Ms R Munni v London Borough of Tower Hamlets: 3204838/2022

EMPLOYMENT TRIBUNALS

Case No 3204838/2022

Between

Ms R MunniClaimant

London Borough of Tower HamletsRespondent

Before

Employment Judge Gardiner

Members

Ms J Clark

Ms Crawshay-Williams (instructed by counsel) for claimant

Mr M Maitland-Jones (instructed by counsel) for respondent

Date 2 January 2025

JUDGMENT

The judgment of the Tribunal is that:- None of the Claimant’s complaints are well-founded. They are accordingly dismissed.

REASONS

[1]Until her dismissal on 29 March 2022, the Claimant was employed by the Respondent as a Public Health Programme Officer. She had been on long-term sick leave since 29 September 2021 but had taken substantial periods of sickness absence before that point. Following a Stage 3 hearing under the Respondent’s Attendance Management policy, held on 29 March 2022, and conducted over Teams, she was told that she was being dismissed with immediate effect and would receive 12 weeks’ pay in lieu of notice. Her dismissal was subsequently confirmed in writing in a letter sent on 5 April 2022.

[2]The Respondent admits that the Claimant was a disabled person by reason of her underlying health conditions, although there remains a dispute as to whether her under-active thyroid is a separate disability. In these proceedings, she complains that her dismissal was an unfair dismissal as well as discrimination arising from disability. She argues that there was a failure to make reasonable adjustments over many years in the period before her dismissal, which impacted on her dismissal. She also alleges harassment related to disability in two respects.

[3]The issues for determination were clarified at the outset of this five-day final hearing. Although the parties had prepared an Agreed List of Issues, this had never been approved by an Employment Judge at a Preliminary Hearing. Further detail was necessary to enable the Tribunal to fully understand the issues to be determined, which had not been drafted with sufficient precision. The result of this initial discussion is that the issues were narrowed. For instance, the general allegation of harassment that “the Respondent’s managers treated the Claimant in a sustained hostile way by myriad small actions”, particularised in the Claimant’s witness statement as 24 different allegations, was reduced to 2 allegations. The Final Issues are attached to these Reasons.

[4]Evidence was given by the Claimant and by a former colleague Margaret Falshaw, who provided a statement in support of the Claimant’s claim. Although the Claimant was cross- examined, Respondent’s counsel had no questions for Ms Falshaw. Ms Falshaw attended numerous meetings as the Claimants note taker. We did not consider that her notes were significantly different from the official notes of the meetings. For the Respondent, Ms Sukhjit Sanghera, Public Health Lead (and the Claimant’s line manager from May 2020) and Dr Somen Banerjee, Director of Public Health (who took the decision to dismiss the Claimant) were called as witnesses. Apart from Dr Banerjee, who presented the management case at the appeal as the dismissing officer, the Respondent did not call evidence from anyone on the appeal panel which considered and rejected the Claimant’s appeal against dismissal. No HR witness was called to give evidence.

[5]The parties had agreed a bundle comprising 1279 pages to which reference was made in the witness statements and during the course of evidence. We do not refer in these reasons to all the documents that we have read and on which we have relied in reaching our decisions. References in these Reasons in square brackets are to the corresponding page number of the Final Hearing bundle.

[6]The representatives had agreed a Cast List, a Chronology and a Draft Reading List. Unfortunately, although we are dealing with a lengthy period of employment, punctuated by significant periods of sickness absence, we have not been provided with agreed dates for the start and end of each period of sick leave over the entirety of the period covered by these factual findings. The position was clearer from 2019 onwards. We have done our best to identify these dates from the documents.

[7]We made it clear at the outset that the Tribunal would deal with liability first. All remedy issues (including what would have happened had a fair procedure been followed) would be considered at a subsequent remedy hearing in the event that the Claimant succeeded on liability to any extent. No legal authorities were relied upon by either party during closing submissions.

[8]At the end of the evidence, both counsel made oral closing submissions. Neither party had prepared written closing submissions. Closing submissions finished towards the end of day four. The Tribunal needed to take the fifth and final day for deliberation on the various issues to be decided and required a sixth day to finalise its deliberations. As a result, these Reasons are reserved and are sent out to the parties in writing. Factual findings

[9]The Claimant was a long-serving employee of the Respondent. Her employment had transferred to the Respondent in 2013 via a TUPE transfer, having previously been employed in the Public Health Department of the Tower Hamlets NHS Primary Care Trust as a Public Health Adviser. This was a role she had performed since 2005. Her continuous employment with the NHS Primary Care Trust or its predecessors dated back to 4 March 1993.

[10]Since 2013, she had worked as a Public Health Programme Officer, with responsibilities for improving the health and wellbeing of the people of Tower Hamlets. Initially she carried out a range of duties involving training, performance management of commissioned services, community partnerships work, and involvement in various other health promotion initiatives. In 2017 there was a significant change. From then onwards she was required to commission external organisations to undertake work on projects, rather than undertake the work as part of a team employed directly by the Respondent.

[11]This was a responsible full-time position graded at PO3 level (subsequent regraded as Grade J). At the end of 2019 her salary was £41,466. She accepted in evidence the description of her role contained in an Access to Work Report prepared on 20 June 2018 [858]: “Mrs Munni is a Public Health Advisor working around sexual health matters. This role involves predominantly using the computer to read and review information, analyse data, write reports and maintain email communication. Mrs Munni will also attend meetings and visit sites regularly. She organises and facilitates health campaigns and workshops within the community. Mrs Munni explained that the role is predominantly desk-based and she works from a fixed desk position within a large open plan office.”

[12]The Claimant had suffered various health issues after the births of her two children in 2002 and 2005. She was diagnosed with rheumatoid arthritis in 2008 and fibromyalgia in 2010. She was also diagnosed with an under-active thyroid from late 2020 onwards, for which she had been prescribed medication [909]. In addition, she had regularly suffered from mental health symptoms arising from stress. Both physical and mental health symptoms were being experienced on a regular basis by the time of the events with which the Claimant’s claim is concerned.

[13]Her health and its impact on her ability to perform her role had been regularly reviewed by Occupational Health over the period from 2008 until her dismissal. Occupational Health’s function is to advise management on the steps that could potentially be taken to make the role more manageable, given the history taken from the employee. It is then for an employer to consider whether to accept that advice given its view on the practicality of the proposed steps and the impact on its particular operational requirements.

[14]She had been provided with Dragon dictating software since 2012. Following repeated practice and use, Dragon learns to recognise a person’s speech, enabling an employee to dictate documents and emails without the need to use a keyboard to type the words. Periodically upgrades were made to the Dragon system. There were difficulties experienced by many of the Respondent’s employees with the interface between Dragon and the Respondent’s IT system.

[15]In an Occupational Health report in 2013, the following was noted about the Claimant’s use of Dragon software: “I understand that the Dragon software is making a difference in that it has reduced the issues with the inability to type for long periods. Rafia states that she is still trying to adjust to the use of the software and how best to utilise it.”

[16]On 5 February 2014, the Occupational Health report noted that she was currently struggling with full time work and the OH adviser thought that this would remain the case at least until all appropriate equipment had been put in place and a workstation assessment had been carried out. It went on to state “as noted in my previous occupational health report, she also feels that working from home on a regular basis would help her manage her condition and her work responsibilities more effectively and this is something that Management may wish to consider” [842].

[17]By September 2017, the extent of the Claimant’s absences had engaged the Respondent’s Attendance Management Policy. In an outcome letter sent to the Claimant on what we assume is 13 September 2017 (following a meeting held on 4 September 2017) written by her then line manager Nicola Donnelly, she was told that the Dragon software worked effectively in the office. She had an adapted workstation and headset to enable her to use the software. The following was recorded about her need to practice using the software: “On your return to work, you were required to start the day by practicing on the Dragon speech software initially for an hour per day for two weeks. The suggestion to practice on the Dragon speech software had been put forward in several 1:1 meetings both myself and your previous manager and this is now a management direction. I will discuss your workload with you and adjust it taking into account my requirement that you practice for the first hour of the day.”

[18]The letter also referred to the Claimant’s desire to work from home in this way: “I clarified that you may work from home occasionally in accordance with the attached Smarter Working Policy and that I would consider all requests in relation to the needs of the service and in the light of Occupational Health's recommendation that home working be considered as a reasonable adjustment. However, your current position, Public Health Programme Officer, is not a position that has been assessed as being suitable for Home Working and any working from home needs to be considered as part of the council's Smarter Working Policy.”

[19]The Claimant had not made a formal Flexible Working request by exercising her statutory right to request flexible working under the Employment Rights Act 1996. She never made such a request at any point.

[20]On 13 September 2017, the Claimant was reviewed again by Occupational Health [851]. This was in response to further questions raised by management following an earlier assessment in August 2017. At the time she was considered unfit for work but was fit to undergo a workstation assessment at home to ensure her workstation was set up appropriately from an ergonomic point of view. Occupational Health recommended that an ergonomic assessment of her workstation in the office should be carried out once she was well enough to come into the office. The Occupational Health form contained the following answer to one of the questions that had been asked by management: “Ms Munni is expected to be able to carry out this role subject to appropriate work station ergonomics both in the office and home. She would benefit from flexibility for home working as needed. In addition, Dragon software, which is appropriately set up and which she has the opportunity to train with, is also expected to help. Of course, Management will need to determine whether the above adjustments can be accommodated from an operational and business perspective.”

[21]We interpret this reference to her opportunity to train with the Dragon software as the opportunity provided by Ms Donnelly to practice on the Dragon software by way of management instruction. It was not a recommendation that further bespoke training was required in Dragon software to enable her to use it effectively.

[22]A further Occupational Health report was recommended if the Claimant had not returned to work within a month. The Claimant had a further period of sickness absence lasting for six months from 15 November 2017 to 15 April 2018.

[23]She returned to work for around 10 calendar days before a further period of sickness absence from 25 April 2018 to 15 May 2018. She was assessed by Occupational Health on 19 April 2018. The letter of this date noted that “she appears disaffected with her workplace which suggests other non-medical factors contribute to her sickness absence. There was insufficient evidence to support retirement on health grounds” [853].

[24]On 9 May 2018, she was provided with a 1-2-1 training session on how best use the Dragon dictating software [326]. She emailed the trainer on 14 May 2018 saying she thought they were an excellent trainer adding she had learnt so much about Dragon. Subsequently, in trying to resolve problems using the Dragon software at home, the data provided by the trainer was deleted. This meant that she was unable to do the further work set by the trainer [408]. It does not appear that the trainer considered that further external training was required at that point.

[25]She returned to work the following day, 15 May 2018, and worked until 14 June 2018 when she required three further days of sickness absence on 15, 16 and 17 June 2018.

[26]On 20 June 2018, the Claimant was assessed by Access to Work. Access to Work suggested that the Claimant would benefit from four half day sessions of technical training with Dragon Dictating software [859].

[27]On 22 June 2018, a Consideration for Dismissal meeting was held under the Attendance Management Policy. The Claimant’s absence levels had engaged that policy for at least ten months. She had been absent for almost seven months of that period. The meeting was chaired by Dr Banerjee and was attended by the Claimant, her trade union representative, and her line manager Nicola Donnelly. The Claimant said that she had not had sufficient Dragon training [334], although it is not clear to us why she felt that previous training was insufficient.

[28]On 9 July 2018, the Claimant had a one-to-one meeting with her line manager Nicola Donnelly. During the meeting, it was noted that the Dragon dictation was working well. She was experiencing problems with some of the commands and making corrections and would benefit from further training. She was able to continue to practice and agreed to call the Dragon training helpline to get support on particular commands [344]. This shows that the Claimant needed to practice and still had some assistance available from those with expertise in the Dragon software. She was not wholly reliant on external training.

[29]On 10 July 2018, Dr Banerjee wrote to the Claimant with the outcome of the Consideration for Dismissal meeting that had taken place on 22 June 2018 [346]. It noted that her sickness absence level continued to be very high and this remained an ongoing cause for concern to management. Mr Lovett, Assistant Director of Public Health, had informed the panel at the meeting that the Claimant’s sickness absence was having a negative impact on service delivery. Dr Banerjee’s conclusion was expressed as follows: “I have therefore concluded that in light of the above and your unsustainable levels of sickness absence your sickness absence level will continue to be monitored for a further period of 18 months with effect from the date of this meeting. If your sickness level does not improve to an acceptable level and or we receive an up to date occupational report with regards to ill health retirement or redeployment I will reconvene the Consideration for Dismissal Meeting at which point your dismissal from the Council’s employment or other continued employment options will be considered.”

[30]On 6 August 2018 a further Occupational Health report was obtained. This noted that the Claimant’s GP had indicated that she should be able to remain in work if the right adjustments were made [868].

[31]By 10 September 2018, when the Claimant had a further 1-2-1 meeting with Nicola Donnelly, she had not yet been offered dates for any further Dragon training from an external provider [359]. There had also been some IT difficulties in accessing Dragon online when working from home. However, on 19 September 2018 a further Dragon training session took place where the trainer re-did the work she had done on 9 May 2018 due to the work being deleted.

[32]On 10 October 2018, there was a detailed supervision meeting between the Claimant and Ms Donnelly. At this meeting, based on the notes, it appears that the Claimant was complaining that she was not permitted to work from home in the morning. She claimed that such an adjustment was supported by previous Occupational Health advice. Ms Donnelly said she would look through previous Occupational Health reports but was not aware that there had ever been any explicit recommendation that the Claimant should work from home in the mornings. She said that she could support her in putting forward a case to management to work from home in the mornings. The action point here was on the Claimant, indicating that it was for the Claimant to make a formal request for this particular flexible working adjustment. In the meantime, because all staff were permitted to work from home for one day a week, the Claimant could choose to split this over two mornings but would need to provide at least a day’s notice. So far as Dragon training was concerned, Ms Donnelly reiterated that the Claimant should be practising daily by undertaking work tasks. She agreed to sit with the Claimant at 2pm that day to help support her, including with her use of Dragon.

[33]On 15 October 2018, there was a further Access to Work workstation assessment to enable her to carry out some of her work from home [870]. Various items of equipment were recommended to make it easier for her to work from home.

[34]In October 2018, there were discussions between the Claimant and Chris Lovitt about flexible working. This was not a formal request for flexible working. On 24 October 2018, Mr Lovitt, asked the Claimant to confirm her intended flexi working pattern ideally a fortnight in advance, and no later than seven days in advance, by stating the times she would expect to start work, her lunch times and finish times. He added that he appreciated that there may be some changes, but it would help with regular scheduling to know when she intended to be at work [374]. In response, in an email dated 30 October 2018, the Claimant recorded as follows: “Dear Chris 7-9:30 work from home some days 930- travel to office 10-12 Office- core hours 12-2PM 30 minutes to 1 hour lunch break 2-4-Office- core hours 5pm-8-pm Office/home I have been attending meetings started 9am and 9:30am Kind regards Rafia”

[35]She later added that she should be permitted to work from home more than 1 day a week, without specifying how often. She argued this was consistent with the previous Occupational Health recommendations.

[36]Ms Donnelly responded on 31 October 2018 by telling her that this had already been discussed in the 1:1 on 10 October 2018; that she had not presented any evidence to support her assertion that working from home in the morning was proposed by Occupational Health and then subsequently agreed with management. She said that the Claimant should put forward a request to ask for these additional adjustments as a variation from what had been agreed and put in place for the rest of the team. It was not for the Claimant to decide what to do without agreement from management. She ended her email by saying that further advice from HR was needed. Ms Donnelly was inviting the Claimant to make a formal Flexible Working request which if successful would lead to a potential permanent variation in her terms and conditions.

[37]What is significant about this email exchange is the absence of any reference by the Claimant to any prior agreement that she could work flexibly, as she now asserts she had been allowed between 2014 and 2017 (witness statement page 26). She does not support the assertions she makes at this point in her witness statement by referring to any contemporaneous documents. Had such permission been given as she alleges in her witness statement, she would have referred to this permission during the course of this email exchange. We do not find that any previous agreement had been reached whereby she would be permitted to work flexibly, initially working from home when she was struggling with her symptoms.

[38]On 31 October 2018, Dr Banerjee wrote to the Claimant following receipt of the latest Occupational Health report dated 6 August 2018. He said that the Claimant’s sickness absence level would continue to be monitored for a further period of 18 months from the date of that meeting. If during this period there were “concerns about your attendance”, then a final absence review meeting would be reconvened [378]. He noted that further adjustments to the working environment were still in progress.

[39]On 5 November 2018, there was a meeting between the Claimant, Nicola Donnelly and Sukhjit Sanghera to discuss how the Claimant could perform her role given her ongoing symptoms. Ms Donnelly reiterated what had been said on 10 October 2018 that if the Claimant wanted further adjustments for working at home, then this would need to be put forward as a case to senior management. The meeting notes record that the Claimant had been continuing to work from home in the mornings without prior agreement, despite being told that this was outside the agreed Division policy. This was a failure to follow a management instruction. She was issued with an informal warning, which would remain in place for up to six months.

[40]At some point, the meeting became emotional. There is a dispute as to how Ms Sanghera responded when the Claimant became tearful, and as to whether Ms Sanghera kicked Ms Donnelly under the table. This was the subject of a subsequent complaint raised by the Claimant. In addition, the Claimant was dissatisfied with what she perceived to be indifference on Ms Donnelly’s part to the contents of the Occupational Health and Access to Work reports. The Claimant alleges that Ms Donnelly stated she would not read them. We do not accept this, given the contents of the contemporaneous notes of this meeting. The notes make it clear that Ms Donnelly was potentially prepared to support the Claimant in making a case to the public health senior management to work from home in the morning over any above the agreed team policy. Whether she could do so would depend on the supporting evidence provided by the Claimant and the needs of the team to deliver on work programmes and team working. In addition, Ms Donnelly told the Claimant she would provide her with any Occupational Health reports she did not hold.

[41]Despite the encouragement provided by Ms Donnelly at the meetings on 10 October 2018 and on 5 November 2018, the Claimant never did submit a formal case for senior management to decide whether to allow her to work from home more frequently than the agreed policy within the Division.

[42]On 19 November 2018, the Claimant had a further half day session of 1-2-1 training on Dragon dictating software. This was described as Session 1 of 4. The trainer’s follow up email gave her advice on how to get the most out of the training. She was reminded that she had the support of the Technical Support team if she had any technical difficulties. The trainer ended her email by saying that if she had forgotten how to use a particular feature/command, the Claimant should feel free to email her [386]. On the same day, she was told that three further half-day training sessions had been booked with the same Dragon dictation trainer, on 6 February 2019, 6 March 2019 and 3 April 2019.

[43]On 27 November 2018, the Respondent’s managers and colleagues attended a training session designed to raise awareness about the Claimant’s particular conditions and the potential impact on her ability to perform her duties. This had been organised following an Access to Work recommendation in a report in June 2018. The Claimant accepted that all relevant individuals attended. They did so because they were interested in understanding the impact of the Claimant’s health conditions.

[44]On 4 December 2018, the Claimant met with Ms Pat Chan, the Head of HR, to discuss a variety of issues [394] [405]. This included her concerns about the treatment she had received in recent months from Ms Donnelly. There is no record that she was raising any concerns about events on 5 November 2018 or about the treatment she had experienced from Ms Sanghera at any point. Ms Chan said that a formal investigation was not recommended. Given the lack of detail in the notes taken by the Claimant we do not accept that a specific complaint was made about the treatment she received at the meeting on 5 November 2018 from Nicola Donnelly or from Sanjit Sanghera. We do not accept the Claimant’s evidence that Ms Chan told the Claimant that she would raise this with Dr Banerjee. Dr Banerjee was three tiers of management above the Claimant. There would be no good reason to involve him in the detail of how the Claimant was being line managed by Ms Donnelly. The Claimant did not mention such a promise when she emailed Ms Chan again on 29 April 2019 and does not appear to have challenged Dr Banerjee whether by email or in subsequent meetings about his failure to conduct such an investigation.

[45]During December 2018 and early January 2019, the Claimant took five weeks annual leave, returning to work on 18 January 2019.

[46]On 28 January 2019, the Claimant started a further period of sickness absence [880]. Further Dragon training had been planned for 6 February 2019, 6 March 2019 and 3 April 2019. This training was cancelled in order to preserve these training sessions for the Claimant’s return to work [432]. If they had not been cancelled, then the Respondent is likely to have incurred irrecoverable charges for the missed sessions. Although in cross examination the Claimant asserted that Ms Donnelly knew she wanted to attend these sessions even though she was off sick, we have not been taken to any contemporaneous record to support this.

[47]A further Occupational Health assessment took place on 29 March 2019 [880]. This noted that her most recent absence had been associated with work-related stress. A workplace stress risk assessment was recommended. This was to enable a clear picture to be formed of the workplace issues that the Claimant perceived to be stressful. The wording suggested that it was for the Claimant to start this process of documenting the causes of her stress. The Claimant had been prescribed an antidepressant by her GP and was subsequently referred for Cognitive Behavioural Therapy [885]. Of relevance to her case on flexible working, the advice was: “Due to her symptom variability with early-morning stiffness as part of her condition, it may be that at times she is able to comfortably work in the office with these adjustments, or that at times she may be fit for home working (on which basis a workstation assessment of her home setting would be advisable, if feasible), and at other times that she would be unfit for work.”

[48]The Claimant was subsequently provided with a stress risk assessment document but refused to complete it because she did not consider that the questions were appropriate. She felt that they did not relate to her stress, and she did not want to discuss the contents with her line manager, Ms Donnelly, as she saw her as the source of much of her stress.

[49]On 1 May 2019, the Claimant was asked to attend a second Consideration for Dismissal meeting. It was chaired by Dr Banerjee. This was a detailed meeting. It did not conclude on 1 May 2019, as the Claimant’s union representative needed to attend another meeting before the discussion had concluded. As a result, the meeting continued on 9 May 2019 [407]. The discussion ranged over a large number of topics. So far as is relevant to the issues requiring decision in this case:a. Nicola Donnelly noted that further Dragon software training was needed. A laptop had been provided with Dragon software for the Claimant to work from home. It was not possible to use it online from home. The newer version of Dragon was apparently not compatible with the Respondent’s office system [408].

b. During the meeting, the Claimant set out her perception of how she had been treated during the meeting on 5 November 2018 by Sukhjit Sanghera. She reported that she got emotional, and in response Ms Sanghera told her to be professional. She said that Ms Donnelly told her that she was not going to go through the Claimant’s individual Occupational Health reports and Access to Work reports. She said that Ms Sanghera accused her of creating problems and twisting things. She alleged that Ms Sanghera was kicking Nicky under the table.

c. This was the first time that the Claimant had complained about the conduct of Ms Donnelly and Ms Sanghera to Dr Banerjee. It was also the first time that any complaint had been made about the events on 5 November 2018. Ms Sanghera did not challenge the Claimant’s version of events. Dr Banerjee told us he was not inviting challenges. However, he did speak to both Ms Donnelly and Ms Sanghera very soon after the meeting to get an indication of their version of what had happened at the meeting on 5 November 2018. He spoke to them individually and together to assess what took place. Whilst normally Dr Banerjee would take and keep notes of important meetings, no notes of these meetings with Ms Sanghera and Ms Donnelly have been provided in the bundle of documents. The reason for this is unclear.

d. There was a discussion about working from home. The Claimant was told that all such requests were “considered on their merit in line with the requirements of the service and adhering to Council procedures”. There was no automatic right to work from home [432].

e. A decision was to be communicated to the Claimant by 15 May 2019.

[50]It appears that a decision was taken that the Claimant’s employment should continue. However, there is no outcome letter in the documents before the Tribunal.

[51]On 3 June 2019, the Claimant sent an email to Dr Banerjee in which she complained that nothing had been done about the treatment she had received from Ms Donnelly and from Ms Sanghera on 5 November 2019 [512].

[52]On 30 July 2019, there was a further Occupational Health assessment. By this point, the Claimant had been on sick leave for six months. The Occupational Health report noted that the Claimant felt under progressive stress and strain, citing concerns around controls and working relationships when she felt undermined and unsupported [886]. She complained that Dragon software training had not taken place. The OH adviser summarised that “the main issues here exist within the employment relationship and support and are not going to be particularly amenable to a medical approach. This will need to be resolved in the course of subsequent dialogue between management and Mrs Rafia if a return to work is to be achieved”. Further Dragon training was recommended as was the flexibility to work from home especially on the days when her physical symptoms have flared up. The writer added “similarly flexibility to start work later if her joint symptoms are worse in the morning would also be beneficial”. The date she would be able to return to work would depend on resolution of her work concerns.

[53]On 19 August 2019, the Claimant was asked to review the workplace stress assessment that Ms Donnelly had sent to her. She was invited to attend a meeting on 22 August 2019. The Claimant did not respond to this request to complete a stress risk assessment. The meeting was postponed at the Claimant’s request because her union representative was on annual leave. A further meeting was scheduled for 11 September 2019 which the Claimant again declined to attend for reasons she had apparently explained to Ms Donnelly on 9 September 2019. She was still not well enough to attend the further rescheduled meeting diarised for 18 September 2019.

[54]On 19 September 2019, Ms Josephine Macaulay, HR Business Partner, emailed the Claimant to pick up on particular concerns she had raised in her most recent Occupational Health assessment. She wrote “given the delays in being able to meet with you and the stated impact that your concerns are having on your health, it would be reasonable to propose that you set out your concerns in writing so that these can be promptly considered”. She asked for this to be done by 27 September 2019 [439]. She ended the email by wishing the Claimant all the best and a speedy recovery. The email was copied to Dr Banerjee.

[55]On 27 September 2019, the Claimant emailed Ms Macaulay to set out her concerns in response to Ms Macaulay’s request that she did this [446]. Her focus was on her health conditions. She said that fibromyalgia was worsened by stress. She wrote that it could lead to flare ups which, in turn, impacted her rheumatoid arthritis. She wrote: “what has been lacking with management, for many years, seems to be an unwillingness to understand and educate themselves about what my conditions actually mean”. In her view, it was premature to complete a stress risk assessment. In this record of her concerns, she did not make any complaint about Ms Sanghera nor did she refer to the meeting on 5 November 2018.

[56]An informal meeting took place on 13 November 2019 chaired by Dr Banerjee. It was attended by the Claimant, her union representative, and Ms Macaulay from HR. The Claimant’s line manager, Nicola Donnelly, was not in attendance. The purpose of the meeting was to discuss how the Claimant could return to work. Dr Banerjee noted that the Occupational Health report in July 2019 had noted that a key issue was the resolution of work concerns. He said he wanted to address this issue and support her return to work. The Claimant stressed she needed reasonable adjustments and “without all of the reasonable adjustments it was hard for [her] to work”. She also said that it was important for the work environment to feel safe. Dr Banerjee and Ms Macaulay apologised for things not going according to plan. It is not clear exactly what this apology covered. Dr Banerjee referred to a workplace stress tool which he had found helpful. This was for people returning to work. It would be sent to the Claimant. She only needed to answer the questions that related to her.

[57]Her trade union representative, Mick Smith, said that the IT system for Dragon had failed miserably and there had been a lack of training. Dr Banerjee promised to follow up the compatibility of the Dragon software with the new cloud-based IT system to make sure that the Claimant got the right induction.

[58]Mick Smith raised the topic of working from home and flexible working. The Claimant said that she did not feel that her requests to work from home had been unreasonable. Josephine Macaulay agreed the Claimant had not been unreasonable. She added that the Respondent needed to recognise that the Claimant needed more reasonable adjustments because of her medical condition [473]. It is unclear whether this reference to “more adjustments” was in comparison to other employees or more than had already been provided. The notes do not provide details at this point about specific adjustments.

[59]In his oral evidence to the Tribunal, Dr Banerjee accepted that the principle of flexible working was a very reasonable request. He thought that the Claimant’s position was a reasonable starting point but that there needed to be a discussion as to what would work with her role and responsibilities. It was agreed that a meeting would be arranged to agree flexible working and working from home. This had not yet happened due to the Claimant’s sickness and her time off work. It was likely that this meeting would involve Ms Donnelly, Ms Sanghera, Ms Macaulay from HR as well as the Claimant and her union representative. The outcome would be mutually agreed arrangements that balanced service needs, the Claimant’s health conditions and the Respondent’s policies.

[60]The union representative, Mick Smith, said that the Claimant had raised concerns about Nicola Donnelly. Ms Macaulay said that she had wanted there to be a meeting between herself, the Claimant and Ms Donnelly. Mick Smith said that the relationship with Ms Donnelly had broken down and he did not know how it could be repaired. Concerns were raised both about Ms Donnelly’s behaviour and also about the behaviour of Ms Sanghera in kicking Ms Donnelly under the table. Ms Macaulay said that she would take the Claimant’s concerns about Ms Donnelly away. She said that the issue would not be swept under the carpet. She reassured the Claimant that she would be listened to and said that “we all need to have the confidence to raise things with a manager”. Dr Banerjee suggested that mediation should be considered with Ms Donnelly or a change of line manager. The Claimant and Mr Smith said they felt that the breakdown in the relationship with Ms Donnelly had gone beyond mediation, and hence declined the mediation proposal.

[61]An action point from the meeting was that there should be a further Occupational Health assessment as the last one had taken place in July 2019.

[62]At some point after this meeting, the Claimant returned to work. It is unclear whether this was on a phased basis and the extent of the adjustments that were put in place for her return. On 10 December 2019, the Claimant started a further period of sickness absence. She travelled to Bangladesh on 27 December 2019 and returned on 2 February 2020. This was treated as annual leave, even though it was during the middle of a period of sick leave. The Claimant continued on sick leave throughout the period until 6 December 2020. The reason given on the sick notes was Anxiety. This had been prompted by her perception of the breakdown in working relationships.

[63]During the period from November 2019 until April 2020, there had been no contact between the Claimant and Ms Donnelly although she had tried to contact the Claimant on several occasions but without success. The Claimant had been asked to return the stress questionnaire discussed during the November 2019 meeting in correspondence on 11 March 2020, but had failed to do so.

[64]In mid-March 2020, a national lockdown was imposed as a result of the Covid-19 Pandemic. The Respondent’s staff were asked to work from home. At the end of April 2020, she was told that her sick management case had been put on hold because of the Pandemic.

[65]On 4 May 2020, the Claimant wrote to Dr Banerjee attaching a medical certificate from her GP. She wrote that, as the medical certificate recorded, she was fit to return to work with a phased return and with reasonable adjustments [506]. Her email went on to say that her health condition was as it has been for many years and her date of return back to work was dependent on resolution of her work concerns and adjustments being put in place both at home and in the office.

[66]In mid-May 2020, Dr Banerjee decided that Ms Sukhjit Sanghera should take over from Nicola Donnelly as the Claimant’s line manager [508]. Ms Sanghera was Ms Donnelly’s line manager, and therefore a more senior employee. He considered that Ms Donnelly was overloaded and could not cope with the additional workload of managing the Claimant’s return to work. This was also a response to the discussion at the meeting on 13 November 2019 where the possibility of the Claimant having a new line manager had been raised.

[67]On 19 May 2020 Ms Sanghera, as the Claimant’s new line manager, wrote her a detailed email to discuss the practicalities of her return to work, following a recent email from the Claimant. She was hoping that the Claimant would be able to return to work in a phased way and with reasonable adjustments. She ended the email saying that she would like to arrange a call with the Claimant on 26 May 2020. She proposed that this would take place between 2 and 5pm to agree the plan for her phased return to work. She asked the Claimant to make contact with Access to Work.

[68]The Claimant did not want to be line managed by Sukhjit Sanghera. She was aggrieved at the way she perceived that Ms Sanghera had treated her in the past. As a result, she did not respond to this email, nor did she call Ms Sanghera on 26 May 2020 as Ms Sanghera had suggested.

[69]She did email Dr Banerjee on 3 June 2020, copied to Ms Sanghera. It became a practice for the Claimant not to email Ms Sanghera directly. This email was sent after the date proposed by Ms Sanghera for the discussion with the Claimant about her return to work. The email did not state that it was raising a grievance. In fact, it stated at point 6, “I have spoken to Rezna Begum who informed me that you were expecting a grievance from me. I was advised otherwise, but if that was the case why didn’t you advise me of this at the meeting on 13th November 2019?”.

[70]She attached the email that had been sent from Ms Sanghera. She complained that Dr Banerjee had not made any changes to the management structure when the Claimant had repeatedly told him that she was subject to collective misconducts and unfair treatments with examples from Nicola Donnelly, Sukhjit Sanghera and Chris Lovett [548]. She did not suggest a possible alternative line manager. She also attached a document titled “Reply Sukjit” raising a complaint about Ms Sanghera [802]. This did not use the word “grievance”. It was worded as follows: “I would like to make you aware that I am concerned about Sukhjit managing me. Sukhjit being a senior manager when I complained to her about Nicola's conducts with me, Sukhjit was bias and unfair. Initially, she was reluctant to listen to me. A meeting was arranged between three of us on 5th November 2018. In this meeting when Nicola was shouting and saying that I am creating my own problem, I am twisting things. Why I am working from home without management's approval? I am making her life difficult. I am not learning Dragon, which she grasped by watching YouTube videos in 20 minutes. Sukhjit kicked Nicola under the table to signal her to stop her unprofessional and inappropriate behaviour but at the same time disciplined me to be unprofessional as I became emotional with Nicola's behaviour. Sukhjit also agreed with Nicola and said there was no evidence that I needed to work from home more than one day week like everyone else in the department. Why I need more flexibility? I directed Nicola to the most recent Access to Work Reports Holistic report dated 20th June 2018 and many other Access to Work and Occupational Health reports. However, Nicola said she will not go through them individually to look for the evidence. She also informed me that management have decided they cannot provide anymore adjustments and have spent too much money on my adaptations already. There were other occasions when Sukhjit just listened to Nicola and disciplined me rather than finding out the facts.”

[71]Although this complaint was set out in writing, it was not described as a grievance. The reference to “grievance” in point 6 of the covering email suggested she was aware of the potential to bring a grievance but had chosen not to do so at that point. We have not been provided with the Respondent’s grievance policy which would have been in force at the time, so we are unable to conclude that the grievance procedure was engaged. As set out at the start of the attachment titled “Reply Sukhjit”, its purpose appeared to be to persuade the Respondent that she should be allocated a different line manager rather than Ms Sanghera.

[72]There was a significant delay in Dr Banerjee responding to the Claimant’s email of 3 June 2020, which he was unable to justify in his oral evidence. In the meantime, the Claimant continued to be absent on sick leave. On 30 June 2020, another Access to Work assessment took place. This recommended that Dragon Professional Individual (v15) speech recognition software be provided together with two half day training sessions [900]. In addition, it also recommended that flexible working should be considered – “[The Claimant] is encouraged to discuss flexible working arrangements such as being able to work from home more regularly in order to accommodate her conditions and the associated symptoms”.

[73]The Claimant returned to work on 7 December 2020, having been absent throughout 2020. Because of the ongoing restrictions caused by the Pandemic, at this point she was working entirely from home. A further Occupational Health assessment took place on 23 December 2020. This noted that she was fit for work with the implementation of workplace adjustments. A phased return to work was suggested [909].

[74]On 8 December 2020, the Claimant again complained that she was not being listened to. She said that her complaint about what had happened at the meeting on 5 November 2018 had not been addressed and without this happening she was not comfortable accepting Ms Sanghera as her line manager [540].

[75]On 14 January 2021, the Claimant received an email from Access to Work, following a Needs Assessment Report on 12 January 2021. This email outlined that the various adjustments recommended by Access to Work would be part funded by that organisation and part funded by the Respondent. The Respondent would be required to pay the first £1000 plus 20% thereafter. This also covered the significant cost of the Claimant taking a taxi to and from work. By September 2021 the cost of her taxi fares to date had been over £20,000. It is unclear when this particular adjustment had started.

[76]Dr Banerjee eventually responded to the Claimant’s email of 3 June 2020 on 19 January 2021, around seven and a half months later. So far as relevant to his assessment of what had taken place at the meeting on 5 November 2018, this is what he wrote: “I asked for more information from the team on the issues that were raised through the CFD [consideration for dismissal] and informal meeting. I received Sukhjit's explanation of the events that you perceived as misconduct as well of the notes of these. On this basis, my assessment was that there was upset and frustration being experienced by yourself and Nicola. Sukhjit was making best efforts to mediate the situation. My judgement was that these were issues best resolved through Sukhjit managing your return to work, mediation between yourself and Nicky and a subsequent reassessment of the situation. However it has not been possible to progress this due to your absence due to sickness and Nicky has now left the organisation. On the basis of my discussions with Sukhjit and her understanding of the situation, I have confidence in her to work with your return to work in a way that I would expect of a senior manager. Over the past year, Sukhjit and Nicky have taken forward significant actions to support your return to work.”

[77]We accept the evidence of Dr Banerjee that there was not an obvious candidate to take on the role of the Claimant’s line manager, even if that had been an appropriate step to have considered.

[78]On 9 February 2021, the Claimant sent a further email to Dr Banerjee, which she copied to Ms Sanghera and an HR representative. She said “I repeatedly told you I am not confident with Sukhjit being my line manager as being a senior manager she failed to protect me from Nicola’s abusive treatments” [555]. She said that she was not satisfied with Dr Banerjee’s explanations for the events that had occurred on 5 November 2018. She had repeatedly informed him and HR about “misconducts and unfair treatments from SS, CL and ND”. She said that she had been left in limbo by Dr Banerjee who had not responded to “many emails regarding Dragon, IT and general trainings, annual leave, reinstatement of my salary.”

[79]On 11 March 2021, the Claimant met with Dr Rob Verrecchia, Acting Associate Director of Public Health [562]. He was a more senior manager than Ms Sanghera, who himself reported to Dr Banerjee. She raised her concerns about Ms Sanghera being her line manager. Although the evidence is not clear, we find that she probably did complain that Ms Sanghera had previously harassed her although probably did not provide any specifics about when or what took place. She does not provide specifics in her witness statement when dealing with this particular meeting. We accept that the follow up email from Dr Verrecchia to the Claimant is likely to be an accurate summary of what was discussed as it was not disputed by the Claimant at the time. He said that he expected her to engage with Ms Sanghera as her line manager. He reminded her that she was obliged to follow the correct sickness procedure. Because this had been highlighted in the past and the Claimant was still not following the correct procedure, he warned her that further failures would result in disciplinary action. He said that if she had concerns about the dynamics in the team, then disengaging from all colleagues including himself was not an appropriate way to address her concerns.

[80]The Claimant attended work during the six-month period from 7 December 2020 until 7 June 2021. She was provided with training in Dragon voice recognition software on 15 April 2021 and 25 May 2021. During this period, she worked from home.

[81]On 1 April 2021, the Respondent adopted the Attendance Management Policy and Procedure which was applicable from that point until the Claimant’s dismissal. It set out (at paragraph 1.1.4) that it was intended to ensure that health related absence issues were dealt with promptly, fairly and consistently in accordance with the Council’s policies, employment legislation and best practice. It provided (at paragraph 3.3.4) that staff must contact their line manager or other nominated contact on the first, fourth and eighth (working) day of sickness absence and at agreed intervals if the period of absence continued. It added that the provision of a fit note did not negate the need to maintain regular contact. No default interval for regular contact was set out. This was a change to the previous policy which required the employee on sick leave to contact their manager on a weekly basis if absent for more than a week [1249]. That policy also provided that different reporting requirements could be agreed during periods of absence for sickness related to a disability.

[82]The policy specified particular trigger points to identify when formal intervention was required in the form of a meeting. This was to strike a balance between supporting staff and meeting service delivery needs (paragraph 3.5.1). The Policy noted that for those with a disability a reasonable adjustment could be to increase the level of sickness absence which would trigger a formal meeting. After the informal stage, a four-stage process was identified with Stages 1 and 2 being conducted by the line manager, Stage 3 being chaired by a Director and Stage 4 being an appeal to be chaired by elected members [1265]. Stage 1 is a formal attendance review, Stage 2 is a final attendance review, and Stage 3 a consideration for dismissal meeting. The purpose of the consideration for dismissal meeting is “to consider if the staff member is capable of giving regular and efficient service, whether it is sustainable for the service to continue to support them whilst they are off sick and if not, decide on dismissal, redeployment or any other appropriate action [1267].

[83]Following a Stage 1 meeting, the Procedure prescribed a review period of one month and a maximum of three months for those that are likely to remain off sick. It specifies that if the staff member remains off sick and/or there is no improvement in attendance, management should proceed to the next stage. Following a Stage 2 meeting, the same review period was specified before progressing to Stage 3 is staff remain off sick and/or there is no improvement in attendance. At least working days’ notice would be given of the Stage 3 (Consideration for Dismissal) meeting. The potential outcomes following a Stage 3 meeting were to continue to closely monitor attendance (where the staff member has or will return to work within 2 weeks of the meeting date); medical redeployment or dismissal. Dismissal with contractual notice was applicable “where evidence suggests improvement is unlikely to be made. Employment would end with immediate effect and staff will receive pay in lieu of notice” [1271]. The previous policy did not provide maximum review periods between Stages 1 and 2, and between Stages 2 and 3. The April 2021 policy therefore represented a tightening of the previous policy. It is an attempt to ensure a degree of consistency of treatment between employees in terms of the permissible duration of sickness absence, whilst recognising that there will be more complex cases where a longer review period is appropriate.

[84]The April 2021 policy specified the potential grounds for appeal. These were that the medical opinion was wrong; that redeployment was a viable option; that there are procedural irregularities which prejudiced the decision to such an extent that a fair hearing was not possible; and that the decision was unfair or unreasonable in the circumstances.

[85]On 21 April 2021 the Claimant had a supervision meeting with Ms Sanghera. This discussed the chair she had been provided to use at home, which she said was causing her discomfort. It was suggested that she speak to a specialist company ‘Back Care’ and got them to provide a different chair. The meeting also recorded that she had just received further training on the Dragon software and was about to receive a further session the following month. Much of the discussion focused on how she was getting on with her particular responsibilities. There is no record in the notes of the meeting at this point that she was dissatisfied with the way that Ms Sanghera was managing her. It appears from the notes that she and Ms Sanghera were working well together, focusing on delivering the responsibilities to which she had been entrusted.

[86]On 7 June 2021 she started a further period of sickness absence. Until 17 August 2021, the reason given thereafter on her successive Fit Notes was Rheumatoid Arthritis, rather than Anxiety or Stress.

[87]There was an informal meeting on 1 July 2021 to discuss her latest sickness absence. In the first week of August 2021, a further assessment took place as to the suitability of the Claimant’s chair to enable her to work from home.

[88]On 10 August 2021 a formal Stage 1 Attendance Management Review meeting was conducted. Discussion took place about her ability to use Dragon software whilst working from home. She was told to use the laptop provided by the Respondent, on which the Dragon software was installed. She agreed to do this but said that she could not remember the password. It is unclear for how long this had been a problem before the start of her current sickness absence. She also stated that her current sickness was caused by the new chair which had been purchased in January 2021. The meeting notes recorded that she was on half pay and that the Respondent had ordered over 10 items of equipment to help her over the last year.

[89]On 10 August 2021, a further Occupational Health telephone assessment was carried out. This took place after the formal Stage 1 Review meeting. This noted she had been working from home since March 2020 at the start of the Covid Pandemic lockdown [925]. She had some work-related stress matters and did not feel supported. This was a cause of stress and anxiety. The report stated that her absence from work was related to a recent flare up of her arthritis but also there were some work-related stress issues which needed to be addressed in a stress risk assessment. The report noted that her attendance was likely to be affected in the future because her condition was relapsing and chronic in nature.

[90]On 12 August 2021, Ms Sanghera sent the Claimant a formal outcome letter confirming the conclusions reached at the Stage 1 Attendance Management meeting. This was a detailed letter setting out all the support that the Respondent had previously provided. This included a height adjustable desk, ergonomic chair with lumbar support and adjustable arm rests and head rest, wireless headset, Dragon software, Dragon training and a vertical mouse. It noted that another chair had been provided as the previous chair was unsuitable. Ms Sanghera noted that the new chair would be delivered on 17 August 2021. She added the following: “I would like to remind you that if the new chair is not suitable, then this will need to be raised with the provider in the given time frame they specify, which is usually within 2 weeks, but you will need to check with the provider and if there are issues in contacting the provider you need to inform me straight away”.

[91]Ms Sanghera said that she would call the Claimant in a week’s time to discuss her return to work and the support she required.

[92]On 17 August 2021, the Claimant provided the next Fit Note after the Stage 1 meeting. The reason given for her absence on this Fit Note was Mixed Anxiety and Depressive Disorder as well as Rheumatoid Arthritis.

[93]The Claimant returned from sickness absence on 20 September 2021, following the expiry of the most recent Fit Note. At that point, she had been off work on sick leave for a period of three and a half months. She had a return-to-work meeting with Ms Sanghera on her first day back. She was continuing to work from home. She was to undertake a phased return to work with the speed of her return to full time hours to be reviewed following the first two days back. She was encouraged to practice with the Dragon software and to put a time to do this in her calendar each day of the week.

[94]She underwent a Display Screen Assessment on 21 September 2021 [929].

[95]A further meeting between Ms Sanghera and the Claimant took place on 22 September 2021. This noted that she was still not able to log into her work account, as a new password was required. There was no evidence as to the reason for this, but it is likely to have been because she had not logged on since the start of her latest period of sick leave in June 2021. This particular difficulty had nothing to do with the compatibility of the Dragon software with the Respondent’s IT system. Ms Sanghera encouraged the Claimant to come into the office so that she could access the work system. The Claimant told Ms Sanghera that the Access to Work arranged taxi service to enable her to travel to the office had expired. Although she had renewed her application for this support, she was waiting to hear back. She did not come into the office.

[96]She complained that the chair that had been provided for her to use when working from home was causing her difficulties as she found it difficult to pull the chair forward. She was told to try using a mat. It was agreed that the Claimant would work for a couple of hours on the Thursday and the Friday and on the following week she would work mornings starting at 10am. The Claimant was permitted to work from home during this period. A further meeting was arranged for 2pm on 27 September 2021.

[97]By 23 September 2021, which was the fourth day after her most recent return to work, she had still not been able to log into her work account. It is unclear whether the Claimant met with Ms Sanghera on 27 September 2021 as scheduled. There is no record of such a meeting.

[98]On 29 September 2021, nine calendar days after she had returned from sick leave on a phased return basis, she started a further period of sickness absence. She did not return to work thereafter. The reason given for her ongoing sickness absence on the GP Fit Notes was Mixed Anxiety and Depressive Disorder. Rheumatoid arthritis was not mentioned as the reason for absence thereafter.

[99]On 30 September 2021, she emailed the chair provider to tell them that the current chair was not suitable. That organisation responded on 1 October 2021 to say that they were unable to provide an alternative chair without claiming further payment. This was because she had not raised her objections during the two-week trial period, albeit the deadline had been highlighted by Ms Sanghera.

[100]A further Occupational Health assessment took place on 30 September 2021. This recorded that the Claimant was on medication for her thyroid condition. She had mood swings [933] and did not like interacting with people. She reported ongoing work-related issues which she perceived as a lack of support from the management with a breakdown in the working relationship. She felt harassed, bullied and discriminated at work and had been considering submitting a grievance. Her mood related problems were having a significant impact on normal day to day activities and her mental state examination was in line with a moderate to severe condition [934]. The Occupational Health report noted that she found that her chair was uncomfortable and she had not been able to use the Dragon software since June 2021. The implication is that she had been able to use Dragon software before that point. The reason for difficulties since June 2021 was not specified. In answer to the question “When is the employee likely to return to work?”, the advice was “her health is likely to improve with appropriate treatment and an early resolution of work-related circumstances” [934]. Again, a stress risk assessment was recommended. The writer said that she possibly required access and retraining in Dragon software once she was fit to return to work.

[101]On 1 October 2021 the Claimant was offered a new work laptop and was asked to confirm the address to which it should be delivered.

[102]On 14 October 2021, Ms Sanghera wrote to the Claimant inviting her to a Stage 2 – Final Attendance Management meeting on 11 November 2022 [587]. She was asked to respond by 21 October 2021 if she was unable to attend the meeting and suggest an alternative date. She was warned that non-attendance at the Stage 2 meeting without a satisfactory explanation might result in the meeting taking place in her absence.

[103]Under the Attendance Management Policy, the purpose of a Stage 2 meeting is stated to be to discuss the health and wellbeing of staff, to ensure that appropriate support is in place, to review any required improvements and to inform staff of the continuing impact of their absence on work. The meeting would review “any Occupational Health advice received” [1268]. Whatever the benefits of up-to-date Occupational Health advice, it was not a requirement of the policy that up-to-date occupational health advice was necessary before such a meeting could take place.

[104]The Claimant did not reply to this letter by 21 October 2021 as she had been asked. Ms Sanghera emailed her on 1 November 2021 noting her failure to comply with this deadline and asking for a response by 3 November 2021 in relation to her attendance at the Stage 2 meeting. She was again warned of the consequences of failure to attend the Stage 2 meeting without a satisfactory explanation.

[105]In addition, Ms Sanghera noted that her latest sicknote had expired yesterday. As, the Claimant had not been in touch, she continued: “please urgently call me today as I have no idea about your health situation or about your plans to return to work. If you do not contact me today I will need to record your absence as unauthorised”. She referred to the Attendance Management Policy stating that “it was important for us to keep in touch and review the appropriate support to facilitate your return to work, however you have not responded to my requests to speak about this”. Her email also stated: “I am concerned you are not following management instructions and this is a barrier to support and delaying your return to work. As a minimum I would expect for us to have weekly check in times, as discussed previously when you have been off sick over weeks.”

[106]The Claimant emailed Ms Sanghera directly on 2 November 2021 apologising for the failure to respond and attaching a further sicknote. She stated: “The sickness review meeting needs to be rescheduled as Maggie (my note taker) is not available until 19th November”. She did not explain why Ms Margaret Falshaw was not available, nor did she ask if a postponement might be possible in these circumstances.

[107]She did not contest the suggestion that she should have a weekly check in time with Ms Sanghera as her manager or suggest an alternative frequency for these updates. In fact, although she states in her witness statement (at paragraph 91) that she had been required to speak with her line manager on a weekly basis throughout her periods of sickness absence, she does not say that she had ever objected to this. We accept Dr Banerjee’s evidence that weekly contact was the default period recommended by HR, although it could be varied to a longer period where this was appropriate in all the circumstances.

[108]Given Ms Falshaw’s unavailability, the meeting was postponed and rescheduled to 22 November 2021. Ms Sanghera informed the Claimant of this rescheduled date in an email on 2 November 2021 [592] and asked her to confirm her attendance by the end of tomorrow (ie on 3 November 2021). The Claimant responded on 4 November 2021, confirming she would be attending the review meeting scheduled to take place on 22 November 2021.

[109]On 15 November 2021, the Claimant and Ms Sanghera spoke on the telephone [594]. The following day she supplied another medical certificate from her GP. The Fit Note recorded that the Claimant may be fit for work if she was offered a phased return to work. It lasted until 9 January 2022.

[110]On 22 November 2021, the Claimant emailed Ms Sanghera at 10:58 saying that she was unwell with bad pain in her right calf and was waiting for doctor’s consultation and was therefore unable to attend today’s review meeting. She apologised [595]. As a result, the Stage 2 sickness review meeting was rescheduled to 15 December 2021.

[111]On Tuesday 2 December 2021, the Claimant called Ms Sanghera to inform her that she planned to visit Bangladesh for 3-4 weeks from 7 December 2021. It is unclear when this trip had been booked. She did not suggest that this was recommended by her GP or provide any subsequent medical evidence to excuse her attendance at the Stage 2 sickness absence meeting scheduled for 15 December 2021. Ms Sanghera said that the Stage 2 meeting may well proceed in her absence. Ms Sanghera followed up with an email on 3 December 2021. She told the Claimant that the Attendance Management meeting scheduled for 15 December would go ahead with or without her being present. She also noted that an appointment had been proposed for after 1pm on 15 December 2021 for Back Care Solutions to visit her home to adjust her desk chair for use when working from home. She was warned that if she failed to confirm this appointment, Back Care Solutions would not be able to help with her chair concerns.

[112]Ms Sanghera called the Claimant on 6 December 2021. What was discussed in that call is recorded in an email on the same date. Ms Sanghera said that she expected the Claimant to call her at 1pm on 4 January 2022 as she had said that she would be returning from Bangladesh within four weeks [607]. This was Ms Sanghera varying her request that the Claimant contact her on a weekly basis, by suggesting that the next contact could be in four weeks’ time. She said that she was attaching a stress questionnaire which the Claimant should complete by 10 January 2022 for the Respondent to review. She noted that the Claimant’s latest fit note expired on 9 January 2022. She wrote that it the Claimant’s responsibility to contact the provider of the ergonomic chair to arrange a date for it to be adjusted for her needs. We do not accept that the Claimant asked the Respondent for rehabilitation leave at any point before her departure for Bangladesh. This request is not recorded in any contemporaneous documents from this time.

[113]On 13 December 2021, the Claimant’s trade union representative emailed Ms Sanghera asking for the meeting to be postponed again, as the Claimant had gone to Bangladesh on medical advice for a few weeks. He did not attach any medical evidence to support what he was saying in his email. The GP records do not indicate that the Claimant had been advised to go to a warmer climate to relieve her symptoms. The Claimant’s witness statement does not indicate that she had been advised to do this by her GP. We do not accept that she went to Bangladesh on medical advice, despite this being asserted in the Claimant’s appeal letter [648].

[114]On 15 December 2021, the Stage 2 attendance management meeting went ahead over Teams in the Claimant’s absence. As it was a Teams meeting, it would have been open to the Claimant to have joined the meeting via Teams or her mobile phone from Bangladesh. At no point before the scheduled start of the meeting, did she indicate that this would not be technically possible. She alleged in her appeal letter that she was too unwell to attend the meeting [648], but did not raise this by email with the Respondent in advance of the scheduled start time for the meeting.

[115]The meeting was chaired by Dr Mike McHugh, Associate Director of Public Health. An outcome letter was sent to the Claimant on the same day, written by Ms Sanghera. This noted that there had been low levels of contact with the Claimant since the last Occupational Health assessment She had contacted the Claimant on numerous occasions by email, phone and text to check on her welfare. She said she had repeatedly asked the Claimant to keep in touch at least on a weekly basis. The letter said that after this Stage 2 review meeting her attendance would continue to be monitored. If her future level of attendance continued to be a cause of concern, it would be necessary to move to Stage 3 which involved consideration for dismissal or other appropriate action.

[116]Under the Attendance Management Policy and Procedure, as previously stated, there is a standard review period of one month and a maximum period of three months for staff who are likely to remain off sick following the Stage 2 meeting [1270]. This would indicate that the latest that a Stage 3 meeting would be held would be by 15 March 2022.

[117]Because the Claimant was in Bangladesh, the proposed home visit from Back Care Solutions did not take place on 15 December 2021 to adjust her chair.

[118]The Claimant did not call Ms Sanghera on 4 January 2022 as previously suggested by Ms Sanghera. Nor did she email in advance to explain why this would not be possible. On 5 January 2022, Ms Sanghera emailed to say that she had been expecting a call from the Claimant at 1pm the previous day. She said she had messaged that morning (5 January 2022) asking the Claimant to contact her at 3pm but there had not been any response. Her email noted the ongoing failure to respond to management requests, saying that she would expect that they have weekly checkin times “as discussed previously unless we agree otherwise”. The words “we agree” were printed in bold. Ms Sanghera also added in bold that the sick note was due to expire at the end of the week, and that as the Claimant had not been in touch she “had no idea about your health situation or about your plans to return to work”. She again referred to the Attendance Management Policy [606].

[119]The Claimant responded on 10 January 2022. She apologised, stating that she was still in Bangladesh and still not well enough to return to work. She said she had consulted her GP and obtained a further medical certificate which she would send in a further email [605]. In fact, it was the Claimant’s husband who contacted the GP’s surgery on her behalf as she was still in Bangladesh. This Fit Note noted that the Claimant had “mixed anxiety and depressive disorder”. It covered the period from 4 January 2022 to 20 February 2022 noting she was fit to return on a phased return basis [937].

[120]The same day Ms Sanghera responded, saying that she was sorry to hear that the Claimant was still not well enough to return back to work. She asked for confirmation of when the Claimant would be returning to the UK, saying that even though the latest sick note ran until 20 February 2022 it was important that they caught up as soon as she returned from work to discuss further action to support her return back to work. She said that she wanted to make another Occupational Health referral. She asked for a response by 13 January 2022 [604].

[121]The Claimant did not respond by 13 January 2022. As a result, Ms Sanghera emailed again, noting the lack of response. She said that if the Claimant did not respond to emails this was delaying supporting her return back to work. She said that she would be making a referral to Occupational Health [603].

[122]The next contact from the Claimant was on 17 February 2022 [610]. In the meantime, Ms Sanghera had not been calling her or emailing her whilst she was in Bangladesh. She had not initiated any communication with the Claimant for a period of over a month.

[123]In her email of 17 February 2022, the Claimant apologised that she had not replied by 15 February 2022. She said she was feeling a little better; she was still in Bangladesh and was having difficulties reconfirming a return date. She then wrote this: “As i have a lot of annual leave remaining and need to take as much leave possible by 31st March, i would appreciate if you could authorise for me to be on annual leave from 21st February til 31st March 2022. Please note i will be unable to contact Occupational Health and Logistic for chair until i return to work or at least i return to UK as i have issues accessing emails, making phone calls due to internet and electricity issues.”

[124]The Respondent refused to allow the Claimant to take annual leave once her current sick note expired on 20 February 2022, due to concerns about continued levels of sickness absence and uncertainty about her health status.

[125]A telephone Occupational Health appointment had been arranged for 21 February 2022, but the Claimant failed to keep this appointment [612]. A further Fit Note covered the period from 20 February 2022 to 9 March 2023, signing the Claimant off work given ongoing anxiety with depression.

[126]There is no evidence that Ms Sanghera telephoned the Claimant at any point when she was in Bangladesh. In the Claimant’s appeal letter appealing against her dismissal she stated that she had no missed calls from Ms Sanghera whilst in Bangladesh [648]. All attempts at communication with the Claimant which Ms Sanghera initiated would appear to have been by email.

[127]On 8 March 2022, the Claimant returned to the UK from Bangladesh [997]. She emailed on 10 March 2022 saying she had consulted her GP following her arrival in the UK who had advised she was not fit to return. She attached a further sick note, dated 9 March 2022 [611], signing her off work for a three-week period given that the Claimant had anxiety with depression and underactive thyroid [941]. This was the first time that the GP Fit Notes had referred to her underactive thyroid.

[128]On 15 March 2022, the Claimant was invited to attend a Consideration for Dismissal meeting scheduled to take place at 4pm on 29 March 2022. The letter inviting her to the meeting was written by Ms Sanghera. She said that the meeting would be chaired by Dr Banerjee. The reason given for holding the meeting was because the Claimant had been absent for 152 days out of 261 working days during 2021 and her sickness continued to remain a concern in 2022 [637]. Ms Sanghera wrote that the meeting would discuss the following:  Review with you your current health condition  Review your sickness absence  Explore with you the possibility of a return to work  Consider any reasonable adjustments or adaptations that could assist an early return to work  Advise you of the need to be referred to Occupational Health (OH) – appointment on 21st March 2022  Review information and medical reports received from OH Physician, GP etc  Explore medical redeployment and il health retirement  Discuss remedial approaches to ill health problems  Consider dismissal from the Council’s service

[129]The letter asked for confirmation by 21 March 2022 that she would be attending. It warned her that non-attendance without good reason might result in the meeting taking place in her absence.

[130]The covering email said that a further Occupational Health appointment had been fixed for 21 March 2022.

[131]On 16 March 2022, the Claimant was sent an email from Back Care Solutions Limited [623]. This offered the Claimant a chair set up appointment at her house between 8am and 1pm on 29 March 2022. This was at least the third specialist chair that had been provided to the Claimant for use at home. The email was copied to Ms Sanghera. This assessment was fixed to take place on the same day as the Stage 3 meeting had been fixed to start at 4pm. The Claimant forwarded this email to Ms Sanghera on 16 March 2022. In response, Ms Sanghera asked the Claimant to give her a call for a check in about how she was, her plans going forward and other matters that had been raised by email.

[132]The Claimant and Ms Sanghera spoke later that day. This was the first time that Ms Sanghera and the Claimant had spoken for around three months, since December 2021. As confirmed in Ms Sanghera’s email following the call, they discussed the chair adjustment appointment that had been scheduled for the morning of the Stage 3 meeting. There is no record that the Claimant asked for the Stage 3 meeting to be postponed giving her time to try out the chair following the adjustment appointment. The email noted that the two were scheduled to speak again on 24 March 2022 to have a check in and look at the stress risk assessment. There is no record that Claimant objected to the timing of the next check in meeting or the timescale for completing the stress risk assessment. In the meantime, the email noted that the Claimant would speak to her GP about getting further help from her GP for her anxiety. Finally, she would confirm by 21 March 2022 that she could attend the meeting scheduled for 29 March 2022 and also confirm whether she would prefer it take place in person or by Teams [622].

[133]A telephone Occupational Health appointment took place on 21 March 2022. The resulting report was incorrectly dated 29 March 2022, although it is likely that it was received shortly after the time of the appointment. So far as the Claimant’s thyroid condition is concerned, it said that the Claimant would be able to return to work with the adjustments that are already in place once her thyroid function normalises. A repeat blood test was due in 5 to 6 weeks. Whilst it said that the symptoms relating to the underactive thyroid would improve “over the coming weeks, however, she would need to liaise with the GP for the relevant certification”. In essence, the OH adviser was unwilling to put a precise timescale on when the thyroid symptoms would have sufficiently recovered to enable her to return to work.

[134]The report identified two particular issues of relevance to predicting when the Claimant could return to work. The first was the Claimant’s perception of significant breaches of her Dignity at Work over a prolonged period. This was said to be a significant barrier to a sustained return to work. The second was the recent flare up in the symptoms from her underactive thyroid gland. The writer recorded that: “Of note, her absence has been prolonged by her perception of work related concerns. Once these are satisfactorily resolved there is no reason why she cannot continue in her role. I note that a stress risk assessment will be completed and it is likely that other adjustments will be identified from this process. In addition to supporting her return to work with the adjustments of working from home, having ergonomic equipment, regular breaks through the day, time off for medical appointments, dedicated time to practice and train up Dragon software and a regular review with her manager to ensure that the adjustments remain effective. In general, an employee’s previous attendance provides a reasonable indicator for the future. The psychological impact of perceived work related stress will likely continue until there is management intervention that she considers to be satisfactory.”

[135]Essentially the Occupational Health advice was that her absence was likely to continue until she considered that satisfactory management action had been taken to resolve her current work-related concerns. These were concerns that went beyond the extent of any changes to the way she was expected to carry out her role.

[136]The Claimant called Ms Sanghera as scheduled on 24 March 2022. She said that she was not sure if she would be returning to work after her fit note expired at the end of March. She had yet to see her GP about her anxiety. She referred to medication from her GP for her thyroid and that she would be having a blood test for this in 2 months. After this discussion, Ms Sanghera then wrote the following: “As discussed previously and on the 16th March it is really important for you to fill in the stress risk assessment for us to review together, to support your return to work. I will call you on 31st March at 3.30 for your next check in and a review of the risk assessment, if you at least have a go at filling it in we can then review and add to it when we meet on the 31st March.”

[137]The reference to a meeting on 31 March 2022 was to the next weekly check-in meeting. This was on the assumption that the Claimant’s employment did not end as the outcome of the Stage 3 meeting on 29 March 2022. It is clear from this wording that the Claimant had not yet completed the stress risk assessment which it had been planned would be discussed on 24 March 2022. It is unclear why she had not attempted to do so. Had she done so, then it would have been available to be reviewed at the Stage 3 meeting.

[138]The Claimant contends that she pleaded with Ms Sanghera that the Consideration for Dismissal Meeting should be delayed because she was not well enough to attend, given her underactive thyroid gland. This contention is not supported by any of the contemporaneous documents, including the notes recording what was said at the start of the meeting on 29 March 2022. She did not challenge Ms Sanghera’s contemporaneous record of a telephone discussion that took place on 24 March 2022. This noted she was on medication for her thyroid which should continue for another two months. That note of their discussion does not record that she said she was not well enough to attend the Consideration for Dismissal meeting because of thyroid related symptoms.

[139]On 28 March 2022, the Claimant submitted a further Fit Note signing her off work with depression and hypothyroidism. It covered the period from 28 March 2022 until 8 May 2022 [942].

[140]The chair adjustment session took place at the Claimant’s house with Back Care Solutions Limited on 29 March 2022. This was almost four months after the conversation between the Claimant and Ms Sanghera on 6 December 2021 where Ms Sanghera had asked her to provide a date for this adjustment to be made. There are no documents confirming the outcome of that meeting in the bundle for this hearing. None had been obtained before the Consideration for Dismissal meeting held on 29 March 2022. In oral evidence, Dr Banerjee conceded that he had not known about this chair adjustment meeting because it had not been drawn to his attention during the Consideration for Dismissal meeting.

[141]In advance of the Consideration for Dismissal meeting, a pack of documents was prepared and sent to the Claimant. This contained a detailed Chronology and 24 appendices. Whilst we have not been taken to any document sending this to the Claimant or her Trade Union representative, it was referred to in the course of the meeting. No objection was raised by the trade union representative and no point was taken on appeal about this not being provided in good time before the meeting. We find it is likely that this pack was sent to the Claimant before the meeting.

[142]The Consideration for Dismissal meeting chaired by Dr Banerjee started at 4.10pm and finished at 6.15pm [629ff]. It took place over Teams rather than in person. There were breaks at various points during the meeting due to the Claimant’s health situation. Ms Sanghera opened the meeting by highlighting the main area for concern. This was that the Claimant had not maintained any consisted level of attendance. The sequence of events since 10 August 2021 was discussed. At one point, the Claimant noted that her sick pay had reduced to half pay. She said that this was unfair. The Claimant complained about a phrase that had been used in Ms Sanghera’s previous correspondence. This was worded “We hope that the long flight to Bangladesh was not too uncomfortable for you and has not exacerbated your symptoms”. She said she found this paragraph quite offensive. There was discussion about the breakdown in the relationship between the Claimant and Ms Sanghera. Dr Banerjee said that having spoken to all parties, his view was that Ms Sanghera and Nicola Donnelly had been genuinely seeking to improve the situation.

[143]The Claimant was asked if she was able to return to work if the reasonable adjustments were made or whether she was saying that the issues with workplace relations had to be resolved first. She stated that it was both [637]. She did not identify in practical terms how she would like the workplace relations to be resolved. She was asked what further reasonable adjustments should be made. Rather than identify particular adjustments, she replied that she had said this many times and she asked Dr Banerjee how he wanted to resolve it.

[144]The meeting stopped at 5.30pm and Dr Banerjee returned at 6pm to announce his decision. He said that he could not see the level of sickness absence changing, given that they had made all the reasonable adjustments recommended. He said that he had sadly concluded that the Claimant should be dismissed [656].

[145]By letter dated 5 April 2022, Dr Banerjee confirmed the Claimant’s dismissal in writing [664]. The dismissal letter listed in a table a summary of her sickness absence in days per calendar year. In 2017 she had been absent for 297 days; in 2018 the figure was 114 days; in 2019, it was 239 days; in 2021 it was 152 days and in 2022 it was 63 days over the period until 30 March 2022. It is unclear whether this was intended to be based on working days. The figure of 297 for 2017 must be based on calendar days given that it is higher than the number of working days in a year. We have calculated that the figures in the table for the period from 2019 onwards appear more consistent with working days rather than calendar days. The picture presented by this data indicated that in 2021 the level of sickness absence had been lower relative to the very high levels of sickness absence in other years. It appeared that the extent of sickness absence had risen again during the first three months of 2022.

[146]The letter concluded that her pattern of consistent and high levels of sickness was unlikely to change given the extent of her historic levels of sickness absence and the extent of the adjustments provided. It went on to refer to the impact of the workrelated concerns on her continued absence.

[147]The letter ended with the following sentence: “Finally, I am deeply saddened to have had to make this decision and I wanted to thank you for the many years of service you have given to public health in Tower Hamlets, and I wish you the best for the future.”

[148]This indicates that Dr Banerjee did consider the extent of the Claimant’s length of service in reaching the decision that the Claimant should be dismissed. The length of the Claimant’s service was not entirely a factor in the Claimant’s favour given the extent of the Claimant’s sickness absence at least since 2013 when the Respondent had become her employer. She had a very high level of sickness absence in 2013, 49 days absence in 2014, 26 days absence in 2015, albeit that she had no sickness absence during 2016.

[149]The Claimant chose to appeal against her dismissal. She lodged an eleven-page long appeal letter on 28 April 2022 [645]. She argued that management had misunderstood the medical evidence and that she should have been allowed a longer period to recover from her underactive thyroid problems, which were likely to have lasted another 6-8 weeks. She argued that ill health retirement should have been considered if management were not able to provide all the Access to Work and Occupational Health recommended reasonable adjustments. She stated that the need for reasonable adjustments was not just about equipment but was also about how she was being treated in the workplace and the impact of the hostility and harassment that she had faced over a prolonged period of time. She did not provide practical suggestions as to how this could be resolved. She explained why she had not been able to speak to her manager on 4 January 2022 as agreed (which she justified on the grounds of ill health); that she had poor connectivity whilst in Bangladesh; and that she had not received any missed calls from Ms Sanghera. She said that she found “verbally communicating with Sukhjit very stressful”, due to previous negative and distressing encounters with her. She pointed out that she had had significant contact with her recently.

[150]In response, Dr Banerjee wrote a report responding to the dismissal appeal. This was dated 25 May 2022. The Claimant responded to this report with a further document of her own.

[151]An appeal hearing was held on 29 September 2022 [783]. The appeal was chaired by Denise Radley, Corporate Director. With her on the appeal panel were Nisar Visram, Director, Finance and Procurement and Councillor Saif Uddin Khaled. These were the only decision makers present, although there were others in attendance to take notes or provide advice as well as the Claimant and her trade union representative. [793].

[152]The Appeal Chair asked her to focus on the four numbered points she had raised in her appeal letter. It was conducted by way of a review of the dismissal decision rather than a rehearing of the Stage 3 consideration for dismissal meeting. In response Dr Banerjee set out the management case to justify the dismissal decision. Dr Banerjee said that on balance his judgment was that the sickness absence would continue and would be unsustainable for the service. Whilst he was setting out the management case, he was questioned at length by Counsellor Khaled challenging him about the dismissal decision and the process followed. Questions were also asked by Nisar Visram.

[153]The focus of the Claimant’s trade union representative was to suggest that the Claimant should have been offered ill health retirement.

[154]The part of the meeting at which the Claimant and the management raised their points and responses, lasted for over two hours, although it had been scheduled for one hour and thirty minutes. At that point, the panel adjourned for a period of 10-15 minutes to deliberate. When she returned, Ms Radley announced that the panel had been able to reach a decision. The panel had decided to uphold the decision to dismiss.

[155]The appeal outcome letter was dated 7 October 2022 [793]. It acknowledged that there had been a delay in arranging an appeal hearing date and there had been a number of requests by the Claimant to reschedule. It dealt with each of her grounds of appeal in turn, explaining why these grounds had not been upheld. The conclusion was that a point had been reached where the pattern of absence could not be accommodated further given the needs of the service. Legal principles Disability

[156]The statutory definition of ‘disability’ in Section 6 of the Equality Act 2010 is as follows: “A physical or mental impairment which has a substantial and long-term adverse effect on the Claimant’s ability to carry out normal day to day activities.”

[157]The Tribunal must assess whether this definition is satisfied as at the date of the alleged discrimination, by reference to the evidence as to that point in time. The Tribunal is to deduce the extent of the impairment caused by the underlying condition, where possible, if the Claimant was not taking medication.

[158]An impairment is long-term if it has lasted or is likely to last for at least 12 months. The phrase ‘likely to last’ means ‘could well’ last. An impairment is substantial if it is more than trivial. The focus is on what the Claimant cannot do, rather than on what he can do.

[159]The Tribunal must have regard to the Secretary of State’s Guidance on matters to be taken into account in determining questions relating to the definition of disability.

[160]It is for the Claimant to prove, on the balance of probabilities, that she satisfies the definition of disability. Harassment

[161]A pithy summary of the legal principles that apply to claims of harassment under Section 26 Equality Act 2010 is found in the recent EAT decision of Carozzi v University of Hertfordshire

[2024] EAT 169

(HHJ Tayler 9.10.24) at paragraphs 10- 17: “10. Section 26 of the Equality Act 2010 (“EQA”) defines harassment: 26 Harassment(1) A person (A) harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic and (b) the conduct has the purpose or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. ... (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are age; disability; gender reassignment; race; religion or belief; sex; sexual orientation. 11. There are a number of components in a complaint of harassment. A must have engaged in unwanted conduct; that conduct must be related to a relevant protected characteristic; the conduct must have the purpose or the effect of violating the dignity of B, or creating an intimidating hostile, degrading, humiliating or offensive environment for B. I will refer to “violating dignity” compendiously to include creating an intimidating, hostile, degrading, humiliating, or offensive environment. 12. Section 26 EQA deals with two possible situations: (1) conduct that has the purpose of violating dignity or

(2) conduct that has that effect (but not the purpose). The provision allows for the possibility that A deliberately violates the dignity of B or A does so without that intention, but the conduct has the effect of violating B’s dignity. Where the conduct has the effect but not the purpose of violating dignity, the Employment Tribunal is required to consider the perception of B, the other circumstances of the case, and whether it is reasonable for the conduct to have that effect. 13. Complaints of harassment can be made about conduct that is related to a number of protected characteristics, including race. Race is defined by section 9 EQA to include colour, nationality, ethnic or national origins. 14. Section 26 EQA focuses on the dignity of the individual, and the right of a person not to have their dignity violated. It is a pragmatic provision that seeks to balance competing factors so that employees receive reasonable protection, having specific regard to their perception of the conduct, but without expecting an unrealistic standard of workplace conduct from their colleagues. Employees can be expected to demonstrate a degree of robustness, as was emphasised by the decisions of the Court of Appeal in Grant v HM Land Registry & Anor

[2011] ICR 1390

and Richmond Pharmacology v Dhaliwal UKEAT

[2009] ICR 724

. 15. The conduct must be unwanted and be related to a relevant protected characteristic. The requirement that the conduct be related to a protected characteristic is different to the requirement in a claim of direct discrimination that the treatment is because of a protected characteristic. The term “related to” is designed to cover all forms of conduct that, properly viewed, has a relationship to the protected characteristic. The issue was considered by HHJ Auerbach in Tees Esk Wear Valleys NHS Foundation Trust v Aslam & Anor

[2020] IRLR 495

. ‘Nevertheless, there must be still, in any given case, be some feature or features of the factual matrix identified by the Tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied, the Tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found, have led it to the conclusion that the conduct is related to the characteristic, as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the Tribunal may consider it to be.’ 16. In Blanc de Provence Ltd v Ha

[2023] EAT 160

, [2024] I.R.L.R. 184, I noted that conduct can be related to a protected characteristic where it is done because of the protected characteristic, but that is by no means the only way that conduct can be related to a protected characteristic. 31. It is clear that the test of whether conduct is ‘related to [sex]’ is different to that of whether it is ‘because of [sex]’ as is required to make out a claim of direct sex discrimination. The term ‘related to [sex]’ is wider and more flexible than ‘because of [sex]’. Conduct could be found to be ‘related to [sex]’ where it was done ‘because of [sex]’, but that is not a requirement. So, for example, if A subjects B to unwanted conduct with the purpose of ‘creating an intimidating environment for B’ in circumstances in which it is established that A would not have subjected a man to the same conduct, that would establish that the conduct was ‘related to [sex]’. But there are many other ways in which conduct could be ‘related to [sex]’ such as where there is conduct that is inherently sexist such as telling sexist jokes. 17. I consider that the term “related to” is designed to have a relatively broad meaning. The harassment provisions are designed to be pragmatic, balancing the interests of employees against those of their employer and colleagues who may be accused of harassment. That balance is not achieved by applying a limited meaning to the words “conduct related to a protected characteristic”. The limitations are that the conduct must be unwanted and it must have the purpose or effect of violating dignity. Where the conduct has that effect, but not that purpose, the Employment Tribunal will go on to consider the perception of B, the other circumstances and whether it is reasonable for the conduct to have that effect. Employers and employees can be expected to take greater care in how they speak and behave at work than they might in their social life. While it is in no-one’s interest that colleagues should constantly be walking on egg-shells, it is also important that proper protection is provided against violation of dignity at work.” Discrimination arising from disability

[162]Section 15 Equality Act 2010 is worded as follows:(1) A person (A) discriminates against a disabled person (B) ifa. 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.

[163]The first issue for the Tribunal to assess is whether the Claimant’s treatment was influenced to any significant extent by any consequences of the disability. This requires a focus on the reasoning in the mind of the person making the decision. The Tribunal needs to consider the conscious or unconscious thought processes of the alleged discriminator, keeping in mind that their actual motive in acting as they did is irrelevant. The “something” that causes the unfavourable treatment need not be the main or sole reason but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it (Pnaiser v NHS England

[2016] IRLR 70

at paragraph 31).

[164]The second issue, namely whether the reason/cause is “something arising in consequence of B’s disability” was explained in as follows Pnaiser at paragraph 31: “the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability. … This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.”

[165]In York City Council v Grosset

[2018] ICR 1492

, the Court of Appeal considered the extent of knowledge that was required under Section 15. In short, there is none beyond actual or constructive knowledge of the disability itself. If there is a causal link between the consequences of the disability and the unfavourable treatment, it is not necessary that the alleged discriminator knew of that connection (see paragraph 39).

[166]If the unfavourable treatment was influenced by any consequences of the disability, then it is for the Respondent to show, under Section 15(1)(b) Equality Act 2010 on the balance of probabilities that the decision was justified. That requires that the Tribunal form its own assessment of whether the unfavourable treatment was a proportionate means of achieving a legitimate aim. This is a different analysis from the range of reasonable responses approach required when considering an unfair dismissal claim.

[167]So far as legitimate aim is concerned, the EHRC Code provides that it “should be legal, should not be discriminatory in itself, and must represent a real, objective consideration. Reasonable business needs and economic efficiency may be legitimate aims, but solely aiming to reduce costs is not [4.28 & 4.29].

[168]In assessing proportionality, the Tribunal must assess whether on a fair and detailed analysis of the working practices and business considerations involved, the decision was reasonably necessary in order to achieve the legitimate aim. It is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer’s measure and to make its own assessment of whether the former outweigh the latter (Hardys & Hansons Plc v Lax

[2005] ICR 1565

[169]In O’Brien v Bolton St Catherine’s Academy

[2017] ICR 737

, Underhill LJ said: “In principle the severity of the impact on the employer of the continuing absence of an employee who is on long-term sickness absence must be a significant element in the balance that determines the point at which their dismissal becomes justified, and it is not unreasonable for a tribunal to expect some evidence on that subject. What kind of evidence is appropriate will depend on the case. Often, no doubt, it will be so obvious that the impact is very severe that a general statement to that effect will suffice; but sometimes it will be less evident, and the employer will need to give more particularised evidence of the kinds of difficulty that the absence is causing. What kind of evidence is needed in a particular case must be primarily for the assessment of the tribunal” (paragraph 45)

[170]In Gray v University of Portsmouth (EAT 14.7.21) EA-2019-000891-OO, Eady J said (at paragraph 56): “The ET’s task in this regard was not the same as would be required if determining whether the decision had fallen within the band of reasonable responses for the purposes of deciding whether it was fair under section 98(4) of the Employment Rights Act 1996. Although both tests are objective, the critical evaluation required for the purposes of section 15 EqA means that the ET must carry out its own assessment; it is not asking what might fall within the band of reasonable responses of the reasonable employer” Failure to make reasonable adjustments

[171]Section 20(3) Equality Act 2010 provides: “… 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”

[172]Section 21 Equality Act 2010 provides:(1) A failure to comply with [this] 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.”

[173]The Tribunal must assess whether the Respondent applied a provision, criterion or practice which placed the claimant at a substantial disadvantage in comparison to those employees not sharing her disability. If so, the duty to make reasonable adjustments is engaged. The Tribunal must then consider whether a reasonable adjustment to that provision, criterion or practice might have eliminated or reduced that disadvantage.

[174]Paragraph 6.10 of the EHRC Code provides: “The phrase [PCP] is not defined by the Act but should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, or qualifications including one-off decisions and actions …”

[175]In Ishola v Transport for London

[2020] IRLR 372

Simler LJ discussed the extent to which the words ‘provision criterion or practice’ could apply to one off acts. She said “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 … the comparator can be a hypothetical comparator to whom the alleged PCP could or would apply” (paragraph 36).

[176]She added (at paragraph 38): “all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again.”

[177]In order for the disadvantage suffered by the employee to be “substantial” it must be more than minor or trivial: Griffiths v Secretary of State for Work and Pensions

[2017] ICR 160

at paragraph 21.

[178]The substantial disadvantage must be “in comparison with persons who are not disabled”. This requires a comparative exercise. However, 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 circumstances … rather the matter ought to be measured by comparison with what the position would be if the disabled person did not have a disability” (Sheikholeslami v University of Edinburgh

[2018] IRLR 1090

at paragraphs 48 and 49).

[179]Paragraph 20 of Schedule 8 to the Equality Act 2010 is worded as follows: An employer is not subject to a duty to make reasonable adjustments if the employer does not know and could not reasonably be expected to know … that the employee has a disability and is likely to be placed at a disadvantage.

[180]In Secretary of State for Work and Pensions v Alam

[2010] IRLR 283

(EAT) at paragraph 17, Lady Smith stated that the Tribunal ought to ask itself two questions:a. First, did R know both that C was disabled and that his disability was liable to disadvantage C substantially by reason of the impugned PCP?

b. Second, and if the answer to the first question is “no”, ought R to have known both that C was disabled and that his disability was liable to disadvantage C substantially by reason of that PCP?

[181]In Newham Sixth Form College v Saunders

[2014] EWCA Civ 734

at paragraph 14, Laws LJ said as follows: ''the nature and extent of the disadvantage, the employer's knowledge of it and the reasonableness of the proposed adjustment necessarily run together. An employer cannot, as it seems to me, make an objective assessment of the reasonableness of proposed adjustments unless he appreciates the nature and extent of the substantial disadvantage imposed upon the employee by the PCP.'”

[182]The burden of proof is on the claimant to establish the existence of the provision, criterion or practice and to show that it placed him at a substantial disadvantage - see Project Management Institute v Latif

[2007] IRLR 579

at paragraph 45. In other words, to establish that the duty to make reasonable adjustments has been engaged.

[183]Thereafter the onus remains on the claimant to identify the potential reasonable adjustments with a sufficient degree of specificity to enable the Respondent to address them evidentially and the Tribunal to consider the reasonableness of providing them. The claimant must establish not only that the duty has arisen, but that there are facts from which it could reasonably be inferred, absent an explanation, that it has been breached. At that point where the claimant has identified one or more potential reasonable adjustments, the burden of proof is reversed. The Respondent must then show, on the balance of probabilities, that the adjustment could not reasonably have been achieved – Latif at paragraphs 53-54.

[184]The reasonableness of the steps to be taken to avoid the disadvantage is to be determined on an objective basis: Griffiths v Secretary of State for Work and Pensions

[2017] ICR 160

at paragraph 73.

[185]Further guidance as to the considerations that are relevant in assessing reasonableness is provided in paragraph 6.28 of the EHRC Code. These are “whether taking any particular steps would be effective in preventing the substantial disadvantage; the practicability of the step; the financial and other costs of making the adjustment and the extent of any disruption caused; the extent of the employer’s financial or other resources; the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work) and; the type and size of the employer”. Examples are also given in paragraph 6.33.

[186]The reasonable adjustments duty is “primarily concerned with enabling the disabled person to remain in or return to work with the employer”. As a result, it would be a “very rare case indeed” where merely giving higher sick pay beyond the end of the contractual entitlement (and therefore than would be payable to a non-disabled person) would be considered necessary as a reasonable adjustment” (O’Hanlon v Commissioners for HR Revenue & Customs

[2007] IRLR 404

at paragraph 67). Unfair dismissal

[187]Section 98(1) Employment Rights Act 1996 provides:(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 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.

[188]In East Lindsey District Council v Daubney

[1977] ICR 566

Phillips J stated: “Unless there are wholly exceptional circumstances, before an employee is dismissed on the ground of ill health it is necessary that he should be consulted and the matter discussed with him, and that in one way or another steps should be taken by the employer to discover the true medical position. We do not propose to lay down detailed principles to be applied in such cases, for what will be necessary in one case may not be appropriate in another. But if in every case employers take such steps as are sensible according to the circumstances to consult the employee and to discuss the matter with him, and to inform themselves upon the true medical position, it will be found in practice that all that is necessary has been done. Discussions and consultation will often bring to light facts and circumstances of which the employers were unaware, and which will throw new light on the problem. Or the employee may wish to seek medical advice on his own account, which, brought to the notice of the employers’ medical advisers, will cause them to change their opinion. There are many possibilities. Only one thing is certain, and that is that if the employee is not consulted, and given an opportunity to state his case, an injustice may be done.”

[189]The IDS Employment Law Handbook on Unfair Dismissal indicates (at paragraph 5.28) that the following matters should form part of consultation with the employee:a. discussions at the start of the illness, and periodically throughout its duration, and informing the employee if the stage when dismissal may be considered is approaching.

b. personal contact with the employee

c. consideration of the medical evidence

d. consideration of the employee’s opinion on his or her condition

e. consideration of what can be done to get the employee back to work

f. consideration of offering alternative employment, if any, in the employer’s business.

g. consideration of an employee’s entitlement to enhanced ill-health benefits, if available.

[190]It is well established that a Tribunal must not substitute its own decision for that of the employer. Rather it should consider whether the decision to dismiss fell within the band of reasonable responses open to a reasonable employer, and whether the procedure that was followed was within the band of reasonable procedures.

[191]In a case where, as here, the dismissal is alleged to amount to Section 15 discrimination arising from disability and also to an unfair dismissal, the Court of Appeal in O’Brien v Bolton St Catherine’s Academy

[2017] ICR 737

gave the following guidance to the “reasonableness review” required in deciding whether there was an unfair dismissal (at paragraphs 53-54): “I accept that the language in which the two tests is expressed is different and that in the public law context a "reasonableness review" may be significantly less stringent than a proportionality assessment (though the nature and extent of the difference remains much debated). But it would be a pity if there were any real distinction in the context of dismissal for long-term sickness where the employee is disabled within the meaning of the 2010 Act. The law is complicated enough without parties and tribunals having routinely to judge the dismissal of such an employee by one standard for the purpose of an unfair dismissal claim and by a different standard for the purpose of discrimination law. Fortunately, I see no reason why that should be so. On the one hand, it is well established that in an appropriate context a proportionality test can, and should, accommodate a substantial degree of respect for the judgment of the decision-taker as to his reasonable needs (provided he has acted rationally and responsibly), while insisting that the tribunal is responsible for striking the ultimate balance; and I see good reason for such an approach in the case of the employment relationship. On the other, I repeat – what is sometimes insufficiently appreciated – that the need to recognise that there may sometimes be circumstances where both dismissal and "non-dismissal" are reasonable responses does not reduce the task of the tribunal under section 98(4) to one of "quasi— Wednesbury " review: see the cases referred to in para. 11 above. Thus in this context I very much doubt whether the two tests should lead to different results. Time limits

[192]Section 123 of the Equality Act 2010 is worded as follows: (1) Proceedings on a complaint brought within Section 120 may not be brought after the end of –a. the period of 3 months starting with the date of the act to which the complaint relates; or

b. such other period as the employment tribunal thinks just and equitable (2)… (3)For the purposes of this section _ a. conduct extending over a period is to be treated as done at the end of the period; b. failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[193]Under Section 123 of the Equality Act 2010, proceedings on a complaint may not be brought after the end of the period of three months starting with the date of the act to which the complaint relates. The three-month time for bringing Tribunal proceedings is paused during early conciliation such that the period starting with the day after early conciliation is initiated and ending with the day of the early conciliation certificate does not count (Section 140B(3), Equality Act 2010). If the time limit would have expired during early conciliation or within a month of its end, then the time limit is extended so that it expires one month after early conciliation ends (Section 140B(4), Equality Act 2010).

[194]Conduct extending over a period is to be treated as done at the end of the period (Section 123(3) Equality Act 2010). There is conduct extending over a period if there is a continuing discriminatory state of affairs as opposed to a succession of unconnected or isolated specific acts. If so, then the three-month time period for bringing a claim only runs from the date on which the state of affairs ends (Metropolitan Police Commissioner v Hendricks

[2003] ICR 530

[195]In Fernandes v Department of Work and Pensions

[2023] IRLR 967

, the EAT (HHJ Beard) summarised the correct approach to deciding when time started running in a case involving allegations of a failure to make reasonable adjustments (at paragraph 16): “16. The principles set out in the existing authorities amount to the following propositions:a. The duty to make an adjustment, under the statutory scheme, arises as soon as there is a substantial disadvantage to the disabled employee from a PCP (presuming the knowledge requirements are met) and failure to make the adjustment is a breach of the duty once it becomes reasonable for the employer to have to make the adjustment.

b. Where the employer is under a duty to make an adjustment, however, limitation may not begin to run from the date of breach but at a later notional date. As is the case where the employer is under a duty to make an adjustment and omits to do so there will be a notional date where time begins to run whether the same omission continues or not.

c. That notional date will accrue if the employer does an act inconsistent with complying with the duty.

d. If the employer does not act inconsistently with the duty the notional date will accrue at a stage where it would be reasonable for the employee to conclude that the employer will not comply, based on the facts known to the employee.”

[196]If the claim has been brought outside the primary limitation period, then the Tribunal has jurisdiction to consider the claim if it was brought within such other period as the Tribunal considers just and equitable. Considering a claim brought outside the threemonth time limit (as extended by the early conciliation provisions) is the exception rather than the norm. Time limits are exercised strictly in employment and industrial cases. The onus is on the Claimant to establish that it is just and equitable for time to be extended (paragraph 25 of Robertson v Bexley Community Centre (t/a Leisure Link)

[2003] IRLR 434

, CA).

[197]It is plain from the language used ("such other period as the employment tribunal thinks just and equitable") that Parliament has chosen to give the employment tribunal the widest possible discretion. Factors which are almost always relevant to an exercise of the discretion are the length of and the reasons for the delay, and whether the delay has prejudiced the Respondent (Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] ICR 1194

at paragraphs 18 and 19). However: “There is no … requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation of the delay from the claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal ought to have regard (Abertawe at para 25)

[198]It is not necessary for a Tribunal to consider the checklist of factors set out in Section 33 of the Limitation Act 1980, given that that Section is worded differently from Section 123 of the Equality Act 2010, so long as it does not leave a significant factor out of account.

CONCLUSIONS

[199]We set out our conclusions in what appears to us to be a more logical order than the order set out in the List of Issues (which is replicated below). Disability

[200]We find that the thyroid condition experienced by the Claimant satisfied the legal requirements to amount to a disability by the final period of sickness absence, from September 2021 to March 2022. By that point, the condition had last for more than 12 months, having been first diagnosed in 2019. As a result, it is a long-term condition. It also had a substantial adverse effect on her normal day to day activities. Its symptoms were sufficient such that she had been prescribed medication from 5 November 2019 onwards to alleviate those symptoms. The dose of this medication was subsequently doubled. She was still taking medication for her thyroid condition in early 2022, and this was increased further by a doctor in Bangladesh. Whilst we have no specific evidence as to the symptoms that had she would have experienced without taking medication, it is a reasonable deduction that they would have been greater than had she not taken medication. The extent of those symptoms was a partial reason why she was unable to work since 9 March 2022, as stated on the Fit Note issued on this date.

[201]As a result, the legal requirements to amount to a disability are satisfied in relation to the Claimant’s thyroid condition, at least in relation to the last period of sickness absence. The Claimant relies on the thyroid condition as a disability in particular in the period leading up to her dismissal. Harassment

[202]Following the Tribunal’s discussion with the parties at the start of the Final Hearing about the issues in dispute, the allegations of harassment related to disability were reduced to just two. The first of these two, identified by the letter (k) was expressed in the following terms: “Over the years I was required to check-in weekly whilst off sick and I was pursued and criticised about my failure to do this on an ongoing basis right up to the date of my dismissal … At some points, particularly in the period leading up to my dismissal on 29 March 2022, I was contacted every few days from January to March 2022”

[203]We have found that the requirement that those off sick should check-in with their line managers on a weekly basis with their line managers was the default position adopted by HR for those on long term sick leave. It was a requirement that could be varied by agreement where this was appropriate given particular circumstances. It was therefore not a requirement that applied uniquely to the Claimant, nor was it a decision taken by Ms Donnelly or by Ms Sanghera.

[204]In the Claimant’s case, there is limited evidence as to the frequency of the contact expected before the extended period of sickness absence which started in September 2021. The indication in the email to the Claimant sent by Ms Sanghera on 2 November 2021 was that they had previously discussed weekly contact during periods of extended sick leave. This was not disputed in the Claimant’s response. In fact, contact was not every seven days thereafter. When the Claimant left for Bangladesh in December 2021, there was agreement that the Claimant would check in with her line manager on 4 January 2022 ie almost four weeks later. The Claimant did not check in with Ms Sanghera on a weekly basis during January and February 2022 when she was in Bangladesh. Following her return to the UK at the start of March 2022, there was weekly communication between the Claimant and Ms Sanghera. We have noted all the communications between the Claimant and Ms Sanghera during the months prior to her dismissal.

[205]In the light of these factual findings, it is factually incorrect for the Claimant to allege that she was required to check in weekly “over the years”. She has not established this on the evidence in relation to events pre-dating November 2021. Throughout the period from the start of December 2021 to the start of March 2022, when the Claimant was in Bangladesh, the contact between the Claimant and the Respondent was far less frequent, even though the Claimant was not on annual leave at this time.

[206]Given her lack of specific objection to the frequency of the contact from Ms Sanghera, we do not consider that the frequency of the contact was “unwanted”. She may have preferred to be contacted by another manager, but whilst Ms Sanghera remained her line manager, she did not suggest that Ms Sanghera was contacting her too frequently.

[207]As a result, this particular allegation of harassment must fail. But in any event, we do not find that the extent of the contact that was required was such as to violate her dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. This was not the purpose of the requirement, nor was it the effect. We have specific regard to the Claimant’s perception; to the other circumstances; and to whether it was reasonable for it to have that effect. This was the default contact frequency suggested by HR for those on long-term sick leave, which could be varied by agreement. The Claimant had never once asked for contact to be at longer intervals. Given the Claimant’s condition, which fluctuated from week to week, a weekly reporting requirement was appropriate to check on her current physical and mental health symptoms.

[208]Therefore, this allegation of harassment related to disability must fail.

[209]The second alleged act of harassment, listed under letter (l) in paragraph 130 of the Claimant’s witness statement is expressed in the following terms: “Whilst in Bangladesh in January and February 2022, I received numerous calls and some emails from Ms Sanghera despite being signed off sick. She was constantly chasing me.”

[210]It is correct that Ms Sanghera did send her several emails during these two months. There is no evidence that Ms Sanghera attempted to telephone her during this period. The Claimant was not on annual leave at this point but on sick leave. The default position of HR was that there should be weekly contact during sick leave. This had not been varied as it could have been had the Claimant suggested this. She had not. The extent of the communications from Ms Sanghera was in part prompted by the lack of communication from the Claimant. She had failed to call on 4 January 2022 as had been previously agreed. She then failed again to speak to Ms Sanghera the following day, at the rearranged time that Ms Sanghera had suggested. She had not attended the telephone Occupational Health appointment scheduled to take place on 21 February 2022. In the circumstances, much of the email communication from Ms Sanghera was prompted by the lack of communication from the Claimant. The Claimant did not complaint about the extent of the communications from Ms Sanghera at the time.

[211]For these reasons, we do not accept that the extent of the communication from Ms Sanghera during January and February 2022 was unwanted. In any event, we do not find that the frequency was such as to violate her dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. In so finding, we have had regard both to the perception of the Claimant, to all the circumstances, and to whether it was reasonable for it to have that effect. Reasonable adjustments

[212]The Agreed List of Issues specifies two “provisions, criteria and practices” (PCPs) applied by the Respondent, which the Claimant argues should have been adjusted. These were worded as follows: “requiring Public Health Officers to perform their full job role and duties” “requiring Public Health Officers to maintain a certain (satisfactory) attendance record”

[213]The Respondent agrees that it did apply these PCPs and that they did put the Claimant at a substantial disadvantage compared to someone without her disabilities in that she was unable to perform the full duties of her role and she was unable to maintain regular attendance at work due to sickness absence. We find that the Respondent knew or ought to have known about the extent of the disadvantage that the PCPs were causing her, given the regular updates from Occupational Health.

[214]The Final List of Issues then specifies (at paragraph 5.5.1) five “failures” in relation to specific steps that should have been provided to assist with symptoms arising from her rheumatoid arthritis and fibromyalgia, which are lettered (a) to (e). It is not argued that these adjustments apply to any symptoms arising from the disability of anxiety or depression. (a) Failure to provide adequate training on Dragon Dictate software

[215]The first, sub-paragraph (a), is a failure to provide adequate training on Dragon Dictate software, which is said to cover the period from June 2018 to date. We reject this allegation. This suggested reasonable adjustment is not an actual adjustment to either of the two PCPs which the Claimant relies upon for her reasonable adjustment claim.

[216]In any event, based on our findings of fact, we do not consider that there was any failure to provide a reasonable adjustment in this particular respect, so as to reduce any substantial disadvantage that the Claimant was experiencing based on her symptoms of fibromyalgia and rheumatoid arthritis. The Claimant ought to have been reasonably proficient in using the Dragon software, given that it had been provided to her since at least 2012. In 2017, rather than suggesting further training, the documents record she needed time to practice using the software and she was granted time for this by her then line manager, Nicola Donnelly. She was provided with a training session on 9 May 2018 which she found very helpful. Further training was recommended by Access to Work in June 2018. The next month, July 2018, in a meeting with her line manager, it was noted that Dragon dictating was going well, albeit that there were problems with particular commands and further training would be helpful. She was encouraged to call the Dragon helpline if IT assistance was required. She received further bespoke professional training on 19 September 2018 and Nicola Donnelly helped her with using the software during a 1-2-1 session on 10 October 2018. This itself was further training, albeit provided on an in-house basis. Further professional training took place on 19 November 2018. The trainer offered the Claimant the opportunity to email her if she had forgotten any particular commands. Additional training was scheduled to continue in February, March and April 2019. It was cancelled because by that point the Claimant was on sick leave and so unlikely to be well enough to participate in the training. This was done so that the funding for these sessions would not be lost. Access to Work recommended further Dragon training in a report dated 30 June 2020, but the Claimant did not return to work until 7 December 2020. On 15 April 2021 and on 25 May 2021 the Claimant did receive further bespoke training on Dragon voice recognition software. At an Occupational Health assessment held on 30 September 2021, she again raised the prospect of needing further Dragon training. Whilst this may have been her perspective, we are not persuaded that by that point there was any particular gap in her knowledge about the use of Dragon software that required further training, such that the extent of the training provided by that stage was inadequate. (b) Not being given time to adapt to the adjusted ergonomic chair for use when working from home

[217]The second alleged reasonable adjustment, at sub-paragraph (b), is worded as “not being given time to adjust to reasonable adjustments made to improve her output”. This was clarified at the start of the Final Hearing as an allegation which was specific to the provision of an ergonomic chair for her to use when working from home. The Claimant’s argument is that the Respondent failed to wait to see whether the adjustments made to the chair on 29 March 2022 would enable her to return to her duties, but instead dismissed her.

[218]We accept that this alleged reasonable adjustment is capable of being a reasonable adjustment to the PCP of requiring Public Health Officers to maintain a certain satisfactory attendance record. Essentially the Claimant is arguing that the Stage 3 meeting which ordinarily should have happened within three months of the Stage 2 meeting under the Attendance Management Policy should have been delayed so that a considered view could be formed of the suitability of the ergonomic chair provided for the Claimant to use when working from home; or that the uncertain outcome of the chair adjustment appointment should have delayed any Stage 3 decision.

[219]We reject the Claimant’s argument that waiting until the outcome of the assessment before deciding whether to dismiss would have been a reasonable adjustment. Even if, appropriately adjusted, the Claimant’s latest desk chair would have reduced the Claimant’s symptoms to enable her to work from home, the Claimant would still not have been able to return to her duties. Based on the latest Occupational Health advice. it was her perception of workplace concerns that was prolonging her absence, rather than the suitability of the chair she was using when working from home. Until that was satisfactorily resolved, the Occupational Health advice was that she would not be fit for any work. In addition, the flare up in her underactive thyroid condition was a further factor preventing her return to work in the short to medium term. Because of these two features, the Claimant potentially required several further weeks on sick leave as a minimum even if the chair was considered ergonomically suitable for her use at home.

[220]In addition, the Claimant had been able to perform some work from home in September 2021 before the start of the last period of sickness absence. At that point she had not been using the same ergonomic chair that was adjusted for her needs on 29 March 2022. We are not persuaded that the Claimant’s ability to work from home was entirely dependent on the outcome of the latest ergonomic assessment being entirely to the Claimant’s satisfaction. Further, there was a real possibility that the latest chair, even with bespoke adjustments, would not sufficiently reduce the symptoms that the Claimant was experiencing when sitting at a desk. The latest chair was at least the third chair on which she had tried to work at home. The previous two (supplied on 8 March 2021 and 21 September 2021 [702]) had not been assessed as suitable.

[221]The Claimant argues that the Respondent should have waited longer in the context that the chair adjustment appointment had been delayed from 15 December 2021, a period of three and a half months, as a result of her extended time in Bangladesh. It had first been discussed with her line manager on 6 December 2021. It would not be reasonable to expect the Respondent to wait any longer. (c) Not allowing her more time to get back to work after sickness absence

[222]The third alleged reasonable adjustment, at sub-paragraph (c), is not allowing her more time to get back to work after her sickness absence. As clarified at the outset, the Claimant was arguing that any dismissal decision should have been delayed for 6-8 weeks given the prognosis for her under active thyroid condition. As with the second alleged reasonable adjustment, this is an adjustment to the PCP that there should be a certain (satisfactory) attendance record and specifically that any final outcome to the Attendance Management Process should be delayed allowing the thyroid condition to recover.

[223]The Claimant’s thyroid condition had been mentioned on the Fit Note as a reason why the Claimant was currently unfit for work. It is true that there was an expectation that this would improve over several weeks. However, no timescale had been given for when this would permit the Claimant to be medically fit enough to work. Therefore, to delay any dismissal decision based on the current prognosis for the thyroid condition would be to delay for an uncertain duration.

[224]Even if the thyroid symptoms had sufficiently abated, the Claimant would not have been able to return to work at that point. That would only be possible once her perception of workplace concerns had been satisfactorily resolved. As a result, the suggested reasonable adjustment would not, in itself, have enable the Claimant to return to work. As a result, we do not consider that delaying any dismissal decision for this reason was required as a reasonable adjustment. (d) Not taking the time and trouble to implement working from home and flexible working

[225]The fourth reasonable adjustment which the Claimant contends should have taken place, at sub-paragraph (d), was clarified as relating to the whole period from March 2017 to dismissal. The Claimant argues that the Respondent did not “take the time and trouble to investigate and implement working from home and flexible working”. So far as home working was concerned, the Claimant had raised the issue at meetings on 10 October 2018 and again on 5 November 2018. She had been told that she could work at home for two half days a week. If she wanted to work from home beyond this, she needed to put together a case to submit to senior management, which Ms Donnelly would support if it was compatible with work programmes. The Claimant never did so. This was a reasonable request, given the extent of the change that the Claimant was requesting from the policy on home working that applied to that Division of the Respondent. The Claimant had been working from home since the Covid-19 national lockdown in March 2020. She had not been required to attend the office since then to carry out her work. According to Ms Sanghera during the Consideration for Dismissal meeting on 29 March 2021, the guidance given to all staff at that point was that they should attend at least one day per week. The implication is that in early 2022, they could work from home for four days a week. Whilst there had been no permanent change made to the Claimant’s employment contract to enable her to work from home for all five days each week, she had not specifically requested this and had not made a formal request for flexible working to incorporate such a change. As a result, we do not find that there was a failure to make a reasonable adjustment in relation to permitting home working.

[226]The flexible working aspect of this allegation relates to the Claimant’s start and finish times and in particular whether the Claimant could be permitted to start her working day early in the morning working from home and then travel into the office when the morning stiffness that she often experienced at the start of the day had eased. It is dealt with below where the issue is identified more clearly in relation to paragraph 5.5.5 of the Final List of Issues. (e) Not granting the Claimant rehabilitation leave and annual leave to recover

[227]The fifth reasonable adjustment, at sub-paragraph (e), is that the Respondent did not allow the Claimant “rehabilitation leave and annual leave to be used to give the Claimant time to recover”. This was clarified as related to December 2021, although even by the end of closing submissions, the particular dates on which the Claimant was arguing that rehabilitation leave or annual leave should have started or finished remained unclear.

[228]The Attendance Management Policy contains the following paragraph 10.1.6 under the heading Related Information and the sub-heading “Disability Related Sickness”: “If staff have informed their manager that they have a disabling medical condition and, where they are fit for work but need time off for treatment, physiotherapy, health assessments or to attend courses to help them manage their condition, they can request Rehabilitation Leave, as set out in the Special Leave Policy. This leave can be requested for both short and long-term periods of absence … Rehabilitation leave is not to be used for periods of sickness absence”

[229]The parties had not included a copy of the Special Leave Policy in the bundle of documents. The reasonableness of this particular adjustment was not the focus of any cross examination of the Respondent’s witnesses. As a result, we are in difficulty in evaluating the evidence on this particular point. What is clear is that Rehabilitation Leave is not to be granted instead of long-term sick leave. In addition, the purpose of the Rehabilitation Leave is to attend specific medical or health appointments. As such it is granted for a particular purpose and it is time limited. It has to be requested.

[230]The Claimant has not pointed to any particular instance where she had requested Rehabilitation Leave for a particular medical or health purpose. The purpose of a reasonable adjustment is to avoid the substantial disadvantage caused by a particular PCP. We do not accept that the failure to grant the Claimant rehabilitation leave or annual leave around December 2021 placed the Claimant at a particular disadvantage in complying with either of the two PCPs listed in the Final List of Issues. The only respect in which rehabilitation leave would have assisted her at the Consideration for Dismissal meeting on 29 March 2022 would have been to reduce the total number of days of sickness absence that the Claimant had taken. The Claimant requested annual leave to start from 21 February 2022 which was the day after the expiry of her current Fit Note. Therefore, at the time the request for annual leave was made, it did not relate to a period of sick leave.

[231]In any event, we do not accept that either would have been a reasonable adjustment whether in December 2021 or thereafter. We reject the submission that the Claimant was medically advised to spend time in a warmer climate, such as Bangladesh, as treatment for her symptoms. Even if she had been so advised, she had not requested Rehabilitation Leave to cover part of the period from December 2021 onwards.

[232]On 17 February 2022, the Claimant had requested five and a half weeks of continuous annual leave from 21 February 2022 to 31 March 2022. She had not asked for this as a reasonable adjustment, but rather so she could take it before 31 March 2022. We presume that the end of March was the end of the Respondent’s holiday year. At the same time, she had said she would not be able to attend an Occupational Health appointment until she returned to the UK. She had not provided a date for her return. As a result, she was asking for annual leave during a period when she had not yet been signed off on sick leave (because the current certificate was still valid until 20 February 2022), but there was every prospect she would be signed off again thereafter. In those circumstances, it was reasonable for the Respondent to decline this particular request for annual leave. The purpose of annual leave is to allow employees to rest from work rather than to mask the true reason why they are absent from work, namely that they are not well enough to work. 5.5.2 Dealing with complaints inappropriately

[233]The next proposed reasonable adjustment, listed at paragraph 5.5.2 in the Final List of Issues, is “dealing with complaints she made properly in line with the Respondent’s policies”. This proposed adjustment is not an adjustment to either of the PCPs which are relied upon by the Claimant in the Final List of Issues. It does not relate to the requirement that Public Health Officers should perform their full job role and duties, or to the requirement that Public Health Officers should maintain a certain (satisfactory) attendance record. Therefore, it is unnecessary for us to examine the extent to which the Claimant’s complaints about the conduct of Nicola Donnelly and Sukhjit Sanghera were investigated and resolved.

[234]Rather surprisingly given the framing of this issue, the Respondent’s Grievance Policy was not included in the bundle used at the Final Hearing. The only Grievance Policy included was an NHS policy dating from November 2011. This predates the Claimant’s TUPE transfer to the Respondent’s employment in 2013. Therefore, we are unable to reach conclusions as to whether the complaints made by the Claimant were dealt with in line with the Respondent’s policies. There was a significant delay on the Claimant’s part in making any written complaint about the conduct of Ms Donnelly or of Ms Sanghera at the meeting on 5 November 2018. We note that the Claimant never chose to formalise her complaints by lodging what was described as a Formal Grievance. We do not regard the email attachment sent to Dr Banerjee on 3 June 2020 as a Formal Grievance so as to engage any Grievance Policy. That itself was lodged over 18 months after the meeting on 5 November 2018. Whilst there was a delay on Dr Banerjee’s part in dealing with the complaint about Ms Sanghera, the Claimant did not follow up until 8 December 2020 to request an update on when she would receive a response. Upon receipt in June 2020, Dr Banerjee had overlooked the written complaint about Ms Sanghera. It had been included in one of several attachments and in a document that wasn’t clearly a complaint. When he received the Claimant’s email of 8 December 2020, he carried out an informal investigation and came to a fair conclusion based on the evidence he had gathered. He provided a written response in his email sent on 19 January 2021.

[235]Given the vague and informal way in which the Claimant chose to raise the issues she did with Dr Verrecchia on 11 March 2021, it was reasonable for him to respond in the way he did at that meeting and confirmed in Dr Verrecchia’s email sent on the same date. This was that the Claimant should engage with Ms Sanghera as her line manager and discuss her workplan. The Claimant’s complaint was not raised in sufficiently clear terms to merit further investigation. 5.5.3 Failing to change the Claimant’s line manager

[236]At paragraph 5.5.3 of the Final List of Issues, the Claimant argues that by way of a reasonable adjustment, she should have been allowed “to change line management from Sukhjit Sanghera to someone else from 8 December 2020 through to the time of her dismissal”. When asked at the outset of the Final Hearing to clarify who should have been appointed as her line manager, Claimant’s counsel indicated that it should have been anyone but Ms Sanghera.

[237]In the course of closing submissions, Claimant’s counsel was asked how this was an adjustment to the PCPs that were being relied upon. She responded that it primarily responded to the expectation that the Claimant should keep in regular contact with her line manager as part of her duties. She argued that the failure to change line manager made it much harder for the Claimant to maintain the expected weekly contact. We are prepared to accept that this is capable of being an adjustment to the PCP that Public Health Officers are required to perform their full job role and duties.

[238]However, we reject the allegation that the failure to change her line manager was a failure to make a reasonable adjustment. The Claimant’s concerns about Ms Sanghera related to a particular incident on 5 November 2018. She had not complained in writing about this incident at the time. She had put her complaint in writing for the first time in June 2020, over 18 months after the date of the incident. Even then she had not done so by way of a formal grievance and had not identified an alternative person to be her line manager. Dr Banerjee had looked into the complaint in December 2020 when reminded to do so in the Claimant’s email dated 8 December 2020 and had reached a fair conclusion based on the evidence gathered. The nature of the complaint was not sufficiently current or serious such that Dr Banerjee ought to have assigned the Claimant a different line manager whilst the complaint was investigated.

[239]In the light of Dr Banerjee’s conclusion following his investigation, it was not reasonable to change the Claimant’s line manager, particularly given that no other person had been identified as suitable. During her evidence at the Final Hearing the Claimant did not identify anyone who could have been assigned that role.

[240]Furthermore, the request that the Claimant should be assigned a new line manager needs to be seen in context of the Claimant’s past employment history. Ms Sanghera had been assigned to be the Claimant’s line manager because she had complained of a breakdown in her working relationship with her existing line manager, Ms Donnelly. In addition, the Claimant stated during the Stage 3 meeting that she had suffered intimidation and harassment from previous line managers and senior team members. In addition to Ms Sanghera and Ms Donnelly, she also named Manuwuba Eke, her line manager before Ms Donnelly, and Chris Lovitt. Aside from Dr Banerjee, she was naming almost everyone who had had a role in considering how she should work. Reassigning a member of staff to an alternative line manager is a potentially disruptive step to any organisation, particularly if their role involves rather different duties. Given that a change of line manager had already been tried once, it was not reasonable to require that this step be taken for a second time when there was no obvious candidate to fulfil the role. 5.5.4 Failing to offer the Claimant redeployment to another role

[241]The next alleged reasonable adjustment for which the Claimant argues, at paragraph 5.5.4 of the Final List of Issues, is “offering the Claimant the option of redeployment to another role as an alternative to dismissal”. This is dealt with in the Claimant’s witness statement at paragraphs 93, 94 and 147. She argues that a suitable role would have been one that provided flexibility in the way she worked depending on her symptoms and was less physically demanding. She argues that she could have been assigned a community engagement role with the Bangladeshi community using her language skills. We do not accept that this would have been a reasonable adjustment. It is not clear that it would be any less physically demanding. It is not clear if there was an existing vacancy for such a position. It appears that the Claimant is arguing that a bespoke job ought to have been created for her where none previously existed. Whilst it is conceivable that creating a new role could be a reasonable adjustment in particular cases, the Claimant has not raised a prima facie case that such a significant step would be a reasonable adjustment here. She has not defined the scope of such a role nor addressed how it would be funded. In particular, she does not identify any occasion on which she asked for such a role nor any contemporaneous document which supports such a request. We have carefully reviewed both sets of notes of the Consideration for Dismissal meeting held on 29 March 2022. We cannot see that the Claimant or her union representative made any reference to redeployment as is now being argued. We do not find that this would have been a reasonable adjustment here. In the dismissal letter sent after the end of the Stage 3 meeting, Dr Banerjee wrote that he had considered whether redeployment to another job was a viable option and had concluded that the pattern and level of sickness absence over many years indicated that the same issues were likely to continue in any other role that could be found with the Respondent [643]. 5.5.5 Failing to allow the Claimant to work flexibly

[242]The next alleged reasonable adjustment, in paragraph 5.5.5 of the Final List of Issues, is that the Claimant ought to have been given the option to work flexibly when her pain was bad. This was clarified at the outset as applying from March 2017 to the date of her dismissal. This is in the context of variable symptoms where she often suffered from morning stiffness. She argues, in paragraph 5.5.5(a) that she ought to have been allowed to work flexibly between 7am – 8pm instead of being told to work fixed hours, either 10am-6pm or 9am-5pm. Essentially, she is arguing that she ought to have been able to start working from home earlier in the morning when she was feeling stiff and then travel into the office later in the day; as well as potentially be permitted to finish work later if she had started work at an earlier time.

[243]We have rejected the Claimant’s evidence that such an adjustment had previously been agreed in 2014 and had then been revoked in 2017. Her evidence as to how when and by whom this was granted and how when and by whom it was withdrawn is particularly vague.

[244]In certain occupational health reports in 2018 and 2019, the advice was that a more flexible arrangement should be considered in terms of work location and hours. This was based on what the OH adviser had been told by the Claimant. The Claimant never made a formal Flexible Working Request to be allowed to work in such a way as she had been encouraged to do on 10 October 2018. When she raised the possibility of carrying out such a working pattern in email correspondence with Chris Lovitt on 30 October 2018, she was again encouraged by Ms Donnelly to make a formal request to change her working hours, by providing evidence to senior management. Ms Donnelly said she would see if she could support such a request. The Claimant never requested a formal change to her terms and conditions. What she had asked for in her email of 30 October 2018 was extremely vague.

[245]In cross-examination, Dr Banerjee accepted that the email of 30 October 2018 amounted to a flexible working request, which ought to have led to a discussion as to whether it could work. We take this evidence into account. However, the Respondent did not call Ms Donnelly who was the Claimant’s line manager at the time of these email exchanges, or any witness from HR. This explains why this line of questioning was put to Dr Banerjee, even though he was not directly involved in this email exchange. We would have expected a request for a permanent change in terms and conditions to be initiated in a more formal manner than this email. We also note that Ms Donnelly was encouraging the Claimant to formalise her request for a change in her working hours. She had not done so.

[246]It was also suggested to Dr Banerjee in cross-examination that he should have considered at the dismissal meeting changing the Claimant’s required working hours depending on whether it was winter (when symptoms were generally worse) or summer (when symptoms were generally better). This was not something that the Claimant had raised in advance or at the meeting on 29 March 2022. It was raised for the first time during the appeal. A seasonal variation in working hours was not something that was specifically supported by occupational health or other medical advice. In fact, the Claimant had returned to work in December 2020 and continued working until 7 June 2021. She had therefore been able to work for much of the preceding winter.

[247]The adjustment for which the Claimant appears to be arguing is that she be allowed to work the hours she was contracted to work at a time of her choosing depending on the particular symptoms she was experiencing, without the need to give any prior warning to the Respondent of her start and finish times. In the absence of a formal flexible working request, the Respondent had been willing to grant her some flexibility about her working hours and location on particular days so long as he had given them sufficient advance notice. The implication is that there was a business need to know in advance the hours and place from which the Claimant would be working.

[248]We do not consider that the Claimant’s symptoms required such flexibility as to working hours to be granted as a reasonable adjustment in the absence of a formal flexible working request. This alleged reasonable adjustment at paragraph 5.5.5 of the Final List of Issues is therefore rejected.

[249]The alleged reasonable adjustment at paragraph 5.5.6 of the Final List of Issues has been withdrawn. 5.5.7 Failing to delay the Claimant’s dismissal for 6-8 weeks

[250]The final alleged reasonable adjustment, at paragraph 5.5.7 of the Final List of Issues, was to delay the Claimant’s dismissal by at least 6-8 weeks. We have already rejected this allegation for the reasons given above. Discrimination arising from disability

[251]The Respondent treated the Claimant unfavourably by dismissing her on 29 March 2022. At that point, the Respondent knew that the Claimant had various disabilities. These were rheumatoid arthritis, fibromyalgia and/or under-active thyroid. As a result of those conditions, the Claimant was not able to undertake her substantive role of Public Health Officer on a regular basis and so had had a substantial period of previous sickness absence. She also had an ongoing need for reasonable adjustments which had been provided, as detailed in the outcome letter. For the reasons already given, there was no failure to provide the further adjustments that the Claimant argues in these proceedings would have been additional reasonable adjustments. The decision to dismiss the Claimant was taken given the extent of the previous sick leave as well as the prospect that she would need substantial periods of sick leave in the future.

[252]In addition, the Claimant had been on long-term sick leave for several months because of her perception of work-related concerns with management. Based on the occupational health advice, these concerns were also a reason why the Claimant would continue to be absent from work until these concerns were satisfactorily addressed. It is not argued by the Claimant – either in the list of issues or in closing submissions - that these work-related concerns themselves arose in consequence of the Claimant’s disabilities. At issue 4.3 in the Final List of Issues, the Claimant does not rely on the disability of Anxiety/Depression. Therefore, the dismissal decision was also taken for a reason which does not arise out of the particular disabilities relied upon in support of this complaint.

[253]The Respondent must show that the treatment is a proportionate means of achieving a legitimate aim. The burden is on the Respondent to show this on the balance of probabilities. The legitimate aim relied upon by the Respondent is the efficient running of its enterprise.

[254]For whatever reason, the Respondent’s witness evidence does not provide details of the particular impact of the Claimant’s absence on the Respondent’s ability to fulfil its public health obligations. The dismissal letter also deals with this issue in rather general terms. We pointed this out to the parties before the start of oral evidence based on our reading of the witness statement and key documents, drawing the parties’ attention to potentially relevant caselaw on the point. During the course of the evidence, without objection from the Claimant, we did ask Dr Banerjee to expand on his reference at paragraphs 10 and 13 of his witness statement to the “negative effect of the Claimant’s continued absence on service delivery caused by her extremely high levels of absence … the Claimant’s unsustainable levels of sickness absence”. In response, some further detail was provided.

[255]In addition, notwithstanding this potential evidential lacuna, we are entitled to draw appropriate inferences from the evidence before us both as to the discriminatory impact of dismissal on the Claimant and as to the impact on the Respondent of her continued absence. In so doing, we have taken care not to go beyond the inferences that are inherent in the evidential material before us.

[256]Our conclusion is that the Respondent has done just enough to prove on the balance of probabilities that dismissing the Claimant at this point was a proportionate means of achieving this legitimate aim. We reach this conclusion balancing the needs of the Claimant and the Respondent, for the following reasons:a. The Claimant was being dismissed from an important and well-paid role which obviously carried a degree of prestige within the local Tower Hamlets community. It was a role she had performed for the Respondent since 2013 and before that for an NHS Primary Health Trust since 2005. It therefore represented the career she had enjoyed for the last 17 years of her working life and was the end of 29 years of continuous employment.

b. Given that she had been employed in this field for that length of time by only two employers (the Respondent and before her TUPE transfer, an NHS Primary Health Trust), she did not have recent experience of working in this sector for other employers. As a result, it would not be particularly easy for her to find equivalently paid alternative work with other employers. This would be especially the case given the restrictions on her ability to work caused by her various health conditions.

c. As a result, the discriminatory impact on the Claimant of taking this step to dismiss her was significant.

d. However, the impact on the Respondent of continuing to employ the Claimant in a role she was not currently able to perform was also significant. She was employed to manage contracts that other organisations were delivering for the Respondent and for which these organisations had received millions of pounds of public funding. The Claimant’s public health role had a focus on important public health issues such as sexual health and substance misuse. That this was an important role is shown by the salary level the role attracted, namely almost £41,500 at the end of 2019. The salary level would have been higher by the time of the Claimant’s dismissal. It is a reasonable inference that her ongoing absence would have had some impact on public health in Tower Hamlets, although the direct extent of that impact from her individual absence may well be difficult to measure.

e. During her ongoing absence, the duties that the Claimant was engaged to perform would have had to be covered by existing employees. That is unless temporary staff had been engaged to perform aspects of her role, although there was no evidence that this happened in the Claimant’s case. The Claimant’s evidence was that her line manager covered for her during periods of sick leave or annual leave. Additional time to carry out these duties would have had to have been found, over and above existing workloads, which would have potentially impacted on morale and retention.

f. It was time-consuming managing the Claimant’s ongoing sickness absence, monitoring her current health situation and considering what could be done to facilitate her return to work. It is clear that it was taking up a significant amount of Ms Sanghera’s time as her line manager, as well as that of Dr Banerjee as the Director of the relevant Division. This reduced the time that they both had to spend on other matters. Their roles were significantly more senior that than of the Claimant. As Public Health Programme Lead and Director of Public Health respectively, their involvement in managing the Claimant would have impacted on the time that could have been devoted to strategic matters in this field.

g. At the time of her dismissal, the Claimant was on half-pay. Whilst it is unclear for how much longer this would continue, at that point her absence was costing the Respondent around £21,000 pa in gross salary (assuming a gross salary of around £42,000pa). When employer’s national insurance contributions and pension contributions are added, the ongoing cost was potentially around £500 per week. This was public money. The Respondent was accountable to local taxpayers for how this money was being spent, as with all local authority spending.

h. For almost a decade, with the exception of the calendar year 2016, the Claimant had taken substantial periods of time off work on sick leave due to her ongoing symptoms. The extent of the absences since 2017 were set out in the dismissal letter [641]. Regardless of whether these days were working days or calendar days this represented a very high level of sickness, lasting for around half of each year in some years, and well over half in other years.

i. Under the Respondent’s previous Sickness Management Procedures, the Claimant’s high level of sickness absence had already prompted two previous Consideration for Dismissal meetings at Stage 3 of the Policy, but the Claimant had not been dismissed on those occasions. Under the current Attendance Management Policy and Procedure, both the standard and the maximum periods applicable for each stage had been exceeded. To have delayed the dismissal decision would potentially treat the Claimant inconsistently with others, and thus be contrary to paragraph 1.1.4 of that Policy.

j. There was no immediate solution which would have enabled the Claimant to have returned to work. There were no further reasonable adjustments that the Respondent was required to make that would have facilitated that return. It was difficult to see how the Claimant’s perception about work related concerns could be satisfactorily resolved in the short to medium term as no viable resolution for these concerns had been identified.

k. As a result, significant future absences were likely. The Occupational Health report recorded: “It is apparent that her perception of significant breaches of her Dignity at Work over a prolonged period constitutes a significant barrier to a sustained return to work … given the likely impact on her return to work further action from the employer to address the issues is required … if she continues to feel that her concerns remain unresolved, there will likely be a further prolongation of this absence and possibly more absences in the future.”

l. In addition, Occupational Health’s advice was that “an employee’s previous attendance provides a reasonable indicator for the future”. There was no clear prospect that the symptoms of pain and stiffness from the Claimant’s rheumatoid arthritis or from her fibromyalgia would improve, given that these were long-term conditions without any obvious cure.

m. Dismissing the Claimant would enable a permanent replacement to be recruited who could be expected to discharge all elements of the public health role for which there was an ongoing need in the local community. Keeping the Claimant in her role would prevent a permanent replacement from being recruited.

n. Therefore, balancing the needs of the Claimant and the needs of the Respondent, the decision to dismiss the Claimant was a proportionate means of ensuring that the Respondent provided an efficient public health service. It was an appropriate and reasonably necessary way of achieving this aim. Something less discriminatory could not have been done instead. Unfair dismissal

[257]We address each of the Claimant’s arguments that the dismissal was an unfair dismissal set out at sub-paragraphs (a) to (k) in paragraph 72 of the Claimant’s ET1, which appears at pages [32] to [33] of the Final Hearing Bundle:a. We reject the Claimant’s argument that the Respondent did not hold a genuine belief that the Claimant was incapable of carrying out her role of Public Health Officer. We accept that Dr Banerjee believed that this was the case.

b. We do not accept that there was any failure to provide reasonable adjustments at the point when the Claimant was dismissed, for the reasons given above. So far as particular items of equipment were concerned, Ms Sanghera explained at the Stage 3 meeting that three items of equipment were ready to be delivered to her home as soon as it was confirmed that she was ready to work again and could make use of the items.

c. The Claimant was not medically capable of doing her job at the point of dismissal. The Fit Note gave two reasons why she was not fit for work – depression and hypothyroidism – and stated that this would be the case until 8 May 2022 [942]. As was clear from the most recent Occupational Health report, the depression had been caused by her perception of work-related concerns. The writer reported that “the psychological impact of perceived work-related stress will likely continue until there is management intervention that she considers to be satisfactory” [945]. Therefore we reject the Claimant’s argument that the decision to dismiss her for ‘incapacity’ was unfair as the main barrier was the unresolved work issues. It was those work issues which led to a psychological impact which meant that she was not capable of performing her role.

d. The Claimant argues that based on the Occupational Health advice further action from the employer was required regarding her treatment from managers which did not materialise. It is unclear what further action the Claimant argues should have been taken other than making a further change of line manager. For the reasons discussed above, we do not consider that any reasonable employer would have taken this step.

e. It is true that the Stage 2 meeting was held without the Claimant or her union representative. This did not make her subsequent dismissal at the conclusion of the Stage 3 meeting unfair. There had been two previous attempts to schedule the Stage 2 meeting. Both had been postponed at the Claimant’s request. The Claimant was told of the date of the third meeting before she told the Respondent of her trip to Bangladesh. She was warned that if she did not attend the meeting would proceed in her absence. She chose to book this trip without attempting to book annual leave. As the Claimant was on sick leave rather than annual leave, it was reasonable for the Respondent to proceed with the meeting on the date scheduled. She ought to have been able to attend the meeting remotely from Bangladesh. Although she said in her appeal against dismissal several months later that she was too unwell to attend on the date of the meeting, she has not produced any medical evidence to confirm this. She did not raise her state of health at the time. Her union representative could have attended in her absence. Dismissal was not a potential outcome of the Stage 2 meeting. For all these reasons it was open to a reasonable employer to proceed with the Stage 2 meeting.

f. The Claimant argues that the Respondent failed to adopt a fair procedure when dismissing her, without specifying particular respects in which the procedure was unfair. We reject this criticism. In advance of the Stage 3 meeting the Respondent had obtained up to date information about the Claimant’s health in the latest Occupational Health report. It then convened a meeting with her and her union representative to discuss this report, the prospect of her returning to work and any potential alternatives to dismissal.

g. The Respondent did carry out a reasonable investigation into the Claimant’s alleged incapacity, by obtaining up to date Occupational Health advice and discussing it with the Claimant at a Stage 3 meeting. It was within the band of reasonable responses for the Respondent to decide to dismiss the Claimant at that point in the light of the outcome of the investigation, without waiting to see how the Claimant used unimplemented adjustments.

h. We accept that the Claimant had a long history of employment with the Respondent. This was acknowledged in the outcome letter – Dr Banerjee concluded by saying that he was deeply saddened to have had to make this decision and he thanked her for the many years of service she had given to public health in Tower Hamlets. Given her extensive sickness absence record over the period from 2014 to her dismissal, it is not true to say that she had been a reliable and diligent employee throughout that period as the Claimant seeks to argue. The Claimant’s track record was not such that it was outside the band of reasonable responses to dismiss her at that point on grounds of incapacity.

i. The Claimant argues that the Respondent failed to consider her for other roles. She had not identified any other roles during the Stage 3 dismissal meeting. The suggestion that she be granted a community engagement role with the local Bangladeshi community appears to have been made for the first time during her witness evidence, rather than during the internal sickness absence procedure. Dr Banerjee made reference to the possibility of redeployment in the dismissal letter and explained why he did not consider it an appropriate outcome.

j. The Claimant argues that the Respondent made the assumption that she had not engaged with her line manager throughout her absence, whereas she did contact her line manager throughout her absence. As set out within our factual findings, there are several instances where the Claimant did not respond to her line manager by particular deadlines or did not call her line manager at the times suggested. As a result, it was reasonable for Dr Banerjee to record in his dismissal letter that Claimant had not engaged with Ms Sanghera during periods of sickness absence to discuss her health or advice when she might be returning.

k. The final criticism of the dismissal decision is the Claimant’s argument that the Respondent failed to consider the Claimant for the option of working different shifts during the winter, when the Claimant’s symptoms were at their worst. This is not a point that was raised by the Claimant at any point before her appeal against dismissal. It was not a point she had chosen to raise with occupational health. She has not provided sufficient medical evidence either to the Respondent or to the Tribunal to establish that a link between her symptoms and the seasons such that this would have been a reasonable step to have taken instead of dismissing her. Whilst the possibility of seasonally adjusted hours was not addressed in the appeal outcome letter, we do not consider that this omission renders the Claimant’s dismissal unfair. The appropriate point to have raised this issue would have been during an occupational health appointment or in a formal request for flexible working.

[258]Therefore, notwithstanding each of the specific criticisms made by the Claimant, it was within the band of reasonable responses to have dismissed the Claimant at the point that her employment was terminated. Time limits

[259]The application of the primary three-month time limit here means that any act or omission that occurred before 22 March 2022 is out of time. This is because Early Conciliation took place between 21 June 2022 and 2 August 2022 and these proceedings were issued on 2 September 2022.

[260]So far as the harassment complaints are concerned, we accept that these allegations form part of a continuing act. They both relate to the frequency with which the Claimant was expected to contact her line manager during her period of sickness absence up to the point of dismissal. As a result, time starts to run from the end of the period covered by these allegations, and these allegations are in time.

[261]So far as the allegation that the Respondent failed to make reasonable adjustments, we are in difficulty in determining this jurisdictional issue. Neither counsel has engaged in the necessary analysis of each of allegation in turn to argue for a particular date when that limitation period started to run, as required by Fernandes v DWP. Nor has there been any analysis of whether some of these allegations can be regarded as conduct extending over a period with later allegations such that the limitation period runs from a later date. This oversight may well be in part because, as already observed, the agreed list of issues presented to us at the start of the Final Hearing was not sufficiently specific as to dates or as to events. Significant clarification was needed. It may well also be in part because both parties chose to make oral closing submissions on the final day of evidence. Therefore, they had not addressed this aspect of the issues with the detail often provided in written submissions. As a result, we are unable to determine which (if any) of these allegations are in time; the length of the period by which out of time allegations were presented outside the three month limitation period; the extent of prejudice caused to each party were the Tribunal to determine those complaints on their merits or refuse to do so, given the extent of the delay; and whether it would be just and equitable to extend time in all the circumstances.

[262]Had the success of the Claimant’s claim depended on whether the operation of statutory time limits potentially deprived the Tribunal of the jurisdiction to find there was discrimination, we would have invited further written submissions on this issue. Because we have rejected the Claimant’s complaints on their merits it is unnecessary for us to ask the parties to incur further time and expense in doing this. We will of course revisit this jurisdictional issue should it become necessary to do so if any of our conclusions on the reasonable adjustment complaints are subsequently reversed. Employment Judge Gardiner Dated: 2 January 2025 FINAL LIST OF ISSUES This list of issues was finalised following an initial discussion with the parties at the outset of the Final Hearing, based on the version described as the Agreed List of Issues to be found at [111] of the Final Hearing bundle.

CONCLUSIONS

[1]TIME LIMITS 1.1. Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 22 March 2022 may not have been brought in time. 1.2. Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide: 1.2.1. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates? 1.2.2. If not, was there conduct extending over a period? 1.2.3. If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? 1.2.4. If not, were the claims made within a further a period that the Tribunal thinks is just and equitable? The Tribunal will decide:a. Why were the complaints not made to the Tribunal in time?

b. In any event, is it just and equitable in all the circumstances to extend time?

[2]UNFAIR DISMISSAL – S.98 ERA 1996 2.1. What was the reason or principal reason for dismissal? The Respondent avers it was capability. 2.2. Did the Respondent act reasonably in all the circumstances in treating it as a sufﬁcient reason to dismiss the Claimant? The Tribunal will decide, in particular, whether: 2.2.1. the Respondent genuinely believed the Claimant was no longer capable of performing her duties; 2.2.2. the Respondent adequately consulted the Claimant; 2.2.3. the Respondent carried out a reasonable investigation, including ﬁnding out about the up-to-date medical position; 2.2.4. the Respondent could reasonably be expected to wait longer before dismissing the Claimant; and 2.2.5. dismissal was within the range of reasonable responses. 2.3. Did the Respondent adopt a fair procedure? 2.4. If it did not use a fair procedure, would the Claimant have been fairly dismissed in any event, and if so, when? The Claimant avers the dismissal was unfair for the following reasons [as set out in paragraph 72 of the Grounds of Complaint.]a. The Respondent did not hold a genuine belief that the Claimant was incapable of carrying out her role of Public Health Officer;

b. When the decision was made to dismiss the Claimant, she was still awaiting the provision of further reasonable adjustments;

c. The decision to dismiss her for reasons of ‘incapacity’ was unfair as it was stated within the Occupational Health report dated 29 March 2022 that the main barrier for the Claimant’s return to work was not her physical health, but the unresolved work issues. She was therefore capable of doing her job;

d. The Occupational Health report dated 29 March 2022 states that the Claimant was still having issues regarding her treatment from managers and further action from the employer is required which did not materialise;

e. The Stage 2 meeting was held without the Claimant or her union representative despite her request to reschedule;

f. The Respondent failed to adopt a fair procedure when dismissing the Claimant;

g. The Respondent did not undertake a reasonable investigation into the Claimant’s alleged incapacity. The Claimant contends that, had a full and proper investigation been conducted, the Respondent would not have made the decision to dismiss her in particular the Respondent should have waited until the Claimant had the chance to use the unimplemented adjustments;

h. The Claimant was a reliable and diligent employee with long history of employment with the Respondent;

i. The Respondent failed to consider alternative roles for the Claimant;

j. The Respondent failed to acknowledge that the Claimant did contact her line manager throughout her absence, despite the ongoing issues with them, and instead made the assumption that the Claimant did not engage;

k. The Respondent failed to consider the Claimant for the option to work different shifts during the winter as this is when her symptoms are at their worst;

[3]DISABILITY – SECTION 6 EQA 2010 3.1. Did the Claimant have a disability as deﬁned in section 6 of the Equality Act 2010 at the material time? The Claimant relies on the disabilities of Rheumatoid arthritis, Fibromyalgia, Under active thyroid, and Anxiety/Depression. 3.2. The Respondent admits that the Claimant was disabled by virtue of Rheumatoid arthritis and Fibromyalgia at the material time. 3.3. The Tribunal will decide: did the Claimant have one or more of the following physical or mental impairments at the material time (i.e. the acts) of discrimination complained about): 3.3.1. Under active thyroid 3.3.2. Anxiety/Depression Anxiety/Depression was conceded to be a disability during the Final Hearing 3.4. Did either of these impairments have a substantial adverse effect on her ability to carry out day-to-day activities? 3.5. If not, did the Claimant have medical treatment, including medication, or take other measures to treat or correct the impairment? 3.6. Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures? 3.7. Were the effects of the impairment long-term? The Tribunal will decide: 3.7.1. did they last at least 12 months, or were they likely to last at least 12 months; or 3.7.2. if not, were they likely to recur?

[4]DISCRIMINATION ARISING FROM DISABILITY – SECTION 15 EQA 2010 4.1. Did the Respondent treat the Claimant unfavourably by dismissing her on 29 March 2022? 4.2. Did the Respondent know, or could it reasonably have been expected to know, that the Claimant had a disability, or disabilities, on 29 March 2022? 4.3. Did the following things arise in consequence of the Claimant's rheumatoid arthritis, ﬁbromyalgia and/or under-active thyroid: 4.3.1. an inability to undertake her substantive role of Public Health Ofﬁcer (which led to long-term sickness absence); and 4.3.2. a need for reasonable adjustments (which the Claimant avers the Respondent did not wish to make). 4.4. Was the unfavourable treatment because of any of those things? 4.5. Was the treatment a proportionate means of achieving a legitimate aim? The Respondent says that its aim was: requiring employees to carry out the duties that they were employed to do and/or ensuring the aim was the efficient running of its enterprise. The Tribunal will decide in particular: 4.5.1. was the treatment an appropriate and reasonably necessary way to achieve those aims; 4.5.2. could something less discriminatory have been done instead; and 4.5.3. how should the needs of the Claimant and the Respondent be balanced?

[5]FAILURE TO MAKE REASONABLE ADJUSTMENTS – SECTIONS 20/21 EQA 5.1. Did the Respondent know, or could it reasonably have been expected to know, that the Claimant had a disability or disabilities? If so, from what date? 5.2.A "PCP" is a provision, criterion or practice. Did the Respondent have the following PCPs: 5.2.1. requiring Public Health Ofﬁcers to perform their full to job role and duties; and/or 5.2.2. Requiring Public Health Ofﬁcers to maintain a certain (satisfactory) attendance record. 5.3. Did the PCPs put the Claimant at a substantial disadvantage compared to someone without her disability / disabilities, in that: 5.3.1. she was unable to perform the full duties or her role; and 5.3.2. she was unable to maintain regular attendance at work due to sickness absence. 5.4. Did the Respondent know, or could it reasonably have been expected to know, that the Claimant was likely to be placed at that disadvantage? 5.5. What steps could have been taken to avoid the disadvantage? The Claimant suggests: 5.5.1. providing to the Claimant the following which she avers were not provided prior to her dismissal, to assist with symptoms arising from her rheumatoid arthritis and ﬁbromyalgia:a. [From June 2018 to dismissal] a failure to provide adequate training on Dragon Dictate software;

b. [on 29 March 2022] not being given time to adjust to reasonable adjustments made to improve her output – this relates to the chair assessment that was carried out on the same day;

c. (just before she was dismissed) not being allowed more time to get back to work after sickness absence;

d. [From March 2017 to dismissal] not taking the time and trouble to investigate and implement working from home and flexible working; and

e. [in December 2021] not allowing rehabilitation leave and annual leave to be used to give time to recover. 5.5.2. Dealing with complaints she made properly in line with the Respondent's policies: a. The Claimant avers she made complaints about the conduct of Nicola Donnelly and Sukhjit Sanghera during a meeting on 5 November 2018 on the following dates: 4 December 2018; 1 May 2019; 9 May 2019; 3 June 2020; 8 Dec 2020; 11 March 2021. b. The Claimant avers those complaints were not dealt with properly by Somen Banerjee (and on 11 March by Robert Verrecchia) because they were ignored. c. The Claimant avers that dealing with these complaints properly would have avoided the disadvantages caused by her depression and anxiety. 5.5.3. Allowing the Claimant to change line management from Sukhjit Sanghera to anyone but Sukhjit Sanghera from 8 December 2020 through to the time of her dismissal. The Claimant avers that this adjustment would have avoided disadvantage caused by her depression and anxiety; 5.5.4. Offering the Claimant the option of redeployment to another role as an alternative to dismissal. She avers it would have been a reasonable adjustment to avoid disadvantage caused by her rheumatoid arthritis and ﬁbromyalgia; 5.5.5. [From March 2017 to dismissal] Allowing the Claimant the option to work ﬂexibly when her pain was bad: a. The Claimant avers she ought to have been allowed to work ﬂexibly between 7am-8pm instead of being told to work ﬁxed hours, either 10am-6pm or 9am-5pm. b. She avers it would have been a reasonable adjustment to assist with symptoms arising from her rheumatoid arthritis and ﬁbromyalgia, because she often suffered with morning stiffness and her condition varied. 5.5.6. WITHDRAWN 5.5.7. Delaying the Claimant's dismissal by at least 6-8 weeks. She avers this would have allowed her to be treated and recover from symptoms arising from her under active thyroid. 5.6. Was it reasonable for the Respondent to have to take those steps, and if so, when? 5.7. Did the Respondent fail to take those steps? The Respondent believed the only outstanding requests at the time of dismissal related to a chair, laptop riser and a document holder.

[6]HARASSMENT RELATED TO DISABILITY – S. 26 EQA 2010 6.1.Did the Respondent’s managers treat the Claimant in a sustained hostile way by myriad small actions? [These were limited to the following paragraphs (K) and (L)] (K) “Over the years I was required to check-in weekly whilst off sick and I was pursued and criticised about my failure to do this on an ongoing basis right up to the date of my dismissal … At some points, particularly in the period leading up to my dismissal on 29 March 2022, I was contacted every few days from January to March 2022” (L) “Whilst in Bangladesh in January and February 2022, I received numerous calls and some emails from Ms Sanghera despite being signed off sick. She was constantly chasing me.” 6.2.If so, that was unwanted conduct? 6.3.Did it relate to the Claimant’s protected characteristic, namely disability? 6.4.Did any such conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? 6.5.If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.