Mr G R Saletti v London Underground Ltd: 3302260/2022

EMPLOYMENT TRIBUNALS

Case No 3302260/2022

Between

Mr G R SalettiClaimant

London Underground LimitedRespondent

Before

Employment Judge Codd

Mr R Saletti for claimant

Ms Whittington (instructed by Counsel) for respondent

Date 10 July 2024

JUDGMENT

[1]The claimant’s applications for amendment of his claim and specific disclosure are refused.

[1]The claimant’s complaint of failure to make reasonable adjustments succeeds in respect of the failure to offer the claimant a part time coverage administrator role.

[2]The claimant’s complaint of discrimination arising from disability succeeds.

[3]The claimant’s complaint of unfair dismissal is well-founded and succeeds.

[4]The claimant’s complaint of direct discrimination on the grounds of disability is not upheld and is dismissed.

REASONS

[1]The respondent operates the London Underground network. It employed the claimant as a train operator from 9 May 2016. The respondent dismissed the claimant for the stated reason of capability, following a sickness absence procedure. His employment terminated, with pay in lieu of notice, on 25 September 2021. Following a period of ACAS conciliation from 10 December 2021 to 23 January 2022 the claimant issued proceedings on 18 February 2022.

[2]This case is about whether the respondent’s decision to dismiss the claimant was unfair and whether the respondent discriminated against the claimant on the grounds of disability. The respondent accepts that the claimant was a person with a disability (Long Covid) under the provisions of the Equality Act 2010 from 30 March 2021.

[3]The Tribunal heard witness evidence from the claimant and from 3 witnesses on behalf of the respondent. The witnesses for the respondent were:  Deborah Bowen: Redeployment Manager  Stephen Read: Train Operations Manager (the dismissing Manager)  Margaret Waite: Head of Line Operations on the Northern Line (the appeal Manager)

[4]All witnesses provided written statements in advance, and the Tribunal took time to read them. Each witness was asked questions about the evidence contained in their statements. References in brackets preceded by the witnesses’ initials (AB/XY) are references to the paragraphs in their statements. Paragraphs in the claimant’s statement are referred to as (Cl/XY)

[5]The Tribunal also received documentary evidence in the form of a bundle and a supplementary bundle. Documents were added to the supplementary bundle during the hearing. By the end of the hearing the first bundle consisted of 1604 pages and the supplementary bundle consisted of 53 pages. References to numbers in brackets are references to the pages in the main bundle; in the case of the supplementary bundle the reference is (sup XY).

[6]The Tribunal stated at the outset of the hearing that it would only read those documents to which it was taken in evidence. Procedural

Background

[7]Preliminary hearings took place on 2 February 2023 (102) and 29 November 2023 (158).

[8]At the hearing on 29 November 2023 Employment Judge Codd heard the claimant’s application to amend his claim to include a claim for discretionary sick pay after contractual entitlement had expired (162). The application was refused. Adjustments

[9]The hearing was held by CVP as an adjustment to take into account the claimant’s disability. At the beginning of the hearing the Tribunal asked the claimant what further adjustments would assist him to participate in the hearing. The claimant indicated that he required regular breaks. He was informed about the breaks the Tribunal would ordinarily take and told that he could ask for extra breaks at any time. The claimant said that he may need low lighting in his room and sometimes he may need to close his eyes, which the Tribunal allowed. Preliminary matters

[10]There had been extensive correspondence between the parties prior to the hearing about various case management and disclosure issues which we considered at the outset of the hearing.

[11]The claimant applied to amend the List of Issues. This was allowed to the extent that it related to the failure to put the claimant on furlough in August 2020 (issue 8b) and to record that the claimant sought a ‘part time’ role as a reasonable adjustment (issue 15a).

[12]The claimant also applied to strike out the respondent’s case or to postpone the hearing on the grounds of late disclosure and late compliance with the direction to provide a bundle. The claimant explained that he had not had time to update his witness statement with the documents’ page numbers because he had received the bundle so late. The Tribunal declined to strike out the respondent’s case or to postpone the hearing. While disappointed to note that the respondent had not complied with the direction on time, it considered that the prejudice the claimant asserted could be dealt with by allowing extra time and making allowances during the hearing for the claimant to find the documents referred to in his statement.

[13]Full reasons for those decisions were given orally at the time and are not repeated here.

[14]The Tribunal made a number of further case management decisions during the hearing regarding late disclosure of documents by the respondent. Reasons were given orally at the time. The Tribunal was concerned that relevant documents were not disclosed by the respondent until very late in the proceedings; in one case at the beginning of day 4 of the hearing. Late disclosure leads to delays and potential prejudice to the other party, particularly when the other party is unrepresented. The Tribunal carefully considered whether there was prejudice to the claimant owing to the late disclosure and concluded that there was not or that it could be dealt with by allowing extra time.

[15]The hearing was initially listed for 5 days. The Tribunal informed the parties that it would hear evidence on liability first and then deal with remedy if the claimant was successful in respect of any of his complaints. The evidence on liability was to include evidence relating to whether there should be a ‘Polkey reduction’ (issue 21 to 23). Counsel for the respondent confirmed that the respondent was not pursuing the contention that the claimant contributed to his own dismissal and the List of Issues was amended accordingly.

[16]In the event oral evidence and submissions were not completed until the end of day 4. The Tribunal carried out deliberations on day 5 and an extra day of deliberations was arranged on 12 February 2024, making 7 days in total. A remedy hearing has been listed for 2 days on 24 and 25 June 2024. Issues

[17]The Issues to be determined, as finalised at the beginning of the hearing, are as follows:

[18]What was the reason or principal reason for the claimant’s dismissal? Was it a justifiable reason within section 98(2) ERA 1996? The respondent relies on capability.

[19]If the reason is found to be capability, in the circumstances (including the size and administrative resources of the respondent’s undertaking) did the respondent act reasonably, having regard to equity and section 98(4) ERA 1996, in treating that as a sufficient reason for dismissing the claimant? The Tribunal will usually decide in particular whether:(a) The respondent adequately investigated the claimant’s health issues and gave the claimant an adequate opportunity to be considered for alternative roles.

(b) Whether dismissal was within the range of reasonable responses. Discrimination Jurisdiction

[20]Was the claim form submitted more than 3 months less a day after some of the conduct complained of (taking into account any ‘stop the clock days’ as a result of ACAS Early Conciliation)?

[21]If so, did that conduct form part of a chain of continuous conduct which ended within 3 months less a day of the claim form being submitted?

[22]If not, would it be just and equitable for the Tribunal to hear that part of the claim which relates to the conduct which occurred more than 3 months less a day before the claim was submitted?

[23]The respondent concedes that the claimant was disabled within the meaning of section 6 of the Equality Act 2010 by reason of Long Covid.

[24]Did the respondent know, or could it have been reasonably expected to know, that the claimant was disabled at the relevant time(s)? The respondent accepts that it had knowledge from 30 March 2021. Direct discrimination (section 13)

[25]Has the respondent treated the claimant less favourably than it treated or would treat others? The claimant relies on the following less favourable treatment:(a) By terminating his employment on 25 September 2021.

(b) By not placing him on furlough from August 2020

[26]Who are the claimant’s comparators (actual or hypothetical), whose circumstances must be materially the same as the claimant’s?

[27]The claimant relies on the following actual comparators:(a) ‘Harry’ from High Barnet who was put on stations as a CSA2 when he had broken his foot and could not walk, and had to sit down all the time, but who was not dismissed by the Respondent.

(b) ‘Georgia’ a Train Operator based at East Finchley, who the claimant says had a large amount of sickness, but who was not dismissed by the Respondent. The respondent does not accept that Georgia is a relevant comparator.

[28]Was the reason for the treatment the Claimant’s disability? Failure to Make Reasonable Adjustments (section 20 and 21 EqA 2010)

[29]Did the respondent apply a PCP to the Claimant, namely: a. Requesting that disabled employees carry out their usual contractual duties.

[30]Did that PCP put a disabled person and specifically the claimant at a substantial disadvantage, when compared to non-disabled persons. The claimant relies on his dismissal as the substantial disadvantage.

[31]If the claimant is found to have been at a substantial disadvantage in comparison to non-disabled persons, did the respondent know, or could the respondent reasonably be expected to have known, that the claimant was likely to be at a substantial disadvantage compared to non-disabled persons?

[32]If so, did the respondent take steps to avoid the disadvantage? The claimant contends that the respondent should have taken the following steps:(a) Assigning and/or redeploying the claimant a part time scheduler role with a phased return to work;

(b) Assigning and/or redeploying the claimant a customer service role with reduced hours (part time), in accordance with the OH recommendations.

[33]If the respondent failed to take such steps, would these steps have(a) removed any substantial disadvantage suffered by the Claimant; and

(b) been proportionate and reasonable in the circumstances?

(c) If so, did the respondent fail to make any reasonable adjustments and accordingly breach its duty under ss.20-21 EqA? Discrimination arising from Disability

[34]Did the respondent treat the claimant unfavourably because of something arising in consequence of their disability.

[35]The claimant relies on the following as ‘something arising’ from:- 35.1 Being unable to carry out his substantive role.

[36]The unfavourable treatment relied upon is: 36.1 Dismissal.

[37]If the respondent did treat the claimant unfavourably due to something arising from the claimant’s disability, was it a proportionate means of achieving a legitimate aim. The respondent relies on the following legitimate aims:(a) effectively managing staff absence to reduce the negative effect staff absence can have on the Respondent’s ongoing operations, including the respondent’s train service;

(b) ensuring that the Respondent operates a fair and consistent absence management policy. Polkey

[38]Would the claimant have been fairly dismissed anyway if a fair procedure had been followed on grounds of capability and/or for some other substantial reason? If so, on what date would the claimant have been dismissed?

[39]If the claimant would have been dismissed by the respondent, would such a dismissal have been fair in all the circumstances?

[40]What reduction if any should be made to the claimant’s compensatory award on the basis of a potentially fair future dismissal? Facts

[41]This Judgment does not seek to address every point about which the parties have disagreed. It only deals with the points which are relevant to the issues that the Tribunal must consider in order to decide if the claim succeeds or fails. If a particular point has not been mentioned it does not mean that the Tribunal has overlooked it, it is simply because it is not relevant to the issues. Background

[42]The claimant commenced employment with the respondent as a part time train operator on 9 May 2016. In January 2018 he changed his hours to full time. In April 2018 he commenced a job share, and his hours reduced to part time again (3 days a week). His terms and conditions are set out in the original offer letter and contract (326-337).

[43]The respondent operates the London underground network. We heard evidence from Margaret Waite (MW), Head of Line Operations on the Northern Line, that the respondent employs approximately 30,000 people. The claimant worked in the operations team which included station staff and train operators. That team comprised about 10,000 people.

[44]The claimant was a conscientious employee with an excellent sickness record. He took only 4 or 5 days off sick in total between May 2016 and April 2020. He received a certificate for 100% attendance in 2018 (339).

[45]On 23 March 2020 the Prime Minister announced the first lockdown in the UK, ordering people to ‘stay at home’. The claimant continued to work as a key worker, until unfortunately he contracted Covid on 6 April 2020. Start of sick absence

[46]On 6 April 2020 the claimant commenced sickness absence. He was subsequently diagnosed with post Covid syndrome on 28 February 2021 (cl/7).

[47]The claimant had 24 weeks’ entitlement to sick pay (183). The first 3 weeks were special leave which was put in place due to Covid. It is not clear from the evidence we heard whether the 3 weeks’ special leave was included within the 24 weeks’ entitlement. It is not relevant to the issues we need to decide to make a finding on this and we decline to do so. We simply note that the claimant had not taken the full 24 weeks when he commenced annual leave on 9 August 2020.

[48]The claimant took his accrued annual leave from 9 August 2020 to 1 November 2020.

[49]The Tribunal found that the reason that he took his annual leave at that time was that he was advised to do so by Sam, assistant to Stephen Read (SR), Train Operations Manager. In his statement the claimant says (Cl/58): “On the 5th/6th of August the AG1, Sam, she runs the administration at the depot, called me. She said that this that my sick pay was coming to an end. She said that I needed to take all my outstanding annual leave, which was 14 weeks. That will take me to the 31st October and if I wasn’t fit by then, then to take sick leave again. I told a work colleague about this.”

[50]SR approved the claimant using his annual leave as he explains in his statement (SR/14): “Mr Salietti’s absence from 9 August to 1 November was treated as annual leave, as agreed by me (page 406). This was in the hope that a further period of paid leave would enable him to regain enough fitness to return to work.”

[51]The claimant did not understand why he needed to take annual leave when he was ill but he did what he was advised to do (410). SR maintained in evidence that the claimant benefitted; by taking annual leave (and therefore being treated as back at work) the sick pay ‘clock’ re set after 3 weeks (183).

[52]The Tribunal accept that the claimant benefitted financially by taking some annual leave but note that the claimant only needed to ‘return to work’ for 3 weeks to re set the clock (183). On the advice of Sam he took all his outstanding weeks of annual leave, some 13 weeks.

[53]At the time SR approved the annual leave the Occupational Health report (400-401) stated that the claimant was ‘not fit for work in any capacity’. As such the claimant could have claimed the time off as sickness rather than take annual leave (541), although we accept this would not have been beneficial to the claimant from a financial point of view.

[54]The claimant is aggrieved that he was not furloughed from August 2020 (issue 8b) as that would have meant he did not need to use his annual leave. The respondent maintains the claimant did not meet the criteria for furlough at the relevant times (380-381); the claimant maintains that he was eligible (411, 413, 477). That dispute is not relevant to the issues we need to decide, and we have deliberately decided not to resolve that conflict. Although the claimant claims that the failure to place him on furlough in August 2020 was direct discrimination, we find that he was not a disabled person at that time (paragraph 175 below) and the complaint fails on that basis. Occupational Health reports July 2020 and November 2020

[55]On 14 July 2020 the claimant attended his first Occupational Health (OH) assessment by telephone (400-401). It concluded: ‘Following today’s assessment, Mr Ribo Salietti is not fit for work in any capacity.I decided to write to his GP to find out more information about his medical condition and the investigation plans going forward. I will make arrangements to review Mr Ribo Salietti in 4 weeks’ time and update you on his progress.’

[56]The Tribunal was not taken to any evidence of the GP being contacted. No review took place 4 weeks later. The next OH assessment took place on 3 November 2020 (371). That OH report was not included in the bundle. Respondent’s Counsel obtained a copy of it during the hearing, but the parties agreed not to include it in the bundle.

[57]The claimant provided Consent forms for release of his medical records in November 2020 (502) and February 2021 (59). No medical reports or records were obtained other than the report of Mr. Hillman on 28 February 2021 referred to at paragraph 62 below. Absence procedure 11 February 2021 to 10 May 2021

[58]The respondent’s procedure for dealing with sickness absence is contained in the Attendance at Work procedure which provides as follows, (emphasis added) (234-235): “ 5.2. Fitness for work: Arrange a case conference as early as possible to (refer to5.2.1 ) to: (5.2.1)– ‘ Step One - actively consider making reasonable adjustments (if required) – refer to 5.2.2; Step Two - actively pursue suitable alternative employment – refer to 5.2.3; Step Three - as a last resort, having fully considered the options in

5.2.2 and 5.2.3, consider termination of employment on medical grounds – refer to 5.2.4.’ .... 5.2.1 Case Conference The case conference will produce an agreed written action plan that must be abided to by all parties. The employee’s case will continue to be monitored by the case conference until it is mutually agreed that this is no longer necessary.”

[59]It was not until 11 Feb 2021 that the claimant had his first case conference with SR (483). SR’s explanation for not initiating the process ‘as early as possible’ was that he was trying to protect the claimant from entering the process, which would lead to ‘decisions’ having to be made which may be adverse to the claimant. He was aiming to give the claimant a chance to get better before initiating the process.

[60]The case conference took place remotely. The claimant was still very unwell, and it is agreed by the parties that he was not fit for any type of work at that time. There were no adjustments under step one of the procedure that would enable him to return to his substantive role.

[61]No action plan or minutes of the meeting were sent to the claimant following the meeting. He received SR’s notes of the meeting (490-491) for the first time during disclosure in these proceedings. The claimant challenges the accuracy of the notes; they state that he suffers from asthma which is incorrect. The claimant told SR about the treatments he was paying for privately and the difficulty in obtaining NHS appointments. He was unable to give a prognosis for his recovery.

[62]On 28 February 2021 (506) the respondent obtained a report from the claimant’s treating doctor, Toby Hillman, Consultant of Respiratory Medicine, University College London Hospitals. Mr. Hillman gave the following opinion regarding the prognosis: “The prognosis of patients with Post-COVID Syndrome has been notoriously hard to estimate. Our service has seen improvements in some patients within 3 months of their index illness, and others, such as Mr Ribo have symptoms that last a lot longer. As time goes on, it is possible that Mr Ribo will enter into a chronic fatigue state, and treatment would be aimed at improving his self-management of fatigue and functional capacity.”

[63]Although this report appears in the bundle of documents it is not referred to in any of the subsequent OH reports.

[64]The next OH report dated 30 March 2021 (521-522) concluded that the claimant was not fit to return to work in any capacity within the next three months. In response to a specific question about whether he was fit to work on stations as a Customer Service Assistant (CSA2) the clinician answered ‘No’. In response to a question about reasonable adjustments the clinician stated ‘N/A at present’ and stated that a slow phased return to work can be considered and discussed at review.

[65]Although the clinician asked for a further review to be arranged in 3 months’ time a further assessment did not take place until September 2021.

[66]On 24 March 2021 SR sent the claimant an invitation to a second meeting to discuss his medical condition (518-519). The meeting took place on 8 April 2021. There are no minutes or action plan from this meeting. SR has been unable to locate any notes relating to the meeting (SR/32). SR did not have the OH report dated 30 March 2021 at the time of the meeting. The claimant sent him a copy immediately after the meeting.

[67]The claimant’s recollection of the meeting is set out in his statement (Cl/135-138). There was a discussion about the possibility of extending his sick pay. The claimant said that ‘failing that’ he would like to be assigned to the redeployment unit rather than go on to statutory sick pay.

[68]SR agreed to see if he could get an extension of sick pay but maintained that it was not his decision. It was also agreed that the option of assigning the claimant to the redeployment unit would be considered. The decision could not be made at that meeting as the Employee Relations Partner (ERP) was not in attendance (SR/32).

[69]Referral to the redeployment unit was intended to explore whether the claimant could be redeployed in an area of the business outside his current role (545): “The role of the redeployment unit is to provide advice on:  CV workshops – advice and assistance with CV compilation;  Potential opportunities within the company in view of medical restrictions;  Competence workshops – to assist with applications and interviews;  Interview techniques (one on one) and assistance prior to any interviews attended;  Letter Writing.”

[70]The claimant would have preferred an extension to his sick pay but failing that he was prepared to be assigned to the redeployment unit because he was aware that his sick pay was coming to an end. In oral evidence he said ‘I just knew that I needed more time and medical redeployment would give me another 13 weeks. Now with the benefit of hindsight I know that I did not get better, but I was on Facebook forums and some individuals were suddenly getting better in two or three weeks or a month later. Every individual is different’.

[71]SR sent an email regarding sick pay to the relevant manager following the meeting (528): “The Train Operator is coming to the end of his sick pay. I am looking to request an extension to his pay for four weeks maximum. The Train Operator has upcoming appointments with specialists in late April / early May where he hopes to have further information to aid his recovery. He is currently diagnosed with Long Covid. A follow up case conference has already been scheduled for the 26th April whereby we will be discussing redeployment based upon the information in the Occ Health report.”

[72]On 13 April 2021 the response was (1568): “As I briefly referred to in our conversation just now, in this instance this man would be one of those we would look to continue to extend sick pay for and could do this for a further 15 weeks before we move to medical redeployment. This is in line with the commitment we made at TfL level for others whose sick pay was due to expire.”

[73]The claimant was not informed of this option. After 4 weeks’ sick pay extension he was moved to the redeployment unit.

[74]SR explained his reasons for referring the claimant to the redeployment unit in his statement (SR/35): “I did consider whether it was appropriate to terminate Mr Salietti’s employment at this point. I think it would reasonably have been open for me to do so at that point given that the LUOH advice was that he was not fit for any work within a 3 month period and he had by this point been absent for over 12 months. However, given the unprecedented circumstances of the pandemic and the fact that Long covid was such a new and little understood condition, and the fact that Mr Salietti seemed to be making some progress in his recovery, I wanted to offer him every opportunity to continue his employment. I therefore considered it was appropriate to refer him to our Redeployment Unit. Mr Salietti and his representative readily agreed with that proposal, which I had already discussed with him. He was grateful that this would mean his pay would continue and the decision was in agreement with his union representative.”

[75]The Tribunal find that SR did not consider any options at this stage other than termination or redeployment. At this time he could have exercised his discretion to extend the claimant’s sick pay further but he decided not to do so.

[76]On 26 April 2021 a further short meeting took place between SR and the claimant. His union representative was present. Minutes of the meeting were not sent to the claimant at the time and the claimant only saw the notes relating to it (532) on disclosure. It was recorded that the claimant had improved since February. This appears inconsistent with the OH report but SR said in evidence that he felt the claimant was ‘heading in the right direction’. They agreed they would reconvene in a couple of weeks’ time as the ERP was still not available and the claimant could not be assigned to redeployment unless they were there (SR/35). Sick pay was extended until the next meeting (SR/35).

[77]On 10 May 2021 a short meeting took place (542). The claimant was referred to redeployment from 11 May 2021. A ‘return to work’ meeting took place on the same date (539-541). This appears inconsistent with SR’s letter referring him for redeployment which noted that the OH report said that he was unfit to return to work in any capacity in less than 3 months (543).

[78]The Tribunal’s view is that assigning the claimant to the redeployment unit was not an appropriate decision at a time when the claimant was still unwell. By then SR was in receipt of the OH report dated 30 March 2021 which stated that it was unlikely that the claimant would be fit to resume work, in any capacity, in less than 3 months. Redeployment

[79]The claimant was assigned to Deborah Bowen (DB) (Redeployment Manager) for a period of 13 weeks. He asked to work 3 days a week which was agreed (619). He did nearly 30 online training courses during his period of redeployment (Cl/187). DB referred to this as ‘a vast array of courses’ (626).

[80]On 2 July 2021 DB sent the claimant details of roles that were being advertised (624). She said it was not necessary for the claimant to apply for them, but it would ‘open a conversation about what type of role we could be looking for if you were unable to go back to your substantive role’. She made no reference to reasonable adjustments, even though it is accepted by the respondent that they were aware that the claimant had a disability by that date.

[81]No suggestions of specific roles were put forward until 3 August 2021 when DB told the claimant about a coverage administrator role that he had been ‘skills matched to’ (627). This is the ‘scheduler role’ referred to in the list of issues (DB/17). The claimant did a SAP test required for the role on the same day, which he passed (Cl/219).

[82]The subsequent job advertisement for the role stated (802-804): “ Location: Southwark, London / Working from home Secondment opportunity for 6 months (with a view to permency) sic .... Job Purpose: To arrange coverage, plan rosters in advance, liaising with managers and staff....”

[83]DB’s evidence was that the vacancy was for a 6 month secondment and they needed to get someone signed up and trained quickly (DB/24). The advertisement however says that it may become permanent. There were 2 jobs, one was filled on 16 August 2021; the second vacancy was not filled until January 2022 (DB/28.2).

[84]DB discussed the role on 10 August 2021 with the hiring manager. It was suggested that the training for the role may need to be on-site. DB noted that the claimant would like to have a conversation with the hiring manager to see if the training could be done online (629). The hiring manager did not give evidence; he no longer works for the respondent.

[85]The extent of training required for the role was not explored. DB said in oral evidence that we ‘did not get that far’. In terms of discussing reasonable adjustments DB also said, ‘we did not get that far’. In evidence she was only able to set out her ‘understanding’ which was that the role required on-site training which could not be done online and that it would take up to 3 months of being supervised before the claimant would be ‘up and running’.

[86]On 13 August 2021 the claimant decided to decline the role. He sent an email to the hiring manager stating that he would not be able to work full time without a phased return to work (572). In the Tribunal’s view that was entirely understandable. He had been working part time before he became unwell, and he was clearly not well enough to work full time in August 2021.

[87]On 30 August 2021 the claimant sent an email to DB asking her if it would be possible for her to contact the hiring manager and see if he could accommodate a phased return to work (579).

[88]In oral evidence DB expressed some frustration at this request. She had tried to get the claimant to talk direct to the hiring manager and expressed regret that he had not done so. She said that would have enabled him to explain his situation and that people on the scheme have to be ‘motivated’. She said, ‘it was not my place to discuss his illness, it was better for him to speak to him and explain more detail’.

[89]DB explained in oral evidence that she found it ‘awkward’ to re-approach the hiring manager because she wished the claimant would speak to him direct. She sent an email on 1 September 2021 saying that she had an ‘unusual request’; the claimant had asked about a phased return to work (632).

[90]The reply from the hiring manager was (632): “Are you able to provide more details around why William would require a phased return to work? I’m unsure how this will work as the initial part of the secondment will be training which requires full time before William was able to work alone.”

[91]DB subsequently told the claimant that the training needed to be full time (Cl/226) (DB/26).

[92]On 6 September 2021 she replied to the hiring manager to say (633): “I have spoken with William, he explained that approximately after about 2 hours of working his body becomes exhausted and he needs to rest. I asked him what does phased return to work looks like for him and he advised that he was thinking of 3 days a week and 2 hours a day for the 1st week and then building his time up. I explained that the training requires him to be available full time to start with. I think he understood.” Meetings with SR during redeployment process

[93]The respondent’s procedure required meetings with the claimant’s manager (SR) to take place while the claimant was in the redeployment unit. SR’s letter to the claimant dated 10 May 2021 set out the process (emphasis added) (538): “I will need you to attend meetings with me in weeks four, eight and eleven, followed by a case conference in week 13 of your period within the redeployment unit. The first three meetings will be to review your medical condition and your progress with finding suitable alternative employment. The case conference will be to review your continuing employment with the company if no permanent position has been secured.”

[94]Although the procedure envisages 3 meetings in total before the case conference in week 13, only 2 meetings took place, on 22 June and 13 August 2021. The meetings took place remotely. At the first meeting the claimant reported that redeployment was going well and that he was feeling better (553). At the second meeting the claimant told SR about the job that had been discussed in redeployment which could not accommodate a phased return (574).

[95]On 6 September 2021 the claimant’s time in the redeployment unit was due to come to an end, but it was extended by 2 weeks to allow an OH assessment to take place. Final Occupational Health Assessment

[96]The final OH assessment took place by telephone on 16 September 2021 (593-595). The clinician had not seen the previous OH reports or any medical records. The clinician concluded that the claimant was not fit for his substantive duties. The Tribunal finds the remainder of the report to be vague and contradictory. When asked about the Customer Service Assistant role (CSA2) the clinician states: ‘As outlined above he is fit for restricted duties on reduced hours. This would be applicable in any role, including that of the CSA2, provided that the adjustments that he required can be accommodated for such a role’.

[97]Under ‘Outcome’ she records ‘Unfit for role-temporary’. Under ‘Opinion’ she records ‘fit for restricted duties only’. She states that the claimant will need regular breaks and reduced hours and these are likely to be required in the longer term rather than a phased return to work. In terms of prognosis she writes: ‘it is very difficult to give you an indication of timeframes for the restrictions above; however, bearing in mind that his symptoms have been ongoing since last year it seems unrealistic to expect improvement in the near future. The rate of recovery here has been very slow, and it is therefore likely that the restrictions above will be required in the longer term.’

[98]There is then an addendum at the end of the report, dated the day after the appointment, stating that the claimant had been in touch by email with further details of his daily routine. She writes: ‘On the basis of this more complete information [the claimant] is unlikely to fit for work (sic). He now states that his symptoms have not changed much at all since last year and this being the case, it seems unlikely that changes can be expected in the foreseeable future’.

[99]The claimant was not satisfied with the contents of the OH report and told SR of his concern that the clinician ‘had not read up on his case and was unaware of previous reports’ (597). Events following the period in redeployment

[100]The claimant’s last day in the redeployment unit was 20 September 2021. The final case conference meeting took place on 22 September 2021.

[101]The Tribunal heard evidence about the respondent’s internal procedures following redeployment. An agreement for operational staff made with trade unions in 1992 (171-199) makes reference to employees being referred back to their line manager for 3 months after redeployment and, if there is a ‘realistic prospect’ of another role being found, allowing a further month. DB and SR indicated in oral evidence that they were unaware of the agreement, and it was not their understanding of the Attendance at Work Procedure and redeployment process. They rely on guidance on the respondent’s intranet which they say enables the respondent to terminate employment in the final case conference meeting. The guidance on the intranet they referred to was not in the bundle at the beginning of the hearing and was only provided on day 4 of the hearing (sup50-53).

[102]Margaret Waite (MW) (Head of Line Operations on the Northern Line) gave evidence in which she said that the 1992 agreement sets out the principles on which the policy and guidance are based. The policy has been updated since 1992 and employees are now referred to the redeployment unit for 3 months. The 3 month period is therefore still in place but the employee obtains more specific help during the 3 months than envisaged in 1992.

[103]The Tribunal makes no finding on whether the current policy and practices accord with the 1992 agreement; that is not an issue that the Tribunal needs to decide in order to resolve the dispute in this case. The Tribunal restricts its findings to the procedure that was followed in the claimant’s case. It accepts that the respondent did not need to wait another 3 months before the final case conference meeting, in order to comply with the current Attendance at Work procedure and guidance.

[104]The Attendance at Work Procedure provides that as a last resort the case conference will permit termination on medical grounds (249) (emphasis added): ‘The Case Conference will ensure that: The case has been fully reviewed and all possible options have been considered – Steps One and Two have been exhausted. The employee be allowed time to take on board this possible course of action and to discuss the matter with their partner and/or family. The case has been referred to LUOH and they have provided relevant details to support any decision. Medical reports from medical practitioners/ specialists/ consultants may need to be obtained (with assistance from LUOH). An ill-health pension estimate has been obtained prior to termination. The Data Protection Act (1998) provides for the employee to give his/ her permission to request this. Following this discussion, the Case Conference will agree to disband where it is no longer necessary to continue to monitor the case. Separately, you will make your decision whether to terminate the individual’s employment on medical grounds. If you decide not to terminate, the Case Conference will be reconvened to discuss next steps. If your decision is to terminate the individual’s employment on medical grounds, you will: Arrange a convenient time to meet with the employee to terminate their employment. You will send a letter to the employee, stating the reasons for the meeting. Confirm to the employee that he/ she is entitled to be accompanied at this meeting by a trades union representative/ fellow worker of their choice (should the employee choose to be accompanied). ‘

[105]The claimant and SR attended the meeting on 22 September 2021 in person. The ERP and union representative attended remotely. As set out at paragraph 99 above the claimant stated that he was not satisfied with the OH report and asked for the meeting to be adjourned until a doctor from OH could discuss test results that were available since his last OH assessment (600). The union representative asked if there was a job the claimant could do from home for a few hours a week, pointing out that the claimant had progressed from a stage where he was bed bound to being able to attend the meeting (597-600).

[106]SR decided to terminate the claimant’s employment after a short break during the case conference meeting (597-599). Although the extract from the procedure at paragraph 104 above suggests a separate meeting should be held after the discussion about the employee’s health, SR maintained that this was not the case. He considers he was entitled to terminate the claimant’s employment at that meeting, notice having been given that it was a possible outcome (sup52).

[107]SR’s statement explains his reasons for his decision to dismiss the claimant. It is consistent with the oral evidence he gave and the letter he sent to the claimant confirming his dismissal (603-606) (SR/58-59) (emphasis added): “I explained to Mr Salietti that unfortunately I had made the decision to terminate his employment on medical grounds with immediate effect, with payment in lieu of notice. There was no doubt that Mr Salietti was not fit for his substantive role either now or in the foreseeable future. Despite a period in Redeployment with the assistance of dedicated staff, Mr Salietti had not been successful in finding alternative employment. As to the CSA2 duties, it was clear that Mr Salietti would not be able to perform that role without very significant adjustments to those duties (particularly in relation to not spending time walking/ on his feet), most likely over the long term, to an extent which was simply unsustainable. CSA2 positions are only available in Central London stations, there were not CSA2 positions available in quieter stations where it might have been more possible to accommodate some seated duties. As to the request for work that could be done by Mr Salietti a few hours a week from home, there was no such work available in our depot/area/station. The vast majority of the roles available in the depot are operational roles that require presence in the station. Some managerial duties can be done from home, but Mr Salietti is not at a managerial grade. We have one administrative role in the depot, but that role was not vacant. It was not appropriate to create a vacancy that did not arise, and Mr Salietti had spent more than 13 weeks in Redeployment seeking any suitable vacancy group wide and had been unsuccessful.”

[108]SR based his decision on the fact that the claimant had been unable to do his substantive role since April 2020 and would not be able to do so in the foreseeable future. He did not consider adjustments or an alternative role other than a CSA2 post or roles within the operations area of the business. He did not consider managerial duties because the claimant was not at managerial grade. He referred to the claimant not being ‘successful’ in finding alternative employment in the redeployment unit. He did not consider extending the claimant’s time in redeployment even though the internal policy allowed it (50). He did not consider it his responsibility to take any further steps to consider alternative roles. The Tribunal accept that in such a large organisation he may not have been aware of roles that may be available and suitable for the claimant. However DB, in the redeployment unit, also failed to specifically address the reasonable adjustments that would assist the claimant, instead stating that he needed to be pro-active in finding a role. This meant that no-one in the organisation took responsibility for considering reasonable adjustments.

[109]In oral evidence SR explained that he did not extend sick pay because he had already extended it, then sent the claimant into redeployment for 13 weeks and then extended it by another two weeks. He felt that he had done enough.

[110]SR considered he had enough medical evidence to make the decision and did not consider obtaining further evidence. Appeal

[111]The claimant appealed the decision, and his appeal was heard remotely by Margaret Waite, Head of Line Operations on the Northern Line, on 14 October 2021. MW gave evidence that her role as appeal officer was to check that the Attendance at Work Procedure had been followed and to see whether anything had changed since the meeting. She considered that it was up to the claimant to bring any relevant medical evidence to the meeting.

[112]Minutes of the meeting were not sent to the claimant (Cl/382). Notes in the bundle (658-659) indicate that the claimant’s union representative asked the respondent to consider a longer term plan that would allow the claimant to work from home on restricted hours to give the claimant an opportunity to build up his strength. MW concluded the meeting by saying that she would review the medical evidence and come to a decision in the next 2 weeks.

[113]Following the meeting the claimant was concerned that he had not been able to give MW a prognosis when asked in the meeting. He sent her an email dated 18 October 2021 with a list of treating doctors stating (660-662): “I would get the reports for you but as there are so many and some of them have been amended and some that were supposed to be amended weren’t, there was also cross of emails for others with amendments that weren’t put in their report and other reports I don’t have. So it might be simpler at this stage of my dismissal process to grant my permission for LUOH to contact Toby Hillman head of the UCLH long covid clinic and William Man specialist that I was referred to from the RBH to give you an overview of all tests and doctors reports from 30th March 2021 till the 17th September 2021. They might also be able to give you a prognosis for my condition, as you asked for one during the appeal meeting and I really can’t give you one. I’m under the care of their clinic and they are two of the leading doctors in the UK dealing with long haulers so they will have a better idea and be able to give you an estimate based on their latest findings with other patients and on the results from all my tests.”

[114]MW decided not to seek any further medical evidence and on 1 November 2021 she wrote to the claimant to say that the appeal was not upheld (665- 667). She wrote (emphasis added): ‘In coming to this decision I referred to the medical advice that had previously been given by OH (16th September 2021) that stated that you are not fit for your substantive role at this time and there is no prognosis for when you will be fit. You yourself confirmed that this was the case and there had been no change since this advice was given when we met. It was proposed that you could do restricted duties on restricted hours at home, as a Train Operator it is not possible to provide you with restricted duties or reasonable adjustments for your role that would allow this, the role in itself requires attendance at work and the ability to do safety critical work. You have been through our internal redeployment process which was the opportunity for you to find alternative work within the company which would allow you to do something else that meets your needs. Unfortunately, you were unable to find an alternative suitable role.’

[115]The Tribunal find that she based her decision on the claimant’s inability to do his substantive role and did not consider reasonable adjustments in terms of an alternative role. She considered it was the claimant’s responsibility to find a suitable alternative role in redeployment. She considered she had enough medical evidence and concluded that there was no prognosis as to when he would be fit. She did not consider alternatives other than dismissal.

[116]She justifies her decision on the grounds of the impact of his absence on the business (MW/27): “His continuing absence has an impact on the wider business area in the sense that someone else has to cover his duties. Whilst our duty roster builds in some additional resource to cover absences, there are often circumstances in which we have insufficient cover (this is particularly given that we have an agreement with the Trade Union that we cannot offer overtime to Train Operators). Every cover slot used to cover Mr Salietti’s absence means that we may not have cover staff available to release for unexpected absence or incidents on the line. Ultimately if there is no cover available, we may end up having to delay or cancel train services with the resulting impact on passenger dissatisfaction and overcrowding in stations. Mr Salietti’s non-availability for over 17 months would have contributed to regular train cancellations. We simply could not allow the situation to continue indefinitely. We have to ensure that we have sufficient resourcing to maintain a safe and efficient passenger service to the travelling public.”

[117]The Tribunal was not taken to any documentary evidence indicating that the claimant’s absence had led to insufficient cover on the duty roster or train cancellations. The respondent did not explain how terminating his employment when they did rectified the alleged situation. If he had been moved to an alternative role his non availability as a train operator would not have had the impact claimed by MW. Comparators

[118]In respect of his direct discrimination claim the claimant relies on 2 comparators. The first is a train operator with a tendon or ligament injury affecting his right leg (SR/70). The second is an expectant mother (SR/71).

[119]In both cases the Tribunal find that the suggested comparators had conditions which were expected to affect them for a finite period. In the claimant’s case the period of time for which he would suffer from Long Covid was unknown. The respondent says that was the reason for the difference in treatment (SR/71-73). In respect of the expectant mother the reason for the difference in treatment included the health and safety of the mother and unborn child (SR/78).

[120]They were both given alternative duties within the operations department; the first as a CSA2, where he was allowed to sit down (SR/72) and the second within the office to undertake temporary alternative duties, when a specific vacancy did not exist. Law

[121]The claimant brings complaints of unfair dismissal and discrimination. The complaints fall to be considered under the Employment Rights Act (ERA) 1996 and the Equality Act (EA) 2010. This section of our Reasons first sets out the relevant law under the ERA 1996 and EA 2010.

[122]Disability is a protected characteristic under sections 4 and 6 EA 2010. The respondent accepts that the claimant had a disability from 30 March 2021.

[123]The definition supplemented by Schedule 1 of the Act requires the condition to have a substantial and long-term effect on the ability to carry out normal day to day activities. Long term is defined as ‘at least 12 months’ or ‘likely to be 12 months’. Knowledge of the disability is not limited to actual knowledge but extends to constructive knowledge (i.e. what the employer ought reasonably to have known). Reasonable Adjustments (s.20 and 21 Equality Act 2010)

[124]Section 20 (so far as relevant) states:(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements (of which only the first is relevant here)

(3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. ...

[125]Section 21 states:(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.

(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

[126]The EHRC Code of Practice says that transferring a disabled worker to fill an existing vacancy is a step which it might be reasonable for employers to have to take as a reasonable adjustment (paragraph 6.33). It gives the following example: ‘An employer should consider whether a suitable alternative post is available for a worker who becomes disabled (or whose disability worsens), where no reasonable adjustment would enable the worker to continue doing the current job. Such a post might also involve retraining or other reasonable adjustments such as equipment for the new post or transfer to a position on a higher grade.’

[127]The leading authority on reasonable adjustments and redeployment, Archibald v Fife Council

[2004] ICR 954

, concerns a claim brought by a local authority employee who had become unable to carry out manual duties owing to the onset of a disability but who was unable to secure an officebased role through the council’s interview processes. Explaining the duty to make reasonable adjustments, Lady Hale said in paragraphs 67 to 70: “ … to the extent that the duty to make reasonable adjustments requires it, the employer is not only permitted but obliged to treat a disabled person more favourably than others. . …[the duty] is capable of including the step of transferring a disabled person from a post she can no longer do to a post which she can do, provided that this is a reasonable step for the employer to have to take. This will depend upon all the circumstances of the case… There is no law against discriminating against people with a background in manual work, but it might be reasonable for an employer to have to take that difficulty into account when considering the transfer of a disabled worker who could no longer do that type of work. I only say "might" because it depends upon all the circumstances of the case...” Discrimination arising from disability (s.15 Equality Act 2010)

[128]Section 15 Equality Act 2010 provides:(1) A person (A) discriminates against a disabled person (B) if- (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[129]Three elements must be made out in order for the claimant to succeed in a section 15 claim: i) There must be unfavourable treatment. No comparison is required. ii) There must be ‘something’ that arises ‘in consequence of the claimant’s disability.’ iii) The unfavourable treatment must be because of (i.e. caused by) the ‘something’ that arises in consequence of the disability. This involves a consideration of the thought processes of the putative discriminator in order to determine whether the something arising in consequence of the disability operated on the mind of the alleged discriminator, whether consciously or subconsciously, at least to a significant extent.

[130]When considering an employer’s defence pursuant to section 15(1)(b) the question as to whether an aim is “legitimate” is a question of fact for the tribunal. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business, but it has to make its own judgment, based upon a fair and detailed analysis of the working practices and business considerations involved. Direct disability discrimination (s.13 Equality Act 2010)

[131]Direct discrimination is defined in section 13(1) as follows: A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[132]The concept of treatment being less favourable inherently suggests some form of comparison and in such cases section 23(1) applies. The effect of section 23 is to ensure that any comparison made must be between situations which are genuinely comparable. The case law, however, makes it clear that it is not necessary for a claimant to have an actual comparator to succeed. The comparison can be with a hypothetical comparator. Further, as the Employment Appeal Tribunal and appellate courts have emphasised in a number of cases, including Amnesty International v Ahmed

[2009] IRLR 884

, in most cases the real question is the “reason why” the decision maker acted as he or she did. Answering that question involves consideration of the mental processes (whether conscious or subconscious) of the alleged discriminator, and it may be possible for the Tribunal to make a finding as to the reason why a person acted as he or she did without the need to concern itself with constructing a hypothetical comparator. Burden of proof in complaints under the Equality Act 2010

[133]Sections 136(2) and (3) provide for a shifting burden of proof: “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) This does not apply if A shows that A did not contravene the provision.’

[134]This means that if there are facts from which the Tribunal could properly and fairly conclude that there has been unlawful discrimination, the burden of proof shifts to the respondent.

[135]In a complaint of failure to make reasonable adjustments, for the burden to shift, the claimant must demonstrate that there is a PCP causing a substantial disadvantage and evidence of some apparently reasonable adjustment that could have been made (Project Management Institute v Latif

2007 IRLR 579

, EAT). Where the burden shifts to the respondent, the respondent must then prove on the balance of probabilities that the respondent did not fail to make reasonable adjustments.

[136]In a complaint of discrimination arising from disability, the claimant must show that they have a disability and have been treated unfavorably by the employer. It is also for the claimant to show that ‘something’ arose as a consequence of their disability and that there are facts from which it could be inferred that this ‘something’ was the reason for the unfavourable treatment. Where the burden shifts to the respondent the respondent can defend the claim by showing that the treatment was a proportionate means of achieving a legitimate aim.

[137]The respondent is expected to produce ‘cogent evidence’ to discharge the burden of proof. If there is a prima facie case and the explanation for that treatment is unsatisfactory or inadequate, then the Tribunal must make a finding of discrimination.

[138]In a complaint of direct discrimination, it is for a claimant to establish facts from which the Tribunal can reasonably conclude that there has been a contravention of the Act. If the claimant establishes those facts, the burden shifts to the respondent to show that there has been no contravention by, for example, identifying a different reason for the treatment.

[139]Section 98 of the 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;....

[140]If the reason established by the employer is a potentially fair reason under section 98(1)(a) or (b) the tribunal must then determine the question of fairness in accordance with section 98(4): ‘(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.’

[141]The Tribunal must determine whether the employer’s actions fell within the range of reasonable responses open to a reasonable employer in the circumstances (Iceland Frozen Foods Limited v Jones

[1983] ICR 17

(approved by the Court of Appeal in Post Office v Foley, HSBC Bank plc (formerly Midland Bank plc) v Madden

[2000] IRLR 827

)). The Tribunal must not substitute its decision for that of the employer.

[142]The role of the Tribunal under section 98(4) in a case concerning long term sickness absence is derived from two decisions of the EAT in the 1970s: Spencer v Paragon Wallpapers Limited

[1976] IRLR 373

and East Lindsey District Council v Daubney

[1977] IRLR 181

. A summary of the approach can be found in the decision of the Court of Session in BS v Dundee City Council

[2014] IRLR 131

. There are three main issues in these cases:(a) The Tribunal must consider whether it is reasonable to expect the employer to wait any longer for the employee to return to work;

(b) An employer acting reasonably will consult the employee to see what his views are;

(c) 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.

[143]Ultimately the question in these cases is whether the employer acted reasonably in concluding in the light of the position of the employee and the medical evidence that it could not wait any longer for the employee to return to work.

[144]Applying Polkey v AE Dayton Services Ltd

[1987] UKHL 8

; Software 2000 Ltd v Andrews

[2007] ICR 825

; W Devis & Sons Ltd v Atkins

[1977] 3 All ER 40

;and Crédit Agricole Corporate and Investment Bank v Wardle

[2011] IRLR 604

the Tribunal can reduce an award of damages on the basis that if the employer had acted fairly the claimant would have been dismissed in any event at or around the same time. Unfair dismissal and disability

[145]In cases where disability and unfair dismissal claims are being pursued in parallel, Tribunals should delineate their findings in respect of each claim, recognising that different tests need to be applied, although often the Tribunal will come to the same conclusion.

[146]In the case of O’Brien v Bolton St Catherine’s Academy

2017 ICR 737

CA Lord Justice Underhill explained this as follows: ‘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 S.98(4) to one of “quasi-Wednesbury” review… Thus, in this context, I very much doubt whether the two tests should lead to different results.’ Jurisdiction/ time limits

[147]The time limit for Equality Act claims, subject to the ACAS conciliation provisions, appears in section 123 as follows: ‘(1) Proceedings on a complaint within section 120 may not be brought after the end of –(a) the period of three 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. ..... (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.’ Submissions

[148]The claimant and Counsel for the respondent both made oral submissions which are not repeated here but which we have taken into account when reaching our decision.

Conclusions

[149]We applied the legal principles to our findings of fact to reach our conclusions in respect of the issues we had to decide. We have addressed the issues in a different order, starting by considering the complaints of failure to make reasonable adjustments, then discrimination arising from disability, then direct discrimination and finally unfair dismissal.

[150]The respondent accepts that the claimant had a disability (Long-Covid) from 30 March 2021. We find that the date when the respondent knew or ought to have known that the claimant had a disability was 11 February 2021 when the claimant attended a meeting with SR to update him on his condition (paragraph 37 above). It ought to have been clear at that time that the condition was likely to last 12 months. Failure to make Reasonable adjustments

[151]The provision, criterion or practice (PCP) relied on by the claimant is the respondent’s requirement that employees carry out their usual contractual duties.

[152]We find that the respondent had this PCP and it put the claimant at a particular disadvantage in comparison to people who are not disabled. His condition, Long Covid, meant that he was unable to safely drive trains. The respondent knew that the claimant was likely to be placed at that substantial disadvantage by the PCP as the occupational health reports set out the claimant’s impairments and restrictions.

[153]Our conclusions mean that the respondent was under a duty to take reasonable steps to avoid the substantial disadvantage to the claimant which arose from the PCP.

[154]We accept that there was no adjustment which the respondent could have reasonably put in place on a permanent basis to address the claimant’s inability to carry out his usual contractual duties.

[155]The claimant says the respondent could have:155.1 Assigned and/or redeployed the claimant a part time scheduler role (ie. the coverage administrator role) with a phased return to work.

155.2 Assigned and/or redeployed the claimant a customer service role with reduced hours (part time), in accordance with OH recommendations.

[156]These adjustments would have removed the disadvantage to the claimant of facing dismissal because of being unable to perform his substantive role.

[157]Transferring an employee to another role when they become unable to perform their role is an example of a reasonable adjustment included in the EHRC Code of Practice.

[158]We accept that the CSA2 role was not suitable for the claimant. This would involve standing for a large part of the day and the claimant’s health did not allow this. Although the inability to stand could have been accommodated on a short term basis this was not viable in the longer term.

[159]However, it would have been reasonable to have transferred the claimant on a part time basis to the coverage administrator role or another role where he could sit down. This would have meant the claimant would not have been dismissed when he was.

[160]The respondent has failed to satisfy us that it was not reasonable to have offered the claimant the coverage administrator role. We specifically identify the following reasons why it would have been reasonable to offer the claimant the role: a) The claimant was capable of carrying out the coverage administrator role, having been skills matched to it and passed the SAP test. b) The claimant turned the role down because it was full time, which we found was a reasonable decision bearing in mind his health and the fact that he had previously worked part time. c) No consideration was given to whether the role could be part time or carried out as a job share and no evidence was put forward as to why that could not be the case. d) The respondent could reasonably have attempted to find a way for the claimant to carry out the training for the role. The respondent said the training needed to be full time and take place on site but did not produce evidence to persuade us this was the case. The advertisement said the job could be done from home. The respondent failed to investigate the options properly or at all, not even establishing what was involved in the training or how long it would take. e) The role was still available in January 2022; filling the role was not time critical and allowances could have been made for the claimant to train and to work part time.

[161]The respondent has also failed to satisfy us that it was unable to find the claimant another role where the claimant could work part time from home. The respondent put the onus on the claimant to find a job while in the redeployment department. No documentary evidence has been put forward with regard to the number of vacancies in the organisation and, on a balance of probabilities, the Tribunal does not accept that an organisation employing approximately 30,000 people, many of whom were working from home during the Covid pandemic, was unable to find any suitable alternative employment for the claimant.

[162]The final case conference and appeal hearing was a ‘rubber stamp’ exercise, in that neither SR or MW considered again the coverage administrator role or any other roles that may be suitable for the claimant; they simply relied on the fact that the claimant had not been successful in obtaining a role while in the redeployment department.

[163]We therefore find that there was a failure to make reasonable adjustments.

[164]The claimant issued proceedings on 18 February 2022, and taking into account the conciliation period, anything that happened before 11 September 2021 is outside the time limit. The reasonable adjustment could have been made at any time during the redeployment period up until the appeal on 14 October 2021. The coverage administrator role remained vacant until January 2022. The claimant was within the primary time limit for bringing his claim.

[165]The complaint for failure to make reasonable adjustments therefore succeeds. Discrimination arising from disability.

[166]The claimant was dismissed by the respondent. This amounts to unfavourable treatment.

[167]The unfavourable treatment was because of something arising in consequence of the claimant’s disability. The claimant was unable to work in his substantive role because of long Covid, in that he was unable to safely operate trains. He required an alternative role which the respondent maintains could not be accommodated. This was the material reason for his dismissal.

[168]We have found that transfer to an alternative role was a reasonable adjustment. If that had been carried out the claimant would not have been dismissed.

[169]The respondent says that dismissal was a proportionate means of achieving a legitimate aim, namely: a) effectively managing staff absence to reduce the negative effect staff absence can have on the Respondent’s ongoing operations, including the respondent’s train service; b) ensuring that the respondent operates a fair and consistent absence management policy.

[170]The Tribunal accepts that these are legitimate aims. The Tribunal is required to carry out a balancing exercise by weighing the respondent’s justification against the discriminatory impact, considering whether the means are appropriate with a view to achieving the aim in question, and are necessary to that end.

[171]We heard no evidence to persuade us that dismissing the claimant enabled the respondent to achieve these aims. Although MW says in her statement that his continued absence made coverage of other absences difficult and caused trains to be cancelled, we have not seen or heard any cogent evidence in support of that statement. Moreover, moving the claimant to a different role would mean that he was not included in the headcount of train operators. The respondent has not explained how dismissing the claimant achieved the aim of operating a fair and consistent absence management policy.

[172]We have concluded that the dismissal of the claimant was not proportionate. There was a less discriminatory way than dismissal to address the claimant’s inability to perform his substantive role, which was to find him an alternative role.

[173]The complaint of discrimination arising from disability therefore succeeds. Direct discrimination

[174]The claimant claims he was treated less favourably than actual or hypothetical comparators in that he was dismissed and not placed on furlough in August 2020.

[175]In respect of furlough we have found that the claimant did not have a disability at the relevant time and that complaint fails. In any event the claim was made outside the statutory time limit.

[176]We have considered the ‘reason why’ the decision maker (SR) dismissed the claimant. The reason was that it was unlikely that the claimant would be able to return to his substantive role. The prognosis was very uncertain. In the case of the comparators there was a strong likelihood that they would be able to do so.

[177]We are satisfied that the respondent has discharged the burden of proof; the claimant was treated less favourably because it was unlikely he would be able to return to his substantive role and not because of his disability.

[178]The Tribunal therefore does not uphold the claimant’s complaint of direct discrimination.

[179]The reason for the claimant’s dismissal was capability. This is a potentially fair reason for dismissal.

[180]We need to consider whether in the circumstances (including the size and administrative resources of the organisation) the respondent acted reasonably or unreasonably in treating capability as a sufficient reason for dismissing the claimant.

[181]The issues identify that the Tribunal will usually need to decide in particular whether a) the respondent adequately investigated the claimant’s health issues and gave the claimant an adequate opportunity to be considered for alternative roles and b) whether dismissal was within the range of reasonable responses.

[182]The Tribunal bear in mind that the legal test under ERA 1996 is different to the test under section 15 EA 2010.

[183]The Tribunal must not substitute its own views with regard to whether the dismissal was within the range of reasonable responses.

[184]The respondent failed to follow its own internal procedure by failing to prepare action plans following the case conference meetings. The respondent even failed to produce minutes. The respondent only held 2 meetings before the final meeting rather than 3. We find that the respondent adopted a ‘tick box’ approach to these meetings and to the subsequent appeal. A reasonable employer would have adopted a more open minded approach and given greater consideration to whether dismissal was appropriate.

[185]The respondent was heavily influenced by the fact that the claimant had been unable to carry out his substantive role since April 2020 (some 17 months) and the lack of a clear prognosis. We accept that these are valid factors. We have balanced these factors against other factors when considering the range of reasonable responses test.

[186]The claimant informed the respondent that he did not agree with the OH report on which they relied when making their decision. The Tribunal finds the report to be contradictory and unsatisfactory. We find that, notwithstanding the length of absence, a reasonable employer would not have relied on the OH report and would have obtained evidence from the claimant’s treating consultant regarding prognosis and ability to do a part time role.

[187]There was also the probability of an alternative suitable role, which was not properly investigated. A reasonable employer would have made further enquiries about training for the coverage administrator role and looked for other alternative roles before deciding on dismissal. It would have been reasonable to wait longer after the meeting on 22 September 2021 to carry out these enquiries, particularly in view of the discretion to extend sick pay or time in redeployment, and taking into account that the claimant had taken a great deal of his annual leave when he had in fact been unwell.

[188]For these reasons, we have concluded that the decision to dismiss the claimant fell outside the range of reasonable responses and was unfair.

[189]If the respondent had properly considered other roles we find, on the balance of probabilities, the respondent would have found a role the claimant could perform from home, for 2 hours a day, 3 days a week. We take into account that he managed to complete nearly 30 training courses in redeployment, working 3 days a week.

[190]We make no deduction for Polkey as we have found that the respondent could have found the claimant another role. We did not hear evidence on whether the claimant would have been medically capable of performing a role over the longer term or increasing his hours; that will be considered at the remedy hearing. Summary

[191]The claimant’s complaints of failure to make reasonable adjustments, discrimination arising from disability and unfair dismissal are upheld. The complaint of direct discrimination on the grounds of disability is dismissed.

[192]The matter will now be listed for a remedy hearing to decide compensation for the complaints which have been upheld. Employment Judge S Matthews Dated: 4 March 2024 4 March 2024 For the Tribunal: Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practicedirections/

Conclusions

[1]Liability in this case was determined at a final hearing in January and February 2024 and set out in a Judgment dated 4 March 2024.

[2]The claimant succeeded in respect of his complaints of unfair dismissal, discrimination arising from disability and failure to make reasonable adjustments.

[3]The hearing was listed to consider and determine remedy. The Tribunal made relevant factual findings and the reasons for those factual findings were given orally at the hearing.

[4]The Tribunal awards compensation as set out below. All awards fall under the Equality Act 2010 with the exception of the basic award. Basic award: £3808 An award for Injury to Feelings: £25,000. Interest on Injury to Feelings: £5589.04 Financial Losses from 25 September 2021 to 12 March 2022: £6817.17 Interest on Financial Losses: £762.03 Loss of Statutory Rights: £500 Total £42,476.24 10.2 Judgment - rule 61 February Case No: 3302260/2022

[5]The Respondent will ensure that the TfL Pension Fund pay to the Claimant any sums due to him for the period 12/3/22 to 10/7/24 based on an annual pension of £7,633.38 by 31 July 2024 and shall make future payments to him based on this figure (as amended from time to time in accordance with the terms of the pension scheme).

[6]The calculations for the sums set out above were explained orally at the hearing. JUDGMENT on remedy having been sent to the parties on 27 August 2024 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013, the following reasons are provided:

Introduction

[1]This is a judgment on remedy following a judgment on liability dated 4 March 2024.

[2]At the liability hearing the claimant was successful in his claim for unfair dismissal, failure to make reasonable adjustments and discrimination arising from disability.

[3]The remedy hearing was listed for 2 days, during which we heard evidence and submissions. The case was listed for a further day. We set out our factual findings in the morning and heard submissions relating to the calculations arising from our findings in the afternoon.

[4]We had a bundle of 1,743 pages. At the beginning of the first day of the hearing we dealt with preliminary matters, in particular, there was discussion about correspondence culminating in a letter from the respondent, dated 19 June 2024, with an attachment of 291 pages. This was data showing full-time and part-time roles since September 2021 which had been requested by the claimant. The respondent disputed the relevance of the data. We agree that it was not relevant to the findings we needed to make. We found in the liability hearing that the claimant should have been offered a role for 6 hours a week and that was identified as the Coverage Administrator role (see paragraph 46 below). Documentation about the availability of other roles was therefore not relevant.

[5]We heard oral evidence from the claimant and from the following witnesses on behalf of the respondent: Penny Woods, Network Operations Coverage Manager, Karen Henderson, Redeployment Specialist, Business Services team Tim Hanley, Head of Pensions.

[6]The claimant and the respondent’s witnesses provided written statements in advance, and the tribunal took time to read them. Each witness was asked questions about the evidence contained in their statements.

[7]We received an opening note from counsel for the respondent, a Schedule of Loss from the claimant and a Counter Schedule of Loss from the respondent.

[8]References to pages in the bundle below are set out in brackets(x). References to paragraphs in the witness statements consist of the witness’s initials and number of the paragraph (AB-YZ).

The issues

[9]The issues for the hearing were as follows: 1.Remedy for unfair dismissal If there is a compensatory award, how much should it be? The Tribunal will decide: What financial losses has the dismissal caused the claimant? Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job? If not, for what period of loss should the claimant be compensated? Does the statutory cap of fifty-two weeks’ pay apply? What basic award is payable to the claimant, if any? 2. Remedy for discrimination What financial losses has the discrimination caused the claimant? Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job? If not, for what period of loss should the claimant be compensated? What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that? Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that? Should interest be awarded? How much?

[10]We clarified the issues at the outset of the hearing in the light of the liability judgment. We had found that the claimant was unfairly dismissed (paragraph 188 of the liability judgment). He should have been offered a role working from home three days a week for two hours on each of those days as a reasonable adjustment (paragraph 189 of the liability judgment). We observed that we had not heard any evidence that the claimant would have been medically capable of performing his role over the longer term or increasing his hours (paragraph 190 of the liability judgment). In the case management order for the remedy hearing at 2.2 we said: “In considering what financial loss the claimant has been caused the tribunal will expect to hear evidence on whether the claimant would have been medically capable of performing the role over the longer term or increasing his hours.”

[11]The task for the tribunal was therefore to decide what would have occurred if the claimant had not been dismissed and instead had been offered a role for two hours a day on three days a week. That requires us to find what role he would have been offered, what his salary would be for that role, whether he would have been well enough to continue in that role and whether he would have increased his hours over the time. If he could not increase his hours would he have remained in that role indefinitely? Submissions

[12]We heard submissions from the claimant and from Miss Tharoo on behalf of the respondent.

[13]The claimant says that he was improving at the time of his dismissal, but his health deteriorated afterwards. He says that if he had not been dismissed his health would not have deteriorated and he would have been able to progress to work three full days a week within about a year. He asserts that because of the discrimination he is unable to work again. He claims full loss of earnings up to the age of 65.

[14]The respondent’s case is that the claimant’s health did not improve and he would have been fairly dismissed on the grounds of capability within a short time of starting the new role. It was not viable to employ him in a role working from home for six hours a week. It would have been too challenging in terms of training and workload management.

[15]The respondent set out three scenarios in their Counter Schedule. In each case the employment is terminated after 12 weeks. The scenarios are: Scenario A: Coverage Administrator paid six hours a week. Scenario B: Coverage Administrator paid the full-time rate for this role while he attempted a phased return. Scenario C: a Business Support role which was advertised at 19 hours a week. He would have started working in this role for 6 hours a week and attempted to increase his hours to 19 hours. He would commence on the full salary for the role while he attempted to build up his hours. Legal principles on remedy

[16]The remedy for complaints of discrimination at work is set out in section 124 of the Equality Act 2010. Under section 124(2)(b), where a tribunal finds that there has been a contravention of a relevant provision, as there has been here, it may order the respondent to pay compensation to the claimant. The compensation which may be ordered corresponds to the damages that could be ordered by a county court in England and Wales for a claim in tort (section 124(6) and section 119(2)). There is no upper limit on the amount of compensation that can be awarded.

[17]The aim of compensation is that ‘as best as money can do it, the [claimant] must be put into the position she would have been in but for the unlawful conduct’ (Ministry of Defence v Cannock and ors

1994 ICR 918

, EAT). In other words, the aim is that the claimant should be put in the position they would have been in if the discrimination had not occurred. This requires the tribunal to look at what loss has been caused by the discrimination.

[18]Loss includes past and future financial losses and injury to feelings.

[19]In Prison Service and others v Johnson

[1997] ICR 275

EAT, the EAT set out the following principles that the ET should consider in making an award for injury to feelings: “(i) Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor's conduct should not be allowed to inflate the award. (ii) Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could, to use the phrase of Sir Thomas Bingham M.R., be seen as the way to “untaxed riches.” (iii) Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think this should be done by reference to any particular type of personal injury award, rather to the whole range of such awards. (iv) In exercising their discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind. This may be done by reference to purchasing power or by reference to earnings. (v) Finally, tribunals should bear in mind Sir Thomas Bingham's reference to the need for public respect for the level of awards made.”

[20]In Vento v Chief Constable of West Yorkshire Police (No. 2)

[2002] EWCA Civ 1871

the Court of Appeal dealt with compensating injury to feelings; subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression. It identified three broad bands of compensation. For claims presented on or after April 2021 as the claimant’s was, the lower band is £900 to £9100 (less serious cases); the middle band £9100 to £27,400 (cases that do not merit an award in the upper band); and the upper band £27,400 to £45,600 (the most serious cases), with the most exceptional cases capable of exceeding £45,600.

[21]The tribunal have the power to award compensation for personal injury both physical and psychiatric, in addition to any award for injury to feelings. The tribunal has to decide what personal injury the claimant suffered from and carefully look at the cause of that personal injury. If the injury or harm is caused by multiple factors, the respondent is only liable if its contribution has been material, and to the extent of its contribution, the harm needs to be dividable. The tribunal must identify a rational basis on which the harm can be apportioned. The tribunal must take care not to double compensate.

[22]Section 118 of the Employment Rights Act 1996 provides that compensation for unfair dismissal consists of a basic award and a compensatory award.

[23]Section 123 of Employment Rights Act says that the compensatory award shall be: “Such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer”. Factual Background

[24]We set out the relevant findings of fact. These are facts taken from the liability judgment and from the evidence before us at the remedy hearing.

[25]The claimant commenced employment on 9 May 2016. He contracted Covid on 6 April 2020 and commenced sickness absence. He was diagnosed with Long Covid syndrome on 28 February 2021.

[26]Mr Hillman (Consultant in Respiratory Medicine) prepared a report on 28 February 2021 stating that the prognosis of post Covid patients is notoriously hard to estimate and opining that the claimant may enter into a state of chronic fatigue (paragraph 62 of the liability judgment).

[27]The respondent implemented their Attendance at Work procedure which culminated in the claimant going into the Redeployment Unit on 11 May 2021. The purpose of the move to the Redeployment Unit was to see if another role could be found for the claimant.

[28]In oral evidence at the liability hearing the claimant explained that the move to the Redeployment unit was attractive to him because it meant that his pay would continue. He said that he needed more time, and he hoped he would get better, although with the benefit of hindsight he did not get better, (paragraph 70 of the liability judgment).

[29]Another role was not offered to the claimant, and the claimant’s employment was terminated on 25 September 2021. The claimant was paid sick pay until termination of his employment.

[30]At that point in time the prognosis was unclear. The claimant had told Deborah Bowen that he became exhausted after two hours (paragraph 92 of the liability judgment), and the union representative asked if he could work from home for a few hours a week (paragraph 105 of the liability judgment).

[31]We found that, as a reasonable adjustment, the claimant should have been considered for the Coverage Administrator (CA) role or another role where he worked two hours, three days a week. Medical evidence up to date of dismissal in September 2021

[32]The GP notes from 1 April 2021 to 1 April 2023, (946 to 986) record a diagnosis of chronic fatigue syndrome from 12 March 2021 (986).

[33]On 17 August 2021, just over a month before termination of his employment, the claimant had a telephone consultation with his GP. The entries leading up to the consultation suggest this was ostensibly about completion of his pension fund form. She records that he is suffering less fatigue and dizziness and that he ‘maybe work from home/stations if breaks and phased return’ (989). We find that this is the GP reporting what was said by the claimant rather than her independent opinion. The claimant was hoping he could retain a job and wanted to be optimistic about his chances of recovery.

[34]The claimant also relies on a letter dated 8 January 2024 from the Mr. Kiashek, the osteopath that treated him between 5 March 2021 and September 2021. It covers the period to September 2021. He reports that the claimant had made good progress, but fatigue was still a relevant factor (680). Medical evidence for the period from September 2021 to 1 April 2023

[35]The claimant’s case is that his health deteriorated after his dismissal (GS/ 79 to 91). He suffered from a rash and weight loss after dismissal which the claimant attributes to stress.

[36]We carefully reviewed the medical notes from around the time of dismissal (25 September 2021) to August 2023.

[37]Just before the date of dismissal on 16 September 2021 there is a reference to scabies on the claimant’s trunk and arms (982).

[38]On 3 December 2021 the claimant had a telephone conversation with Dr Bajaj (a specialist in chronic fatigue and fibromyalgia), in which he records the claimant reporting that he cannot use his brain or remember things. He does not refer to deterioration since September 2021 but ‘he feels that his physical fatigue is still the same’ (342 to 344).

[39]A physiotherapy report dated 7 December 2021 does not refer to deterioration; it refers to persistent fatigue and other symptoms such as unexplained weight loss and altered gait (339-340).

[40]On 26 January 2022 Dr Devaraj (clinical fellow in the Post Covid Clinic) has a telephone consultation with the claimant in which the claimant refers to himself as two percent better (368-373).

[41]On 14 February 2022, the claimant attended Accident & Emergency (A&E) due to shortness of breath. He was discharged with no follow up (389). A diagnosis of anxiety disorder is referred to; there is no reference to the cause (390).

[42]On 1 March 2022, two weeks after attending A&E, the claimant was seen in the follow up clinic by Dr Price, Consultant Respiratory Physician. She refers to him suffering from symptoms of breathlessness which have got worse on exertion, although the claimant himself thinks his breathing pattern has improved (412).

[43]On 21 August 2023 there is a letter from Dr. Bax in support of the claimant’s application to the local authority for housing. It refers to the need for a ground floor flat due to breathlessness and significant fatigue which is unlikely to improve in the foreseeable future (600).

[44]The symptoms evidenced to August 2023 are consistently symptoms of persistent fatigue. There are minor improvements at times but, overall, from February 2021 when the claimant entered a state of chronic fatigue, the symptoms are maintained at a level that mean that the claimant would not have been able to work more than a few hours a week. We do not find evidence of a deterioration in September 2021 after dismissal. We do not therefore accept the claimant’s contention that he was getting better and that he deteriorated because of the dismissal. Our factual findings taking into account the medical evidence

[45]We next considered what would have happened if the claimant had taken on a role working two hours a day, three days a week. On a balance of probabilities we find that the role the claimant would have taken on would be the CA role. That was the role that was under discussion at the time (paragraph 81 of the liability judgment). We find that role is the most likely because the advert referred to it being possible to work from home; the claimant had managed to do some courses while in the Redeployment unit and the respondent had managed to train one person remotely. We find that he would have tried out the role with a view to a phased return. During that time both he and the respondent would be assessing if he could get better so that he could do more hours a week (scenario B on the Counter schedule).

[46]We have considered whether the claimant would have taken on the Business Support role (Scenario C) but decided the CA role was more likely. That was the role identified as potentially suitable for the claimant in September 2021. The full-time pay for the CA role was comparable to the claimant’s salary in his former role. The Business Support role was 19 hours a week and would not have been attractive to the claimant as he would not have been paid a rate comparable to his previous salary.

[47]We accept the respondent’s evidence that it was not viable for the claimant to work in the CA role for six hours a week over the long term. Ms.Woods described the role as ‘full-on’ for seven hours a day. It required a careful analysis of constantly updated information. It would not be suited to stopping and starting which would be necessary if the claimant was only doing it for two hours at a time.

[48]Having decided that doing the role for only 6 hours a week was not viable over the longer term, we have considered how long the claimant would have been kept in that role. The secondment was for six months with a view to permanency. One employee who was ultimately deemed not suitable did remain seconded for six months (Ms. Woods’ oral evidence) but that person was working full-time. The claimant’s circumstances were different. We decided that the most likely scenario was that the claimant would have attempted the role for 12 weeks, until 17 December 2021, before it was realised that it was not going to work out long-term. That is consistent with him reporting to Dr. Bajaj at that time that he could not use his brain or remember things (paragraph 38 above). It is reasonable to infer he would have been struggling in the role.

[49]On termination of the secondment an employee in the claimant’s circumstances would return to the Redeployment Unit, ostensibly under their original line manager, and be paid for their substantive role while the Attendance at Work Policy was followed (Ms. Henderson oral evidence).

[50]Therefore, on 18 December 2021 the claimant would have returned to the Redeployment Unit and be paid the salary for his substantive role while the Attendance at Work procedures were followed. It is likely that the respondent would have obtained another Occupational Health report and written to the claimant’s consultant and GP. This would have taken approximately 12 weeks. The information received would have confirmed that the claimant’s condition was not improving. His employment would then be fairly terminated on 12 March 2022 on the grounds of capability.

[51]We find that the claimant has not been well enough to return to any form of work since his employment was terminated by the respondent. Injury to feelings

[52]In deciding on compensation for injury to feelings we have given careful consideration to the divisibility of the claimant’s feelings which arose out of the discrimination and the feelings which arose out of the fact that he has been diagnosed with a chronic illness with a very uncertain prognosis.

[53]We find that the feelings that arise from the discrimination account for considerably more than 50% of the upset and mental distress that the claimant is suffering from. We found that the claimant has to an extent come to terms with being diagnosed with Long Covid, but he has not come to terms with the way he was treated by the respondent. The discrimination has caused him to feel humiliated, stressed and anguished. The anxiety which he suffered as a result of losing his income is clear from the evidence we heard about how he was feeling even before his employment was terminated during the Attendance at Work procedures.

[54]In making an award for injury to feelings we are not compensating the claimant for the fact he contracted Covid and everything that flowed from that. We are compensating him for the discrimination which occurred arising from the disability and the failure to make reasonable adjustments. The claimant said in his statement and closing submissions that the respondent has a moral obligation because he considers that his Covid was caused by the respondent but that is not a matter for the tribunal to decide.

[55]We decided to award £25,000 for injury to feelings which is near the top of the middle Vento bracket. We do not consider this is a case warranting an award in the upper bracket; there was not sustained long-term discrimination, but there is no doubt that at the time, and since, it has caused him considerable distress.

[56]We have decided not to award a separate award for personal injury. We have not received any medical evidence to indicate a separate psychiatric injury. The distress, depression and anxiety is reflected in the injury to feelings award. Calculations

[57]We set out below calculations based on our factual findings. These calculations were discussed during the hearing and agreed by the parties except where we have indicated otherwise.

[58]The claimant was 46 years old at the time of the dismissal on 25 September 2021. He had five years of continuous service at the time of his dismissal. He was paid in lieu of notice for his contractual entitlement of 5 weeks.

[59]In his substantive role the claimant’s gross weekly pay was £678.02 and his net weekly pay was £506.42.

[60]The salary for the CA role was £35,926 per year. That is equivalent to net weekly pay for the tax year 2021 to 2022 of £540.22. Loss of earnings

[61]If the claimant had been offered the CA role he would have been entitled to pay for the period of 12 weeks from 25 September 2021 to 17 December 2021. This means that the net loss for this period is £540.22 x 12 = £6,482.64.

[62]Following his return to the Redeployment unit he would have been paid for 12 weeks at the salary for his substantive role. This means that his loss of net pay for this period is £506.42 x12= £6,077.04.

[63]As there are no recoupment provisions in respect of compensation for discrimination, the claimant must give credit for state benefits received (as he would not have received those benefits if he had remained at work). The claimant did not provide precise details or documentation relating to the state benefits that he received after termination of his employment to 12 March 2022, the date we found the respondent should compensate him to. During the course of the hearing counsel for the respondent confirmed that the respondent was prepared to agree the sum at £2047.

[64]We do not make an award for loss of earnings after 12 March 2022 because we found that the claimant was not capable of working in any role after that date. Other financial losses

[65]We do make an award for compensation for health insurance as the claimant did not receive this as part of his remuneration. Further we do make an award for compensation for the removal of the claimant’s travel card as he has not provided evidence of actual loss, such as receipts for journeys undertaken. Pension

[66]Mr. Hanley’s calculations demonstrate that if the claimant’s employment had been terminated at a later date (as the tribunal found it should) the claimant’s annual ill health retirement pension would have been £395.11 higher.

[67]At the respondent’s suggestion we made an order that the pension fund pay the claimant the differential between this figure and the amount paid to date, and then pay the new increased figure moving forward. We were satisfied that this was a more proportionate way of dealing with the shortfall than awarding a lump sum as the pension will be paid over the long term.

[68]The claimant would have made pension contributions between September 2021 and March 2022. This is money which he not would have received and must be deducted from his loss of earnings. That amounts to the sum of £365.45. It is also necessary to deduct the IHR pension which was paid to him up to 12 March 2022 as he would not have received this sum if he had continued to work during that period.

[69]We award interest on the financial losses award. Interest on financial loss is payable at a rate of 8% from the midpoint of the period which runs from the date of the discrimination to the date of calculation. The discrimination started on 25 September when the respondent failed to offer the claimant the CA role. That is therefore 510 days.

[70]Interest on injury to feelings awards is payable at a rate of 8% for the whole period from the date of the discrimination to the date of calculation. That is therefore 1020 days.

[71]For compensation for unfair dismissal the claimant is entitled to a basic award of 7 x £544, because of his length of service and age at dismissal. That amounts to £3808.

[72]The claimant has lost his statutory rights as a result of the dismissal. We award £500 as compensation for loss of statutory rights to reflect the loss of statutory protection (Countrywide Estate Agents and others v Turner UKEAT02/08/13/LA).

[73]The claimant’s award for the discrimination complaints includes compensation for other elements of financial loss which he would have received in the compensatory award for unfair dismissal such as financial loss and pension loss. To avoid double recovery (compensating for the same losses twice) these losses are not included in the compensatory award for unfair dismissal.

[74]No interest is payable on the unfair dismissal or statutory rights elements of the award.

[75]Awards may be grossed up by a tribunal where the sum to be received by the claimant will be taxed. The claimant did not make any representations about grossing up to compensate for taxation at the hearing. Since giving Judgment the tribunal has been copied in to correspondence that the respondent has had with the claimant immediately following the hearing in which the respondent agreed to pay an additional sum to compensate the claimant for the sum he will have to pay for tax on the damages over £30,000.

[76]The calculation, save for the grossing up is summarised as follows: Calculation Loss of earnings 12 weeks for at CA rate (net) £6,482.64 Loss of earnings 12 weeks at substantive role £6,077.04 Less pension contributions that C would have paid until 12/3/22 £365.45 Less IHR pension paid to C up to 12/3/22 £3,330.06 Sub total of past losses £8,864.17 LESS benefits received by C £2,047.00 Total past losses £6,817.17 Interest on past losses (510 days at 8%) £762.03 Basic award £3.808.00 Loss of statutory rights £500.00 Injury to feelings £25,000.00 Interest on Injury to Feelings (1020 days at 8%) £5,589.04 GRAND TOTAL £42,476.24