S Hoevertsz v Compass Group UK and Ireland Ltd: 3302090/2023

EMPLOYMENT TRIBUNALS

Case No 3302090/2023

Between

S HoevertszClaimant

Compass Group UK and Ireland LtdRespondent

Before

Employment Judge Din, D Sagar and D Wharton

Date 7 November 2025

JUDGMENT

[1]The complaint of unfair dismissal is well-founded. The Claimant was unfairly dismissed.

[2]The following complaints of unfavourable treatment because of something arising in consequence of disability are well-founded and succeed: a. The Claimant being dismissed on 28 September 2022.

[3]The remaining complaints of unfavourable treatment because of something arising in consequence of disability are not well-founded and are dismissed.

[4]The following complaints of failure to make reasonable adjustments for disability are well-founded and succeed: a. Not properly considering the Claimant for the role of ward hostess at Northwick Park Hospital.

[5]The remaining complaints of failure to make reasonable adjustments for disability are not well-founded and are dismissed.

REASONS

[1]The Claimant was employed by the Respondent as a domestic assistant from 26 March 2008 until her dismissal with effect on 28 September 2022.

[2]Early conciliation started on 13 December 2022 and ended on 24 January 2023.

[3]The Claimant’s claim form was received by the Tribunal on 24 February 2023 In that claim form, the Claimant stated that she is making claims for unfair dismissal and discrimination on the grounds of disability.

[4]The Respondent provided a response, with attached Grounds of Resistance. This was received by the Tribunal on 3 April 2023. The Respondent denies the claims. Preliminary hearing

[5]A preliminary hearing took place before Employment Judge Alliott on 14 August 2023. The claims and issues were discussed at that hearing. Evidence and other materials Documentation

[6]There is a bundle setting out relevant materials (Hearing Bundle). Witness statements

[7]The Tribunal has a witness statement from the Claimant and the Tribunal heard from her.

[8]The Tribunal has witness statements on behalf of the Respondent from Melanie Kallinga and David Morgan. The Tribunal heard from them. Additional documents

[9]The Respondent provided a skeleton argument in advance of the final hearing. The Claimant provided written submissions following evidence in the final hearing and before oral closing submissions. Claims and issues

[10]The claims and issues are as follows. These were agreed by the parties following the preliminary hearing before Employment Judge Alliott, subject to certain points of clarification made by the Claimant in written submissions at the final hearing. Claims

[11]The Claimant states:11.1 She was unfairly dismissed;

11.2 She was the subject of discrimination arising from disability; and

11.3 The Respondent failed to make reasonable adjustments. Issues

[12]At the case management hearing on 14 August 2023, the Respondent confirmed that it would no longer advance a jurisdiction point based on time limits.

[13]At the beginning of this final hearing, the parties agreed that there is no dispute regarding whether the Claimant was disabled at the relevant time, based on the conditions of arthritis and carpal tunnel syndrome.

[14]The remaining issues for the Tribunal to determine are as follows.

[15]What was the principal reason for dismissal and was it a potentially fair one in accordance with sections 98(1) and (2) of the Employment Rights Act 1996 (ERA 1996)? The Respondent asserts that it was capability.

[16]If so, was the dismissal fair or unfair in accordance with section 98(4) ERA 1996, and, in particular, did the Respondent in all respects act within the socalled ‘band of reasonable responses’?

[17]Issues relating to Polkey v AE Dayton Services Ltd

[1987] UKHL 8

, contribution and compliance with the ACAS code of conduct may arise. Discrimination arising from disability

[18]Did the following thing(s) arise in consequence of the Claimant’s disability: 18.1 The Claimant could only undertake light duties on a permanent basis.

[19]Did the Respondent treat the Claimant unfavourably as follows:19.1 Not deploying her into a full-time position on light duties (the Claimant characterises this as not redeploying the Claimant into a permanent position);

19.2 Subjecting the Claimant to a capability process;

19.3 Dismissing the Claimant.

[20]Did the Respondent treat the claimant unfavourably in any of those ways / dismiss the Claimant because of that thing?

[21]If so, has the Respondent shown that the unfavourable treatment / dismissing the Claimant was a proportionate means of achieving a legitimate aim?

[22]Alternatively, has the Respondent shown that it did not know, and could not reasonably have been expected to know, that the Claimant had the disability?

[23]Did the Respondent not know and could it not reasonably have been expected to know the Claimant was a disabled person?

[24]Did the Respondent have the following provision, criterion or practice (PCP): 24.1 The requirement to work as a domestic assistant or in another role which involved heavy duties.

[25]Did any such PCP put the Claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled at any relevant time, in that: 25.1 The Claimant could not undertake heavy duties and was restricted to light duties.

[26]If so, did the Respondent know or could it reasonably have been expected to know the Claimant was likely to be placed at any such disadvantage?

[27]If so, were there steps that were not taken that could have been taken by the Respondent to avoid any such disadvantage? The burden of proof does not lie on the Claimant, however it is helpful to know what steps the Claimant alleges should have been taken and they are identified as follows: 27.1 Deploying the Claimant into a full time position on light duties (the Claimant characterises this as deploying the Claimant into a permanent position on light duties).

[28]If so, would it have been reasonable for the Respondent to have to take those steps at any relevant time?

Remedy

[29]Should the Claimant succeed in one or more of her complaints, the issue of remedy will need to be dealt with. Law

[30]Section 94 ERA 1996 confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111 ERA 1996. The Claimant must show that she was dismissed by the Respondent under section 95 ERA 1996. Dismissal

[31]There is no dispute that the Claimant was dismissed by the Respondent.

[32]The next stage is for the Tribunal to consider the reason for the dismissal, and if appropriate, the question of fairness. Reason for dismissal and fairness

[33]The Tribunal must decide what was the reason, or if more than one, the principal reason for the dismissal.

[34]In the case of Abernethy v Mott, Hay & Anderson

[1974] ICR 323

, it was said that “A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee”

[35]Where the reason is made for more than one reason, the Tribunal must identify the principal reason. Reasons that are not the principal reason do not have a bearing on the outcome.

[36]If the dismissal is not automatically unfair, section 98 ERA 1996 deals with the fairness of dismissals.

[37]There are two stages within section 98 ERA 1996. First, the employer must show that it had a potentially fair reason for the dismissal within section 98(2) ERA 1996. Second, if the Respondent shows that it had a potentially fair reason for the dismissal, the Tribunal must consider, without there being any burden of proof on either party, whether the Respondent acted fairly or unfairly in dismissing for that reason.

[38]Capability is a potentially fair reason for dismissal. Capability is defined broadly to include health, as well as skill and aptitude.

[39]Section 98(4) ERA 1996 deals with fairness generally and provides that the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend 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 sufficient reason for dismissing the employee; and shall be determined in accordance with equity and the substantial merits of the case.

[40]When it comes to long-term sickness absence, the Tribunal should consider three main issues (based on the Scottish case of BS v Dundee City Council [ 2014] IRLR 131):40.1 whether it is reasonable to expect the employer to wait any longer for the employee to return to work;

40.2 an employer acting reasonably will consult the employee to see what their views are;

40.3 an employer acting reasonably obtains medical advice on the employee’s position, the prognosis and when a return to work is likely. This does not necessarily involve an obligation to obtain specialist advice.

[41]Where there are intermittent absences, the question remains whether the employer acted reasonably in deciding that the position became untenable. Again, an employer acting reasonably will generally seek medical evidence about whether the absences are likely to improve (or not) in the foreseeable future.

[42]If an employee’s ill-health was caused by, or was exacerbated by, an employer’s treatment, then a dismissal is not necessarily unfair. However, it may mean that an employer has to demonstrate extra concern before the dismissal – see the case of McAdie v Royal Bank of Scotland [2007] ECWA Civ 806 and L v M

UKEAT/0382/13

(16 May 2015, unreported).

[43]In relation to trying to find alternative employment for the employee, there is no duty on the employer to create a job for the employee (Taylorplan Catering (Scotland) Ltd v McInally

[1980] IRLR 53

. Whether an alternative job should have been offered is primarily a question of fact. Employers are not required to go to unreasonable lengths in this regard – Garricks (Caterers) Ltd v Nolan

[1980] IRLR 259

[44]Any relevant Code of Practice must be taken into consideration by the Tribunal insofar as its provisions are relevant. Other claims

[45]A breach of either section 15 or section 20 of the Equality Act 2010 (EqA 2010) (see below) does not necessarily mean that a dismissal was unfair (see Knightley v Chelsea & Westminster Hospital

[2022] EAT 63

). Discrimination arising from a disability

[46]Section 15 of the EqA 2010 provides: “(1) A person(a) (A) discriminates against a disabled person

(b) (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”

[47]There is no need for a comparator for a claim to be brought under section 15 EqA 2010.

[48]The Respondent will successfully defend the claim if it can prove that any unfavourable treatment is a proportionate means of achieving a legitimate aim.

[49]An analysis of proportionality will involve an objective balancing exercise between the reasonable needs of the Respondent and the discriminatory effect on the Claimant (see the case of Hampson v Department of Education and Science

[1989] ICR 197

CA, which can be applied to cases involving section 15 EqA 2010). O’Brien v Bolton St Catherin’s Academy

[2017] EWCA Civ 145

suggests that the question of proportionality is very similar to the reasonableness test for unfair dismissal.

[50]Cost alone will not provide a justification for discriminatory treatment (see Woodcock v Cumbria Primary Care Trust

[2012] ICR 1126

CA and Heskett v Secretary of State of Justice

[2020] EWCA Civ 1487

[51]A failure to comply with the duty to make reasonable adjustments is a factor to be considered.

[52]In the case of Birtenshaw v Oldfield

[2019] IRLR 946

it was emphasised that in assessing proportionality a substantial degree of respect should be given to the judgement of the employer as to what is reasonably necessary to achieve the legitimate aim, provided they act rationally and responsibly.

[53]Again, any relevant Code of Practice must be taken into consideration by the Tribunal insofar as its provisions are relevant. Paragraph 5.21 of The Equality and Human Rights Commission’s Statutory Code of Practice on Employment (Code) states, “If an employer has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment, it will be very difficult for them to show that the treatment was objectively justified”. In Carranza v General Dynamics

[2015] IRLR 43

, it was said that the prohibition from discrimination arising from a disability and the duty to make reasonable adjustments (see below) may be closely related.

[54]The duty to make reasonable adjustments is found in section 20 of the EqA 2010. Section 21 of the EqA 2010 states that a failure to comply with any of the three requirements in section 20 of the EqA 2010 is a failure to comply with the duty to make reasonable adjustments and is discrimination against the disabled person.

[55]The legislation and the case law in this area strongly suggests (as stated in the employment law textbook Harvey on Industrial Relations and Employment Law) that the duty to make adjustments is, as a matter of policy, to enable employees to remain in employment, or to have access to employment.

[56]In circumstances where a PCP (or physical feature of premises or the absence of an auxiliary aid) places a disabled person at a substantial disadvantage in relation to a relevant matter when compared with a person who is not disabled, the employer is under a duty to take such steps as reasonable, in all the circumstances of the case, for it to have to take in order to avoid the disadvantage.

[57]In Archibald v Fife Council

[2004] UKHL 32

, the House of Lords said that the duty necessarily requires the disabled person to be treated more favourably in recognition of their special needs.

[58]Any relevant Code of Practice must be taken into consideration by the Tribunal insofar as its provisions are relevant.

[59]The Code, at paragraph 6.28, sets out some of the factors that may be taken into account when deciding what is a reasonable step for an employer to take:59.1 whether taking any particular steps would be effective in preventing the substantial disadvantage;

59.2 the practicability of the step;

59.3 the financial and other costs of making the adjustment and the extent of any disruption caused;

59.4 the extent of the employer’s financial or other resources;

59.5 the availability to the employer of financial or other assistance to help make an adjustment; and

59.6 the type and size of the employer.

[60]A failure to consider whether a particular adjustment would or could have removed the disadvantage amounts to an error of law (see Romec Ltd v Rudham [2007] All ER(D) (206)(Jul) EAT). In the same case, it was found that if the adjustment sought would have no prospect of removing the substantial disadvantage, then it could not amount to a reasonable adjustment. However, if there was a real prospect of removing the disadvantage, then the adjustment may be reasonable.

[61]The reasonableness of the adjustment should not be seen in isolation if there are other adjustments that can be made (see Burke v College of Law

[2012] All ER(D) 29

[62]In broad terms, it is unlikely that the duty will extend to creating a post for the disabled employee, but in exceptional cases that might be a reasonable step (for example, Chief Constable of South Yorkshire Police v Jelic

[2010] IRLR 744

). Relevant findings of fact

Background

[63]The Respondent provides contract catering and other support services to a range of businesses and organisations. The Respondent had a contract to provide services to Central Middlesex Hospital (CMH) through the Respondent’s subsidiary, Medirest.

[64]The Claimant was a Domestic Assistant based at CMH as part of the above arrangements.

[65]The role of Domestic Assistant is key to ensuring the cleanliness of the hospital environment. Mopping and other cleaning activity is a part of the role. It is agreed by the parties that the Claimant was an excellent Domestic Assistant.

[66]In July 2020, the Claimant was diagnosed with carpal tunnel syndrome in her wrists. The Claimant underwent surgery on her right wrist in August 2020. Following the surgery and a period of recovery, the Claimant returned to work in around February 2021. In the period after that, the Claimant was supported by colleagues in her role, as she appeared to be struggling with certain aspects of it. May 2021 – GP note

[67]The Claimant provided the Respondent with a GP note dated 26 May 2021. The Tribunal was not shown the May 2021 GP note. However, it is accepted that the note advised that the Claimant should be on light duties for a period of three months, until 25 August 2021.

[68]Ms Kallinga, the Claimant’s manager, had a meeting with the Claimant on 27 May 2021. This is recorded in a letter from Ms Kallinga to the Claimant dated 27 May 2021.

[69]In that letter, Ms Kallinga said: “While you are keen to continue working, I explained to you that we don’t have any light duties in the domestic department nor in any other department which are permanent”.

[70]Nonetheless, Ms Kallinga created two roles for the Claimant on a temporary basis for the duration of the May 2021 GP Note. The first was a door monitor role to ensure that staff, visitors and patients continued to wear face coverings and use antibacterial hand gel as they entered hospital premises. The second was a retail role that involved delivering snacks around the wards and departments by trolley at lunchtimes. This latter role was based in the CMH kitchen. September 2021 – meeting

[71]The Claimant conducted these two roles until 29 September 2021. A further meeting took place between Ms Kallinga and the Claimant, recorded in a letter from Ms Kallinga to the Claimant, all on the same date.

[72]At the meeting, the Claimant produced a letter from the CMH Orthopaedic department dated 16 September 2021, following a clinic on 31 August 2021. The 16 September 2021 letter stated that the Claimant’s pain had reduced significantly since she had stopped mopping. It went on, “Regarding her work I have told her she would be better off doing an activity which does not demand heaving loading on the shoulder like lifting her arm above her head and something like what she is doing in the kitchen at the moment might be better for her which I have suggested that she should discuss with her employer”.

[73]The Claimant explained to Ms Kallinga that the Claimant could not conduct the following tasks: “Mopping”; “Heavy lifting – emptying bins”; “Stretching – high dusting” and “Use of vacuum”.

[74]The Claimant further explained that she would find it difficult to go back to her “normal” Domestic Assistant role due to her health and because it would make her condition worse.

[75]Ms Kallinga stated that she had no other vacancies at CMH that did not involve the tasks referred to by the Claimant above. She explained that the retail (kitchen) position no longer existed, as it was created to support the Claimant’s recovery for three months. Ms Kallinga then said the following: “For you to continue with your employment, we have two options for you:  Return to your Domestic position which you will be expected to carry out your full domestic duties.  Offer you a door monitor position working 5/7. This, however, currently is a fixed contract position until 31st January. Extension of this contract will depend on the decision from NHS England of whether hospitals should continue to wear masks upon entry. If there [won’t] be any extension as this is a fixed contract this will mean your position will no longer exist”.

[76]The Claimant opted to work in the door monitor position. The Respondent continued to pay the Claimant her full salary, even though the Claimant was working fewer hours than her contractual requirement. October 2021 – GP note

[77]The Claimant provided the Respondent with a further GP note in October 2021. The October 2021 GP Note, based on an assessment that took place on 29 October 2021, stated that the Claimant may be fit for work taking account of advice that, if available, and with her employer’s agreement, the Claimant may benefit from amended duties. This was accompanied by comments that said: “Light Duties only She should not do mopping, stretching, heavy lifting. Since being in the restaurant to work she gets no pain, unless pushed to do too heavy duties”.

[78]The October 2021 GP Note staid that this will be the case “Indefinitely”.

[79]A further meeting took place between Ms Kallinga and the Claimant on 23 November 2021. This was followed up with a letter from Ms Kallinga to the Claimant on 29 November 2021. This recorded that the Claimant said that she was “…still struggling to complete the tasks which involves mopping, heavy lifting – emptying bins, stretching – high dusting and use of vacuum”. The Claimant also said that she did not want to go back to her normal duties as a Domestic Assistant because “..the tasks involved will trigger [her] condition”.

[80]The letter reiterated that there were no light duties positions available and that the door monitor role was not permanent. Ms Kallinga said that when the contract ends, the Claimant would need to be referred to occupational health (OH) “…as we do not have any indefinite light duty role and we are not able to create light duty role like this for you”.

[81]The door monitor role came to an end in early June 2022. On 10 June 2022, the Claimant was referred to OH. June 2022 – Ward Hostess (CMH)

[82]While further assessments took place, Ms Kallinga created a temporary position for the Claimant to support an existing ward hostess colleague at CMH. This position was unfunded.

[83]The ward host / hostess role is also referred to as being part of the patient catering service. In terms of “Key results areas”, the job description said, under the heading of “Quality of work” (amongst other matters): “To respond to the pace of the business in terms of work and productivity” and “To ensure that the Kitchen is clean and tidy at all times…”. The role also required compliance with food safety, and health and safety requirements.

[84]A ward hostess work schedule set out tasks and their start / finish times. It was split between the day shift and the evening shift. In relation to the day shift, between 11.15am and 11.50am it stated: “Clean fridge, microwaves and dishwasher, worktop sinks and collect all crockery and wash”. Between 11.50am and 1.30pm, after the service of meals and beverages and dealing with food waste, it said: “…tidy up the kitchen”. The last task before the end of the shift was “..make sure you leave the kitchen tidy and clean for the evening service”. The evening shift followed a similar pattern. The last task in the period 5pm to 5.45pm, after meal service, was to “Clean all Microwaves”. The final task of the shift was to “Clean all sinks remove all waste bags and mop the floor before closing the kitchen behind you”. June 2022 – Occupational Health

[85]The OH report was received on 27 June 2022. The report’s key actions were for the Claimant to “communicate with her manager any further reasonable adjustments she feels [she] may need” and “to escalate any worsening symptoms in terms of her health to ensure she gets herself reviewed”.

[86]The OH recommendations can be summarised as follows:86.1 allow the Claimant to continue in her work hostess role, ensuring the role and tools are risk assessed so that, amongst other matters, she carries out light duties;

86.2 consider further reasonable adjustments to look at what other light duty roles could be offered, “…ensuring the work was light and avoided mopping and stretching…”. July 2022 – First OH report meeting

[87]Following the OH report, the Respondent met with the Claimant on 12 July 2022. The Claimant was accompanied by a trade union representative.

[88]Ms Kallinga has stated in her witness statement that she was informed by the ward supervisor that the Claimant could only carry out “a small proportion” of the role. Also, it had been reported that the Claimant was “very slow” in completing tasks and could not achieve the schedule required to deliver the service. This included the Claimant being unable to push an Ultrakart trolley that contained drinks dispensers, food holders and toast warmers, and held the contents required for the breakfast and snack service. Instead, it is alleged that the Claimant was only able to push a metal trolley that held regular drinks-making utensils. These needed to be replenished in the middle of service, causing delays. This is disputed by the Claimant, who said that she could push the Ultrakart trolley.

[89]Ms Kallinga further alleges that the Claimant was unable to fully maintain the cleanliness of the kitchen. Her duties required her to mop the kitchen after each service, clean high level cupboards and empty bins. At the 12 July 2022 meeting, the Claimant responded “No. No issues. I saw some very dirty microwave…I cleaned it and also a toaster because it was very messy. I can do it but at a lower pace”. The Claimant has said that she was doing the bulk of the cleaning, including the microwaves.

[90]When the Claimant was asked at the 12 July 2022 meeting what she was able to do with respect to stretching, the Claimant said “The top microwaves are too high for me to reach. I need to stretch my arm too much. Also high dust is difficult”. The Claimant’s trade union representative said “If she can do 70% of the tasks, she can do the job”.

[91]At the 12 July 2022 meeting, Ms Kallinga stated that there were no suitable positions open at CMH. Ms Kallinga said, “There are jobs at [Northwick Park Hospital] and CMH that we can look at, but all require mopping, cleaning and everything else”. July 2022 – Second OH report meeting

[92]A further OH report meeting took place on 21 July 2022. The Claimant was accompanied by the same trade union representative.

[93]There was an acknowledgment that the Claimant could not fulfil her domestic assistant role.

[94]With respect to the ward hostess role, the Claimant had been provided with the job description and work schedule. The Claimant said “Everything I can do. The only problem is the mopping of the floor and high dusting. Everything else I am doing right now”. As with the previous meeting, the trade union representative stated that the Claimant could do 70% of the role. Later in the meeting, the trade union representative said that the Claimant could do 90% of the role.

[95]When asked if the Claimant could clean the “double stacked ovens”, the Claimant said that she could do so, but could not stretch for too long as it hurt. She added that of the double stacked ovens, the Claimant could do the bottom ones.

[96]In evidence, the Claimant said that the Respondent only had to wait until the Claimant had healed and that she had asked Ms Kallinga for that chance.

[97]Ms Kallinga reiterated that no vacant ward hostess roles existed at CMH. In evidence, the Claimant continued to dispute this.

[98]At the same meeting, there was a discussion regarding a ward hostess role at Northwick Park Hospital (NPH). Sian Richards, a HR manager, stated that the role at NPH had a different shift pattern to the role at CMH. Further, she said “NPH is a much busier hospital than CMH, larger wards, different demands and the pace is faster and this would concern me with regard to your health and situation. Also, they will not be able to make the adjustments you need”. Nonetheless, Ms Richards offered a trial to the Claimant.

[99]This discussion was part of a wider discussion regarding available vacancies and the Respondent’s obligations to the Claimant, particularly with respect to reasonable adjustments. As part of this, it was put to Ms Kallinga that she should have told the Claimant about a reception role at CMH, which the Claimant understood had been taken by agency staff. Ms Richards said that the role was advertised, someone who was on a fixed term contract applied for the role and they got the role. The Claimant did not apply for the role. The Claimant’s trade union representative stated that the Claimant should not have to compete for roles.

[100]The Respondent states that the receptionist role was advertised in September 2021 and filled in October 2021, prior to 29 October 2021. The Claimant disputes this saying that the availability of the role was only raised in July 2022, and this is evidence of Ms Kallinga’s dishonesty.

[101]Following the 21 July 2022 meeting, the Claimant confirmed that she would like to trial the role at NPH. The Respondent agreed and this was scheduled for 27 July 2022. July 2022 – Ward Hostess (NPH)

[102]On 1 August 2022, a conversation took place between Ms Richards, Ms Kallinga and the Claimant. Ms Kallinga states that the Claimant explained that she was unable to complete the full range of tasks required of the ward hostess role at NPH without adjustments, and that it was a much faster pace.

[103]The Claimant was invited to a further meeting with Ms Kallinga. The meeting took place on 16 August 2022. In advance of that meeting, Ms Richards sent an email to the Claimant on 8 August 2022 stating that she had spoken to “Northwick Park” and reiterated that the Claimant had already said that the Claimant could not manage NPH without adjustments. Ms Richards added that it was made clear in the previous meeting that this is not something that NPH would be able to accommodate. Ms Richards said “The adjustments you require would mean that they would have to create a role for you (which was the same situation as CMH) and as you are aware we have no obligation to create roles for you”. She went on “Therefore, the position at Northwick Park is no longer an option”.

[104]Ms Richards said that, in light of not having a position for the Claimant at CMH and not be able to create roles for the Claimant, they had now taken the Claimant’s October 2021 GP Note as the Claimant not being fit to work and that the Claimant was “considered to be long-term sick”. Ms Richards attached a copy of the Respondent’s internal vacancy poster and vacancies within a certain distance of the Claimant. The Claimant was asked to look at these vacancies in advance of their next meeting.

[105]In evidence, the Claimant stated that she only needed assistance for an hour in order to complete the NPH role. Further, the Claimant stated her trial was extended from one day to two days by NPH, but Ms Kallinga had insisted that the Claimant return to CMH before the second day. In addition, the Claimant said she was placed on the rota at NPH to work again the following week. The Claimant states that these things would not have happened if she was unable to do the role. Ms Kallinga states that they were based on a misunderstanding by the relevant line manager at NPH. Ms Kallinga further states that they were contradicted by the feedback that was received from NPH about the Claimant’s performance.

[106]It is the Claimant’s case that the job description and work schedule make it clear that mopping is not required throughout the day. As such, the Claimant only needed assistance with cleaning high areas – something that the Claimant could get assistance with.

[107]In evidence, Ms Kallinga stated that the way the role at NPH was structured was that timing was important. The Respondent’s evidence is that the timing of food service is critical, as it is tied to when medicines can be administered. It was not easy to split tasks. Certain things needed to be done at certain times. The Claimant was unable to do the whole of the job, and was also slow in performing the tasks that she could (and was meant to) do.

[108]Ms Kallinga denied that it was possible to make adjustments that would not require a new role. She said that the Claimant could not do the cleaning – which was, according to Ms Kallinga a requirement of the role. In evidence, both Ms Kallinga and David Morgan stated that mopping was required throughout the day after each meal service. The role required someone fulltime who could do the role within the times required. It was simply not viable, according to the Respondent, for someone to come in to support the Claimant for 30 minutes or more. August 2022 – consideration of capability

[109]The meeting of 16 August 2022 was attended by Mark Davies from the Respondent, as Ms Kallinga was away. Mr Davies was the General Manager at NPH. Ms Richards, the Claimant and the Claimant’s union representative, Ms Carrington, also attended. This was a different union representative to the one that had attended previous meetings.

[110]Mr Davies stated that the only role that the Respondent currently had that could be a possibility was a Helpdesk role at NPH. The role involved weekend working. According to the notes of the meeting, the Claimant said that “Sunday is difficult for me to work”. She also said “I can’t do typing”. Mr Davies said that the role is “…about 95% keyboard work and 5% phone”. He added, “But I am concerned that you have [arthritis] in your wrists and that keyboard work may make it worse”.

[111]After a brief discussion about other vacancies, Mr Davies said “I think we have exhausted all possibilities”. He went on to say, “…I think we may have reached the point that as it has been over 2 years since you have been able to do your Domestic role and it looks like [Ms Kallinga] has done a lot to support you in the last 2 years, and the last thing we want to do is make your [arthritis] worse, we may have to have a difficult conversation going forward about whether we now need to look at ill health capability [which] may mean dismissal on the grounds of ill health”. He then said, “If you came back tomorrow and said you can do your job then that would be great, but it has been over 2 years since you have been able to do your role”.

[112]On 22 August 2022, Mr Davies wrote to the Claimant setting out the outcome of the 16 August 2022 meeting. Mr Davies reiterated that the Claimant’s trial at NPH did not give rise to a role, as the adjustments that the hospital would need to make would mean that they would be creating a position for the Claimant. He further stated that the reason why the Respondent had to take the October 2021 GP Note as if the Claimant was absent from work was because the ward hostess role at CMH was not financially sustainable and had to finish. He added that the Claimant could be dismissed on the grounds of ill health capability.

[113]With respect to next steps, Mr Davies scheduled a further meeting to take place in the week commencing 29 August 2022, the continuing monitoring of potentially suitable vacancies and a request for the Claimant to check the Respondent’s job website.

[114]Mr Davies said that he would continue to manage the Claimant’s absence, with the possible outcomes being: the Claimant returning to her contractual role, “Any reasonable adjustments that may be accommodated to your contractual role” and suitable alternative employment. September 2022 – termination

[115]The next meeting took place on 21 September 2022. In attendance were Ms Kallinga and Ms Richards from the Respondent, the Claimant and Mr Tasker, a union representative.

[116]The Claimant remained unable to return to her domestic assistant role. There appeared to be no date when the Claimant could return to that role.

[117]The Claimant confirmed that she had received the vacancy lists that were sent to her. She said “Yes – but they are vacancies that I cannot do”.

[118]The Claimant asked about the ward hostess role. Ms Kallinga said, “It’s not that we do not want to give you the ward hostess role, you are not able to do the entire shift, you cannot cover the entire role. You told us you could not manage the role without adjustments and the adjustments would mean creating a role for you”.

[119]There was further discussion about the trial at NPH. The Claimant said, “Before I went to NPH – you know I couldn’t do it”. She said that “When I was there, I asked for a hand” and that this would be only for an hour. Ms Kallinga stated “But what you need a hand for would mean creating an extra role”. It was put to the Claimant that her fit note and the OH report recommended that the Claimant be kept on light duties. Ms Kallinga stated “…so we will be keeping her on [light duties] indefinitely and we do not have any vacancies or positions that we can make the adjustments on”.

[120]The Claimant said that it was only the mopping that she could not do. Ms Kallinga said that it was more than that, and referred to cleaning and reaching heights. The Claimant said that following her trial at NPH, she was put on the rota for the following week and was expected to work there. The Claimant added that she was “comfortable working there”. Ms Kallinga said that was not what the Claimant had previously said – which was that the Claimant could not “manage the role without adjustments and that it was faster paced than CMH”. The Claimant replied “I said I was comfortable – I like the place and the people better there”.

[121]During the meeting, the Claimant said that she was awaiting a further operation on her other wrist, but had not seen her GP yet.

[122]Ms Kallinga followed up the meeting with a letter on 28 September 2022. The letter set out the Respondent’s decision to terminate the Claimant’s employment on the grounds of ill-health capability. It said, “This decision is based upon our understanding that you are unable to return to your position as domestic, as you need to have light duties indefinitely”.

[123]The letter referred to the temporary roles that had been put in place for the Claimant. It also mentioned the NPH ward hostess role, stating that the Claimant had ruled this out “…due to the fast-paced nature of the role which you explained would not be suitable for you”. The letter went on to say that there had been discussion about the helpdesk operator role, which, according to the letter the Claimant deemed unsuitable as it “…involves IT systems and computer work which [the Claimant] explained [she is] not experienced in and also due to the role being 95% keyboard work [the Claimant] explained this would exacerbate [her] condition further and therefore [the Claimant is] unable to do. Also, [the Claimant was] unable to do the shift patterns that would be required”. The letter added that the Claimant had confirmed that none of the other vacancies that had been sent to her were suitable. Ms Kallinga said, “There is no alternative role or adjustment which would enable [the Claimant] to return to work in a reasonable timeframe”.

[124]In evidence, Ms Kallinga denied that Ms Kallinga wanted the Claimant to leave because the Claimant was not able to go back to her domestic assistant role. Ms Kallinga stated that she had done what she could to keep the Claimant employed at the Respondent.

[125]The Claimant’s effective date of termination was the same day, 28 September 2022.

[126]The 28 September 2022 letter referenced a right of appeal. September 2022 – appeal

[127]In a letter said to be dated “September 2, 2022” but which must be after the date of the 21 September 2022 letter, the Claimant appealed the decision. In that letter she stated that her health conditions arose from and were exacerbated by her role as a domestic. She said that since the beginning of her employment, her duties as a domestic “consisted exclusively of mopping the hospital floors and dusting far-reaching surfaces”.

[128]With respect to the ward hostess role at CMH, the Claimant said that the only parts of the role that caused her issues were mopping the floor and reaching the top of one microwave that was in a high position. The Claimant said that the person that she was working with would carry out these tasks and they would work well together. The Claimant disputed Ms Kallinga’s explanation that there was not a role for the Claimant as a ward hostess at CMH. This was because, according to the Claimant, there was work for more than one person. In her appeal letter, the Claimant said that the Claimant’s role had been taken over by agency staff.

[129]The Claimant referred to her trial as a ward hostess at NPH. The Claimant said that she worked with another person. The Claimant stated that she enjoyed her work and managed her duties. However, the Claimant did exacerbate her shoulder condition each time that she mopped the floor or fully outstretched her arms to reach high places. The Claimant said that she told Ms Kallinga that she wanted to work at NPH in the role, “but would need minimal assistance to mop the floor and reach any high areas because of [the Claimant’s] medical condition”.

[130]The Claimant said in her letter, “Ms Kallinga told me that I would have to mop the floors despite my doctor’s recommendation or else I could no longer work with [the Respondent]. I was in shock”.

[131]Presumably in relation to the Helpdesk position, although it is not explicit in the letter, the Claimant said that operating a keyboard to the extent that she would be required would exacerbate her medical condition.

[132]With respect to the other vacancies that were sent to the Claimant, the Claimant said that they would exacerbate her condition and, as such, were not suitable. October 2022 – conclusion of appeal

[133]An appeal meeting took place on 10 October 2022. The appeal was heard by David Morgan, who was at the relevant time the contract director for the Respondent’s London North West University Healthcare contract – which included CMH.

[134]Mr Morgan sent a letter setting out the outcome of the appeal on 19 October 2022.

[135]Mr Morgan concluded the following.135.1 There was a long period in which the Claimant’s line manager identified roles for the Claimant to support the requirement for amended duties.

135.2 From October 2021, and a fit note stating that the Claimant required amended duties indefinitely, the Claimant was provided with details of alternative roles and invited to consider other options that would meet her requirements.

135.3 In June 2022, the Claimant was referred to OH. While awaiting the outcome, Ms Kallinga created a support role as a ward hostess at CMH. This role was in addition to the core roster and was unfunded.

135.4 Due to the reduction in occupancy at CMH, there is a surplus of staff in the Patient Catering Department and ward hosts / hostesses either needed to complete shifts in other sites or take annual leave when all posts are covered. On occasions, when there was absence in the service that cannot be covered by the existing staff, agency staff were used.

135.5 With respect to the ward hostess role at NPH, Mr Taylor said “Feedback was received from the site explaining that the adjustments required were not possible within the service as the support required during meal preparation and in maintaining the cleanliness of the kitchen would require another member of staff to support on the ward. This was economically unfeasible in the funding model of the contract”. Mr Morgan expanded on this in evidence. He states that:135.5.1 the support that the Claimant would require would be throughout the day (rather than someone coming in at certain points to deal with the things that the Claimant could not do);

135.5.2 the core service at NPH was difficult enough to cover, without moving staff at different times to support the Claimant;

135.5.3 the Claimant had to work with someone else to maintain the cadence of service and could not do the duties required in the timeframe required;

135.5.4 the job description and work schedule were incorrect in this regard;

135.5.5 the timetabling point raised by the Claimant (i.e., that her trial was extended and she was placed on the rota at NPH) was a clear error.

135.6 At the meeting on 21 September 2022, it was evident that there were no suitable vacancies that could accommodate the requirement for light duties within the organisation. As a result, the decision was made to dismiss the Claimant based on ill health capability.

135.7 He said, “Since the initial requirement for light duties was presented, I can see that your line manager has taken your medical condition seriously and has taken steps to accommodate this requirement within the operation. Unfortunately, there were no suitable vacancies within the contract that reasonably accommodated your requirement for light duties. There were also no vacancies within Compass Group that were suitable while the search was underway. You were dismissed under long term capability not because of discrimination but because reasonable adjustments could not be made to support your employment in the long term”.

135.8 Mr Morgan upheld the decision to dismiss for the reasons stated. Discussions and conclusions Disability

[136]It is not disputed that the Claimant was disabled.

[137]The Respondent had actual knowledge of the disability following receipt of the October 2021 GP Note.

[138]The Claimant has the initial burden of proof. If she can show facts from which the Tribunal could decide that an unlawful act of discrimination has taken place, then the burden moves to the Respondent to show, for example, that the proposed adjustment was not in fact reasonable.

[139]It is not disputed that the requirement to work as a domestic assistant or in another role that involved heavy duties was the PCP.

[140]It is also not disputed that the PCP put the Claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled at any relevant time in that the Claimant could not undertake heavy duties and was restricted to light duties.

[141]It is further not disputed that the Respondent knew, or could reasonably have been expected to know, that the Claimant was likely to be placed at any such disadvantage.

[142]In terms of steps that, according to the Claimant, were not taken that could have been taken by the Respondent to avoid any such disadvantage, the Claimant makes a number of points that are dealt with in turn below. Occupational Health

[143]The Claimant says that the Respondent should have referred the Claimant to OH when it became aware that the Claimant was unable to undertake cleaning duties indefinitely.

[144]OH was engaged in June 2022. Although this may appear late in the process, it is, in the Tribunal’s view, reasonable. This is because it allowed time for the Claimant to recover. Further, during that period, the Claimant was given other roles as a temporary measure and additional roles to try. The referral to OH was also before any decisions were made regarding the Claimant’s capability. It is noted that in the period prior to the OH referral, the Respondent had the benefit of GP notes and a letter from the CMH Orthopaedic department. As such, it did not lack medical opinion.

[145]It can be argued that the referral to OH should have happened immediately after the October 2021 GP Note. Although this too may have been reasonable – and potentially preferable – for the reasons stated above, this does not mean that the Respondent was unreasonable in waiting until June 2022. Reception vacancy

[146]The Claimant says that she should have been provided with the opportunity to be deployed to a permanent reception vacancy at CMH.

[147]From what the Tribunal has heard, the status of the reception position is unclear. The Claimant says that she did not become aware of the vacancy until June 2022 and that it was filled by agency staff. The Respondent states that the role was advertised and the Claimant did not apply for the role. The Tribunal’s view is that both are correct, and that the role was filled prior to the Claimant getting to know of it.

[148]It is not reasonable to expect the Respondent to explicitly draw every possible vacancy specifically to the Claimant’s attention – particularly as the positions of receptionist and domestic assistant are very different. In the overall circumstances, where the Respondent was in a consistent dialogue with the Claimant and made a number of efforts to draw the Claimant’s attention to potential vacancies, the Tribunal finds that the Respondent did not act unreasonably in this regard. NPH ward hostess role

[149]The Claimant says she should have been allowed to continue in the NPH ward hostess role with adjustments and / or with a longer trial period.

[150]Her trial at NPH followed a period where the Claimant was working as a ward hostess at CMH. There was, and remains some dispute as to the Claimant’s ability to perform the ward hostess role. The Respondent says that Ms Kallinga received reports from the ward supervisor that the Claimant was slow and what it describes as “essential” elements of the role (such as mopping, cleaning at height and using the Ultrakart) were not being performed by the Claimant. The Claimant denies this, saying that the only aspects that she could not do related to mopping and cleaning at height, and she could do the majority of the role.

[151]Notwithstanding these alleged issues, the Claimant undertook a trial at NPH at the suggestion of the Respondent. It is acknowledged that the ward hostess role at NPH would require some form of adjustment in order for the Claimant to fulfil it. This was something that the Claimant and the Respondent both knew prior to the Claimant embarking on the ward hostess trial at NPH.

[152]The Tribunal finds that the Claimant could do the majority of the ward hostess role at NPH. The aspects that she could not do where mopping and reaching high places. The question then becomes whether the Respondent acted properly in relation to those acknowledged gaps.

[153]The Tribunal heard from Ms Kallinga and Mr Morgan on why it was not possible for the Respondent to make reasonable adjustments to accommodate the Claimant’s needs. In essence, they said that the timings around service were vital. They referred to the feedback received from NPH. They also said the support that the Claimant needed would be required throughout the day, moving staff at NPH to assist the Claimant would be difficult, and that this would be economically unfeasible given the funding model.

[154]Although the Claimant’s trial was due to be extended to two days and the Claimant was put on the rota at NPH for the following week, the Respondent says that these were errors on the part of NPH management.

[155]The Tribunal finds that the feedback received from NPH was not properly documented, and was cursory. It was disputed at the time by the Claimant and subsequently, including during the course of these proceedings. Further, the feedback contradicted the actions of NPH in extending the trial and placing the Claimant on the rota for the following week. Ms Kallinga and Mr Morgan both say that these were errors on the part of NPH, but there is no evidence of this beyond their views. The Tribunal finds that the feedback from NPH was not considered by the Respondent in sufficient depth. Further, the issues of the extended trial and the rota should have been considered by the Respondent in more detail.

[156]In terms of what was required for the NPH ward hostess role and the areas that the Claimant needed assistance with, the Claimant says that mopping was not required throughout the day, which was reflected in the job description and work schedule for the role. As such, the Claimant only needed assistance with cleaning high areas. Mr Morgan stated that the job description and work schedule are wrong. The Tribunal agrees with Mr Morgan. However, mopping and cleaning high places are not the majority of the role. The Claimant could do the majority of the role. There is insufficient evidence that the Respondent properly considered how to support the Claimant in light of this. As such, it is the Tribunal’s view that the Respondent came to its conclusions (that led to the Claimant’s subsequent dismissal) without a proper analysis of what it could do by way of reasonable adjustments in the circumstances.

[157]There was not detailed evidence, beyond Mr Morgan’s comments, which were after the decision on dismissal, that any reasonable adjustments were economically unfeasible. The extent of the Respondent’s financial and other resources, as well as its size and type, means that the Respondent was, in the Tribunal’s view, able to consider absorbing these, or at the least taking further steps to meet the Claimant’s needs. If this was a reason for the Respondent’s actions, the Tribunal would have expected to see more evidence of it.

[158]The Tribunal does not conclude that the Claimant should have been given the NPH ward hostess role on a permanent basis. It may have been that, after due consideration, it was decided that the Claimant was not suitable for the role. However, the Claimant was not given a proper opportunity in this regard.

[159]There is the question as to whether the particular adjustment (namely, proper consideration of the support that the Claimant may require) would or could have removed the relevant disadvantage.

[160]In the Tribunal’s view, it cannot be right that a failure to consider properly what reasonable adjustments could be relevant means that the Claimant fails on this basis. As such, the Tribunal considers that, by not fully exploring those adjustments, the Respondent failed to take “…such steps as it is reasonable to have to take to avoid the disadvantage” (the Tribunal’s emphasis). Of course, if the Respondent was able to show that any resulting adjustments would not have removed the disadvantage, then the Claimant does not succeed. However, for the reasons set out above, that was not the case and there was still the possibility that, with certain adjustments, the Claimant could have done the NPH ward hostess role.

[161]In light of these circumstances and the burden of proof on the Respondent, the Tribunal finds in favour of the Claimant in respect of this aspect of her claim. Helpdesk role

[162]The Claimant states that she should have been deployed and / or given a trial period to train and work in the helpdesk role.

[163]There is some dispute as to whether or not the Claimant could fulfil the typing elements of the role. However, the Tribunal is of the view that when the Claimant stated at the 16 August 2022 meeting that she “…can’t do typing”, this was in the context of the Helpdesk role and the Respondent acted reasonably in not pursuing this further.

[164]This is supported by the Claimant’s comments in her letter appealing the decision to dismiss, where she clearly says “Because of my Carpal Tunnel Syndrome, operating a keyboard to the extent I would be required would exacerbate my medical condition”.

[165]Both of these comments indicate the difficulties that the Claimant would face in fulfilling the Helpdesk role. These difficulties may not have been insurmountable and may be cured by reasonable adjustments. However, where the Claimant herself clearly states that she has objections to the role, then, in the circumstances, it was reasonable for the Respondent not to take these possibilities further. Other roles

[166]The Claimant says that she should have been deployed and / or given a trial period to train and work in any of the vacant non-cleaning roles in vacancies sent to the Claimant between August and September 2022.

[167]The Tribunal is of the view that the Respondent acted appropriately by sending the Claimant vacancy lists and, as with the NPH ward hostess role, suggesting possible roles for the Claimant. Outside of the roles mentioned, the Claimant did not appear to want to pursue any of these other roles. At the 21 September 2022 meeting (when possible termination was being discussed) she said “…but they are vacancies that I cannot do”.

[168]It would be unreasonable to expect the Respondent to go further in relation to these other vacancies in the circumstances. Discrimination arising from a disability

[169]The Claimant has the initial burden of proof. If she can show facts from which the Tribunal could decide that an unlawful act of discrimination has taken place, then the burden moves to the Respondent to show a nondiscriminatory explanation or to justify the treatment.

[170]It is not disputed that the Claimant could only undertake light duties on a permanent basis.

[171]The Respondent treated the Claimant unfavourably by:171.1 Not deploying her into a full time (permanent) position on light duties;

171.2 Subjecting the Claimant to a capability process; and

171.3 Dismissing the Claimant.

[172]The Respondent treated the Claimant unfavourably in all of those ways because the Claimant could only undertake light duties on a permanent basis.

[173]The question then becomes whether the Respondent has shown that any or all of the points of unfavourable treatment (including the dismissal) were a proportionate means of achieving a legitimate aim.

[174]The Respondent characterises the aim as ensuring the essential duties of the Claimant’s domestic assistant role were carried out effectively and within budget. The Tribunal finds that this is a legitimate aim.

[175]The Claimant makes the following points, each of which are dealt with in turn. Light duties

[176]The Claimant disputes that none of the light duties roles were suitable. She states that there were vacant and fully-funded light duty roles available, and it was not proportionate for the Respondent not to deploy the Claimant to one of those roles, or to train her. Instead, the Claimant was moved to temporary roles.

[177]The Tribunal does not agree. The Tribunal has not been shown a light duties role at the Respondent that did not require adjustments. The Respondent acted proportionately in placing the Claimant in temporary roles while monitoring for permanent roles that may be suitable for her. When such roles came up (such as the NPH ward hostess and the Helpdesk role), the Claimant was notified of them – either because they were specifically brought to her attention or they were advertised more widely.

[178]The Claimant says that the Respondent’s justification for not deploying the Claimant to the NPH ward hostess role was not a proportionate means of achieving a legitimate aim when balanced against the discriminatory treatment of not moving the Claimant to that role. The Claimant says that minimal adjustments were required, as the Claimant could carry out 70% to 90% of the role. Her suitability for the role was demonstrated by NPH asking her to complete a second trial date and by putting her on the rota.

[179]The Tribunal is mindful of the findings made in relation to reasonable adjustments above. However, the point here is different. The Claimant is saying that she should have been given the permanent NPH ward hostess role. The analysis does not support a finding that the Respondent acted disproportionately in not giving the Claimant that role. There are (potentially) good reasons why the role was not given to the Claimant. The point in the reasonable adjustments section above was about the steps that the Respondent took in order to come to its conclusion not to deploy, and can therefore be distinguished.

[180]For the current analysis, the Tribunal finds that not giving the Claimant the permanent NPH ward hostess role was proportionate given the legitimate aim. Capability

[181]The Claimant says that subjecting the Claimant to a capability process was not a proportionate means of achieving a legitimate aim.

[182]The Claimant says that the capability process was designed for the Claimant to resume her full duties as a domestic assistant. This meant it was a predetermined outcome. This was, according to the Claimant, unfavourable discriminatory treatment and not a legitimate aim in trying to make her return to a role that she could not do.

[183]The Tribunal disagrees. It was not fundamentally wrong of the Respondent to place the Claimant in a capability process. The Claimant had been away from her domestic assistant role for some time, it was clear that she could not return to that role and there was medical evidence to support this. As such, the Respondent acted within the scope of proportionality to start a capability process. The capability process was run appropriately and the Claimant had a proper opportunity to participate. Dismissal

[184]The Claimant states dismissal was not a proportionate means of achieving the legitimate aim.

[185]The Respondent states that the Claimant was dismissed for absence related to her inability to perform the cleaning duties of her role whereby there was no foreseeable period in which her capability would improve. As such, the Respondent states that the dismissal was a proportionate means of achieving a legitimate aim.

[186]On the basis of the legitimate aim as articulated by the Respondent (and accepted by the Claimant), the Tribunal considers that it was not proportionate to dismiss the Claimant.

[187]The legitimate aim is couched in terms of the Claimant’s domestic assistant role.

[188]The Respondent stated that the Claimant’s role was being covered by her colleagues. There was also no evidence before the Tribunal that the Respondent was over budget as a result of either the Claimant’s absence from her domestic assistant role or due to the other roles that she was placed in, even if they were unfunded.

[189]Most importantly, the reasoning for the dismissal was flawed and so did not constitute a proportionate response. In this regard, the Tribunal is mindful of the findings made in relation to reasonable adjustments. Here, the failure on the part of the Respondent to consider properly what reasonable adjustments may be required by the Claimant for the NPH ward hostess role was not proportionate. It was this that led directly to the Claimant’s subsequent dismissal. This, therefore, tainted the decision to dismiss and made the decision to dismiss disproportionate.

[190]Accordingly, and keeping in mind the burden of proof, the Claimant succeeds in respect of this aspect of her claim.

[191]As the Claimant has been employed for more than two years and no automatically unfair reason is asserted, the burden lies on the Respondent to show what the reason or principal reason was, and that it was a potentially fair reason. Once that is done, there is no burden of proof on either party to prove fairness or unfairness.

[192]The principal reason for dismissal here was ill-health capability. This is a potentially fair reason.

[193]The Claimant says that she was unfairly dismissed because she was unable to return to the full requirements of the domestic assistant role. When it became clear that the Claimant could not return to this role without adjustments, the Respondent dismissed the Claimant.

[194]The Claimant further alleges that the Respondent kept the Claimant in temporary roles because the Respondent wanted the Claimant to return to the domestic assistant role. This was, according to the Claimant, unreasonable and unfair.

[195]The Respondent denies that the Claimant has been unfairly dismissed. The Respondent states that the Claimant was dismissed for ill-health capability following a determination that the Claimant was unfit to carry out the duties of her substantive role. The Respondent states that it carried out an in-depth and thorough process, making genuine efforts to retain the Claimant in work. Faced with the same circumstances, any other reasonable employer would have made the same decision to terminate the Claimant’s employment.

[196]A breach of either section 15 or section 20 of the EqA 2010 does not necessarily mean that a dismissal was unfair. The tests are not the same, although the Tribunal acknowledges the similarities in substance even if not in the precise language. What is common are the facts that drive the different sets of analysis.

[197]The Tribunal does not consider that there was anything malicious on the part of the Respondent to keep the Claimant in temporary roles. The Claimant was offered the chance to do other roles and the overall approach of the Respondent was to keep the Claimant employed at the Respondent. It may have been the case that the Respondent wanted the Claimant to return to her domestic assistant role – it was, after all, the Claimant’s role. However, this did not mean that the Respondent ignored other roles that the Claimant could potentially do.

[198]As such, the key question, as in relation to the other sets of analysis, is whether the failure on the part of the Respondent to consider properly reasonable adjustments in relation to the NPH ward hostess role meant that the Claimant was unfairly dismissed.

[199]The Tribunal has set out the key factual points in relation to the NPH ward hostess role issue in the reasonable adjustments section. It was the failure to consider properly reasonable adjustments that led to the Claimant being dismissed on the grounds of ill-health capability. It was because, according to the Respondent, the Claimant could not meet the demands of the ward hostess role, as well as not being able to fulfil the domestic assistant role and there being no other suitable roles available, that the Claimant was dismissed. As far as the Respondent was concerned, all other options had been exhausted and so dismissal was the only option available.

[200]The Tribunal acknowledges the efforts that the Respondent made to consult with the Claimant, to obtain medical advice, to place her in temporary roles and to trial her on potential permanent roles during the course of the Claimant’s disability. The Respondent worked hard to try to keep the Claimant for as long as possible until – in the Respondent’s view – the position became untenable.

[201]The Tribunal finds that the Respondent met the relevant tests in relation to a fair procedure, except with respect to the point regarding the NPH ward hostess role.

[202]By not properly considering what the Respondent could do to accommodate the Claimant’s needs with the respect to the NPH ward hostess role, the Respondent’s investigation into the matter was flawed and the Respondent’s actions were outside the range of reasonable responses. The investigation should, objectively, have been more thorough and it was not. This lack of a proper investigation was a key factor in the ultimate decision to dismiss. It is the Tribunal’s conclusion that this meant that, overall, the Respondent’s actions were outside the range of reasonable responses.

[203]When considering this question, the Tribunal has taken into account the size and resources of the Respondent, and also the significant consequences of the failure – namely, the dismissal of the Claimant.

[204]In light of the above, the Tribunal finds that the decision to dismiss was unfair.

Remedy

[205]The amounts payable by the Respondent are to be assessed. Approved by: