Employment Judge BlochIn person for claimantMr S Liberadzki (instructed by counsel) for respondentDate 6 October 2025
JUDGMENT
The claimant’s application dated 22 and 23 May 2025 for reconsideration of the judgment sent to the parties on 16 June 2025 (“the Judgment”) is refused.
REASONS
There is no reasonable prospect of the original decision being varied or revoked, because: (References to rules are reference to the applicable rule of procedure under the of the Employment Tribunal Rules of Procedure 2024)[1]The oral withdrawal of the claims for direct discrimination made at the hearing on 22 May 2025 had the effect of bringing those claims to an immediate end without the need for a judgment (see rule 50).[2]A judgment dismissing the relevant claims was made following that withdrawal as this is mandated by rule 51. Neither of the exceptions in rule 51(1) or (2) applied.[3]Thus, the relevant claims ended when they were withdrawn. The only additional effect of the Judgment is to preclude the claimant from commencing a further claim in respect of the same or substantially the same complaint (see rule 51).[4]The claimant seeks to set aside the Judgment in order to reinstate the claims that were withdrawn. This is misconceived. Setting aside the Judgment will not have this effect. If the Judgment is set aside, the only effect will be to remove the prohibition upon the claimant commencing a further claim in respect of the same or substantially the same complaint. Setting aside the Judgment will not have the effect of reinstating the relevant claims as even in the absence of a Judgment, the relevant claims ended by virtue of rule 50.[5]There is no reasonable prospect of the claimant satisfying the tribunal that it is necessary in the interests of justice to reconsider the judgment in the circumstances.[6]For these reasons, the Judgment is confirmed and the claimant’s application for reconsideration is refused pursuant to rule 70. Date: 23 July 2025 Approved by Employment Judge Mr. A. Spencer[1]The claimant was employed by the respondent as a Customer Assistant Checkouts from 18 November 2018 until dismissal effective on 17 January 2024.[2]By a claim form presented on 18 March 2024, following a period of early conciliation from 1 to 5 March 2024, the claimant brought complaints of unfair dismissal relating to disability discrimination and a claim for notice pay.[3]At a case management preliminary hearing held at Watford Employment Tribunal by CVP on 31 October 2024 before Employment Judge Alliott, the issues were set out as follows [with the mis-numbering of some sub-paragraphs retained as in the original]:- Case Number: 3303147/2024 2 ‘4. The issues between the parties which potentially fall to be determined by the Tribunal are as follows: Time limits / limitation issues 4.11 Were all of the claimant’s complaints presented within the time limits set out in section 123 of the Equality Act 2010 (“EQA”)? Dealing with this issue may involve consideration of subsidiary issues including: whether there was an act and/or conduct extending over a period, and/or a series of similar acts or failures; whether time should be extended on a “just and equitable” basis. Unfair dismissal 4.12 What was the principal reason for dismissal and was it a potentially fair one in accordance with sections 98(1) and (2) of the Employment Rights Act 1996 (“ERA”)? The respondent asserts that it was ill health capability [but later by amendment the respondent stated: “The respondent relies on ill health/capability as a fair reason for the claimant’s dismissal. In the alternative the respondent relies on some other substantial reason.”] 4.13 If so, was the dismissal fair or unfair in accordance with ERA section 98(4), and, in particular, did the respondent in all respects act within the so-called ‘band of reasonable responses’? Disability 4.14 Was the claimant a disabled person in accordance with the Equality Act 2010 (“EQA”) at all relevant times because of the following condition(s):?4.4.1 Anxiety.4.4.2 High blood pressure. 4.15 The respondent does not concede that the claimant was disabled and there is an issue as to knowledge. [EQA, section 13: direct discrimination because of disability and/or age. 4.16 It is not in dispute that the respondent subjected the claimant to the fol-lowing treatment: 4.6.1 Dismissing the claimant. 4.17 Was that treatment “less favourable treatment”, i.e. did the respondent treat the claimant as alleged less favourably than it treated or would have treated others (“comparators”) in not materially different circumstances? The claimant relies on hypothetical comparators, namely non-disabled and/or younger colleagues. 4.18 If so, was this because of the claimant’s disability and/or age. Case Number: 3303147/2024 3 4.19 If age, if so, has the respondent shown that the treatment was a propor-tionate means of achieving a legitimate aim? ] EQA, section 15: discrimination arising from disability 4.20 Did the following thing(s) arise in consequence of the claimant’s disabil-ity:4.10.1 The claimant’s sickness absence prior to 8 January 2024.4.10.2 The need to take medication while at work (two pills at different times). 4.21 Did the respondent treat the claimant unfavourably as follows?:4.11.1 Dismissing the claimant.4.11.2 Not giving the claimant a phased return to work when she resumed work after a period of illness?4.11.3 On or about 1 June 2023 Richard/Joanna on the shop floor said that the claimant should not take a pill in front of customers and not al-lowing her to leave her post to take her pill in private. 4.22 Did the respondent treat the claimant unfavourably in any of those ways because of those things? 4.23 If so, has the respondent shown that the unfavourable treatment was a pro-portionate means of achieving a legitimate aim? 4.24 Alternatively, has the respondent shown that it did not know, and could not reasonably have been expected to know, that the claimant had the dis-ability? EQA, section 19: indirect disability discrimination 4.25 Did the respondent have the following PCP: [ie a provision, criterion, or practice] 4.25.1 The respondent’s Absence Policy? 4.26 Did the respondent apply the PCP to the claimant at any relevant time? 4.27 Did the respondent apply (or would the respondent have applied) the PCP to non-disabled persons? 4.28 Did the PCP put people at one or more particular disadvantages when com-pared with non-disabled people? 4.29 Did the PCP put the claimant at that disadvantage at any relevant time? Case Number: 3303147/2024 4 4.30 If so, has the respondent shown the PCP to be a proportionate means of achieving a legitimate aim? Reasonable adjustments: EQA, sections 20 & 21 4.31 Did the respondent not know and could it not reasonably have been ex-pected to know the claimant was a disabled person? 4.32 Did the respondent have the following PCP?: 4.32.1 Only allowing employees one hour break per day for lunch and telling the claimant she could take four 15 minute breaks to take her medication. 4.33 Did any such PCP put the claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled at any relevant time, in that: she did not have a long lunch break? 4.34 If so, did the respondent know or could it reasonably have been expected to know the claimant was likely to be placed at any such disadvantage? 4.35 If so, were there steps that were not taken that could have been taken by the respondent to avoid any such disadvantage? The burden of proof does not lie on the claimant; however it is helpful to know what steps the claim-ant alleges should have been taken and they are identified as follows: 4.35.1 Allowing the claimant a one hour lunch break and two five mi-nute breaks to take her pills. Notice pay 4.38 The claimant claims wrongful dismissal for notice pay. The respondent admits that it failed to pay the claimant a payment in lieu of notice of £1,324.13. The claimant accepts the calculated figure. The respondent told me that the money had not been paid as the claimant had not provided her banking details. Whether or not the claimant accepts the money is a matter for her. I explained that accepting it would not affect her other claims. Mr Gokmen nevertheless wanted to leave the wrongful dismissal claim in the list of issues.”
The facts
[4]The respondent’s Attendance Management Policy (“AMP”) stated that managers would actively support all colleagues to attend work and that reasonable adjustments were considered where appropriate. It stated that reliable, consistent attendance was a requirement for all colleagues. When colleagues were unable to attend work, the service which the respondent delivered to its customers was impacted and an additional burden was placed on their team. However, the respondent recognised that there were times when 100% attendance just was not possible either due to health or personal reasons. They aimed to be as supportive as possible to help colleagues remain in work or return to work promptly. The policy referred to “phased returns”: If a phased return to work was discussed and agreed, any reduced hours or duties would last a maximum of four to six weeks. If the absence were less than three months, the Case Number: 3303147/2024 5 phased return would usually last a maximum of two weeks although it would depend on the health condition and role in which they worked. Fit notes might recommend what a phased return should look like. That would be treated as guidance only and any recommendations would be considered in line with business need.[5]The AMP referred to “absence triggers” – “Trigger” points helped the respondent identify when they needed to work with colleagues on finding ways to improve attendance at work. The respondent’s trigger points were:5.1 Absence rate of three percent or more in a rolling 12-month period.5.2 Three or more separate occasions of absence in a rolling six-month period;5.3 Unacceptable patterns of absence eg, absence was usually the day after a bank holiday or a Saturday evening shift.[6]Triggers when a colleague had already received a record of improvement or formal warning were:6.1 Absence percentage was not improved and remained above three percent;6.2 A further occasion of absence in the six-month period following their last review;6.3 Continued to have an unacceptable pattern of absence. Triggers could be applied with management discretion in certain circumstances. However, there was no procedure relating specifically to disability absence.[7]The AMP referred to “Vita Health” - colleagues could seek support by contacting the respondent’s Employee Assistance Programme with a wide range of health-related support services offered as well as advice on managing other problems.[8]Following the claimant’s commencement of employment on 18 November 2018, on 13 February 2019, she received a first record of improvement for absence. Her absence level was 4.49 percent after absence for wrist injury.[9]On 23 May 2021, the claimant received a second record of improvement for absence. The absence level was 5.60 percent after absence for hitting her head at the self-service checkout.[10]On 27 August 2021, the claimant received a third record of improvement for absence. Her absence was 4.21 percent after absence for head pain.[11]On 24 January 2022, the claimant received a first written warning for absence. Her absence level was 7.9 percent after absence for a burn to her leg and ankle.[12]On 20 June 2022, the claimant returned from absence (since 17 June) for flu and tooth pain. A return-to-work review meeting was held. Her absence level was Case Number: 3303147/2024 6 then 6.82 percent.[13]On 27 June 2022, there was an attendance review meeting at which Mr Christopher Dorman (then the Customer Services Manager), on behalf of the respondent, notified the claimant of his decision to issue a final written warning.[14]On 18 July 2022, the respondent sent the claimant a letter confirming the final written warning for absence.[15]On 17 February 2023, the claimant commenced sickness absence after attending A&E. The Whittington Health Emergency Department notes referred to the presenting complaint as being circulation/chest, chest pain. The notes referred the claimant’s stressful job working at the respondent and to a right-side chest pain, back pain, palpitation, sweating hands, itchy throat and C/O nasal congestion and leg pain. The notes further referred to the claimant’s anxiety and the diagnosis was given as “anxiety disorder (Suspected diagnosis).”[16]Subsequently, by a letter from the claimant’s GP, Dr Foo, dated 15 October 2024, Dr Foo referred to the claimant’s attendance at A&E on 17 February 2023 being with symptoms of a panic attack and that she had been diagnosed with anxiety disorder. She was currently (on 15 October 2024) taking sertraline which was a medication to treat anxiety and depression. She had been taking this regularly since February 2023.[17]A fit note was issued (from 17 February 2023 to 3 March 2023) referring to the claimant as being “generally unwell with chest pains – needs urgent investigations” and stating that the claimant was not fit for work.[18]On 27 February 2023, the claimant attended her GP and was prescribed with sertraline and propranolol for anxiety.[19]On 3 March 2023, (covering a period 3 March 2023 to 5 June 2023) the claimant was issued with a fit note in relation to what was described as a stress-related problem. According to this note the claimant might be fit for work taking account of the following advice: altered hours and amended duties. The claimant was advised to take regular breaks, avoid long hours and doing overtime,[20]On 10 March 2023, the claimant was taken to A&E by ambulance from work and commenced further sickness absence. The notes of the Whittington Health Emergency Department referred to the claimant being at work that day and at around 4.30pm she felt dizzy and hot flushes and tightness in her chest on the right side and she was about to fall. She was assisted by a colleague on the floor and came to the Emergency Department. The notes recorded that the claimant had recently been seen by a GP who had increased the dose of the anxiety medication. She was feeling very anxious and weak. The diagnosis was given as anxiety disorder (suspected diagnosis) and vasovagal syncope (suspected diagnosis). The medical notes show that the claimant attended the GP surgery on 13 March 2023 and referred to her anxiety when going back to work at the respondent. Reference was made to elevated blood pressure and the comment was made that there was a large anxiety component to her symptoms. (In Dr Foo’s letter of 15 October 2024 (referred to above) reference Case Number: 3303147/2024 7 was made to the claimant as having been diagnosed with hypertension on 13 March 2023. She was currently taking Amlodipine and Bendroflumethiazide regularly to help control this and she had had 11 reviews since diagnosis).[21]On 4 April 2023, a further fit note was issued (1 April 2023 to 5 June 2023). This referred to stress-related problems, high blood pressure and stated that the claimant was not fit for work.[22]During April and May 2023 there were emails between Chris Dorland and the claimant . She was informed that welfare meetings would be arranged because she was going to be off for more than four weeks.[23]On 4 May 2023, Avani Desai (People Manager) invited the claimant to a welfare meeting. This was an informal meeting to allow the claimant to update the respondent on how she was feeling and stated that the respondent would be happy to discuss any queries or concerns that the claimant might have regarding her absence from work.[24]On 10 to 11 May there were emails between Avani Desai and the claimant regarding the welfare meeting invitation but the claimant declined to attend at that stage.[25]On 9 June 2023, the claimant returned to work and a review was held by Michael Lyons on behalf of the respondent. The reason for absence was stated as high blood pressure. It was recorded that the absence had started on 17 February 2023 and finished on 8 June 2023. The claimant requested support in that there should be no heavy lifting/baskets and no “walking around fast/Deliveroo.” The claimant confirmed in evidence that these requests were implemented after this meeting.[26]A fit note covering the period 6 May 2023 to 5 August 2023 referred to a stress related problem and said that the claimant might be fit for work taking account of the following advice: altered hours; she was advised to take/allowed breaks and avoid excessive long hours. The claimant made an agreement with Mr Dorland about when she would take her one-and-a-half-hour break allowed during the day. Apart from the one-hour lunchbreak the other half an hour was split between the early part of her shift and the late part of the shift so that she could take her medication twice daily. In evidence the claimant accepted that she had never been made to do overtime but was sometimes requested to do so and would either agree or say no if she felt she could not do it. The claimant later confirmed to the respondent that arrangement had helped a lot.[27]On 3 July 2023, there was an email from the claimant to Mr Dorland in which she made a complaint regarding an alleged incident on 1 June 2023. (This is referred to later below when considering whether this complaint was made to the tribunal in or out of time).[28]On 14 July 2023, there was an absence review meeting with Chris Dorland. The claimant stated that she did not need a representative. The record of this meeting referred to the claimant’s current level of absence as being 30.11 percent over 52 weeks with two periods of absence. The two absences related to the period Case Number: 3303147/2024 8 from 17 February to 3 March and then from 10 March to 8 June. The claimant said that those two absences were related. She said that her health condition was serious. She referred to her two medicines, one for anxiety and one for high blood pressure. Mr Dorland asked whether the claimant knew what triggered her anxiety and the claimant referred to work - she got stressed a lot and was under pressure because she could not have enough breaks and did a lot of overtime. Mr Dorland referred to the break which they had resolved informally and the claimant said that that had helped a lot. She referred to her anxiety and Mr Dorland referred to the claimant’s anxiety attacks and her chest pain. Mr Dorland advised the claimant to raise her concerns before she had an attack and he asked whether there was anything else to support the claimant’s attendance at work and she replied, “No just people understanding her and her condition.” In evidence Mr Dorland expressed his frustration that the respondent could not help the claimant if she did not communicate - everything the respondent asked was met with a negative response. Mr Dorland referred to the fit note referring to altered hours and said the claimant could take breaks which the respondent had done - and the claimant confirmed that she was happy that that worked correctly so that she could take her medication. The meeting ended with Mr Dorland referring to the earlier final absence warning which he stated had expired on 26 June 2023 and would still have been alive when the claimant returned to work after her absence on 9 June. He therefore decided to re-issue the final written warning which would stay on the claimant’s file for 12 months and she would be given an outcome letter and details for any appeal in due course. However, (for reasons which may have been to do with the subsequent change in role by Mr Dorland which occurred shortly thereafter) no written outcome letter was actually issued. However, in evidence, the claimant confirmed that she understood the significance of the reissued final warning. The respondent gave the claimant a booklet about support available from Vita Health (although the claimant’s evidence was that she did not use this service).[29]On 2 August 2023, there was a further fit note (up to 1 November). This referred to the stress-related problem and said that the claimant was not fit for work. There was no explanation why the advice had changed since 9 June (from adjustments needed to unfit).[30]Dr Foo’s letter of 11 January 2024 refers to the appointment on 2 August 2023 being relating to a complaint of an acid taste, the claimant having to clear her throat. She was referred for an endoscopy.[31]On 4 August 2023, the claimant attended work despite the fit note. She was then taken to A&E by ambulance from work and commenced a further period of absence. Presenting complaints in the notes by Whittington Health Emergency Department referred to “Neurological, Dizziness” whilst at work ‘…passing out/fainting With heart racing”. The notes also referred to the claimant having a sore throat and itching in mouth for a few days. The diagnosis was given as “Pharyngitis????” and referred to “Upper respiratory infection (Suspected diagnosis”.[32]On 6 September 2023, the claimant attended her GP for blood pressure. Home readings were borderline and she started on a low dose of antihypertensive Amlodipine). Case Number: 3303147/2024 9[33]On 26 September 2023, she attended the GP for sinusitis.[34]On 2 October 2023, she was referred to an ENT Team in regard to sinusitis.[35]On 3 October 2023, the claimant attended her GP for right hip pain.[36]On 11 October 2023, she attended her GP for right hip pain and was referred to a musculoskeletal clinic.[37]On 13 November 2023, the claimant returned to work and had a review meeting with Gloria Nwokie, who was now in role in place of Chris Dorland. The claimant gave the reason for her absence as “high blood pressure” and work-related stress and anxiety. The claimant said that she was able to carry out normal hours and duties. She said that she considered her illness to be work-related. She referred to blood infection and anxiety and stress. The claimant was informed that an absence review meeting would be held because she was exceeding the three percent trigger.[38]On 16 November, the claimant was issued with a fit note (15 November 2023 to 14 February 2024) which referred to a stress-related problem and anxiety. It stated that the claimant might be fit for work taking account of the following advice, namely altered hours and amended duties. The claimant confirmed in evidence that she was not required to do heavy lifting. The claimant worked her contracted hours (22.5) or less each week in November/December except for two weeks where she worked one less shift than normal.[39]The claimant was absent from 27 to 29 November. From 29 to 30 December 2023 the claimant was absent for two days citing high blood pressure, heart rate increase, and dehydration.[40]On 5 January 2024, there was a return-to-work review with Gloria Mwokie. At this stage the claimant’s absence had increased from 30.1 percent at the time of the reissued final (oral) warning to 57.63 percent, ie, she had missed more than half of her rostered shifts in the past 12 months.[41]On 8 January 2024, there was an absence review meeting with Gloria Nwokie. She was informed at the start that it could result in a formal warning or dismissal. The claimant was asked for her reasons for each absence and she said that her health was dangerous – she had high blood pressure as well as blood infection which increased her high blood pressure.[42]In regard to her absence from 5 August to 4 November 2023, she said that she was suffering from the same condition as before, her heart rate increased and blood pressure and anxiety and depression together affected her. She had a lot of medication and antibiotics.[43]Her absence from 27 to 29 November was, she said, because of blood infection. She was asked whether she had thought about moving to a different area of the store to work to mitigate her health conditions and she said she would not want to change departments. Case Number: 3303147/2024 10[44]In regard to her absence from 29 to 30 December, she said that this was for the same reason and blood pressure, anxiety, and blood infection. The claimant said she did not know about Vita Health. She was told that the respondent would provide her with the Vita Health information. She was also asked whether she was aware of how to utilise a shift swap with another colleague if she was absent and said she did not. The claimant requested an adjournment of a meeting so that she could obtain documents from her GP to evidence her health condition.[45]The meeting was reconvened on 15 January 2024. The claimant said that she did not recall having been handed a Vita Health booklet by Chris Dorland on 14 July 2023. The claimant reiterated that her health was very bad and she was still recovering and the problem of her high blood pressure made her worse and she had to take medicine every day to correct her heart rate. She referred to a tooth extraction the previous week and again referred to anxiety. She said she got high anxiety attacks which made her worse. She did not have internal problems anymore. Ms Nwokie asked whether the claimant believed she could have done anything to mitigate her periods of absence and the claimant said she did not think so. She was then asked: “You could in the future though right”? and the claimant responded: “I don’t know about the future.” Stacy Hinds, who attended this meeting and that on 8 January as a colleague representative, said that the claimant could explore some options like holiday if she was absent in the future, and the claimant responded: “The future means I don’t know what happens.” Ms Nwokie explained that they were speaking about what mechanisms the claimant could use in future to support her absences.[46]The meeting adjourned at 15.51 and reconvened at 16.20. Ms Nwokie referred to the absence percentage being 57.63 percent which far exceeded the company target of 33 percent. She referred in detail to the letter from Doctor Foo. (The letter from Dr Foo dated 11 January 2024 gave no prognosis for any of the conditions which were referred to in that letter). Ms Nwokie stated that after taking all the above information into consideration, she had decided to dismiss the claimant from her position at the respondent. She would be issued with a dismissal letter. In her witness statement Ms Nwokie explained that the claimant’s absences were significant regardless of the support being offered by the respondent and it was clear that she would continue to have absences from work. If the respondent had requested help or support it would have been given – dismissal was always a last resort. If the respondent had implemented (yet another) formal warning she did not believe that the claimant’s absence would have improved – because of her attendance history but also because of the comments the claimant had made at the meetings on 5 and 15 January[47]By letter dated 17 January 2024, the respondent terminated the claimant’s employment. The reason for termination was said to be that the claimant’s absence percentage was 57.63 percent which was a breach of the company’s absence trigger point which was three percent. It said that while some of the absences were of a similar nature there was not a sole consistent absence reason. The claimant was referred to her right to appeal against the decision.[48]On 24 January, the claimant submitted her request for an appeal but on 25 January she withdrew her appeal. ACAS conciliation took place between 1 to 5 March 2024 and on 18 March 2024 the claim was presented to the tribunal. Case Number: 3303147/2024 11
The law
[49]Given the potential relevance of my finding disability in this case to the unfair dismissal claim. I shall first deal with disability status before returning to unfair dismissal and the remaining disability discrimination claims (and the one potential out of time issue).[50]Under section 6 EQA (1):- “6 Disability (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.”[51]Substantial means more than minor or trivial (section 212(1)) and, in this respect,51.1 The comparison is with what normal day-to-day activity the claimant could do, absent the impairment;51.2 The tribunal must be able to make specific findings about what “normal day-to-day activities” the claimant was unable to do or could only do with significant difficulty;51.3 The Guidance on matters to be taken into account in determining questions relating to the definition of disability (2011) (“The Guidance”) states (paragraph D3) “General, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport and taking part in social activities. Normal day-to-day activities can include general work-related activities, and study, and education -related activities, such as interacting with colleagues, following instructions, using a computer, driving, and carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern”. 52 An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, if measures are being taken to treat or correct it and but for that, it would be likely to have that effect. (EQA Schedule 1, paragraph 5). While a tribunal should consider the question of “deduced effects” where corrective measures are being taken for example medication, it can be difficult to make reliable findings on the point in the absence of specific medical evidence and a claimant’s own speculation as to what might hypothetically have happened without treatment is likely to have little probative value: Woodrup v London Borough of Southwark [2003] IRLR 111 CA. 53 The effect of an substantial impairment adverse effect is long-term if it has lasted Case Number: 3303147/2024 12 or was likely to last 12 months or more (EQA schedule 1, paragraph 2). 54 “Likely” means “could well happen.” (Guidance C3) “In assessing the likelihood of an effect lasting for 12 months, account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood. Account should be taken of both the typical length of such an effect on an individual, and any relevant factors specific to this individual (for example, general state of health or age)” (Guidance C4) .[55]The focus is on how long any substantial adverse effect has lasted or is likely to last; not the duration of the impairment itself. It insufficient to find that a claimant is disabled simply because the impairment has lasted or is likely to last for 12 months, without considering the existence and duration of its effects: The Guiness Partnership v Szymoniak (UK EAT/0065/17/DA) paragraphs 20 to 24.[56]In cases concerning mental illness, questions such as “deduced effect” and for how long any substantial adverse effects were likely (at a given date) to last in the future, can be particularly difficult for the tribunal to make reliable findings on without the assistance of expert evidence: Royal Bank of Scotland v Morris (UK EAT/0436/10/MAA), paragraphs 59 to 64. Knowledge of disability[57]It is a defence to a section 15 (discrimination arising from disability) claim for the respondent to show, at the relevant time that it did not know or could not reasonably have been expected to know, that the claimant was a disabled person (EQA section 15(2) and schedule 8 paragraph 20).[58]The test encompasses what the respondent actually knew but also includes “constructive knowledge.” Constructive knowledge is assessed by asking whether, based on the information before it, the respondent ought reasonably to have made further enquiries into the question of disability; and if so, what information those enquiries would have yielded.[59]The respondent’s actual constructive knowledge must extend all elements of the section 6 definition, ie, not just the fact that the claimant has the impairment but also that it has substantially adverse effects on her ability to do normal day-to-day activities, and that those effects are long-term as defined: Gallacher v Abellio Scotrail Ltd (UKEATS/0027/19/SS) (penultimate paragraph before “Conclusion”).’ Unfair dismissal[60]Section 98 of the Employment Rights Act 1996 (“ERA”) provides: “98 General. Case Number: 3303147/2024 13(1) In determining for the purposes of this Part whether the dismissal of an em-ployee 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 sub-stantial 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,…” ……………………… (4) Where the employer has fulfilled the requirements of subsection (1), the deter-mination 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 admin-istrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dis-missing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”[61]The tribunal must be careful not to substitute its own conclusions as to the appropriate response to particular reason relied on by the employer and this so called “range of reasonable responses” test applies both to the procedure adopted by the respondent and the decision it made. The tribunal must assess not what it would have done itself, but what decision was open to a reasonable employer in the circumstances.[62]Where an employee has been dismissed for reaching trigger points due to persistent short-term absences, the EAT in the case of Lynock v Cereal Packing Ltd [1988] ICR 670 (EAT) stated that an employer will usually act fairly if they:63.1 Fairly review the attendance record and the reasons for it;63.2 Warn the employee appropriately of the required improvement in attendance, giving him or her the chance to make representations; and63.3 Consider whether the required improvement in attendance has materialised (if not dismissal for persistent absence is likely to be reasonable (page 673G)).[63]The EAT in Lynock also said: “(a) it is important to realise that these cases are not cases of disciplinary situations; Case Number: 3303147/2024 14 what is important is that the employer should treat each case individually where there is genuine illness and with sympathy, understanding and compassion. The jargon of industrial relations is in terms of “warnings”, but really that is not the purpose of the system operated by an employer; it is to give a caution that the stage has been reached where with the best will in the world it becomes impossible to continue with the employment.” (page 672E); (b) Where one is dealing with intermittent periods on illness each of which is unconnected it seems to us to be impossible to give a reasonable prognosis or projection of the possibility of what will happen in the future. While an employer may make enquiries, it is in no way, in a situation such as the present, an obligation on the employer so to do because the results may produce nothing of assistance to him” (page 673D); (c) “There is no principle that the mere fact that an employee is fit at the time of dismissal makes his dismissal unfair; one has to look at the whole history and the whole picture” (Page 675C).”[64]Where an employee has already received previous warnings for absence, the tribunal should not expect the employer (at the dismissal stage) to re-open or revisit the appropriateness of those warnings. It is entitled to proceed on the basis of what has already been decided unless the earlier warning was allegedly issued in bad faith, manifestly improper or issued without prima facie grounds: General Dynamics Information Technology Ltd v Carranza [2015] ICR 169 (EAT) paragraphs 50 to 53.[65]In the case of Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265, the respondent had given a formal written improvement warning in accordance with the employer’s Attendance Management Policy The claimant raised a grievance, contending that the employer should make two adjustments to the application of the policy to her case pursuant to EQA section 20. First, for the employer not to treat the lengthy absence that gave rise to the written warning as counting against her under the policy, as it related to the period when her disability was being diagnosed and a treatment plan was being put in place. Secondly, she also asked the employer to modify its policy to allow her in future to have longer periods of absence before facing the risk of sanctions. In that case the policy made express reference to allowances which could be made for a disabled employee. Accordingly, the relevant provision, criterion or practice within section 20(3) was a requirement to attend work at a certain level in order to avoid receiving warnings and a possible dismissal. The PCP was not the policy or its application, given that it already contained provision for reasonable adjustments in relation to disability affected absence. The Court of Appeal stated that it was clear that a disabled employee whose disability increased the likelihood of absence from work on ill-health grounds was disadvantaged by the PCP in more than a minor way. A comparison exercise under section 20 required one simply to ask whether the PCP put the disabled employee at a substantial disadvantage compared with a non-disabled employee and the fact that they were treated equally and might both be subject to the same disadvantage when absent for the same period did not eliminate the disadvantage when it bit harder on the disabled, or a category of them. Accordingly, the section 20 duty did arise.[66]However, the Court of Appeal went on to hold the tribunal had been entitled: Case Number: 3303147/2024 15a. to conclude that the proposed adjustments were not steps that the employer could reasonably have been expected to take given the tribunal’s conclusion that the claimant’s condition was likely to occasion further periods of potentially lengthy absence, andb. to take the view that the fact the original absence was a period of diagnosis, was not a material reason for simply ignoring it, andc. in considering the proposal to extend the period before action under the policy was triggered, to find that there was no obviously appropriate extension period and a relatively short extension would be of limited value where the absence was lengthy. Accordingly, the tribunal was entitled to conclude that the proposed adjustments were not steps that the employer could reasonably be expected to take. Discrimination arising from disability (section 15 EQA).[67]Section 15 (discrimination arising from disability) states: “15 Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achiev-ing 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.”[68]In Pnaiser v NHS England [2016] IRLR 170 (EAT) (paragraph 31) it was held that the section involves a two-stage test:69.1 What was the respondent’s reason for its unfavourable treatment pf the claimant? This focusses on the respondent’s subjective state of mind asking whether the “something” had at least a significant influence on its conscious or unconscious thought processesl;69.2 Did the “something” arise in consequence of the claimant’s disability? This is an objective assessment of causation. “Arising in consequence of disability” can describe a causal chain with more than one step and will be a question of fact assessed robustly in the circumstances of each case. 70 In British Telecommunications Plc v Robertson (UK EAT/0229/20/RN) having found the claimant’s absence was caused by three different conditions (only one of which was found to be a disability) the tribunal erred by failing to consider specifically whether the absence arose in consequence of that one condition. The employer’s appeal on this ground was upheld (paragraphs 19 to 22) and the question was remitted to the tribunal to reconsider (paragraphs 26 to 33) with the Case Number: 3303147/2024 16 following comment: “However a particular potential difficulty in this case is that it might be asserted on behalf of the claimant that there was more than one contributing cause of his absence. The Tribunal might then have to decide whether it could be said that it arose in consequence of more than one thing of which the neck and shoulder impairment was one. I do not think I should attempt to prescribe any particular gloss to the words of the statute, or further test, that should be applied in cases of that sort. Ultimately the tribunal has to respect the actual language of the statute and come to a conclusion, having found all the necessary facts about whether the something relied upon is something arising in consequence of the found disability or not. This must be left to the good sense of the tribunal in each case. But it is indeed a task for the tribunal, not the EAT” (paragraph 31) 71 Accordingly, if the claimant sought to show that any disability-related absences had a significant (ie, more than minor or trivial) influence on the respondent’s decision to dismiss her, the strength or otherwise of any proven causal connection between her disability and her dismissal would be highly relevant to the justification test. The weaker that connection and the more significant other (non-disability-related) absences were to the respondent’s decision, the easier it may be for the respondent to justify dismissal. 72 The justification test relies on identifying the aim or aims relied on by the respondent and whether they are legitimate and whether dismissal was a proportionate means of achieving them. The respondent relies in relation to dismissal on the aim of ensuring consistent and reliable attendance by staff. 73 In considering proportionality the tribunal must balance the discriminatory effect of the dismissal on the claimant against the respondent’s needs to serve its legitimate aim, asking whether the dismissal is inappropriate and reasonably necessary means of achieving the aim. While this is an objective assessment and not the same as the “range of reasonable responses” test for unfair dismissal, the employment tribunal should still give a substantial degree of respect to the respondent’s judgment as to what is reasonably necessary to achieve the aim provided that it has acted rationally and responsibly: Birtenshaw v Oldfield [2019] IRLR 946 (EAT) paragraphs 37-38. See also Hardy v Hanson [2005] ICR 1565 (paragraph 32). Indirect disability discrimination (section 19 EQA) 74 Section 19 (indirect discrimination) states: “19 Indirect discrimination(1) A person (A) discriminates against another (B) if A applies to B a provi-sion, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, Case Number: 3303147/2024 17 (b) it puts, or would put, persons with whom B shares the characteris-tic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legiti-mate aim.(3) The relevant protected characteristics are— …• disability;” 75 The existence of both “group” and “individual” disadvantages must be proved by the claimant. As discussed in Dobson v North Cumbria Integrated Care NHS Foundation Trust [2021] ICR 1699 (EAT) paragraph 56), group disadvantage may potentially be shown by:75.1 By statistical or other tangible evidence of disadvantage. However, the absence of such evidence should not usually result in the claim of indirect discrimination (and of group disadvantage in particular) being rejected in limine;75.2 Group disadvantage may be inferred from the fact that there is a particular disadvantage in the individual case. Whether or not that is so will depend on the facts, including the nature of the PCP and the disadvantage faced. Clearly it may be more difficult to extrapolate from the particular to the general in this way when the disadvantage to the individual is because of a unique or highly unusual set of circumstances that may not be the same as those with whom the protected characteristic is shared;75.3 The disadvantage may be inherent in the PCP in question; and75.4 The disadvantage may be established having regard to matters (eg, childcare disparity) of which judicial notice should be taken. That however depends on the nature of the PCP and how it relates to the matter in respect of which judicial notice is to be taken. Reasonable adjustments (sections 20 and 21 EQA) 76 Section 20 duty to make adjustments provides: “20 Duty to make adjustments (1) Where this Act imposes a duty to make reasonable adjustments on a per-son, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in re-lation to a relevant matter in comparison with persons who are not disa-bled, to take such steps as it is reasonable to have to take to avoid the dis-advantage…” Case Number: 3303147/2024 18 77 A respondent may avoid the duty to make adjustments by showing that at the time it did not know and could not reasonably have been expected to know, that she was disabled and that she was likely to be put at that disadvantage (EQA 2010 schedule 8 paragraph 20). 78 If the duty does arise whether it was reasonable for the respondent to have to take the proposed steps should be considered against all the relevant circumstances. Submissions 79 Mr Gokmen made submissions both orally and in writing and pursued the claimant’s case tenaciously on her behalf, having clearly researched the law for that purpose (he had some legal knowledge from his studies). Mr Liberadzki produced submissions in writing (particularly on the law) and made oral submissions. It is not necessary to set out the submissions of either party which are taken into account in this judgment. Mr Gokmen relied in particular on a decision in the Manchester Employment Tribunal in Zoe Kitching v University Hospitals of Morcambe Bay NHS Foundation Trust (Case No 2408953/2023) on 14 November 2024 (sent to the parties on 21 November 2024). In this case the tribunal found that it would have been a reasonable adjustment for the respondents to have tolerated a higher level of absence from the claimant due to her disability. They should have taken medical advice and have adjusted the short term absence triggers as envisaged by the relevant Retention Policy. It also found that the claimant had been unfairly dismissed. However, each case depends on its own facts – and in this kind of case decisions are particularly fact-sensitive. In any event I am of course not bound by the decision of another tribunal. In my judgment while paying due respect to that decision, I am unpersuaded (for the reasons set out in this decision) that I should reach the same decision (especially on reasonable adjustments and unfair dismissal) as the tribunal in that case. Discussion Disability status 80 The impairments relied upon by the claimant were anxiety and high blood pressure. 81 There was no medical report which may have assisted the tribunal in its consideration of whether or not the claimant was disabled within the meaning of the EQA. 82 Further, the impact statement submitted by the claimant was unhelpful in particular as to the element of substantial impact on daily activities. The impact statement stated that the claimant had been diagnosed with anxiety and high blood pressure on 17 February 2023 and continued to receive treatment as of 25 August 2024. It stated that symptoms of anxiety and high blood pressure such as fatigue, concentration difficulties and physical limitations significantly impaired daily functioning. The statement went on to say that “According to the NHS UK,” anxiety could have several daily implications that can significantly affect a Case Number: 3303147/2024 19 person’s life. It then listed some of the key ways anxiety impacted the claimant’s daily activities – referring (under the heading of “Physical Symptoms”) to restlessness, fatigue, difficulty sleeping, muscle tension and heart palpitations. Under the heading “Cognitive Effects” the statement referred to concentration problems, racing thoughts and irritability. 83 The problem with the impact statement was that it appeared to proceed from a list of NHS examples without properly indicating whether and how the claimant suffered from these particular symptoms. There was no flesh put on the bone. No further material assistance was provided in this regard by the claimant’s witness statement or live evidence. Likewise, under the heading “Claimant daily implications (high blood pressure)” the statement identified high blood pressure (also known as hypertension) as having several potential daily implications according to NHS UK. It then set out some of the common effects the claimant was affected by: including fatigue and low energy, headaches, dizziness, vision problems, shortness of breath, difficulty sleeping, stress and anxiety and chest pain. 84 In the course of the hearing, apart from referring to the inadequacy of the impact statement (as seemingly applying a list of generally experienced symptoms to the claimant rather than describing in any detail the day-to-day effects of her impairments) the respondent sought to minimise the persistence of the anxiety disorder during 2023 and into 2024. 85 However, on a closer examination of the relevant documents the condition of anxiety appeared to be present throughout the period from 17 February 2023 until the claimant’s dismissal in early January 2024. It is accordingly necessary to look more closely at the medical type documentation in this regard. By way of summary:84.1 On 17 February 2023, the claimant commenced sickness absence and attended A&E. The GP fit note stated that she was not fit due to being “generally unwell, chest pains – needs urgent investigation.” The fit note period was until 3 March 2023. While the respondent submitted that this fit note was not about anxiety/stress or blood pressure, the doctor’s notes of 18 February 2023 (relating to her time in A&E) referred to circulation/chest pain being the presenting complaint. The history of the presenting complaint section referred to the claimant having a stressful job at the respondent and suffering from right-sided chest pain, that she felt tired the previous Sunday at work and was sent home. She had worked on Monday but not after that – since then having pain, back pain, palpitation, sweating hands, etc itchy throat and also nasal congestion, leg pain and back pain and anxiety. It noted that anxiety disorder was the “suspected diagnosis.”84.2 In a doctor’s letter of 15 October 2024 (presumably obtained for the purposes of these proceedings) the doctor referred to the claimant having attended A&E on 17 February 2023 with symptoms of a panic attack documented in the A&E summary and that she had been diagnosed with anxiety disorder. The doctor further referred to the claimant as currently taking Sertraline to treat anxiety and depression and that she had been Case Number: 3303147/2024 20 taking this regularly since February 2023. The doctor also referred to the claimant as having been diagnosed with hypertension on 13 March 2023 and that she was currently taking Amlodipine and Bendroflumethiazide regularly to help control this and that she had had 11 reviews since diagnosis.84.3 On 27 February 2023, the claimant attended her GP and was prescribed Sertraline and Propranolol for anxiety.84.4 On 3 March 2023, the fit note stated that the claimant might be fit with regular breaks but should avoid doing long hours and overtime due to a “stress-related problem”.84.5 After a short return to work on 10 March 2023 the claimant was taken to A&E by ambulance and commenced a further sickness absence. The doctor’s note dated 10 March 2023 referred to the complaint as being “neurological, dizziness”. The claimant was described as being at work that day until 4.30pm when she felt so dizzy and had hot flushes and tightness in her chest on her right side and had been about to fall. The notes referred to the claimant having been recently seen by a GP who had increased the dose of medicine for anxiety and she described herself as being very anxious and feeling weak. The diagnosis was again anxiety disorder – suspected diagnosis anxiety and vasovagal syncope (apparently relating to her fainting).84.6 On 13 March 2023, the claimant attended her GP in connection with her blood pressure which was found to be “borderline”.84.7 On 4 April 2023, the claimant’s fit note referred to her “stress-related problem and high blood pressure”.84.8 Following the claimant’s return to work a review was held by the respondent. The reason given for absence since 17 February by the claimant was “high blood pressure”. The claimant requested support, ie, “no heavy lifting/baskets” and “walking around fast/Deliveroo.” A fit note of 9 June again referred to a stress-related problem saying that she might be fit with taking allowed breaks and avoiding excessively long hours.84.9 On 14 July 2023, at a formal absence review meeting with the respondent at which her final warning was reissued for 12 months, the claimant stated that her health condition was serious. She was still weak and had a tight chest and had to take two medicines regularly, one for anxiety and one for high blood pressure. She was asked what triggered her anxiety and she replied that it was work – she got stressed a lot and was under pressure because she could not have enough breaks and did a lot of overtime. She said that the resolution of the break issue had helped a lot. She referred to chest pain and anxiety and (asked whether she had anxiety attacks and was describing symptoms of those) she said that this was correct and that her blood pressure had increased. The respondent advised the claimant to raise her concerns before she had an “attack.” She confirmed she was happy about the breaks having been separated so that she could take her Case Number: 3303147/2024 21 medication.84.10 On 2 August 2023, a fitness note (claimant being unable to work until 1 November 2023) referred again to “stress-related problems” (although the doctor’s letter of 11 January 2024 referred to her appointment on 2 August 2023 as relating to a complaint of an acid taste and having to clear her throat).84.11 The claimant was seen in A&E on 4 August 2023 reporting feeling weak with a sore throat and diagnosed with Pharyngitis. According to that letter the claimant attended an appointment on 6 September 2023 regarding her blood pressure and she had started on a low dose of anti-hypertensive medicine called Amlodipine. Also, she was seen on 26 September and 2 October 2023 with sinusitis and was referred to the ENT Team. She had an appointment on 3 October and 11 October with right hip pain and was referred to the Musculoskeletal Clinic.84.12 Following the claimant returning to work on 13 November 2023, at a review meeting on that date she gave as her reason for her absence, high blood pressure and work-related stress and anxiety, as well as blood infection. She stated that she regarded her illness as work-related.84.13 Her fit note dated 16 November 2023 again referred to a stress-related problem and anxiety. The fit note related to the period from 15 November 2023 until 14 February 2024 and stated that the claimant might be fit for work provided she had altered hours and amended duties. This reads somewhat oddly given the changes that had already been made in this regard with which the claimant had expressed her satisfaction.84.14 In regard to her absence from work for two days during 29 to 30 December 2023, the claimant referred to high blood pressure, heart rate increase and dehydration.84.15 In her absence review meeting on 8 January 2024:84.15.1 the claimant explained her absence from 10 March to 18 June 2023 as due to her continuous health condition, referring to high blood pressure and blood infection;84.15.2 In regard to her absence from 5 August to 4 November 2023, she explained that it was the same condition as before – her heart rate increase and blood pressure and anxiety together affected her. She had a lot of medication and took tablets for her blood pressure every day;84.15.3 She explained her absence from 27 through to 29 November as being related to her blood infection and explained that extra hours affected her health because her heart rate and blood pressure got high. She also explained that the absences related to blood pressure, anxiety, and blood infection. She had a lot of stress in the workplace. At a later stage of the meeting she referred to muscle pain and head pain which the doctor said was due to anxiety, so she got high anxiety attacks which Case Number: 3303147/2024 22 made her worse. She did not have “inside problems” anymore. 85 In my judgment a clear picture emerges from these documents: I find that on 17 February 2023 she was diagnosed (or at least provisionally diagnosed) with a condition of anxiety and associated conditions of high blood pressure and stress and she thereafter suffered from this condition right up until the date of her dismissal in early January 2024. It appears to me clear from the evidence that the conditions of stress and high blood pressure were intimately related to the impairment of anxiety. This was clear both as a matter of common sense and from the documentation which I have quoted above. Substantial adverse effects 86 In my judgment, this condition (or set of conditions) amounted to a physical or mental impairment – (probably to be seen as mental in relation to the anxiety and high blood pressure being physical). 87 In my judgment, the impairment had a substantial effect on the claimant’s ability to do normal day-to-day activities in the sense of being more than minor. Notwithstanding the unsatisfactory nature of the impact statement and evidence to support that statement or a detailed medical report, in my judgment it is clear that the conditions had a substantial adverse effect on the claimant’s ability to carry out the normal day-to-day functions of her employment. In this regard:87.1 The Guidance is clear that normal day-to-day activities can include general work-related activities including keeping to a timetable or a shift pattern. I regard this as being fairly obvious even without considering the issue of “deduced effects” under schedule 1 paragraph 10 of the EQA;87.2 The substantial adverse effect is clear in particular from the claimant having to attend Accident and Emergency on different occasions soon after she returned to work as well as the increasing substantial rate of sickness absence until it went from more than 30 percent up to 57 percent;87.3 It is right that particularly in the latter part of her employment there were other medically contributory factors (that is a matter dealt with in more detail below) but it is clear from the chronology that the condition of anxiety and its associated conditions continued right up to the end of the termination of the claimant’s employment and, in my judgment, the causative connection between her anxiety and high blood pressure and her inability to carry out her day-to-day work functions was not “displaced” by her other conditions. “Deduced effect” 88 I take into account that it is difficult to make reliable findings on “deduced effect” absent specific medical evidence and that the claimant’s own speculation as to what might hypothetically have happened is likely to have little probative value. However, it is clear that even while under the medication which the claimant had been prescribed for her anxiety and high blood pressure the claimant was still unable in a consistent manner to cope with her work duties. It seems obvious to Case Number: 3303147/2024 23 me that without taking the medication which she had been prescribed, the position would have been even worse. This is not a case (such as one authority cited to me) where the effects of ‘talking therapy’ were difficult to determine. Here the claimant had been continuously under medication to treat her condition and it is much easier in this case to infer that, without that medication, her ability to tolerate the stresses of her work would have been further reduced. 89 In my judgment, the substantial adverse effect was here “long-term” i.e., meaning that it lasted or was likely to last 12 months or more (EQA schedule 12 paragraph 2):89.1 I remind myself that the threshold is low, ie, meaning something that “could well happen”;89.2 The diagnosis itself seems to have been in place throughout the period after 17 February 2023 until she was dismissed - and beyond;89.3 The history of the matter shown by the medical documents and interviews and in particular the long and repeated periods of absence, marked by visits to A&E following her return to work and the absence eventually arising to some 57 percent of her rostered duty days.89.4 While there were other medical conditions, especially blood poisoning and pharyngitis which may have played a role in the claimant’s absences, they do not detract from the theme throughout the period of almost a year from February 2023 until January 2024 of continuing anxiety which had been diagnosed. It is contrary to the tenor of the evidence (and wholly unrealistic) to assume that somehow the claimant had been (or was likely to have been) “cured” from this condition at some time during this (or a 12 month) period. More pertinently, it is unrealistic and contrary to the evidence to assume that this condition ceased (or was likely to have ceased) to have a causative effect on her ability to carry out her day-to-day duties of employment. 90 It is not necessary for me to decide exactly when it was that the claimant became “disabled” but certainly that was the position by the time of her dismissal in early January 2024. If and in so far as necessary I would have been prepared to hold that the same was true as of 17 February 2023 when she was diagnosed with the condition of anxiety and high blood pressure. Having regard to the nature of such a diagnosed condition, in the circumstances which existed, it could well happen that it would last for at least 12 months. Unfair dismissal 91 The principal reason for the dismissal was the claimant’s high level of absences from work and, in particular, because her absence percentage as at the date of dismissal (17 February 2024 or thereabouts) was 57.63 percent, well in excess of the absence trigger point under the AMP of 3 percent. This was set out in the respondent’s dismissal letter of 17 February and supported by its witnesses in their evidence, namely Christopher Dorland and Gloria Nwokie (the dismissing officer). This was not the subject of any challenge by the claimant. Case Number: 3303147/2024 24 92 In the amended grounds of resistance, the respondent stated that the claimant was dismissed due to high levels of absence and that it relied on ill-health/capability as a fair reason for the claimant’s dismissal. In the alternative, the respondent relied on “some other substantial reason.” 93 In my judgment, the principal reason for the dismissal was “some other substantial reason” within the meaning of section 98(1) and (2) of the Employment Rights Ac 1996 (“ERA”). The fact that the respondent also relied on ill-health/capability was, in my judgment, nothing more than placing an alternative “legal cap” on the reason for dismissal (ie, high levels of absence). In my judgment the respondent was right during the course of the hearing to rely principally on “some other substantial reason” as more closely describing the reason for dismissal in appropriate statutory terms. 94 In my judgment, but for one matter which gave me cause for further consideration (referred to below) the respondent acted fairly within the meaning of section 98(4) ERA and within the “band of reasonable responses” in deciding to dismiss the claimant for her high level of absence (both procedurally and as a matter of substance). In particular:94.1 The respondent acted throughout in accordance with the AMP, in particular over a lengthy period of time going back to 2019 in issuing the claimant with a first, second and third record of improvement. Records of improvement for absences in 2021 following her absences for various different reasons, wrist injury, hitting her head at a self-service checkout and head pain, when her absence level ranged between 4.21 percent and 5.6 percent;94.2 Issuing the first written warning for absence on 24 January 2022 (when her absence level was 7.29 percent) for a burn to her leg and ankle;94.3 Holding an absence review meeting on 27 June 2022 followed by a final verbal warning for absence on 27 June 2022 at which stage her absence level was 6.82 percent (put into writing on 18 July 2022);94.4 Following the claimant’s commencement of sickness absence from 17 February to 3 March for her being generally unwell with chest pains and needing urgent investigation, and a further sickness absence (7 March to 8 June 2023) for anxiety disorder/stress related problems and high blood pressure, seeking to maintain contact with the claimant during her absence and inviting her to a welfare meeting in March to May 2023;94.5 Holding an absence review meeting on 14 July 2023 following which a verbal final warning was reissued. By this time, the absence level had gone up from 6.82 percent at the time of the previous final warning to 30.11 percent. The claimant agreed in evidence that she understood the significance of this warning and that any further absences in the following 12 months could lead to her dismissal;94.6 After a further period of absence (4 August 2023 to 13 November 202) holding a review meeting on 13 November 2023 at which the claimant was informed that an absence review meeting would be held; Case Number: 3303147/2024 2594.7 After a further absence of two days (29 to 30 December 2023) holding a return-to-work review on 5 January 2024 by which time the claimant’s absence level had gone from 30.11 percent at the time of the reissued final warning to 57.63 percent, ie, she had missed more than half her rostered shifts in the past 12 months);94.8 Holding an absence review meeting on 8 January 2024 at which the claimant was informed at the start that it could result in a formal warning or dismissal, which meeting was adjourned to give the claimant time to obtain a medical report;94.9 On 15 January 2024 holding a reconvened review meeting which the claimant said her health was very bad, that she was still recovering and describing multi-physical problems as well as anxiety attacks. When she was asked whether she could mitigate absence periods in the future she said that she did not know about the future;94.10 After considering the new GP letter, dismissing the claimant on 17 January 2024. 95 I am satisfied that the claimant was given every opportunity of explaining her position to the respondent at these meetings (and otherwise). Indeed, the respondent appears to have extended considerable latitude to the claimant having been entitled in accordance with the AMP at an earlier stage to dismiss the claimant. 96 After the respondent had followed the AMP including exercising its discretion in favour of the claimant on various occasions, the respondent concluded that it had no option other than to dismiss the claimant in accordance with the policy. 97 In my judgment, the respondent acted reasonably in treating high level of absences as a sufficient reason for dismissal. It did not do this on the basis that it doubted that the claimant had taken leave of absence for health reasons but that they had no reason to believe that the health position would improve in the future. Over a lengthy period, the absences had built up to a wholly unacceptable level of well over half of her rostered working days and there was no reason tor the respondent to believe that this would improve in the future. 98 In my judgment, the respondent did not act unreasonably in dismissing the claimant in these circumstances even though the reason for the absences was ill-health Not only had the respondent taken this into account in applying the policy to the claimant and in particular in extending latitude to her but that there was a long history of various different health reasons relied on by the claimant up to the last weeks of her employment. The claimant’s own response when asked about the future was striking, giving the respondent no reason to believe that the claimant could bring her attendance back to an acceptable level. 99 In short, there was no proper basis for the tribunal to conclude that the respondent’s decision to dismiss the claimant was in all the circumstances outside the range of reasonable responses for an employer to take. Case Number: 3303147/2024 26 100 The one matter (to which I have referred) about which I had concern was the failure by the respondent to consider and/or conclude that the claimant was suffering from a disability within the meaning of the EQA and that this was the reason, or at least one of the reasons, for her poor attendance record. I regarded it as most surprising that this was not considered by the respondent at least as a possibility if not a likelihood. 101 That said, in accordance with the AMP (and possibly beyond) the respondent made numerous adjustments even if they did not appreciate that the underlying anxiety disorder/high blood pressure might have amounted to a disability. In particular:101.1 In March 2023 after she had submitted a fit note to the effect that she might be fit with regular breaks, this was implemented by the respondent (as confirmed by the claimant) who also made clear in evidence that although she was sometimes asked to work overtime this was always on a voluntary basis - and she was not required to do this;101.2 The claimant was also offered a change from department but she rejected that;101.3 The claimant in her claim form complained that she was not offered a “phased return to work.” However, it is clear that during the course of her employment she never referred to this possibility. Even during the course of the hearing there was no suggestion as to how a phased return would have assisted the claimant. On the contrary, she emphasized that she wanted to do normal (not lower) hours which she believed she could do, assisted by her medication. In any event it is not clear how a phased return or return would have worked given the number and length of her absences;101.4 On 9 June after the claimant returned to work and following a review meeting on that day, she requested support: “No heavy lifting/basket” and “no walking around fast/Deliveroo”. The claimant in evidence confirmed that these requests were implemented after this meeting. Further, when the claimant requested breaks in order to take her two lots of medicine, the respondent acceded to this giving her one hour for lunch and then two further breaks of 15 minutes (one at the early part and the other at the later part of her shift);101.5 Even in the course of the hearing the claimant made no suggestion as to what reasonably adjustments might have enabled her to improve her attendance levels. At one stage there was some slight suggestion by the claimant’s representative that the absence levels could have been changed to be more generous to the claimant but, given the kind of absence levels which the claimant had reached by July/December, 30 percent up to 57 percent, it is unclear, realistically, what absence level would have constituted a reasonable adjustment and yet have satisfied the respondent’s reasonable needs for regular attendance for the performance of the claimant’s duties as cashier. 102 I summarise the adjustments made or offered by the respondent when dealing with the reasonable adjustments claim (below). Case Number: 3303147/2024 27 103 I considered further whether the failure (itself) to consider whether the claimant’s absences/ill-health pointed to a disability might itself render the dismissal unfair. Mr Dorland in the course of his evidence said that he did not conclude that the claimant was disabled, given (as he said) that the issue of anxiety and high blood pressure had only begun in early 2023 and there were other problems which caused her absence. The point was strongly urged on me by the respondent’s counsel, Mr Liberadzki, relying on the doctor’s letter dated 11 January 2024, who (after referring to anxiety, chest pain and high blood pressure in March 2023) referred to the claimant suffering from sore throat and pharyngitis in August 2023 and referring to her appointments in September and October relating to sinusitis and right hip pain. It was in the last few months of employment that the cause of absence was given by the claimant was an infection of her blood. 104 Mr Liberadzki, submitted that fairness was to do with actions rather than thought processes. Broadly speaking, I concluded that he was right that if I concluded that the respondent offered all appropriate reasonable adjustments in regard to the claimant’s sickness absences then I was unlikely to conclude that the dismissal was unfair because the respondents did not appreciate that the claimant was or might be disabled within the meaning of the EQA. 105 It might of course be said that if the respondent had concluded that the claimant was disabled they might have considered yet further reasonable adjustments. In this context the burden of proof is upon the respondent to show that they made appropriate reasonable adjustments (and therefore the reversal of proof provision of the EQA are not relevant). 106 However, it is significant in my view that despite the various meetings which took place between the claimant and the respondent at which she had every opportunity to put forward reasonable adjustments she generally declined to engage properly, and where she did so, these were met. Further, despite a 3 day hearing in this tribunal, there was no realistic suggestion made as to what reasonable adjustments might have been made which would have made (or would have been likely to have made) a difference. (I have already dealt with the suggestion of a phased return to work - it had no practical application in this case and was not really pursued at the hearing and the same is true of the very faint suggestion made in final submission about adjusting the trigger points in the AMP). 107 Accordingly, it seemed to me that (in this particular case) it would be an unreasonable conclusion to draw that the dismissal was unfair because of the speculative possibility of other adjustments being reasonably possible. In my judgment, such a conclusion would be contradicted by the respondent’s conclusion that it had nowhere further to go as far as the claimant was concerned, having made every reasonable adjustment which they considered appropriate. Further, I concluded that it was reasonable for them so to conclude. In this regard it is worth reminding myself of the increasing level of absence culminating in 57 percent absence at the time of the claimant’s dismissal and her own acknowledgement that there was no specific way in which she could envisage Case Number: 3303147/2024 28 reducing this in the future. I regard this conclusion as consistent with the decision of the House of Lords in Polkey v AE Dayton Services Ltd [1988] A.C. 344 namely that it is the employer did which is to be judged not what they might have done: “If the employer could reasonably have concluded in the light of the circumstances known to him that at the time of the dismissal that consultation or warning would be utterly useless he might well act reasonably even of he did observe the provisions of the code [requiring such acts]. Failure to observe the requirement of the code relating to consultation will not necessarily render a dismissal unfair. Whether in any particular case it did so is a matter for the [employment] tribunal to consider in the light of the circumstances known to the employer at the time he dismissed the employer (page 355 per Lord Mackay of Clashfern LC), with whom the other Law Lords agreed). Looking at the decision in the round at the time it was made and given that the decision taken was in regard to what the respondent considered were genuine health grounds after an (intensive and prolonged) procedure during which the claimant was given a full opportunity of explaining her position (and suggesting adjustments) the decision made was in my judgment fair even if the respondent did not go through the mental process of considering whether those health grounds amounted to a disability. It was clear on the evidence that there was nothing more to discover, so that they could reasonably have concluded that further steps would have been useless. This is in my judgment comes within the rubric of what Lord Bridge in that case referred to as “exceptional circumstances” (page 364) . 108 I was pressed by the claimant to consider that before the absence at the end of December (two days) the claimant had attended without absence for some two months. However, in my judgment, the respondent was entitled having given two final warnings to look at the total absence of some 57 percent over the last year (in the context of the circumstanced which I have described) and to apply the ultimate sanction of dismissal in regard to that. 109 Accordingly, I concluded that the respondent had discharged the burden of proof in regard to reasonable adjustments. 110 I further concluded that the dismissal was fair both as a matter of reasonable procedure and on the basis that the dismissal was in all the circumstances within the reasonable band of sanctions that a reasonable employer might have applied. 111 I also conclude (in the alternative) that had I found that the dismissal was unfair, I would, on the evidence before me, have concluded that had the respondent appreciated that the claimant was or might be disabled they would have offered the same adjustments as they did in fact offer or make. See Polkey – in particular per Lord Bridge at pages 364-5). Accordingly, I would have made a nil award. The evidence was complete in regard to both liability and remedy – and although a provisional remedies hearing was listed, that would have focused on “bread and butter” issues rather than this Polkey point. Discrimination arising from disability (EQA section 15). 112 The claimant relied on her sickness absence prior to 8 January 2024 and the need Case Number: 3303147/2024 29 to take medication whilst at work as arising “in consequence of her disability”. The claimant also specified the unfavourable treatment as her dismissal, not giving her a phased return to work when she resumed work after a period of sickness and the incident on 1 June 2023 involving Richard/Joanna. 113 I find that the claimant’s sickness absence prior to 8 January as well as the need to take medication whilst at work (two pills at different times) arose in consequence of the claimant’s disability. 114 The next question is whether the respondent treated the claimant unfavourably by dismissing her or not giving her a phased return to work when she resumed work after a period of absence. In my judgment it is only the dismissal which is to be further considered here. As regards the phased return to work, there was nothing to suggest that this was ever indicated by the claimant as being helpful or necessary or considered by her or the respondent. It seems to be nothing more than an afterthought, ie, after proceedings had been brought. There was no evidential basis from which to conclude that there was unfavourable treatment in this entirely theoretical respect. As to the incident on 1 June 2023, I have concluded that this was “out of time” – see below. 115 Accordingly, the key issue is whether the respondent has shown that the unfavourable treatment of dismissal was a proportionate means of achieving a legitimate aim. 116 In my judgment the respondent did discharge the burden in this regard for similar reasons as those which are referred to above in relation to my conclusion that the dismissal was fair. The AMP was manifestly put in place in order to support business efficiency and, in particular, for the respondents to have a workforce with a predictable level of attendance. Indeed, there was evidence in the course of the hearing that the claimant was sometimes the only cashier on duty. The potential disruption to the business in such circumstances of unplanned absences by the claimant is obvious. 117 However, quite apart from that latter evidential matter, it seems to me that the respondent’s unfavourable treatment of dismissing the claimant was proportionate in regard to its legitimate aim (as I have found):117.1 The level of the claimant’s attendance (both before and after her disability was diagnosed) was such that, by early 2024 the respondent was, in my judgment, entitled to consider it reasonably necessary to cut the “Gordian knot” by dismissing the claimant;117.2 In this regard the chronology speaks for itself so I shall not repeat the history of numerous warnings, consultation meetings and final warnings and, most significantly, the rapidly increasing number of absences that had reached substantially more than half of the rostered days during the last year of employment – and the non-committal responses by the claimant regarding future absences. (In this latter regard I take into account the claimant’s difficulties with English but also that she had the benefit of a colleague’s assistance at those meetings); Case Number: 3303147/2024 30117.3 Most significant in considering proportionality was the absence of any realistic prospect or expectation of a substantial improvement in the claimant’s attendance record in order to bring it anywhere near to the trigger point of 3 percent set out in the AMP. Of significance was that the absences were caused by a wide range of different types of medical conditions including, latterly, the other medical conditions to which I have referred;117.4 It is relevant that the respondent could have dismissed the claimant at a much earlier stage after further absence following a final warning but did not do so and seemed to have displayed considerable concern and care in communicating with the claimant in holding meetings with her until they reached a point where they could realistically go no further. In short, the respondent’s had already applied a gamut of measures short of dismissal and yet the absences had substantially increased without there being any realistic expectation of substantial improvement;117.5 It cannot in my judgment fairly be said that in these circumstances the respondent’s decision to dismiss was irrational or irresponsible. In particular, it was in my judgment rational and responsible not to give a yet further final warning. The respondents were entitled to conclude that that step would have been impractical. Nor do I consider that it was reasonably necessary for them (as a large employer) to consider whether they could or should tolerate high sickness absences, given their conclusions regarding the requirements of the business as set out in the AMP and the likelihood of further substantial absences by the claimant. It is also noteworthy that (for unexplained reasons) the claimant withdrew her appeal before it could be processed by the respondent indicating perhaps that she realized that she had come to the end of the road with the respondent and had no reason to complain about this and/or by which she precluded herself from raising further matters to support her position, if they existed - thereby supporting the conclusion that they did not exist;117.6 Accordingly, in my judgment, in the particular circumstances of this case, the sanction of dismissal was a proportionate, (ie an appropriate and reasonably necessary) means to achieve the respondent’s legitimate aim of regular and reliable attendance at work of employees and in particular that of the claimant;117.7 For similar reasons to those referred to above (especially at paragraph 107 above) when dealing with in the unfair dismissal claim and those referred above under the present heading, this conclusion is not in my judgment over-ridden or undermined by the failure by the respondents to consider whether the claimant was disabled. In particular given the circumstances leading up to her dismissal – and their conclusion as to the impracticality of a lesser sanction or measure to reduce the claimant’s health-related absences to an acceptable level, in my judgment as a matter of objective analysis their decision remained appropriate and reasonably necessary to achieve their legitimate aim. It is worth repeating that the respondents accepted that the claimant’s absences were health-related so that an appreciation that some of (but not all) of her health issues amounted to a disability under the EQA would not have been likely to overturn or affect the balance of competing prejudices between the Case Number: 3303147/2024 31 claimant (by the discriminatory effect of the dismissal) and the respondent when considering the proportionality of sanction. Indirect disability discrimination (EQA section 19) 118 .The claimant relied upon the PCP as being the respondent’s absence policy. From the claimant’s evidence it was clear to me that it was not the entirety of the absence policy upon which the claimant was relying in this regard but the 3 percent trigger, ie, the requirement of a particular level of attendance work. 119 Given the claimant’s unrepresented status, and the investigative duty of the tribunal in such circumstances in a disability case, I find that despite the lack of clarity in the list of issues that it was indeed the requirement of a certain level of attendance which was the PCP upon which the claimant was in fact relying in this case. 120 I conclude the respondent did have a PCP of its stated requirement of attendance levels represented by the triggers under the AMP, and that they did apply this to the claimant at the relevant time and, in particular, at the date of her dismissal. I also conclude that the respondent applied, or would have applied, this PCP to non-disabled employees. 121 The key question is whether the PCP put people at one or more disadvantages when compared with non-disabled people? In my judgment, the PCP did put people with the kind of disability which the claimant had, namely an anxiety disorder with high blood pressure, under a disadvantage when compared with employees who did not suffer from this impairment – even though there was no direct evidence on this point, and no statistical evidence available. I so conclude notwithstanding the dangers of speculation or too ready an application of “common sense” in this regard. I take into account that the answer to this question may be linked to the next question (which is, did the PCP out the claimant at that disadvantage at the relevant time?). I conclude that much of the claimant’s absence was attributable to her “disability” (as I have found). It is wholly unsurprising that others in the workforce who suffered from this type of disability within the type of environment in which the claimant worked would be more susceptible to a higher level of absences than those who do not suffer from these impairments. I also find that the PCP did put the claimant at that disadvantage. 122 Accordingly, the real question is whether the PCP has been shown by the respondent to be a proportionate means of achieving a legitimate aim. 123 In my judgment, consistently with what I have decided above, the AMP policy requiring a certain level of attendance was reasonably necessary for the business purposes of the kind which I have described. Also, as I have indicated, there was a discretionary element to the application of the triggers (which was deployed) which mitigated against an entirely mechanistic application of the triggers and that in my mind assisted the respondent in showing that the AMP (and in particular the required level of attendance) was a proportionate means of achieving their legitimate aim. 124 I accordingly dismissed the section 19 claim. In so concluding I took into account Case Number: 3303147/2024 32 the failure by the respondents to consider whether the claimant was disabled but for the reasons set out above in paragraph 117.7 above concluded that this failure was in the particular circumstances of this case not fatal to this (justification) defence of the respondent. Reasonable adjustments (EQA sections 20 and 21) 125 I have already concluded that the respondent could reasonably have been expected to know that the claimant was a disabled person. The PCP relied upon by the claimant under these sections was: “Only allowing employee one four-hour break per lunch and telling the claimant that she could take four 15-minute breaks to take her medication.” 126 I will summarise all the adjustments which the respondent made whenever requested or indicated by the claimant and other suggestions made by the respondent in this regard. In summary, they were:126.1 Accepting the claimant should do no heavy lifting or lifting of baskets;126.2 Accepting that the claimant should not have to walk around fast or be involved in Deliveroo deliveries; (both were implemented immediately after the June 2023 return to work review);126.3 Accepting that the claimant should have adequate breaks and avoid excessively long working hours (the fit note of 9 June 2023); and not requiring the claimant to work overtime;126.4 Agreeing to split the claimant’s one-and-a-half-hour break into one hour and two 15 minutes breaks to enable her to take medication and agreeing that two breaks should be at the beginning and the end of her shift. The claimant said that these arrangements were helpful to her;126.5 Suggesting consideration by the claimant of a possible change of department – declined by the respondent (formal meeting of 8 January 2024);126.6 Suggesting consideration by the claimant of utilising a shift swapping arrangement of another colleague if she was absent – the claimant said that she was unaware of this possibility; and126.7 Raising the possibility of using holiday entitlement to cover absences – which also did not seem to find favour with the claimant. 127 As indicated above, the PCP here relied on was inconsistent with the evidence from both parties. The claimant did not have only one hour break per day for lunch. She was given one and a half hours of lunch break. It was reasonable for the respondent to have allowed the 15-minute break to be taken in the early shift and another 15 minutes at a later shift to enable the claimant appropriate timed breaks in order for her to take medication. Equally, the required steps relied upon by the claimant in regard to reasonable adjustments are at odds with the unchallenged evidence before me. This was stated in the list of issues to be “allowing the claimant a one hour lunchbreak and two five minute breaks to take her pills”. As Case Number: 3303147/2024 33 I have said, the respondent gave the claimant two 15-minute breaks for her to take her pills and she indicated that this split of her break was helpful to her. There was no indication that the adjustments which the respondents made were not a satisfactory resolution of the claimant’s problem regarding taking medication. I accordingly dismissed this claim. Further, (even looking at the matter more broadly ie beyond the stated PCP) in my judgment the adjustments which the respondent made (summarized above) were reasonable and appropriate. Out of time issue 128 As indicated there was a timing issue in regard to the incident which allegedly occurred on or about 1 June 2023 and in respect of which the claimant stated that Richard/Joanna on the shop floor said that the claimant should not take a pill in front of customers and did not allow her to leave her post to take her pill in private. 129 This was a single incident and there was no suggestion that it amounted to conduct extending over a period within the meaning of section 123 EQA. 130 ACAS conciliation took place on 1 to 5 March 2024 and the claim was issued on 18 March 2024. Therefore, any complaint arising prior to 2 December was therefore potentially out of time. 131 Where a complaint is brought out of time the claimant must satisfy the employment tribunal that it is just and equitable to extend the time limit. The tribunal should consider the length and reasons for the delay and the balance of prejudice to each party from extending or not extending the time limit. 132 The length of time of the delay was considerable, being well beyond the three-month normal period for bringing such claims. Further, and most significantly, the claimant could give no explanation as to this delay. 133 In my judgment, the balance of prejudice in allowing or not allowing this claim to proceed fell in favour of the respondent:133.1 The matter related to a single incident which appeared of substantially less significance than the remainder of the claim which did procced. The prejudice to the claimant through not being allowed to proceed with this claim was therefore, in my judgment, not substantial;133.2 It was disproportionate to require the respondent at a late stage to have to further investigate the matter for the purposes of an employment tribunal hearing, probably requiring both Richard and Joanna to be proofed in relation to the incident which allegedly occurred in June 2023, and thereby adding considerable time and preparation and the length of the hearing in regard to an already complex set of complaints. Accordingly, the potential prejudice to the respondent, in my judgment, outweighed that to the claimant; 134 Two other potential out-of-time issues were set out in the respondent’s submissions, ie, not giving the claimant a phased return to work and failure to Case Number: 3303147/2024 34 make reasonable adjustments by not allowing the claimant to take a one-hour lunchbreak and two five-minute breaks. 135 In regard to these latter two points, no dates were identified by the claimant in this regard and no submissions made as to their timing. These points were therefore dealt with substantively on their merits as set out above. Notice pay 136 The respondent admitted that it had failed to pay the claimant a sum in lieu of notice of £1,324.13 and the claimant accepted this calculation. The respondent told the Judge at the case management conference hearing that the money had not been paid to the claimant because she had not provided her banking details. I asked the claimant’s representative about this and he seemed to be concerned that somehow by accepting the payment of money the claimant might be making a wrong move. He had already been assured, and I repeated, that there ought to be no problem with the claimant accepting the monies but he did not wish to take the matter off the list of issues. 137 Given that there was no issue in regard to this sum of money, I say no more about it. Conclusion 138 Accordingly, I decided:135.1 That the claimant’s claims of unfair dismissal and various forms of disability discrimination fell to be dismissed, and135.2 That the claimant’s claim in respect of the incident alleged to have happened on 1 June 2023 was out of time and should not therefore be heard by the tribunal. Approved by: