting by a trades union representative/fellow worker of their choice (should the employee choose to be accompanied). At the meeting, you will:• Confirm your decision, summarising the evidence and reasons for your decision• Provide the employee with the termination date• Advise the employee of the process for a decision to be made on the level of pension, if any, that will be paid to the employee• Confirm with the employee that he/she has the right of appeal against your decision to terminate their service on medical grounds: ▪ If the employee decides to appeal, he/she must do so within 14 calendar days of the date of the letter terminating their employment. ▪ The employee should submit their appeal in writing to the appropriate senior manager. If the appeal is on the grounds of medical evidence, the senior manager will then consult with the Head of London Underground Occupational Health.• Confirm all of the above in writing to the employee.’
Background
[25]On 31 March 2004, the Claimant began her employment with London Underground Limited as a Customer Service Assistant. In 2019 she was promoted to the role of Customer Service Manager 2.[26]In February 2020, The Claimant experienced workplace events at Marble Arch Station which she told the Tribunal involved discrimination on grounds of race and sex. She became unwell and was absent from work from 20 February 2020 to 14 February 2021. When she returned to work, she was performing alternative duties, rather than her substantive role.[27]On 29 December 2021, the Respondent wrote to the Claimant confirming her permanent placement following the Case Conference process. She was assigned to the Marylebone Area as a CSM2 grade on a full-time basis, working 35 hours per week, with effect from 2 January 2022. Move to Marylebone[28]On 4 January 2022, Mr Sean Lopez, Area Manager for Marylebone, emailed Mr Daniel Collins and the Claimant, copying in several colleagues, to confirm that the Claimant would be joining the Marylebone Area as a substantive CSM2. He noted that she had not been operational for some time and would need about two weeks before resuming duties, suggesting she do so on 18 January 2022. He asked the team to welcome her and provide assistance where possible.[29]On 13 January 2022, the Claimant emailed Mr Lopez, following a telephone call the previous day, confirming that she needed to take Emergency Dependant Leave to support her daughter who was unwell. She said she would provide a further update on 18 January 2022.[30]When she sent this email, she had not yet started to work at Marylebone, in accordance with the planned placement.[31]The Claimant was then absent by reason of anxiety between 17 January and 3 November 2022.[32]On 24 May 2022, the Claimant was diagnosed with ADHD. The symptoms are summarised in the assessment letter as follows: ‘Through my clinical assessment, I have diagnosed Olive with ADHD, Combined type. This is the most common type of ADHD and is characterised by impulsive and hyperactive behaviours as well as inattention and distractibility. This diagnosis was based on her symptoms being suggestive of ADHD which also surpass the threshold. In addition, her traits were apparent before the age of 12 and affect at least three different aspects of her life whether that be school, work, family or social.’[33]There is no reference in the assessment to any connection between the Claimant’s ADHD and a condition of anxiety. Insofar as the GP notes referred to ADHD, they made no connection between that condition and anxiety.[34]On 6 July 2022, The Claimant attended Judicial Mediation in respect of her earlier Employment Tribunal claims (2302682/2020 and 2301561/2021), when they were resolved.[35]The previous Tribunal’s judgment recorded that the Claimant’s sickness absence was initially managed by Mr Lopez, and later by Mr Blake, with an agreed arrangement for weekly telephone contact on Fridays between 9am and 4pm. The Tribunal found this arrangement reasonable and not onerous, but the Claimant failed to adhere to it. It also found that the Claimant failed to provide a fit note for the period 19 June to 19 July 2022 immediately after the previous certificate expired, resulting in a delay between 18 June and 10 July 2022, without mitigating circumstances, although all other certificates were provided in line with procedure. As a result, Mr Blake suspended her company sick pay, as we have described above.[36]There was plainly a pattern of the Claimant not maintaining contact as required. That pattern continued, albeit to a lesser extent, during the period with which this Tribunal is concerned. There were occasions on which the Claimant said that she would update the Respondent and then failed to do so. As we will go on to find there were times when the Claimant informed her manager unilaterally that she would not be attending work and would update him; sometimes she did not do so. Her explanation to Tribunal for this were unsatisfactory. We understand that employees may face significant challenges in their personal and family life but this does not absolve them of their responsibilities towards their employer. We observe that the Claimant showed little insight into the impact of her absence on her employer at any stage in the period with which we were concerned or in her evidence before us; it appeared to be a matter of no concern to her.[37]Mr Blake referred the Claimant to Occupational Health. The report was sent to the Claimant on 13 September 2022. On 15 September, the Claimant emailed OH to say that she did not give consent for the report to be released to any London Underground managers. She also declined to attend a case conference which had been arranged by Mr Blake because she did not want to prejudice her Employment Tribunal proceedings. The Claimant suggested in crossexamination that she may have later given consent for release of this report; she later confirmed that she did not.[38]On 3 November 2022, Mr Blake emailed the Claimant instructing her not to attend work the following day. He explained that he had not seen the latest OH report and could not confirm her fitness to return, adding that he would seek advice and update her the next afternoon.[39]On 4 November 2022, Mr Blake emailed the Claimant confirming that he had referred her back to Occupational Health for an assessment of her fitness to return to work, as her circumstances had changed since the previous referral. He explained that she retained the right to withhold the report but asked to be informed if she was deemed fit to return. He also asked for details of her training requirements and any annual leave owed and asked her to provide weekly updates by email.[40]On 29 November 2022, there was a further OH report, which the Claimant agreed to release. It advised that the Claimant was fit to return to work with adjustments. It noted that her symptoms had improved and recommended a phased return to work over 4-6 weeks. It also recorded the following as to the likelihood of further absence: ‘This is difficult to predict. Mrs Kayongo's symptoms appear to be related to workplace stresses and provided these are resolved and do not become exacerbated then I would not expect Mrs Kayongo to have much further sickness absence related to this. If the work stresses reoccur there is the real possibility that these would have a negative impact upon her mental health and require her to take further sickness absence.’[41]On 19 December 2022, The Claimant returned to work and attended an interview with Mr Blake. The note recorded that the Claimant had 41 days of outstanding leave (20 days from 2021, 21 days from 2022), and she was asked to consider taking the 2021 leave from January 2023.[42]The Claimant was scheduled to work on 19 December 2022. At 14:50 that afternoon, she sent an email to Ms Tina Djemah to say that she had booked off work at 14:15 in order to attend to a care arrangement for her daughter, which she characterised as emergency parental leave.[43]The Respondent’s Family and Domestic Leave Scheme Policy, section 8 provides: ‘Time off for dependants Employees are entitled to reasonable time off work, without pay, in order to deal with unforeseen circumstances regarding dependants. Such leave covers such a period as may be deemed reasonable in the circumstances (not usually more than two days). A ‘dependant’ is defined for these purposes as a spouse, child or parent of the employee, or any person who lives in the same household as the employee other than by reason of being his or her employee, tenant, lodger or boarder. In some instances this definition is widened to include anybody who can reasonably be said to rely upon the employee for assistance. In view of the emergency nature of the circumstances in which this time off is likely to be required, a notice period is not appropriate. However, the employee must tell his or her manager the reason for the absence, preferably in advance but in any case as soon as is reasonably practicable, and how long he or she expects to be absent. The employee must confirm this in writing where required, in accordance with normal practice regarding absence from work for any reason.’[44]We note the requirement in the policy to tell the manager of the reason for the absence. The Tribunal was struck by the fact that the Claimant consistently declined to explain to her managers the precise nature of the emergency which required her to take this exceptional type of leave. Her explanation was that she did not feel comfortable discussing her family with the Respondent.[45]The Claimant came into work between 20 and 22 December 2022 on a phased basis; she spent that time on station familiarisation.[46]On 23 December 2022, the Claimant notified Ms Djemah that ‘due to parental care needs, I am taking emergency dependents at this time’. She came into work on 24 December 2022. The network was closed on Christmas Day. On 26 December, she notified Ms Djemah at 14:53 that she was in Kent for the Christmas period and unable to travel for the 16:00 start of her shift at Marylebone because of industrial action on the rail network. It is unclear why that notification was provided so late, given that industrial action is planned. On 29 December she notified Ms Djemah that her family dependents were all currently unwell and she would remain at home, taking emergency dependents leave. That extended through 30 and 31 December 2022.[47]Between 1 January and 19 March 2023, the Claimant took the annual leave, which she had accrued during sickness absence.[48]On 20 March 2023, the due date of her return to work, the Claimant notified Ms Djemah that she was feeling unwell with a high temperature and headache.[49]She subsequently submitted a series of fit notes signing her off from work until 19 December 2023; they all mentioned anxiety; none of them mentioned ADHD. During that period she remained on full pay, in accordance with the Respondent’s sick pay provisions.[50]One of the reasons the Claimant gave for the fact that her planned return to work at the turn of the year 2022/2023 was unsuccessful was because she alleged that her manager, Mr Blake was hostile towards her. The previous Tribunal found as follows (para 61 of the judgment): ‘We find that Mr Blake was a firm but fair manager. His management style may have been different to Mr Lopez’s in that he was stricter about compliance with the first respondent’s procedure for managing sickness absence. However, we do not find that he was hostile towards claimant.’ Mr McHugh’s management of the Claimant’s absence[51]Mr Sean McHugh took over management of the Claimant’s sickness absence from Mr Blake on 6 April 2023. At that point the Claimant had not performed her substantive role since 21 February 2020.[52]Mr McHugh was aware that the Claimant’s absence was due to anxiety; he was not made aware of any other medical conditions or previous employment tribunal claims involving her.[53]On 21 April 2023, the Claimant attended an OH appointment. The report noted her anxiety and recommended counselling. She declined to release the report to Mr McHugh.[54]On 31 May 2023, a Medical Case Conference was held by Mr McHugh. The Claimant attended unaccompanied but declined to discuss her condition. Mr McHugh noted the lack of engagement and agreed to reconvene the meeting once the OH report was available.[55]On 4 July 2023, a second Medical Case Conference took place. The Claimant disclosed her previous Employment Tribunal claims for the first time to Mr McHugh.[56]Mr McHugh asked the Claimant whether her condition was linked to her current workplace in Marylebone, or whether it was London Underground in general. Given that the OH reports gave little insight into the specific stressors within the workplace, we think it reasonable for him to have sought to explore this with the Claimant. She replied: ‘It is a whole host of things but it’s not something that I’m able to talk about outside of the clinical setting and I can’t say much more than that at this moment.’[57]On 11 August 2023, The Claimant was reassessed by OH. The report stated she was temporarily unfit but might return in four to six weeks. ‘Although Olive remains uncertain about her readiness to return to work, she holds positive anticipation that the workplace will provide the necessary support when she eventually does resume her duties. This sense of anticipation highlights her belief in the potential for a supportive and understanding work environment.’[58]The Claimant was signed off again from work between 7 October and 7 November 2023.[59]The Claimant’s previous Tribunal case was heard by EJ Gordon Walker and members between 31 October and 2 November 2023. The Claimant accepted in cross-examination that, although she told Mr McHugh about the previous Tribunal cases, she did not tell him about the nature of the claims, including that they were discrimination claims; that is consistent with references in the contemporaneous notes, in which the Claimant mentions the Tribunal hearing without providing details, and without Mr McHugh asking for them. We find Mr McHugh did not know that the Claimant’s Tribunal cases included discrimination claims.[60]By a letter or email dated 11 December 2023, the Claimant was informed that her sick pay would end on 19 December 2023.[61]Mr McHugh invited her to a Medical Case Conference on 18 December 2023.[62]On 11 December 2023, the Claimant attended an OH appointment. In a report dated 14 December 2023 OH assessed the Claimant as fit to return to work, recommending a phased return. The report states: ‘She has a case conference with the current manager on the 18.12.2023 she feels that she is in a much better state of mind to return to work but will discuss terms with manager during the case conference meeting. I utilised validated questionnaires to assess her mood symptoms and noted her symptoms are low to moderate. She remained under the care of her GP.[63]In response to specific questions OH advised as follows: ‘Is the employee fit to undertake their substantive duties? - Yes. She will want to know the outcome of her conference case with her manager and take it from there. She indicated the interest to return to work. Is the employee likely to return to their substantive duties within 4 weeks? - She is likely If they are not fit to return to their substantive role are they fit for alternative roles? - Yes Are workplace adjustments suggested? If so are they permanent or temporary? What are the timescales for adjustments - a gradual return to work over 4-6 weeks Are they fit to attend a discipline/grievance/performance meeting? - Yes Are they likely to have further sickness absence? - I do not anticipate further sickness absence, in my opinion compliance with treatment, regular communication with treating specialists, and work support, should minimize the risk of a further relapse or worsening of the condition. Are they likely to be considered to have a disability under the terms of the Equality Act 2010? - Based on my assessment and the information available to me Mrs Kayongo is likely to meet the terms of the Equality Act 2010 in relation to their condition. Although you will be aware that this would be a legal rather than a medical decision. Unfit for role – temporary.’[64]The Claimant’s evidence was that she told the OH adviser about her condition of ADHD. We do not accept that evidence. If she had, we think it would have been included in the report. The Claimant reviewed the report before it was released and did not ask for it to be amended to include ADHD.[65]On 11 December 2023, the Respondent wrote to the Claimant to inform her that her 39 weeks of full sick pay would be exhausted on 19 December 2023 and would not be paid after that date.[66]On 12 December 2023 the Claimant was assessed by her GP as being unfit for work by reason of anxiety and work-related stress and was signed off until 9 January 2024. She sent the note to Mr McHugh on 13 December.[67]Notwithstanding this, on 18 December 2023, the Claimant attended the Case Conference and confirmed she was ready to return to work. Mr McHugh agreed to a phased return starting 20 December 2023.[68]We think it significant that the Claimant decided to begin a return to work despite having been signed off work for a further month; we find that she returned because her pay was about to be stopped. The Claimant denied this in crossexamination but accepted that she believed that that a return to work would reset her entitlement to a further 39 weeks of full sick pay, if she was later signed off sick again.[69]The Claimant attended a return to work interview on 20 December 2023. The notes record the following: ‘Olive has been absent from work since 20th March 2023 due to work related stress owing to a number of factors. She has undergone therapy and this has had a positive effect on her mental health. Olive is now feeling better and ready to return to work. Any underlying problems? – No.’[70]The Claimant asked to take 32 days of accrued annual leave immediately. Mr McHugh was keen for the Clamant to return to duties but she was insistent that she take the entirety of the leave immediately; Mr McHugh agreed. The Claimant went home on the afternoon of the return to work interview, in order to pick up her son. The Claimant later asserted (in her email of 6 March 2024) that she told Mr McHugh about her ADHD at this meeting; he denied this in oral evidence. There is no reference to this in the notes of the meeting; these were forwarded to the Claimant for review and amendment on the same day; she did not ask for a correction. We find that she did not mention ADHD at the meeting.[71]The notes also contain an action plan: ‘As discussed you have 32 outstanding annual leave days. This means you will remain on a/l until 12.02.24 and will be on leave again 10.03.24 – 16.03.24. As you have not worked at your substantive grade for a considerable period of time I have booked you onto a 3 week CSS course commencing on 18.03.24. It is important that you attend this course to update your operational knowledge and renew your licence. Therefore your phased return will need to be completed prior to your leave beginning on 10th March. If you feel you need to come back early (from your outstanding 2022 leave) to ensure this is the case please let me know in advance.’[72]The Claimant was on annual leave between 21 December 2023 and 12 February 2024.[73]On 13 February 2024, the Claimant was due to return to work but requested emergency dependant leave to deal with personal issues. She said that she would contact Mr McHugh later that day to confirm whether she would be able to return to work the following day. She did not contact him during working hours on 14 February 2024 and did not attend for her shift. Mr McHugh sent a ‘no contact’ letter by post, expressing his concern at the lack of contact since 13 February 2024, and stating that he required a full understanding of her situation in order to be able to support and help her. The Claimant sent a text message after Mr McHugh had finished work to say that she was still addressing a number of family matters and would provide an update on 18 February 2024.[74]On 16 February 2024, the Claimant emailed Mr McHugh in response to the ‘no contact’ letter. He replied asking her to call him before 4 p.m. that day, which she did. He explained that emergency dependant leave was ordinarily for two days and was not to be used for childcare arrangements. Nonetheless, he extended it on this occasion on a discretionary basis and advised the Claimant by email to return to the Area Manager office at Baker Street at 2 p.m. on 19 February 2024.[75]On 18 February 2024, Ms Kayongo emailed Mr McHugh to say that she was not yet ready to return to work. At that point, she had still not told Mr McHugh why she required emergency dependant leave, apart from the fact that it was due to a personal matter involving her partner and children.[76]In the circumstances, Mr McHugh did not consider it appropriate to continue the Claimant’s emergency dependant leave; he told her that, as of 19 February 2024, her leave was unauthorised. He attached a letter inviting the Claimant to a Medical Case Conference on 6 March 2024. The letter informed her of her right to be accompanied and warned her that redeployment or the termination of her employment on medical grounds was a possible outcome.[77]On 23 February 2024, the Claimant submitted a fit note signing her off work from 21 February 2024 to 23 March 2024 due to anxiety. The GP ticked the box ‘you are not fit for work’; the GP crossed through the four boxes dealing with adjustments which might enable the Claimant to return to work.[78]Mr McHugh phoned the Claimant on 23 February 2024 in an attempt to understand what was preventing her from returning to work. The Claimant refused to provide any further information in respect of her symptoms or her absence. Mr McHugh informed her that she would not be able to receive company sick pay, as she had not returned to work following the previous period of absence.[79]On 1 March 2024, Mr McHugh sent the Claimant a further letter in respect of overdue contact as he had not had any contact from her since the phone call on 23 February 2024.[80]On 6 March 2024, The Claimant emailed Mr McHugh raising multiple concerns. She asked for the case conference to be re-arranged so that she could be accompanied by her chosen companion. Mr McHugh initially refused but later agreed to reschedule to 13 March 2024. In the same email she referred to the fact that she had been diagnosed with ADHD and asserted that she had told Mr McHugh this at the return to work meeting on 20 December 2023; she expressed concern that he had not recorded this information on the return to work form. The interpretation of fit notes[81]We pause to record the following as to the correct interpretation of fit notes.[82]The DWP provides guidance for healthcare professionals: ‘Getting the most out of the fit note’ (updated 6 October 2023).[83]Para 6.6 provides: ‘6.6 - You should use the tick boxes to indicate the kind of general adaptation that might help your patient stay in, or return to, work. Tick whichever boxes relate to the functional effects of your patient’s condition. These are not binding on your patient or their employer but help to give them a broad idea about changes to discuss. The options are:• a phased return to work:• a gradual increase in work duties or hours/altered hours:• changes to the times or duration of work• amended duties:• changing duties to take account of a condition• workplace adaptations: changing aspects of the workplace, such as working from home.’[84]Paras 6.9 and 6.20 provide: ‘Not fit for work advice, taking account of the following; 6.9 You should advise your patient that they do not need to be 100% fit to do some work. 6.10 If your clinical assessment of the patient is that they should refrain from work due to their health condition the ‘not fit for work’ box would apply. You should only tick this box if the patient cannot do any type of work. You should ensure that you continue to review their fitness for work at regular intervals.’[85]By an email sent to the Tribunal after the conclusion of the hearing, the Claimant objected to the late production of this guidance. We consider it relevant.[86]The IDS handbook provides: ‘Where a fit note states that the employee may be fit for work, the employer may need to seek clarification, either from the GP or from a specialist, as well as discussing the situation with the employee (see ‘Consultation with employee — fit notes’ above). Simply ignoring the suggestions in the guidance, or failing properly to consider them, could render any subsequent dismissal unfair, as consultation with the employee and consideration of alternative employment are usually key factors in a fair dismissal for capability (see ‘Consultation with employee’ above, and ‘Alternative employment’ below). Recommendations in a fit note may also amount to reasonable adjustments for the purposes of the Equality Act 2010. Furthermore, if the employer fails to implement advice in a fit note on the employee’s return to work and his or her condition deteriorates, the fit note might be put forward as evidence that this was foreseeable for the purposes of any personal injury claim against the employer. On the other hand, where a fit note states that the employee is ‘not fit for work’ in circumstances where he or she has been off sick for some time, an employer may be able to rely on the note as evidence that it could not make any changes that would have allowed the employee to return to work. However, the employer may be expected to get another medical opinion in these circumstances.’[87]Mr McHugh’s evidence was that he interpreted the fit note as meaning that the Claimant was unfit for work of any sort. We consider that to be a reasonable interpretation of the fit note so far as it goes; however, the fit note gave no indication as to prognosis. The case conference of 13 March 2024[88]On 13 March 2024, the Case Conference took place. As had occurred on several previous occasions, the Claimant attended without a companion, despite having asked for the hearing to be postponed so that her chosen companion could attend with her.[89]Mr McHugh tried to have a conversation with the Claimant about her current state of health, but she did not engage meaningfully, beyond generalities such as ‘currently, healthwise, I am no better no worse’. She declined to elaborate on the symptoms of anxiety she was experiencing. She declined to share any details about why she had taken dependant leave; she merely said ‘I have taken care of things. Everything is managed in my family is OK.’[90]The Claimant told Mr McHugh that continuing in the role of CSM was detrimental to her physical and mental health. The notes record: ‘McHugh: You have stated your anxiety is caused by your CSM role but you haven’t performed that role since your return-to-work interview. What happened from when you returned to annual leave up until now? C: As I said earlier, I refer to the LUOH report from 21.04.23. My CSM role presents me with ongoing triggers which, in turn, negatively affect my mental health. My workplace experiences at LU have been well documented and have been the subject of internal complaints and outcomes and Employment Tribunals. It has reached a point where my role at London Underground presents me with various triggers. I don’t want to describe them right now, but they include thinking about experiences I have had whilst I have been in my CSM role at London Underground and that has a negative effect on my mental health.’[91]The Claimant had not told the Respondent at any stage before this meeting that being located in Marylebone was a barrier to her return. The Claimant confirmed in her evidence before us (and Mr Carroll confirmed in submissions) that she would not have returned to the CSM role.[92]Mr McHugh then said: ‘Ok Olive. There really is a lot of non-attendance here and we have tried to support you as much as possible but there doesn’t seem to be any sign of you coming back to work. Your level of non-attendance is unsustainable for us as a business so my decision is to medically terminate your employment with London Underground.’[93]The Claimant replied: ‘My own conclusion takes into consideration the concerns I described to you earlier and addresses the risk of my mental health worsening. That is a big risk for me so I am requesting I be placed into redeployment by London Underground so I can seek an appropriate alternative role within the company.’[94]Mr McHugh replied that because she was not fit for work in any capacity, he did not consider that she was suitable for redeployment. He also referenced the annual leave the Claimant had taken, the dependant’s leave and the unauthorised absence.[95]The Claimant then stated that she was requesting an opportunity to be redeployed as a reasonable adjustment due to being disabled person by reason of ADHD.[96]Mr McHugh took a short adjournment. When he returned he confirmed his decision: ‘OK. I have considered your request for medical redeployment but my opinion is the same. I don’t think you are suitable for it as you are not fit for work at all. At your last meeting with LUOH, they advised you were fit for all duties and there was nothing there about alternative duties. At the Return to Work, you said you were keen to get back and work as a CSM. I have spoken to you in the past and touched on alternative roles but you never showed any willingness to consider any. I don’t have enough information to justify sending you to redeployment.’[97]Mr McHugh’s evidence was that he decided at the meeting to terminate employment. We accept that evidence. If the Claimant had provided him with more information at the meeting and had been more transparent as to the causes of her anxiety, the meeting may have had a different outcome. We think that Mr McHugh finally ran out of patience with the Claimant’s lack of engagement with him. The appeal against dismissal[98]The Claimant lodged an appeal by email on 23 March 2024. The appeal was heard by Mr Rossi, Senior Stations Delivery Manager, who had had no prior personal involvement with the Claimant but was familiar with non-attendance issues within the team.[99]Mr Rossi reviewed the dismissal letter, case conference notes, call logs, and occupational health reports. By letter dated 28 March 2024, he invited the Claimant to an appeal hearing scheduled for 24 April 2024, advising her of her right to be accompanied and to submit further evidence. The hearing was twice rescheduled at the Claimant’s request, ultimately taking place on 21 May 2024 via Teams. The Claimant attended with a trade union representative and lodged written submissions the evening before the hearing.[100]At the hearing, Mr Rossi outlined the process and structured the discussion around the Claimant’s grounds of appeal. These included allegations of misdirection and unfair dismissal, asserting that redeployment should have been offered; maladministration in appointing Mr McHugh to make the dismissal decision; discrimination on grounds of sex, race, and disability; victimisation linked to previous Employment Tribunal claims; and failure to obtain an up-todate occupational health report. Mr Rossi considered these points alongside comparator cases, medical evidence, and attendance records. He also undertook further enquiries after the hearing, including confirming absence dates, seeking comments on attendance history, and exploring whether alternative duties had been performed.[101]After the hearing, in an email exchange on 18 and 25 June 2024, Mr Rossi made enquiries of Mr Euan Taylor as to whether there were comparator cases where staff had been dismissed on medical grounds without going through the redeployment process. Mr Taylor replied: ‘referral to redeployment is the usual run of events – but here are a couple of cases (one where an appeal was heard – the [redacted] case) when the line manager jumped from step 1 (reasonable adjustments) to step 3 (medical termination) missing step 2 (redeployment). This was on the basis of the OH advice that the employee was not fit for redeployment. The situation is, admittedly, rare, particularly when an employee is not cooperative and in agreement with the approach.’[102]In his decision, issued on 26 July 2024, Mr Rossi concluded that redeployment was not viable given the Claimant’s prolonged and repeated absences, lack of engagement with return-to-work discussions, and the operational impact on station management. He found that Mr McHugh had followed the correct process, explored reasonable adjustments, and considered alternatives to dismissal. Allegations of maladministration, discrimination, and victimisation were rejected, as was the contention that a further occupational health report would have altered the outcome. Mr Rossi noted that the Claimant had not performed her substantive duties since February 2020 and that her pattern of absence was unsustainable. The appeal was dismissed.[103]Asked in cross-examination why he did not support going down the redeployment route, Mr Rossi said that several factors influenced the decision: the duration of time the Claimant was unavailable for work was significant; he had never encountered such a situation before; the Claimant was not forthcoming during case conferences and did not provide any indication of how they could support her return. There was a clear pattern of being off for long periods, returning briefly, and then going off again, without performing any substantial work. This appeared to involve delaying tactics, which compounded the overall delay. Asked by lay members Mrs Smith whether he had heard any other appeals where the redeployment stage had been omitted, Mr Rossi stated that in the five appeals he had dealt with, it had not been omitted; he confirmed that it was ‘very rare for us to do that, we normally send people to redeployment’.[104]It is clear from the appeal outcome letter that Mr Rossi was aware that the Claimant’s previous Tribunal proceedings included discrimination claims. Comparators L and M[105]There were two comparators referred to in the agreed list of issues in relation to the direct disability discrimination: Persons L and M. Nothing more was put to either of the Respondent’s witnesses than that they decided as they did because the Claimant had anxiety or ADHD. In an email of 1 October 2025, the Claimant confirmed that M was not relied on as a comparator with regard to disability discrimination. The only evidence that relates to Person L (contained in the same email) was that they were absent from work due to ill-health between mid2005 and June 2008, save for around a month and a half. The Claimant asserted that the person was not disabled within the meaning of the Equality Act and was not dismissed by the Respondent on grounds of capability. We accept the Respondent’s evidence that the circumstances of Person L were so historic that no meaningful comparison could be made, nor evidence led. Knowledge of disability[106]The Respondents accept that they knew that the Claimant had the disability of anxiety at the material time.[107]They also accept that they had knowledge that the Claimant had ADHD, but not that her ADHD amounted to a disability. We are satisfied that the Respondent did not have actual knowledge that the Claimant’s ADHD amounted to a disability. However, had it referred the Claimant to occupational health to ask for an assessment of whether her ADHD amounted to a disability in early March 2024, we think it likely that OH would have advised that it did. We conclude that the Respondent had constructive knowledge of the disability of ADHD at the point of dismissal/rejection of the appeal against dismissal. The law Unfair dismissal
The law
[108]S.94 Employment Right Act 1996 (‘ERA’) provides that an employee with sufficient qualifying service has the right not to be unfairly dismissed by his employer.[109]S.98 ERA provides so far as relevant:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it – (a) relates to the capability or qualifications of the employee for performing work of the kind for which he was employed by the employer to do […](3) In subsection 2(a) – (a) “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality […](4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.[110]In this case the reason relied upon by the Respondent is capability, which is defined as including ill health. A fair procedure by reason of capability would normally, depending on the circumstances, involve consultation with the employee; ascertaining the up-to-date medical position; an opportunity to improve attendance; and, where appropriate, considering the availability of alternative employment.[111]The question of whether the employer has considered redeployment as an alternative to dismissal, and the impact of that on the reasonableness of the decision to dismiss, is one that an Employment Tribunal can be expected to consider as a matter of course when addressing the statutory question of whether the employer's decision to dismiss was reasonable in the circumstances (Bugden v The Royal Mail Group Ltd [2024] EAT 80 at [44]).[112]In judging the reasonableness of the employer’s conduct, the Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer. It is recognised that there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, and another quite reasonably take another. If the dismissal falls within that band, then the dismissal is fair; if it falls outside that band, it is unfair.[113]In a capability case, the EAT held in Pinnington v City and County of Swansea EAT0561/03 at [67], that the range of reasonable responses test applies equally to the way that an employer informs themselves of the true medical position, applying the Court of Appeal’s decision in Sainsbury plc v Hitt [2003] ICR 111. The employer is not required to ‘leave no stone unturned’.[114]It is also well-established that if an employee refuses to cooperate in providing medical evidence, the employer is entitled to base its decision on the facts available, even if those facts are insufficient to give the full medical position. For example, in Elmbridge Housing Trust v O'Donoghue [2004] EWCA Civ 939 it was fair for the employer to dismiss after 15 weeks' absence where the employer had waited for eight weeks for the employee to consent to their obtaining medical evidence and the employee had not provided that consent.[115]As to the decision to dismiss, the issue is not whether, objectively speaking, the employee was or was not capable of remaining in employment, but rather whether it was within the range of reasonable responses to treat the employee’s ill-health as sufficient grounds for their dismissal. The EAT in DB Schenker Rail (UK) Ltd v Doolan [2010] UKEAT/0053/09 noted how easy it can be for Tribunals to fall into the substitution mindset in cases of ill-health. Tribunals must therefore guard against the temptation to test matters according to what they would have decided if they had been in the employer's shoes.[116]As to whether the employer can be expected to wait any longer for the employee to recover, in O'Brien v Bolton St Catherine's Academy [2017] EWCA Civ 145, Underhill LJ made the following observations at [36]: ‘The argument "give me a little more time and I am sure I will recover" is easy to advance, but a time comes when an employer is entitled to some finality. That is all the more so where the employee had not been as co-operative as the employer had been entitled to expect about providing an up-to-date prognosis.’ Disability discrimination: failure to make reasonable adjustments: s.20-21 EqA[117]S.20 EqA provides as relevant:(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.(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 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.(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.[118]S.21 EqA provides as relevant:(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. …[119]The Equality and Human Rights Commission Code of Practice on Employment (2011) (‘the Code of Practice’) at para 6.16 emphasises that the purpose of the comparison with persons who are not disabled is to determine whether the disadvantage arises because of the disability and that, unlike direct or indirect discrimination, there is no requirement to identify a comparator or comparator group whose circumstances are the same or nearly the same as the disabled person’s.[120]In relation to the employer’s actual or constructive knowledge of the employee’s disability, and of the disadvantage, sch.8, Part 3, para 20(1)(b) EqA provides that: (1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know— … (b) in any case referred to in Part 2 of this Schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.[121]If the employer knew, or could reasonably be expected to have known, that the Claimant had an impairment, it does not matter that it had no precise diagnosis. It is, however, a requirement that the employer should know (actually or constructively) that the Claimant had an impairment the adverse effects of which were both substantial and long-term (Wilcox v Birmingham CAB Services Ltd [2011] EqLR 810.[122]As for knowledge of disadvantage, what is necessary is not that the employer know that the claimant was generally disadvantaged by their disability, but that it knows that they are likely to be placed at ‘the disadvantage referred to in the first … requirement’, which is as specified in s.20(3) ‘a substantial disadvantage in relation to a relevant matter’ (Aecom Ltd v Malloon [2023] EAT 104 at [25]).[123]The correct approach for the Tribunal in determining a reasonable adjustments claim is set out in Environment Agency v Rowan [2008] ICR 218 at [27] (the reference to sections is to sections of the Disability Discrimination Act 1995): ‘In our opinion an employment tribunal considering a claim that an employer has discriminated against an employee pursuant to section 3A(2) of the Act by failing to comply with the section 4A duty must identify:(a) the provision, criterion or practice applied by or on behalf of an employer, or(b) the physical feature of premises occupied by the employer,(c) the identity of non-disabled comparators (where appropriate) and(d) the nature and extent of the substantial disadvantage suffered by the claimant [...] Unless the employment tribunal has identified the four matters we have set out above it cannot go on to judge if any proposed adjustment is reasonable. It is simply unable to say what adjustments were reasonable to prevent the provision, criterion or practice, or feature, placing the disabled person concerned at a substantial disadvantage.'[124]The burden is on the Claimant to show the PCP, to demonstrate substantial disadvantage, and to make out a prima facie case that there is some apparently reasonable adjustment which could have been made (and that, on the face of it, there has been a breach of the duty): Project Management Institute v Latif [2007] IRLR 579 at [45] and [54]. If the PCP contended for was not actually applied, the claim falls at the first fence: Brangwyn v South Warwickshire NHS Foundation Trust [2018] EWCA Civ 2235 at [40].[125]A one-off act may be a PCP, but only if it is capable of being applied to others. ‘Practice’ connotes some form of continuum in the sense that it is the way in which things generally are or will be done; it is not necessary for it to have been applied to anyone else in fact (Ishola v Transport for London [2020] IRLR 368 CA per Simler LJ at [36-38]): ‘The function of the PCP in a reasonable adjustment context is to identify what it is about the employer's management of the employee or its operation that causes substantial disadvantage to the disabled employee […] the act of discrimination that must be justified is not the disadvantage which a claimant suffers […] but the practice, process, rule (or other PCP) under, by or in consequence of which the disadvantageous act is done. To test whether the PCP is discriminatory or not it must be capable of being applied to others because the comparison of disadvantage caused by it has to be made by reference to a comparator to whom the alleged PCP would also apply. I accept of course […] that the comparator can be a hypothetical comparator to whom the alleged PCP could or would apply.[126]The substantial disadvantage applies in respect of the disabled person compared to persons who are not disabled. The EAT has made clear that ‘the function of the provision, criterion or practice within section 20(3) is to identify what it is about the employer’s operation which causes disadvantage to the employee with the disability’ (see General Dynamics Information Technology Ltd v Carranza [2015] ICR 169 at 39). As observed by the EAT in Sheikholeslami v Edinburgh University [2018] IRLR 1090 at [48]: ‘The purpose of the comparison exercise with people who are not disabled is to test whether the PCP has the effect of producing the relevant disadvantage as between those who are and those who are not disabled, and whether what causes the disadvantage is the PCP.’[127]In Rider v Leeds City Council EAT 0243/11 the EAT held that the carrying out of an assessment as to what reasonable adjustments might be made in respect of a disabled employee was not, of itself, capable of amounting to a reasonable adjustment. In Smith v Salford NHS Primary Care Trust UKEAT/0507/10, the Employment Appeal Tribunal held that: ‘Adjustments that do not have the effect of alleviating the disabled person's substantial disadvantage … are not reasonable adjustments within the meaning of the Act. Matters such as consultations and trials, exploratory investigations and the like do not qualify.’[128]In NCH Scotland v McHugh EATS 0010/06 the EAT concluded that the duty to make reasonable adjustments is not triggered until the Claimant indicates that he or she was intending or wishing to return to work. His Honour Judge McMullen stated: ‘We agree that a managed programme of rehabilitation depends on all the circumstances of the case, but it does include a return to work date. And certainly, if additional management and supervision is to be required, they must be arranged in advance and not in a vacuum. Similarly, if additional costs were to be incurred by (not this case) the purchase of new equipment to counteract the effect of the environment on the disabled person, there would be no need to spend that money in advance of a clear indication that the Claimant was returning. In our judgment, applying the trigger approach… it was not reasonable for the Respondent to pursue the possibilities which the Tribunal noted until there was some sign on the horizon that the Claimant would be returning.’[129]This approach was approved by Lady Stacey in Doran v Department for Work and Pensions EAT 0017/14, although a different approach was taken in London Underground Ltd v Vuoto EAT 0123/09.[130]The reasonableness of an adjustment falls to be assessed objectively by the Tribunal: Morse v Wiltshire County Council [1998] IRLR 352. The focus is on practical outcomes: per Langstaff P in Royal Bank of Scotland v Ashton [2011] ICR 632 at para 24: ‘The focus is upon the practical result of the measures which can be taken. It is not – and it is an error – for the focus to be upon the process of reasoning by which a possible adjustment was considered. As the cases indicate, and as a careful reading of the statute would show, it is irrelevant to consider the employer’s thought processes or other processes leading to the making or failure to make a reasonable adjustment. It is an adjustment which objectively is reasonable, not one for the making of which, or the failure to make which, the employer had (or did not have) good reason.’ Disability discrimination: direct discrimination[131]S.13(1) EqA provides: 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.[132]The question whether the alleged discriminator acted ‘because of’ a protected characteristic is a question as to their reasons for acting as they did; the test is subjective (Nagarajan v London Regional Transport [1999] ICR 877, per Lord Nicholls at 884). Lord Nicholls considered the distinction between the ‘reason why’ question from the ordinary test of causation in Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 at [29]: ‘Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the “operative” cause, or the “effective” cause. Sometimes it may apply a “but for” approach…The phrases “on racial grounds” and “by reason that” denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.’[133]It is sufficient that the protected characteristic had a ‘significant influence’ on the decision to act in the manner complained of; it need not be the sole ground for the decision (Nagarajan at 886).[134]However, the fact that a claimant’s sex or race is a part of the circumstances in which the treatment complained of occurred, or of the sequence of events leading up to it, does not necessarily mean that it formed part of the reason for that treatment (per Underhill J (President) in Amnesty International v Ahmed [2009] ICR 1450 at [37]).[135]In Martin v Devonshires Solicitors [2011] ICR 352 (a victimisation case) Underhill J said at [22-23]: ‘In our view there will in principle be cases where an employer has dismissed an employee (or subjected him to some other detriment) in response to the doing of a protected act (say, a complaint of discrimination) but where he can, as a matter of common sense and common justice, say that the reason for the dismissal was not the complaint as such but some feature of it which can properly be treated as separable. The most straightforward example is where the reason relied on is the manner of the complaint […] the reason asserted and found constitutes a series of features and/or consequences of the complaint which were properly and genuinely separable from the making of the complaint itself. Again, no doubt in some circumstances such a line of argument may be abused; but employment tribunals can be trusted to distinguish between features which should and should not be treated as properly separable from the making of the complaint.’[136]In the disability discrimination legislation, where it is the fact of the disability which influences the decision-maker this will be direct disability discrimination (for example, prejudices about people living with a particular condition: see Stockton on Tees Borough Council v Aylott [2010] ICR 1278, which concerned stereotypical assumptions about people with mental health issues). Where the reason for the unfavourable treatment is because of something arising in consequence of the claimant’s disability the case falls within s.15 EqA. A good example is High Quality Lifestyles Ltd v Watts [2006] IRLR 850, where the case was not one of direct disability discrimination because the reason for the employer’s actions was not the fact that the claimant was HIV positive; it was the risk of transmission of that condition (‘something arising in consequence of the claimant’s disability’) to the vulnerable people with whom he worked.[137]The conventional approach to considering whether there has been direct discrimination is a two-stage approach: considering first whether there has been less favourable treatment by reference to a real or hypothetical comparator; and secondly going on to consider whether that treatment is because of the protected characteristic, here race/religion.[138]More recently, the appellate courts have encouraged Tribunals to address both stages by considering a single question: the ‘reason why’ the employer did the act or acts alleged to be discriminatory. Was it on the prohibited ground or was it for some other reason? This approach does not require the construction of a hypothetical comparator: see, for example, the comments of Underhill J in Martin v Devonshires Solicitors [2011] ICR 352 at [30].[139]In Reynolds v CLFIS (UK) Ltd [2015] ICR 1010 at [36], the Court of Appeal confirmed that a ‘composite approach’ to an allegation of discrimination is unacceptable in principle: the employee who did the act complained of must himself have been motivated by the protected characteristic. In Alcedo Orange Ltd v Ferridge-Gunn [2023] EAT 78, the EAT confirmed that this may be contrasted with the position in whistleblowing cases in Royal Mail Group v Jhuti [2020] ICR 731, in which the Supreme Court held that, in exceptional cases, it is possible to look behind the motivation of the decision-maker and consider the influence of others who may have been motivated by the employee’s status as a whistleblower. Discrimination arising from disability: s.15 EqA[140]S.15 EqA provides as follows:(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.[141]The correct approach to a claim of this sort was considered by the Court of Appeal in City of York Council v Grosset [2018] IRLR 746 per Sales LJ (at para 36 onwards): ‘36. On its proper construction, section 15(1)(a) requires an investigation of two distinct causative issues:(i) did A treat B unfavourably because of an (identified) "something"? and(ii) did that "something" arise in consequence of B's disability. 37. The first issue involves an examination of A's state of mind, to establish whether the unfavourable treatment which is in issue occurred by reason of A's attitude to the relevant "something" ... 38. The second issue is an objective matter, whether there is a causal link between B's disability and the relevant "something" ….’[142]The ‘something’ that causes the unfavourable treatment need not be the main or sole reason but must have at least a significant influence on the unfavourable treatment, and so amount to an effective reason for or cause of it (Pnaiser v NHS England [2016] IRLR 170 per Simler J at [31]). It is not enough if the disability reason is merely the background to the treatment; it is not a ‘but for’ test (Leicester City Council v Gibbin [2024] EAT 138).[143]The Code of Practice offers the following explanation of what is meant by ‘something arising in consequence of disability’ for the purposes of s.15 EqA: [5.9] 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.[144]The meaning of ‘unfavourable treatment’ was considered by the Supreme Court in Trustees of Swansea University Pension and Assurance Scheme v Williams [2019] ICR 230 (at para 27): ‘… 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.’[145]As for the knowledge requirement in S.15(2) EqA, while the statute does not require knowledge of the precise diagnosis of the disability in question, it does require knowledge (actual or constructive) of the facts constituting the disability. In other words, that the individual is suffering from a physical or mental impairment which has substantial and long-term adverse effects on his or her ability to carry out normal day-to-day activities (Pnaiser at [69]).[146]It is then necessary to look to the employer’s defence of justification. S.15(1)(b) EqA provides that the unfavourable treatment may be justified, if it is a proportionate means of achieving a legitimate aim. To be proportionate, the conduct in question must be both an appropriate means of achieving a legitimate aim and a reasonably necessary means of doing so (Allonby v Accrington & Rossendale College & Others [2001] ICR 1189 CA).[147]Justification requires the Tribunal to conduct an objective balancing exercise between the discriminatory effect and the reasonable needs of the employer (Ojutiku v Manpower Services Commission [1982] ICR 661 CA per Stephenson LJ at 674B-C, and Land Registry v Houghton & Others UKEAT/0149/14 at [8- 9]). It will be relevant for the Tribunal to consider whether any lesser measure might have achieved the employer's legitimate aim (Naeem v Secretary of State for Justice [2014] ICR 472).[148]The time at which justification needs to be established is the point when the unfavourable treatment occurs (Trustees of Swansea University Pension and Assurance Scheme v Williams [2015] ICR 1197 EAT at [42]). When the putative discriminator has not considered questions of proportionality at that time, it is likely to be more difficult for them to establish justification, although the test remains an objective one (Ministry of Justice v O'Brien [2013] UKSC 6 at [47- 48]). Victimisation[149]S.27 Equality Act 2010 (‘EqA’) provides as follows:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given all the allegation is made, in bad faith. …[150]Ss.2(d) covers allegations made by the claimant that the employer or another person has contravened the EqA, whether or not they are express. It is not necessary that the EqA be mentioned, but the asserted facts must, if verified, be capable of amounting to a breach of the EqA.[151]The Tribunal must determine whether the relevant decision was materially influenced by the doing of a protected act. This is not a ‘but for’ test, it is a subjective test. The focus is on the ‘reason why’ the alleged discriminator acted as s/he did (West Yorkshire Police v Khan [2001] IRLR 830). Conclusions: unfair dismissal The reason for the dismissal[152]We are satisfied that the principal reason for the dismissal was capability: the Claimant’s very long periods of absence through ill-health.[153]We have also concluded that the Claimant’s repeated failure to be clear and transparent as to the underlying reasons for her anxiety and her repeated failure to engage with Mr McHugh’s attempts to identify measures which could support her return to work were subsidiary factors in his decision to dismiss when he did.[154]We are also satisfied that the Claimant’s failure to provide an adequate explanation for her need for dependant leave was a further subsidiary factor in the decision to dismiss. We emphasise that it was not the mere fact that she took dependant leave which was a cause for concern for Mr McHugh; it was her refusal to explain the need for it. In any event, this was no more than a subsidiary factor in the dismissal. In order to succeed in her claim for automatic unfair dismissal, we would have to be satisfied that the fact that she had taken that leave between 13 and 18 February 2024 was the sole or principal reason for the dismissal. We have concluded that it was not and that claim accordingly fails. Did the first respondent act reasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the claimant?[155]We are satisfied that Mr McHugh genuinely believed that the Claimant was no longer capable of performing her duties. We are also satisfied that he acted reasonably in consulting with the Claimant. He attempted at a series of meetings to persuade her to tell him how he could support her more effectively back to work but each time the Claimant refused to clarify what the barriers to a return to work were and how they might be removed.[156]We then considered whether Mr McHugh acted reasonably in ascertaining the up-to-date medical position before moving to dismissal. We had regard to the following factors: 156.1. the Respondent is a very large employer with very considerable administrative resources, including access to occupational health advice and a separate team to deal with redeployment; 156.2. the Respondent’s Attendance at Work Procedure at para 5.2.4 describes dismissal for health as ‘a last resort, where all other options have been fully exhausted’; 156.3. the same document provides at paragraph 5.2.3 that, if the employee wishes to remain in employment, the case conference should seek advice and guidance from OH regarding the employee’s ability to do an alternative job’; 156.4. the Attendance at Work Support Pack provides that (presumably, at that stage) ‘the employee’s competencies will be identified, in addition to the non-medical requirements for his/her current grade’; 156.5. the most recent OH report available to Mr McHugh advised that the Claimant was fit for redeployment (para 63); 156.6. on the other hand, Mr McHugh understood the most recent GP fit note (reasonably in our view) to indicate that she was not fit for work of any sort; however, it did not give any advice as to prognosis beyond the duration of the fit note; 156.7. in circumstances where the Respondent had contradictory medical evidence as to the suitability of the Claimant for redeployment, it was unreasonable in our view to proceed directly to dismissal without first referring the Claimant back to occupational health for a definitive assessment of her fitness for redeployment, including considerations of prognosis; 156.8. in our judgment, that would have been the position, even if the Respondent’s own policy had not expressly required it to do so; the fact that it did require it compounded the unreasonableness.[157]The Tribunal fully understands Mr McHugh’s scepticism as to the value of a further occupational health report: after all, there had been previous occupational health reports which had advised that a return to work was likely, which had then been proved wrong in the event.[158]It is also plain that Mr McHugh was sceptical as to the timing of the Claimant’s request to be considered for redeployment, immediately after he had informed her of his decision to dismiss her. We accept his evidence that the Claimant had never previously shown any interest in redeployment; however, on our reading of the Respondent’s policy, that order of events would not in itself have been a bar to considering redeployment even at that late stage: we note that, according to the Attendance at Work Support Pack, the reference to the consideration redeployment comes after an employee has been given notice of termination of employment.[159]In our judgment it was unreasonable on Mr Hugh’s part to allow his scepticism to override the obligation placed on him under the Respondent’s policy to establish the correct position in relation to the Claimant’s fitness for redeployment by referring the Claimant back to occupational health before deciding whether to dismiss.[160]We are satisfied that, in these circumstances and against the background of these policies, the First Respondent could reasonably have been expected to wait longer before dismissing the Claimant, pending a rereferral to occupational health.[161]In our judgment, that failure was in itself sufficient to render the dismissal unfair. Mr Rossi could have cured the failure at the appeal stage, especially in the light of Mr Taylor’s advice that redeployment was the usual consideration and his own experience that bypassing it was extremely rare. Notwithstanding that, Mr Rossi upheld the dismissal.[162]To be clear: in reaching this conclusion, the Tribunal has not concluded that the dismissal was unfair because the Respondent did not redeploy the Claimant to another role. Whether it would have been reasonable to refer the Claimant to the redeployment team would have depended on the updated advice received from OH. Conclusions: disability discrimination and victimisation Direct discrimination[163]We turn now to the first of the three claims of disability discrimination: the claim of direct disability discrimination.[164]The question for the Tribunal is a straightforward one: would Mr McHugh have dismissed an employee who was in materially the same circumstances as the Claimant, but who was not disabled, Mr Carroll clarified in closing submissions: was not disabled by reason of ADHD.[165]Those circumstances must include: the very great length of the Claimant sickness absence; and the lack of transparency and engagement on her part which we have referred to above.[166]We have no doubt at all that Mr McHugh would have dismissed a non-disabled employee in those same circumstances; we think he would have been equally sceptical as to the likelihood of the employee returning to work and providing reliable service. Further, we have no doubt at all that Mr Rossi would have upheld that dismissal.[167]Consequently, the claim of direct disability discrimination is not well-founded and is dismissed. Disability-arising discrimination[168]The position is different in relation to the claim of disability arising discrimination.[169]It is not disputed that the Claimant was treated unfavourably by the dismissal and the rejection of the appeal against dismissal. We have already found that the principal reason for both decisions was the Claimant’s absence from work through ill-health.[170]The Respondent accepts that her absence from work arose from her disability of anxiety. It does not accept that it arose from her disability of ADHD.[171]All the fit notes identify anxiety as the reason for absence; none of them refer to ADHD, even though the GP was aware of the condition. The Claimant seeks to argue that her anxiety was ‘linked’ to the ADHD. There is no medical evidence of that alleged causal link. We have already recorded that the original diagnosis does not identify anxiety as a feature of the Claimant’s ADHD. None of the GP records refers to such a link. The only evidence is the Claimant’s bare assertion in her disability impact statement and in her oral evidence. We do not accept that evidence, in the absence of any supporting medical evidence.[172]We are satisfied that the Claimant’s absence from work did not arise in consequence of her ADHD; it arose, in part at least, in consequence her condition of anxiety.[173]The next question is whether the Respondent dismissed the Claimant, and rejected her appeal against dismissal, in pursuit of one or more of its legitimate aims. We are satisfied that both decisions were taken in pursuit of the first and third of the aims set out in the list of issues at paras 6.4. 173.1. the effective management of staff absence to reduce the negative effect it can have on the First Respondent’s operations; 173.2. the First Respondent’s need to provide excellent customer service and maintain its relationships with stakeholders.[174]We are satisfied that an absence of this duration was bound to have a significant adverse impact on the Respondent’s operation.[175]The discriminatory impact on the Claimant of the dismissal and the rejection of the appeal was also very substantial: there are few more substantial decisions an employer can take.[176]Was it reasonably necessary for the Respondent to dismiss when it did or could something less discriminatory have been done instead? Mr Rossi accepted in cross-examination that, once the Claimant had said that she would not return to her substantive CSM role and was seeking redeployment to a different role, his evidence as to the impact on the business of her absence from the CSM role was no longer pertinent.[177]In our judgment, it follows from our conclusions under the heading of unfair dismissal that the Respondent could have paused the decision to dismiss while it referred the Claimant back to OH to establish whether she was fit for redeployment and, if so, what kind of role would be suitable; that is what its own policies required it to do. That less discriminatory course of action could have been adopted either by Mr McHugh or Mr Rossi; insofar as that would have imposed a burden on the Respondent’s operations, it was a burden which was anticipated under its own policies and procedures.[178]For these reasons we have concluded that the claim of disability-arising discrimination succeeds as against all three Respondents, both in relation to the decision to dismiss and the rejection of the appeal. Failure to make reasonable adjustments[179]We do not accept that the Respondent had a practice of declining redeployment to employees whom the Respondent deemed not fit for work in the employee’s current substantive role. On the contrary, the balance of the evidence suggested that it was extremely unlikely for redeployment not to be considered; it usually occurred in cases where the employee had been found to be unfit for work of any type, not just their substantive work.[180]In any event, that is not the PCP that was applied to the Claimant. We have accepted Mr McHugh’s evidence that he declined redeployment to the Claimant because he considered that she was unfit for any work. Although we have been critical of his coming to that conclusion without a re-referral to occupational health, as a matter of fact that was his practice in this instance.[181]Consequently, this claim fails at the first hurdle because the PCP relied on did not exist and, if it did, it was not applied in this case.[182]If we are wrong about that, and the Claimant was able to show that there was such a PCP and it put her at a disadvantage by comparison with non-disabled employees, the claim would have fallen at the last hurdle because the Claimant has never, even in her evidence before us, identified a specific role to which she ought to have been redeployed by way of an adjustment. The Claimant’s case essentially is that the Respondent failed properly to consider redeployment; such a failure is not a failure to make an adjustment; merely considering redeployment would have been a step along the way towards removing the disadvantage of dismissal, but it would not actually have removed it; it falls into the category identified in the case of Rider v Leeds City Council EAT 0243/11 referred to above. Victimisation[183]Finally, we turn to the victimisation claim.[184]It is accepted that the Claimant did the protected acts by bringing the earlier Tribunal proceedings against the first Respondent. We have already found (para 59) that Mr McHugh did not know that the proceedings contained discrimination claims. He cannot have victimised the Claimant in retaliation for claims he knew nothing about.[185]We have found that Mr Rossi did know that the claims included discrimination. However, we have concluded that there is no evidence whatsoever from which we could reasonably conclude that his appeal decision was influenced by that fact, nor was anything specific put to him in cross examination to that effect.[186]Accordingly, the claims of victimisation are not well-founded and are dismissed. Findings of fact: Polkey / Chagger and contribution[187]At the remedy stage, the Tribunal will have to consider how likely it is that the Claimant’s employment would have continued, had there been no unfairness and no discrimination and, if so, for how long.[188]The Tribunal will assess:(1) the chance that, had the Claimant been referred back to OH, it would have advised that the Claimant was fit for redeployment; if so,(2) the chance of there being a suitable redeployment role which the Respondent would have offered her;(3) the chance that the Claimant would have accepted it; (4), had she done so, the chance that she would have maintained an acceptable level of attendance in that new role; and (5) if so, for how long.[189]The Tribunal makes the following further findings of fact, based on the evidence we have heard, which are likely to be relevant to the question of whether the Claimant’s employment would have continued - and if so for how long - had she not been dismissed. They will also be relevant to the question of whether she contributed to her dismissal by her own conduct. Those questions will be finally determined at the remedy hearing.[190]We find that there was a pattern in which the Claimant gave Mr McHugh minimal information about her condition, and why she could not attend work, throughout the attendance management process. She also refused to disclose the precise reason for her taking emergency dependant leave. We regard this as significant: Mr McHugh was a new manager who had no connection with the previous concerns which the Claimant had previously raised, and yet from the outset she manifested a lack of trust in him. We considered that this lack of transparency on her part indicated an underlying, deep-seated lack of trust in the Respondent organisation as a whole. Of course, employees who are parents may well have challenging situations to deal with in their private lives, but an employer is entitled to a clear explanation for any absence of an employee. The Claimant’s consistent approach appeared to be that the demands of her private life overrode any obligations she owed to her employer, including - as a bare minimum - providing a proper explanation for her absence.[191]We also observe that an employer cannot support an employee to return to work if the employee declines to identify the barriers to his or her return. In our judgment the Claimant’s positive statements to OH as to her fitness to return to work were not matched by her subsequent actions.[192]There was also a pattern of the Claimant asking for a postponement of meetings on the ground that her union representative was not available; however, when the postponement was granted, she then attended unaccompanied. The most striking example of this was in relation to a meeting originally scheduled on 23 October 2023, which the Claimant proposed should be rescheduled to 31 October, owing to the unavailability of her trade union representative. This was agreed. On 30 October she informed Mr McHugh that her Tribunal case would be beginning on 31 October and that she was not available to attend the hearing. She must have known when she asked for the postponement that she would not be attending. Absent any evidence to support the unavailability of any representative, and given the frequency with which this occurred, we have concluded that this was a delaying tactic on the Claimant’s part.[193]The OH report in August recorded the Claimant being positive about a return to work. That did not occur in any meaningful way. Asked why that was, the Claimant said in her evidence before the Tribunal that there were ‘lots of triggers happening with regard to my return to work’. Asked what those triggers were, the Claimant said that she was going through the Tribunal process at the time. She said that she was experiencing panic attacks at work (although she was not at work at the time). She referred to the events of 2020, which had led to her first Tribunal claim, but accepted that there was no suggestion that she would return to the location where those events had occurred.[194]Later in cross-examination, asked to elaborate on what she meant when she referred to ‘triggers’ at the case conference on 13 March 2024, she explained that, as soon as she put her uniform on to leave her house to return to work she came up in hives: ‘the thought of being in the workplace and going back was very, very triggering’. She then stated that a specific room where Mr McHugh had conducted a return to work meeting in 2023 was the same room where she had had a meeting with Mr Blake ‘and he was shouting at me really aggressively’. We remind ourselves that the previous Tribunal rejected the Claimant’s evidence as to Mr Blake’s allegedly hostile management style. The Claimant also said that she found it triggering when she was around the station and colleagues asked her why she had been off work: ‘it’s being at work and being in an environment where I didn’t feel safe’.[195]There is then the fact that, when the Claimant returned from long-term sickness absence on 20 December 2024, she immediately took all her accrued annual leave in one tranche. We infer from this that there was a reluctance on her part to return to work.[196]In all the circumstances, we think it likely that the Claimant’s discomfort in attending work and/or her disinclination to do so extended beyond her specific role and the specific location in which it was performed and was associated with working for the Respondent as an organisation more generally.[197]Then there are the medical records contained within the bundle of documents, from which it is clear that the Claimant had complex health conditions, in addition to the impairments relied on as disabilities in these proceedings. It is clear from those records - and the Claimant’s evidence more generally - that members of her immediate family also had complex health and other needs. It appears to us likely that those factors would have continued to be a significant factor in the Claimant’s attendance at work.[198]Our preliminary view is that there is a very significant chance that the Claimant’s employment would have terminated in any event at some point, had there been no unfairness and no discrimination. We stress that is our preliminary view only. The Tribunal agreed at the close of the liability hearing that we would hear further submissions on this issue at the remedy hearing. It also appears to us likely that we will need to hear further evidence as to the various ‘loss of chance’ issues set out above.[199]Although a finding of contribution may be more common in cases of dismissal for misconduct, such a finding does not require misconduct as such (which is not alleged in this case); it would be sufficient if we were satisfied that the Claimant had behaved in a way which was (to quote the words of the leading case in this area) ‘culpable or blameworthy in the sense that […] it was foolish or perverse or unreasonable in the circumstances’. We consider that this may be a case where such a finding is appropriate in the context of a capability dismissal, for example having regard to the Claimant’s lack of engagement with Respondent’s attempts to support her back to work, including her failure consistently to maintain contact during periods of absence and to provide a proper explanation for those absences.[200]There is then, as in any case, the question of whether the Claimant has acted reasonably to mitigate her loss since the dismissal.
Remedy
[201]There will be a remedy hearing to determine the amount of compensation to which the Claimant is entitled. We think it is likely to require at least a two-day listing.