Mr G Ozcan v Ocado Central Services Ltd: 3304183/2022
EMPLOYMENT TRIBUNALS
Case No 3304183/2022
Between
Mr Gokhan OzcanClaimantOcado Central Services Ltd RECORD OF AN OPEN PRELIMINARY HEARINGRespondent
Before
Employment Judge AlliottIn person for claimantMr C Meiring (instructed by counsel) for respondentDate 20 December 2024
JUDGMENT
[1]It is just and equitable to extend the time for the claimant’s claim to be presented to the 1 April 2022.
REASONS
Background
[1]This open preliminary hearing was ordered by Employment Judge Lewis on 18 July 2022: “To decide if the Employment Tribunal can hear the claim as it appears to have been presented out of time.”[2]The relevant dates are as follows:- The claimant was employed on 3 February 2020. The claimant’s employment ceased with immediate effect on 18 November 2021. The claimant appealed his dismissal on 22 November 2021. The appeal hearing was scheduled for 20 December 2021. The appeal hearing was rescheduled for 10 January 2022. The appeal hearing was rescheduled for 20 January 2022. The appeal hearing was rescheduled for 1 February 2022. 1 of 4 The claimant says that he emailed Ms Kelly Dyke of the respondent on 4 March enquiring about his appeal and received an email from her saying the matter was closed.[3]If time began running form the date of termination of the claimant’s contract of employment, namely 18 November 2021, then the three month primary limitation period would have expired on 17 February 2022.[4]The Acas Certificate date of notification is 24 March 2022 and the certificate is dated 28 March 2022. The claimant presented his claim form on 1 April 2022. Consequently anything before 25 December 2021 is out of time.[5]In my judgment, it is arguable that the claimant’s complaints of disability discrimination extend to the fact that his appeal was not heard and that that represents the end point in a course of conduct. As such, it is arguable that the claimant’s claims are in time, although that would be a matter for the full merits hearing having heard all the evidence.[6]Nevertheless, for the sake of thoroughness, I go on to consider whether time should be extended on a just and equitable basis if time began to run from 18 November 2021. The time expired on 17 February 2022 and the claimant presented his claim form on 1 April 2022, some one month and two weeks late.[7]Following his dismissal, the claimant, with the assistance of his trade union representative, presented an appeal on 22 November 2021. His appeal asserted that his dismissal went against his condition which could be regarded as a disability under the Equality Act.[8]Towards the end of 2022 the claimant’s mother was becoming increasingly unwell. The claimant went to visit her in Turkey from 18 to 27 October 2022 and from 3 to 17 December 2022.[9]As set out above, the claimant’s appeal was initially scheduled for 20 December and then rescheduled for 10 January.[10]On 3 January 2022 the claimant was telephoned and informed that his mother was seriously ill.[11]On 6 January 2022 the claimant flew to Turkey. He had emailed the respondent to say he did not think his trade union representative could make the hearing on 10 January 2022 and it was rescheduled for 20 January 2022.[12]The claimant told me that he forgot to take his mobile phone with him to Turkey. This was corroborated by evidence from his daughter. I accept that he did not have his mobile phone in Turkey until his daughter brought it out mid-February 2022. While I accept that this may have posed some difficulties in contacting the respondent, I find that it would not have been impossible for him to do so had he been determined to do so.[13]Once in Turkey the claimant’s health unfortunately deteriorated. He was losing his mobility, could not walk and was using a wheelchair. He states that he could not get out of bed from 25 January 2022. Whilst I have had no direct medical 2 of 4 evidence of this, it is clear to me that unfortunately the claimant does have significant health issues and I am prepared to accept that he was badly affected at that time.[14]The claimant’s mother sadly died on 11 February 2022 and the claimant’s evidence is that the funeral and ceremonies took two weeks to complete.[15]The claimant returned to the UK on 4 March 2022 and, as already recited, contacted the respondent to enquire about his appeal and was told the matter was closed.[16]The claimant told me that he then consulted his trade union representative about the appeal and it was at that point that he became aware of the three month time limit for bringing a claim.[17]The claimant told me he consulted with a law firm on 24 or 25 March 2022. It seems clear to me that as a result the claimant notified Acas on 24 March 2022 and, on receipt of his certificate dated 28 March 2022, brought this claim on 1 April 2022.[18]I have a discretion to extend time under s.123 of the Equality Act 2010.[19]As per the IDS Employment Law Handbook on Practice and Procedure:- “While employment tribunals have a wide discretion to allow an extension of time under the “just and equitable” test in section 123, it does not necessarily follow that exercise of the discretion is a forgone conclusion in a discrimination case. Indeed, the Court of Appeal made it clear in Robertson v Bexley Community Centre t/a Leisurelink [2003] IRLR 434, CA, that when employment tribunals consider exercising the discretion under what is now section 123(1) (b) Equality Act, “There is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time so the exercise of the discretion is the exception rather than the rule.” The onus is therefore on the claimant to convince the tribunal that it is just and equitable to extend the time limit.” I have taken into account the following factors:[21]As far as the claimant is concerned, the internal appeal process was continuing until his return from Turkey on 4 March 2022. There is no general principle that it will be just and equitable to extend the time limit where the claimant was seeking redress through the employer’s appeal procedure before embarking on legal proceedings. The general principle is that a delay caused by a claimant awaiting completion of an internal procedure may justify the extension of the time limit, but it is only one factor to be considered in any particular case. That said, I have considerable sympathy for a claimant who does not launch an employment tribunal claim at a time when he thinks that his appeal is going to be heard and is, no doubt, hoping to be re-instated upon appeal. In my judgment it is readily understandable that a claimant would not want to antagonise his ex-employer on appeal by presenting a tribunal claim.[22]It is clear to me that the claimant did not know of the three month time limit for bringing his claim until his trade union representative told him on 4 March 2022. I 3 of 4 have considered whether that ignorance was reasonable. Obviously, in November 2021 he had access to such advice in that he had trade union representation. However, given at that stage he was only appealing his dismissal, I consider it to be reasonable of him not to have enquired as to any time limits for bringing a tribunal claim pending the outcome of his appeal.[23]The claimant’s health and that of his mother:- It is clear to me that once the claimant left this country on 6 January 2022 his presence in Turkey combined with his own health and the deteriorating health of his mother placed significant difficulties on him accessing relevant legal advice to present a claim. I have no doubt that this period was an emotionally challenging one for the claimant and his family and that he had more pressing priorities to deal with.[24]The claimant became aware of the time limit on 5 March 2022. He took legal advice on 24 March. Whilst that is some delay I do not consider it to be excessive.[25]I have concluded that the reasons for the delay are a reasonable ignorance of the time limit combined with illness, bereavement and being out of the jurisdiction. I find that the delay of six weeks, whilst not trivial, is not excessive. I find that the respondent will not be prejudiced in terms of the cogency of the evidence.[26]Taking into account all the factors that I have to, in my judgment it would be just and equitable to extend time for the claimant’s claim to be brought to 1 April 2022.[1]The Claimant was employed by the Respondent from 3 February 2020 as a delivery driver and latterly also as a step-up marshal. On 17 February 2021 the Claimant began what was to become a nine-month period of sick leave which ended when he was dismissed because, on the Respondent’s case, he was incapable of performing the role which he was employed to do and the Respondent was unable to find him any suitable alternative. The Claimant’s case was that the dismissal and the Respondent’s later failure to hear his appeal against the dismissal amounted to discrimination arising from disability. The Claimant also said that the Respondent had failed to make the reasonable adjustment of offering him a different role.
The Issues
[2]The time limits in this case had already been extended by order of Employment Judge (“EJ) Alliott on 5 December 2022. The issues for us to decide were as set out in the List of Issues drafted by EJ Alliott on that date, save that a number of them were no longer in dispute. The relevant parts of the list are appended to this document.[3]There was for example, now no dispute that at all material times the Claimant was a disabled person within the meaning of the Equality Act 2010 (“EqA”), by virtue of seven conditions listed in the list of issues (see below). Those conditions included type 2 diabetes mellitus, knee injury and back injury.[4]So far as the complaint under s 15 EqA for discrimination arising from disability was concerned, the Respondent now agreed that both the Claimant’s sickness absence between February and November 2021 and his inability to work as a step-up marshal and delivery driver had arisen in consequence of his disability. We refer to these below as the things or matters arising.[5]The Respondent further accepted that the Claimant’s dismissal was because of the matters arising. It agreed that it had not heard the Claimant’s appeal, but denied that that was a failing and more significantly denied that it was because of the matters arising. In essence the Respondent said it had not heard the Claimant’s appeal because he had not participated in the appeal process.[6]To the extent that any of those things amounted to unfavourable treatment because of the matters arising, the Respondent’s case was that they were a proportionate means of achieving a legitimate aim.[7]So far as the reasonable adjustment complaint under s 21 EqA was concerned, there was now no longer any dispute, if there ever had been, that the Respondent had a provision, criterion or practice (“PCP”) of applying its long term sickness process to the Claimant. The Respondent denied, however, that this put the Claimant at a substantial disadvantage in comparison with non-disabled persons and also denied that it would have been reasonable to offer the Claimant a sedentary role working from home in all of the circumstances.
The Hearing
[8]The Claimant, who uses a wheelchair, had difficulty with the use of his left hand in particular and was assisted physically with turning pages etc. during the hearing by his ex-wife Ms Ozcan. We wish to express our thanks to Ms Ozcan for her assistance during these proceedings.[9]Before the evidence was called we explained to the parties that we would read the witness statements, but they should be sure to refer us to any documents of relevance in the agreed hearing bundle during the course of the evidence or submissions. We also discussed the issues with the parties, which resulted in the clarification of the matters that were no longer in dispute which I have referred to above. We also indicated that we would not need to hear evidence about remedy at this stage.[10]There was initially to have been legal argument about the admissibility of a second statement made by Ms Ozcan, but counsel for the Respondent indicated at the start that there was now no objection to us reading that statement. The parties also agreed that we could take into account a statement provided by the Claimant’s daughter, although since she had not been made available to give evidence the Respondent invited us to give it less weight than we otherwise might have done.[11]We did hear legal argument at the start about the admissibility of what we will refer to by way of shorthand as transcripts of the various meetings that took place with the Claimant as part of the Respondent’s long term sick process. (Only one was a transcript in the true sense, having been prepared from a recording. The other meetings were not recorded and so the transcripts were in fact made by someone taking the notes at the meetings.) The Claimant challenged the admissibility of the transcripts on the basis that they had never been sent to him for approval, nor had he been provided with the recording we have just referred to. We allowed the transcripts into evidence and gave oral reasons for that decision. We were not asked to provide written reasons for that decision, but the issue is dealt with in more detail below.[12]We then heard oral evidence from the witnesses, adopting the usual procedure, i.e. their written statements stood as their evidence-in-chief and they were then cross-examined. We heard from: the Claimant; Ms Ozcan; Mr Shaikh Uddin, the Team Manager and decision maker for the dismissal; and Miss Kelly Dyke who dealt with the Claimant’s appeal against the dismissal.[13]At the conclusion of the evidence we heard oral submissions from counsel for the Respondent and then from the Claimant. After taking time to consider, we delivered an oral judgment with reasons.
Findings of Fact
[14]We find the following facts on the balance of probabilities and our decision on all of these is unanimous. In this case many, or at least some, of the primary facts were not in dispute. Generally the issue was about what actions of the Respondent would or would not have been reasonable in light of those facts. Where we have needed to resolve disputed facts, we make that clear. We have not made findings on every disputed fact presented to us, merely on those which assist us to come to a decision bearing in mind the list of issues. Start of Employment[15]The Claimant started work as a delivery driver, delivering groceries to people’s homes, in February 2020. This was at the start of the worldwide Covid-19 pandemic when all but key workers, of whom of course the Claimant was one, were staying at home. We accept the Claimant’s evidence that he had not had to provide a CV as part of the application process for that job and we also accept what was unchallenged evidence from the Claimant that he performed his job well. The Respondent clearly had no cause for complaint, because the Claimant was soon given extra responsibilities as a step-up marshal. There was no dispute that the Claimant’s role was physically demanding. Sick Leave[16]On 17 February 2021, the Claimant was signed off sick on account of a leg injury. This had followed an accident the Claimant had at work in December 2020, when he had been injured but had carried on working. One of the Respondent’s witnesses referred to some inconsistencies in the Claimant’s account of the December accident and we note, for example, that according to a note of a conversation on 17 February 2021 when the Claimant called in sick with knee pain, he was “unsure” how it had happened. Despite this, it was not suggested to us, or to the Claimant in cross examination, that we should come to any conclusions adverse to the Claimant about those inconsistencies. We expressly do not do so.[17]What is significant here is that there was no dispute, and we find, that the Claimant was indeed unfit for work from 17 February 2021. The doctor’s note issued at that time said he was unfit due to knee pain and a cut to his foot. The next doctor’s note, issued in March 2021, said that the Claimant was unfit for work because of a knee injury. The Respondent’s Sickness Absence Policy[18]We were provided with a copy of the Respondent’s Long Term Sickness Procedure. It was not suggested to us that this was breached in any way. It defines long term sickness as a period of absence lasting, or likely to last, four weeks or more and divides the process into three phases: 18.1. Phase 1 is an initial meeting to discuss the reason for the absence and how long it is likely to last; 18.2. Phase 2 is another meeting, or meetings, to obtain updates and to discuss: the employee’s ability to work, whether changes can be made to the job to help them work, whether training might be offered were a potential new role to be identified; and to decide whether the employee could return to their current role or take on a different role; 18.3. Phase 3 of the process was to be triggered if, during Phase 2, the Respondent had been unable to establish when or whether the employee would be able to return to work in the foreseeable future, either to their original role with or without reasonable adjustments, or to an alternative role.[19]The purpose of the Phase 3 meeting, according to the Policy would be to: “review previous discussions with you about your absence; consider whether your situation has changed since the last meeting […]; consider any further matters that you wish to raise; and/or consider whether your employment should be terminated on the grounds of capability.” Phase 1[20]On 26 March 2021, because his absence had lasted more than four weeks, the Claimant was made the subject of the Respondent’s Long Term Sickness procedure. A Phase 1 meeting under that procedure took place on 29 March 2021. At that meeting, and indeed all the others which we now refer to, the Claimant was present, as was Mr Uddin (save that Mr Uddin was away for one of the Phase 2 meetings which was taken by a colleague). A note-taker was also present at each meeting. The first meeting was clearly fairly short and the injury to the Claimant’s knee was discussed. Meetings Generally[21]That meeting was the first of a number for which, as we have said, we were provided with what we call in shorthand transcripts. The Claimant disputed the accuracy of those transcripts on the basis that he had not been provided with them at the time and he could not now say whether they were accurate. He did suggest that there were various things he would not have said and that they had omitted various things that he thought he did say. However, with one or two exceptions, these were largely generalised assertions rather than the Claimant saying that specific things were wrong or omitted.[22]As we indicated during the course of the argument on the admissibility of these documents, we accepted that it would have been best practice for the notes to have been sent to the Claimant for his approval. However, the fact that something is not best practice does not mean it is bad practice. We accept the Respondent’s witnesses’ evidence that it was not the Respondent’s practice or policy to send notes of these meetings for approval. We also accept Mr Uddin’s evidence that the transcripts were sent to him shortly after the meetings and that he would have corrected any significant failings he noticed. It is clear to us that the documents were prepared by someone whose role at the meeting was to take notes. Whilst clearly every word would not have been recorded, we accept that broadly the notes accurately reflect what was said at the meetings. For those reasons we did not consider it appropriate to exclude the notes as evidence, and we took them into account.[23]We should also add that during the course of the hearing it became apparent to counsel for the Respondent that a (further) note of one of the meetings had been taken by a Ms Mistry, a “People Advisor” (HR). That note was immediately disclosed to the Claimant. It appears it had not been disclosed before that because the Claimant had only recently indicated that the admissibility of the transcript was in issue. The note which we were shown in evidence, although inevitably less full than the transcript, broadly reflected it, in our judgement. The Claimant took us to two passages which he said were inconsistent with each other, although we find they were not inconsistent with each other. One passage has the Claimant saying he did not have the skills for the roles that had been identified for him and the other has him saying that he has IT qualifications.[24]The Claimant sought to criticise the fact that Mr Uddin was not legally trained. We did not consider it necessary in the circumstances for the person conducting the Phase 2 and 3 meetings to have been legally trained. First Five Phase 2 Meetings etc.[25]The Claimant was referred for an occupational health assessment and a report was provided on 1 April 2021. The report said that the Claimant was temporarily unfit for work due to a knee injury. His return date would depend on treatment but it was unlikely to be within the next six to eight weeks. There were no adjustments suggested at that time that could facilitate his return to work, although the report did say that he was fit to participate in meetings.[26]Following that assessment the Phase 2 meetings, which were all conducted remotely, began, the first being on 23 April 2021. At that meeting the Claimant said that he was waiting for an MRI Scan on his knee and he had been seeing a physiotherapist. Mr Uddin told him that he was entitled to private medical care which might enable him to see a specialist.[27]A doctor’s note of 6 May 2021 said that the Claimant was unfit for work on account of leg pain. Another Phase 2 meeting took place on 26 May 2021. A doctor’s note of 21 June 2021 said that the Claimant was unfit for work due to back and right knee pain. There was a further occupational health assessment which reported on 22 June 2021, which said that the Claimant had not improved and that muscles in his neck and back were locking at times. He had been advised that there was a possible spinal injury. The occupational health practitioner did not think that the Claimant’s mobility problems amounted to a long term impairment at that stage; she considered that the Claimant was temporarily unfit for work. A return date was difficult to predict, she said, and there were no adjustments which would be likely to facilitate his return to work at that stage.[28]A letter from a consultant neurosurgeon, dated 29 June 2021, described pain in the Claimant’s back, leg and head. The neurosurgeon thought there might be nerve root irritation or disc prolapses and that further MRI scans were warranted.[29]Another Phase 2 meeting took place on 30 June 2021. A doctor’s note of 13 July 2021 said that the Claimant was unfit for work due to back and knee pain. Another letter from the neurosurgeon dated 10 August 2021 records, amongst other things, some disc degeneration and a finding of mild to moderate peripheral neuropathy. The consultant was of the view that surgery on the disc was unlikely to make a big difference.[30]There was another Phase 2 meeting on 12 August 2021. A doctor’s note of 23 August 2021 says that the Claimant was unfit for work due to ongoing investigations for ongoing multi factorial pains. Another Phase 2 meeting took place on 14 September 2021.[31]There was a further occupational health report on 30 September 2021. The occupational health practitioner recorded the Claimant’s symptoms as pain in his leg and back. At this point the Claimant was only able to walk for around ten minutes before experiencing pain and he was only able to stand for around ten to fifteen minutes. His balance was affected and he was prone to falls. He was requiring assistance with activities such as making meals and he had also now been told that he had kidney disease which was resulting in exhaustion, tiredness and shortness of breath. He was also experiencing confusion and dizziness related to the kidney disease. The practitioner was now of the view that there was a long term impairment of the Claimant’s ability to undertake daily activities. The Claimant was unfit for work, in the practitioner’s opinion, due to ongoing mobility issues, confusion and dizziness. He was still able to attend meetings under certain circumstances. There was no predicted date by which the Claimant would be fit to return to work. Under the heading “Future Capacity for Regular and Efficient Service” the occupational Health Practitioner recorded: “This is likely to depend on if his response to any planned treatment [sic].” Alternative Roles[32]In evidence there were five lists of job roles that everybody agreed were sent to the Claimant during the long term sickness procedure. None of the witnesses were particularly clear as to exactly when the lists were sent, although as will become clear, they had been sent by the time at least of the final Phase 2 meeting.[33]The lists ran over more than a hundred pages of the Hearing Bundle, with around about thirty or forty vacancies per page, perhaps more. They were for jobs all over the world, although many were in Hatfield and Welwyn. Included were roles such as in engineering and technology, finance, legal, logistics and client services. It is not clear on the face of the descriptions whether any of those could have been done from home. For each job the list contained the job title, just one example at random being “Software Engineer E3 Bot Performance”. It recorded also whether the role was fullor part-time, the name of the person in charge of the recruitment process, the department, for example Technology, and the location of the role. Final Phase 2 Meeting[34]The last of the Phase 2 meetings took place on 26 October 2021. This is the meeting that was recorded. A policy of the Respondent had just come into effect that Phase 2 meetings, although not, for reasons which were unclear to us, Phase 3 meetings, would now be recorded. The Claimant was informed in writing at the time, and we had this document in evidence, that the meeting would be recorded and that the recording would be destroyed within three months. This is why the Respondent says they were unable to provide the Claimant with a recording when he requested one later on during the course of these proceedings. We accept that. We do not accept that, in the absence of any request from the Claimant at the time, the Respondent was placed under an obligation to retain the recording simply by virtue of the fact that the Claimant challenged his dismissal within that three month period, or by virtue of the fact that the case moved from Phase 2 to Phase 3 during that period. The Claimant’s written appeal against the dismissal did not set out the grounds for the appeal and so he specifically did not put in issue the accuracy of the transcript of that recording. We concluded that, since the Respondent was not under any obligation to retain the recording, it was appropriate to take account of the transcript and there was no good reason to conclude that the transcript was inaccurate. We now summarise some of the significant passages in that Phase 2 meeting.[35]The Claimant was asked how he was feeling. He said that he had a couple of serious problems related to his diabetic condition and there was a lot of nerve damage which caused a lot of problems for him. He said that he had kidney disease caused by the diabetes. When he was asked whether he was taking medication for that he said yes, although he could not take medication for the kidney problems or nerve damage. He was asked how his knee pain was and he said he could bend the knee but he was still getting some pains. He said his spine was a concern and that they (the doctors) would have to keep monitoring it. It might get worse and it might not get worse. He was asked how all of these conditions were affecting him on a daily basis and he said, “On a daily basis it’s not good. I try to manage things myself, physically and financially, but certain things I need help with.”[36]The Claimant said that he had been advised to seek Medical Retirement. He was asked about the latest Occupational Health Report and he said, “It looks okay. I don’t want to make any further comments, you know my position.”[37]By now, clearly the Claimant had been sent at least one of the lists of vacancies which we have already referred to. He is recorded as saying the following: “Those vacancies you sent me last time you advised me if I would want to consider another position. The vacancies are not very realistic for me. I am not an engineer [word(s) unintelligible to the original transcriber] IT and Software Engineer.”[38]The Claimant said that he had never worked in that trade directly so he could not see himself becoming part of things like that. He used to do something the original transcriber thought might have been “e-commerce flights”, but he said, “I’m a 56 year old man so I can’t really see a profession for me, and as I’ve said, I have never worked in the trade [word(s) unintelligible to the transcriber] in that sector. It is not going to be possible [word(s) unintelligible to the transcriber] those kinds of jobs. Most of the jobs are engineer and highly qualified so I won’t be able to apply for them. I don’t want to waste my time.”[39]We accept that that passage (page 253 of the bundle) accurately reflects what the Claimant said about his qualifications, albeit some words were unintelligible to the transcriber. It is clear, in our judgement, that the Claimant did not provide much, if any, detail about his IT skills and qualifications. During the course of the hearing the Claimant’s attitude on this point, in other words to the list of alternative vacancies, was characterised as unhelpful, although that may not have been the precise word that was used. We disagree. In our judgement the transcript simply reflects the Claimant being realistic at that point about what he was and was not able to do. More broadly, in our judgement, the Claimant was realistic there that by virtue of his disability he was unable to perform his current role and realistic also in conceding, at that point at least, that he did not have the required skills or experience for the alternative roles.[40]After a break in the meeting, Mr Uddin summarised the position in quite a long passage. The Claimant did not dissent at any point. Mr Uddin noted that since being off work with the knee injury the Claimant had developed further medical conditions. Mr Uddin noted these as: exhaustion, tiredness, confusion and shortness of breath. He said that on the basis of the current medical evidence the Claimant remained unfit for work due to mobility issues, confusion and dizziness. He was also, Mr Uddin noted, experiencing back pain which was being investigated and was only able to walk or stand for ten to fifteen minutes before his leg and knee became painful. Mr Uddin further noted that the Claimant had said he did not see himself returning back to his original role as a driver. Mr Uddin said, “We have explored all options such as re-deployment, however, you stated today that the roles are not appropriate for your level of skill and experience.”[41]In our judgement this was an accurate summary of the position at that time. Mr Uddin explained that medical retirement was not available to the Claimant and that the case would move to Phase 3 of the Respondent’s process. The Claimant told Mr Uddin that he intended to “take a legal route to protect [his] rights”. Phase 3 - Dismissal[42]On 27 October 2021, the Respondent wrote to the Claimant inviting him to a Phase 3 meeting. The letter explained that up to date information about his skills and employment history in the form of a CV would be helpful. A document was attached which explained and gave advice about how to write a CV. There were the following significant passages during the Phase 3 meeting, which took place on 18 November 2021. As with the others, we accept the accuracy of the transcript.[43]The Claimant was asked how he was in general since the last meeting. He said that not much had changed although one of the medications he had been given was causing issues in his kidney. He was asked how it affected his mind-set that the doctors were not taking his condition seriously and he said: “It is very frustrating but what can I do?”. Mr Uddin repeated his earlier point that the claimant was entitled to private medical care through the Respondent. The Claimant said that he had called them and that he would have to pay £2,000 from his own pocket because he had already gone over the allowance. (We note here that it was common ground that the relevant policy only allowed a certain amount of expenditure every year.)[44]There was a long recap by Mr Uddin of the Phase 1 and 2 meetings. The Claimant was asked what he was doing now, daily, and how it was affecting him. The Claimant said, “I am not happy at the moment. I didn’t ask to be in this situation, it just happened. I need medical attention and I can’t get it. I did get some assistance [through the private medical care policy] but this was limited.”[45]The Claimant was asked whether he had had a look at any of the vacancies or job opportunities that were sent to him. The Claimant said, “Yes, but 99 per cent of those need high qualifications, e.g. engineering and there are a small few that are not better than my current position. With robotic engineering or software engineering I have not put any of those IT skills into practice. In my condition this will not make any difference, I will just go off sick again after two days, this is not going to help. I don’t have the qualifications for these jobs. I don’t want to waste your time, there is no point.”[46]We repeat the observations we made in connection with the Phase 2 meetings – in our judgement this was not a case of the Claimant being unhelpful, but simply of him being realistic.[47]The Claimant mentioned he had worked for charities in the past and had been self-employed. He said he did not have a CV and did not even know how to write one. He is recorded as saying that he did not have “these IT qualifications”. He was asked whether he had looked at the documents about CV writing and he said, “What is the point, it’s a waste of time. I can ask my daughter to do it but what’s the point? If there is a point I’ll do it.”[48]Mr Uddin said that if he did not want to do it, it was up to him, but that they (in other words the Respondent) were trying to get him back to work. The Claimant replied, “If I can’t work I can work on my own but in this situation I can’t work so I am not asking you for your help.”[49]He was asked if he saw himself returning to work in the near future and his answer was, “I can only hope. I don’t know who would employ me in this situation.”[50]He was asked if he saw himself returning to work with his current ongoing condition and his answer was, “I can’t.”[51]He was asked whether with reasonable adjustments he could return to work and his reply was, “You have to decide that for yourself. If you can then I’ll discuss anything, but what can you do? There are no adjustments you can make. If there are any suggestions I will try them but I think driving is dangerous in my condition.”[52]The Claimant did say that he thought he would be able to return to work if his medical conditions improved. When asked how long he thought it would take to recover, he said, “If I can get medical attention I will say six months’ time. If the NHS blocks my way to get attended to then it will only get worse.”[53]Again, we repeat the comments about the Claimant, in our view, essentially taking a realistic rather than an unhelpful view here. That said, the Claimant’s hopes about getting better in six months’ time with medical help were, in our view, little more than speculation.[54]Mr Uddin took over an hour to consider the situation and then returned to tell the Claimant that on the basis of the current medical evidence he remained unfit for work due to ongoing mobility issues, exhaustion, confusion and dizziness. He said the claimant’s current health issues appeared to have a substantial impact on his day to day activities and that the Claimant had stated that he did not see himself returning back to work for at least another six months in his original role. Mr Uddin noted that that was little more than an assumption. Mr Uddin stated that options had been explored such as re-deployment, however, that the Claimant had said that day that the roles were not appropriate for his levels of skill and experience and due to his current condition he was unable to work in any capacity. Mr Uddin explained that the Claimant was therefore being dismissed. That decision was put in writing for the Claimant on 18 November 2021. The Claimant’s Qualifications[55]The Claimant told us in evidence that he had a number of qualifications in IT and had worked in a self-employed capacity in that field, mainly with web sites and e-commerce. He did not provide to us, though in fairness he was not asked to, the details of those qualifications but, more significantly, he did not, in our judgement provide that detail to the Respondent either at the material time.[56]The Claimant told us that he did not provide a CV to the Respondent because he had been self-employed and would have needed three months to prepare one because of his disabilities, but also because he would have needed access to documents which were at that time in his ex-wife’s possession. There seemed no reason to us why being selfemployed would prevent someone setting out their skills and experience in a CV and there seemed no reason to us why, if the Claimant had needed more time to prepare a CV for the Respondent, he could not have asked for it. We consider the Respondent’s requirement to provide a CV to have been perfectly reasonable, even if the Claimant had not had to provide one when he applied for the original role as a driver. Miss Dyke confirmed in her evidence that any re-deployment within the organisation would have required a CV. That CV would have enabled the Respondent to consider the Claimant’s skills and to match him to any available internal vacancies. Then, in the Claimant’s circumstances, Miss Dyke told us, i.e. as someone covered by the Equality Act 2010 by virtue of being disabled, he would have been granted a “non-competitive” interview and would have been offered a trial role provided it was established at the interview that he met the minimum criteria for the role. In the absence of a CV, and where the Claimant had not expressed a positive interest in any of the hundreds of vacancies shown to him, we cannot see that the Respondent should or could have been expected to have done any more than it did insofar as alternative roles were concerned.[57]There was also an issue about the available roles having come only from the Respondent company and two others within the same group. The Claimant suggested that they should also have come from the Ocado Retail company. We accept the Respondent’s evidence that that company is in a different situation to the others in that it is jointly owned, not singularly owned, by the Ocado Group; it is owned jointly with another company entirely. We accept that it would not have been reasonable of the Respondent to seek jobs within that separate company. Even if they had, given what happened with the jobs that they did direct the Claimant to, in our judgement the result would not have been any different in any case. The Claimant’s Ability to Work at the Time of His Dismissal[58]Although the Claimant suggested to us that he might have been able to do simple administrative work from home, in our judgement that suggestion is simply not supported by the evidence, which we find shows that the Claimant was unfit for any sort of work, which is what we find the Respondent had reasonably concluded. Indeed, the Claimant’s assertion is contradicted by the Occupational Health Report of 30 September 2021 (see above), particularly the passages about dizziness and confusion in addition to his mobility issues. The Respondent, in our judgement, reasonably concluded that there was no prospect of the Claimant being fit for work within a reasonable period. He had got worse since going off sick and nothing we have seen in the medical evidence suggests that the situation was likely to improve in the near or medium term. The same applies to reasonable adjustments. In other words we do not consider that there were any adjustments that could have been made to permit the Claimant’s return to work.[59]With the benefit of hindsight, on the basis of the later medical evidence provided by the Claimant, the Respondent was clearly right to have concluded that there was not a realistic prospect of a return to work, although of course evidence in hindsight is of limited if any use. Ultimately, on the basis of what was known at the time, the Respondent had reached a perfectly reasonable conclusion about the prospect of the Claimant returning to work within a reasonable period.[60]The Claimant suggested that although his private health care cover had reached its annual limit, if the Respondent had kept him on then the limit might have been renewed and so further treatment might have made him better. Again, this is in our judgement no more than a matter of speculation and in any case, Mr Uddin told us that the limits would not have been renewed until September. We do not consider it would have been reasonable for the Respondent to keep the Claimant on for the better part of a year on that basis. Appeal[61]On 22 November 2021, the Claimant wrote to the Respondent, in time, exercising his right to appeal the decision to dismiss him. He asked the Respondent to reconsider the decision, “As it goes against my conditions can be regarded as a disability under the Equality Act 2010.”[62]No further grounds were offered, although the Respondent’s letter explaining the decision to dismiss had said that any requests for an Appeal should state the reasons.[63]Receipt of the Claimant’s appeal was acknowledged by email on 23 November 2021. The Appeal process was then handled by Miss Dyke, whose job title was “Employment Relations Advisor”. Before we turn to Miss Dyke’s involvement directly, we should say that around this time the Claimant’s mother, who lived in Turkey, became seriously ill. The Claimant had gone to visit her on 18 – 27 October 2021 and again in early to mid-December 2021. It was an agreed fact that when the Claimant returned from that December trip, he discovered his flat had been burgled although it does not appear that he informed the Respondent of that. Nevertheless, we appreciate that at that time, given what was happening with the Claimant’s mother and the burglary, the appeal would not have been the only thing on his mind.[64]The Claimant went again to Turkey on 6 January 2022 and stayed then for some time. Sadly, his mother died on 11 February 2022 and he stayed for some time after that date to see to funeral arrangements, returning on 4 March 2022.[65]Coming back to November 2021, on 25 November 2021, Miss Dyke emailed the Claimant to arrange the appeal hearing or meeting. The Claimant replied on 29 November 2021 requesting a face-to-face hearing and for his legal representative and Union representative to be present. Miss Dyke replied on 1 December 2021 to explain that only a Union representative would be permitted to attend and asked for the Claimant to provide the name of the Union representative once the meeting invite had been sent out. The Claimant accepted that he never did provide that name to Miss Dyke. Miss Dyke also asked at that point if the Claimant could provide suitable dates over the following weeks for the hearing. She asked him again about that (by email) on 6 December 2021, also explaining that in view of the Covid-19 situation the Respondent had decided that the meeting would be by video. No issue was taken with that decision during the course of this hearing. The Claimant did not respond to those emails. We note that the Claimant accepted that while he was in Turkey in December he had internet access and had his telephone with him. Again, we accept that given his mother’s condition emails will not have been his number one priority, but there was no suggestion that he was unable to respond to these emails.[66]On 15 December 2021, having not heard from the Claimant, Miss Dyke emailed to say that she had fixed a hearing for Monday 20 December 2021. An invite email, she said, would be sent separately, encrypted with a password, but Miss Dyke’s unencrypted email (page 295 of the Bundle) clearly contained that hearing date of 20 December 2021.[67]The Claimant did not reply until 6 January 2022, at 08:23 (page 295 of the Bundle). His reply to the email clearly stating the hearing date was: “Still waiting for the confirmation of the hearing date, please advise as soon as possible. As you know I need to confirm this with my Trade Union representative.”[68]Thirty minutes after that Miss Dyke emailed back and said that a hearing had been set for 10 January 2022 and explained that an invite pack had been sent to the Claimant on 24 December 2021 with the password being sent to his telephone. The Claimant immediately replied to say he had received the letter, but not the password. Miss Dyke replied to say she had asked for that to be re-sent.[69]It is clear, then, that the Claimant knew of the hearing date by this time, if not rather earlier. The Claimant accepted that he had known for some time that his Union representative would not be available until after 5 January 2022 but never informed the Respondent of this, nor in fact did he inform the Respondent of his plans to fly out to Turkey, despite having booked a flight on 1 January 2022. However, the claimant did tell us that at this point he had intended that he would participate in the meeting remotely from Turkey and we accept that.[70]On 7 January 2022, which was a Friday, the last working day before the hearing was due to take place, Miss Dyke emailed the Claimant to ask whether he had accessed the Information Pack. This was at 10:08. She also noted that she called the Claimant that morning (we will return to that later) but she had received no answer and had been unable to leave a message.[71]On Monday 10 January 2022, the meeting was due to start but neither the Claimant nor his Union Representative attended. The meeting was rescheduled by the Respondent. Miss Dyke tried to call the claimant but got no answer and could not leave a message. She emailed the Claimant to ask if he would be available for a re-scheduled meeting but she received no reply. She re-scheduled the meeting for 20 January 2022 and emailed the Claimant, to which she received no response.[72]The 20 January 2022 meeting took place and again neither the Claimant nor his Union Representative attended. There were no responses to the calls made to see where he was.[73]The meeting was re-scheduled to 2 February 2022. The Claimant was again informed of that date by email and offered the opportunity to make written submissions. There was no response to that. At that meeting, again neither the Claimant nor his Union Representative attended. Given the lack of detail in the appeal letter, Miss Dyke considered that it was not possible to hear the appeal in the Claimant’s absence and considered his appeal to be withdrawn. She advised him accordingly by email of 2 February 2022. The Forgotten Telephone[74]The Claimant’s explanation for his lack of contact with the Respondent from 1 January 2022 was that when he flew out to Turkey he had left his telephone at home. His email account, he said, used two-factor identification, so he could not access it from Turkey without his telephone. We note at this point that regardless of whether or not the Claimant had used his telephone, the Claimant knew when the meeting was to take place and could have contacted the Respondent from Turkey in any number of ways other than using his own telephone. He did not do so. Again, we accept that for obvious reasons the appeal process might not have been his first priority, but it was never suggested that it was impossible for him to have contacted the Respondent. He was with a number of relatives who had internet access on their telephones.[75]All were agreed that the Claimant flew out on a 22:35 flight from Stansted Airport on 6 January 2022, landing at 05:25 hrs (we infer that must be Turkish time) the following morning, 7 January 2022. There is no dispute that the Claimant was in the UK during the email exchange with Miss Dyke which we have already described, on 6 January 2022.[76]We come then to the events of 7 January 2022, when everybody agrees that the Claimant was either in the air at the start of the day, or had arrived in Turkey. Those events are in dispute. We saw Miss Dyke’s call record by way of screenshot from her telephone which shows, as she had said in her email, that she had tried to call the Claimant twice at 10:03. The record also shows a missed call from the Claimant’s number at 12:59 to Miss Dyke, then a call to the Claimant’s number from Miss Dyke, this time a call that connected for 51 seconds, at 13:30. That call log is at page 314 of the hearing bundle. Clearly, if the Claimant’s case is correct, the Claimant was in Turkey by then, but his telephone was still in the UK.[77]Miss Dyke’s evidence about this was straightforward. Her evidence was that she spoke to the Claimant during the calls she made on 7 January 2022 and the Claimant told her he needed to check if his representative was still available to come to the meeting and that he would update her. However, she never heard back from the Claimant. If Miss Dyke is right, the Claimant’s telephone cannot have been left in the UK. We note that in Miss Dyke’s near-contemporaneous email of 10 January 2022, she refers to a telephone conversation that they had had on 7 January 2022. She refers to it again in an email of 4 March 2022 and also in her February 2022 letter. Nobody made any suggestion that there was a similar call that happened around the same time, so there was no suggestion that Miss Dyke could simply have got mixed up about the date the conversation took place. In any case, as we have said, her recollection of the date is corroborated by the call log and by her email on 10 January 2022 where she refers to having had the conversation only three days previously. We also note, of course, that Friday 7 January 2022 was a natural time to have made that telephone call given that the Hearing was on Monday 10 January 2022.[78]The Claimant’s case was that he could not have answered that call. He called evidence from his ex-wife Ms Ozcan. She said that she had been in his flat when the call took place and had answered the call by mistake. She did not take part in any conversation. She could not explain the earlier call that had been made by the Claimant’s telephone to Miss Dyke, even though Ms Ozcan would have been the only one in the flat at the time and she flatly denied, when EJ Dick asked her, whether she might have made that call by mistake. In her oral evidence she told us that she had been told by the Claimant’s sister, the evening he had arrived in Turkey, that he had left his telephone in the UK and that she, Ms Ozcan, had gone to the flat the following morning to collect his telephone, having collected the key to his flat the day before she went to the flat. But the following morning would have been 8 January 2022, as the Claimant did not land until the morning of 7 January 2022. Ms Ozcan’s statement said that it was the Claimant, not his sister who told him that he had left his telephone behind. There were a number of other serious inconsistencies and discrepancies in Ms Ozcan’s statement regarding, in particular, the date that she later flew out to Turkey herself. It was eventually established through incontrovertible flight bookings that the date she gave for that in her statement must have been wrong. She gave unsatisfactory and inconsistent explanations to us about why the error in that statement had never been corrected.[79]The statement from the claimant’s daughter was inconsistent with her Mother’s on material points, for example, whether they flew out together or not to Turkey. But it is consistent with her Mother’s evidence in the broad sense that it says the Claimant had left his telephone behind. That Statement was not the subject of sworn evidence and we were not provided with a signed copy.[80]Ultimately, in resolving this dispute we prefer Miss Dyke’s evidence. She spoke to the Claimant on 7 January 2022 and therefore he had his telephone with him all along. We also add at this point that even if the Claimant had not had his telephone with him at the time, the Respondent would not have known about that at any of the times that it made the material decisions in the case. We also repeat that, even if he had not had a telephone, there was nothing to stop the Claimant from contacting the Respondent.[81]On 1 March 2022, the Claimant sent an email to Miss Dyke saying that he had been in Turkey since January due to his Mother’s ill health and that he had no access to his email or telephone. He said that his daughter had come to Istanbul and brought his telephone and iPad. He did not specify when that had happened.[82]On 4 March 2022, Miss Dyke emailed the Claimant giving him detailed written reasons as to why she would not reconsider the decision not to hear the appeal. In essence what she said was that the Claimant had had enough opportunities to engage with the process and had declined to do so.
The Law
[83]We were not referred directly to any decided cases. So far as the law that we had to apply in this case is concerned, none of it was controversial and it was reflected in the questions set out in the list of issues. For the sake of completeness we do however set out the applicable law in some detail below, including referring to the cases and statutes which are authority for the questions to be answered in the list of issues. We have not summarised the law on the definition of disability since that issue was not in dispute. Discrimination Generally[84]The Equality Act 2010 prohibits discrimination on the grounds of various “protected characteristics”, set out at sections 5 to 18. One of these is disability. An employer must not discriminate against an employee by (amongst other things) dismissing them or by subjecting them to any other detriment (sections 39 and 40). There was no dispute here that the claimant was the respondent’s employee within the meaning the Act. Nor was there any dispute that the respondent would be liable under s 109 for any contraventions of the Act done by other employees (e.g. the claimant’s managers).[85]The Equality and Human Rights Commission Employment Code (“the EHRC Code” provides a detailed explanation of the EqA. The Tribunal must take into account any part it that appears relevant to any questions arising in proceedings (s 15 Equality Act 2006).[86]We reminded ourselves that discrimination may be sub-conscious. As Lord Nicholls said, in the context of a case about race discrimination, in Nagarajan v London Regional Transport [1999] IRLR 572: All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. It goes without saying that in order to justify such an inference the tribunal must first make findings of primary fact from which the inference may properly be drawn.[87]S 136 of the EqA makes provisions about the burden of proof. If there are facts from which the Tribunal could decide, in the absence of any other explanation, that there was a contravention of the Act, the Tribunal must hold that there was a contravention, unless the respondent proves that that there was not a contravention. S 136 requires careful attention where there is room for doubt as to the facts necessary to establish discrimination, but have nothing to offer where the Tribunal is in a position to make positive findings on the evidence one way or another (Hewage above). We have not given detailed consideration below to the provisions of s 136 because of the clear factual findings we were able to make and because of the matters which were not in dispute. Discrimination arising from disability[88]By s 15 EqA:(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[89]In T-Systems Ltd v Lewis EAT 0042/15 the EAT said that the phrase “something arising in consequence of” the disability should be given its ordinary and natural meaning. “Unfavourably” is not defined in the EqA, but it was not in dispute in this case that dismissal amounts to unfavourable treatment.[90]As Langstaff J explained in Basildon and Thurrock NHS Foundation Trust v Weerasinghe 2016 ICR 305, two separate causative steps need to be established for a claim to succeed under s 15: the disability had the consequence of “something”, and the claimant was treated unfavourably because of that something.[91]In Pnaiser v NHS England and anor 2016 IRLR 170 and then again in Sheikholeslami v University of Edinburgh 2018 IRLR 1090 Simler J approached the issue in the other order (which is, as was made clear in Weerasinghe, open to the Tribunal). In Sheikholeslami, her Ladyship said: On causation, the approach to S.15… is now well established... In short, this provision requires an investigation of two distinct causative issues:(i) did A treat B unfavourably because of an (identified) something? and(ii) did that something arise in consequence of B’s disability? The first issue involves a [subjective] examination of the putative discriminator’s state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found. If the “something” was a more than trivial part of the reason for unfavourable treatment (it need not be the main or sole reason) then stage (i) is satisfied. The second issue is a question of objective fact [i.e. it will not depend on the person’s thought processes] for an employment tribunal to decide in light of the evidence.[92]The person’s reasons for the unfavourable treatment are to be distinguished form their motive, which is irrelevant. While a broad approach applies when considering stage (ii) there must still be a connection of some kind. As Simler J said in Sheikholeslami, the critical question is whether the ‘something’ arose “in ‘consequence of’ (rather than being caused by) the disability… This is a looser connection that might involve more than one link in the chain of consequences.”[93]The respondent will have a defence if it can show either of the things set out in ss (1)(b) or (2). Subsection (2) was not in issue in this case – the respondent knew about the claimant’s disability at all material times. So far as whether the treatment was a proportionate means of achieving a legitimate aim is concerned, although business needs and economic efficiency may be legitimate aims, the EHRC Code states that an employer simply trying to reduce costs cannot expect to satisfy the test (see para 4.29). As to proportionality, the Code notes that the measure adopted by the employer does not have to be the only possible way of achieving the legitimate aim, but the treatment will not be proportionate if less discriminatory measures could have been taken to achieve the same objective (see para 4.31). A critical evaluation of the evidence is required, entailing a weighing of the needs of the employer against the discriminatory impact on the employee; the Tribunal must carry out its own assessment on this matter, as opposed to simply asking what might fall within the band of reasonable responses of the reasonable employer (Gray v University of Portsmouth EAT 0242/20). It will be necessary to consider whether the treatment was an appropriate and reasonably necessary way to achieve the legitimate aim, and whether something less discriminatory could have been done instead. Reasonable adjustments[94]The requirements of the duty to make reasonable adjustments are set out in s 20 EqA and, by s 21, a failure to comply with the duty amounts to discrimination. For the purposes of this case, the duty applies where a “provision, criterion or practice” (“PCP”) puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled. The disadvantage must be linked to the disability. The duty is to take such steps as it is reasonable to have to take to avoid the disadvantage. “Substantial” means “more than minor or trivial” (s 212 EqA). Paragraph 6.8 of the EHRC Code says that the duty to make reasonable adjustments applies at all stages of employment including dismissal. (The employer is not subject to the duty if it shows that it did not know, and could not reasonably be expected to know, that the person had a disability and was likely to be placed at the relevant disadvantage (Sch 8 Para 20 EqA), but that defence is not raised in this case.)[95]We do not summarise the law about what constitutes a PCP as that point was not in dispute.[96]So far as the burden of proof is concerned, it is for the claimant to establish that the duty has arisen and that there are facts from which it could reasonably be inferred, absent an explanation, that it has been breached. Demonstrating that there is an arrangement causing a substantial disadvantage engages the duty, but it provides no basis on which it could properly be inferred that there is a breach of that duty. There must be evidence of some apparently reasonable adjustment which could be made. It will then be for the respondent to show that it did not fail to comply with the duty. (Project Management Institute v Latif UKEAT/0028/07.)
Conclusions
[97]We turn to consideration of the points in the list of issues (set out below), using the paragraph numbers as they appeared in the original orders. Disability[98]As we have said, none of the matters at para 3 were in dispute – the claimant was disabled at all material times. Discrimination Arising from Disability[99]None of the matters at para 4 were in dispute – the claimant’s sickness absence and his inability to work as a step up marshal and delivery driver arose in consequence of his disability.[100]Regarding para 5.1, all were agreed that the Claimant was dismissed and clearly that was unfavourable treatment. As regards para 5.2, on the basis of our findings we would not characterise it as a failure that the Respondent did not hear the Claimant’s appeal, but clearly the Claimant’s appeal was not heard, albeit for what in our judgement were perfectly good reasons. We should say that extends in our judgement to the decision not to re-open the decision when the Claimant contacted Miss Dyke in March 2022 – the refusal to re-open was, we find, reasonable. Nonetheless, this could all still properly be characterised as unfavourable treatment.[101]Regarding point 6, there is no dispute that the Claimant was dismissed because of the matters arising. The same cannot be said however for the fact that the appeal was not heard (or indeed reopened). In our judgement, that treatment was not because of any of the matters arising. Quite simply the appeal was not heard because of the Claimant’s absence and/or lack of engagement. Whether or not there were good reasons for that absence or lack of engagement, there was never any suggestion that that had anything to do with the Claimant’s disability. Even on the Claimant’s case, the appeal was not heard because he was away caring for his mother which had nothing to do with his disability. Nor did his lack of engagement with the process have anything to do with his disability.[102]We therefore need only to consider whether the dismissal (rather than also the “failure” to hear the appeal) was a proportionate means of achieving a legitimate aim. The short answer to that is yes. As for a longer answer, as we have outlined above, the dismissal was conducted in line with the Respondent’s policy after multiple meetings, the Respondent having gathered all the medical and occupational health evidence it should have done. The Respondent had tried to support the Claimant in redeployment. There was no reasonable chance of the Claimant returning to his current role. That is the conclusion the Respondent reached, quite reasonably in our judgement. Indeed, there was no reasonable chance of the Claimant returning to any sort of work for the foreseeable future. Clearly, it is a legitimate aim for the Respondent to seek not to keep people in employment where there is no prospect of them being able to come back to work. The decision was not made too soon. In our judgement in fact, we cannot see that the Respondent had any other reasonable option but to dismiss the Claimant when it did.[103]Para 8 does not arise for consideration – the respondent did know the claimant was disabled. Reasonable Adjustments[104]The Respondent’s knowledge (para 9) was not an issue here. There is no dispute that the Respondent had a PCP (para 10), its Long Term Sickness Procedure, which was applied to the Claimant.[105]Regarding para 11, Mr Hitchens for the respondent argued that it was somewhat difficult to identify the relevant matter or the substantial disadvantage in this case. It was pointed out to us in Miss Dyke’s evidence that the respondent in some ways treated those with a disability under the Equality Act 2010 more favourably in that, should they meet the minimum requirements for a role, they would be given a trial period after a non-competitive interview. Nevertheless, we do conclude that the PCP put the Claimant at a disadvantage in that persons who are disabled (or at least persons with the Claimant’s disabilities) are considerably more likely to take long periods off sick and therefore to be subject to the process and then ultimately be dismissed. That is not to say that the policy was wrong and indeed it is difficult to see how any reasonable sickness policy might not have that effect. Nevertheless, the requirement to consider reasonable adjustments was in our judgement triggered in this case. The Respondent could, in our judgement, clearly have reasonably been expected to know that the Claimant was likely to be placed at the disadvantage (para 12).[106]Were there steps not taken that could reasonably have been taken to avoid the disadvantage (points 13 and 14)? Could the respondent have avoided applying the policy to the Claimant or adjusted its application so that his dismissal at the end of the procedure was avoided? The specific suggestion made was that the respondent could have offered a sedentary role working from home. For the reasons we have already set out, that adjustment could not reasonably have been made, nor could any other. There was, in our judgement, no prospect of the Claimant being able to do even a sedentary role within a reasonable time period. The Claimant had not been willing or able, in any case, to engage with the alternative roles identified by the Respondent and so we consider that the potential adjustments identified at Point 13.1 would not have been reasonable in this case. Conclusions[107]The claims therefore both for discrimination arising from disability and for failing to make reasonable adjustments are, in our judgement, not well founded.[108]We would have come to the same ultimate conclusions even if we had concluded that the Claimant had in fact left his telephone behind in the UK, given the fact that he could still have contacted the Respondent in other ways. The issue of the lost telephone, although it occupied a considerable amount of the proceedings, was at best a peripheral issue in this case. APPENDIX Edited version of the list of issues prepared by EJ Alliott following the hearing of 5 December 2022 (original paragraph numbers preserved) Disability [No longer in dispute] 3. Was the claimant a disabled person in accordance with the Equality Act 2010 at all relevant times because of the following conditions:• Type 2 diabetes mellitus• Diabetic sensorimotor peripheral neuropathy• Diabetic lumbosacral plexopathy• Diabetic nephropathy (kidney disease)• Knee injury• Back injury• Spinal cord injury Equality Act s.15 discrimination arising from disability 4. Did the following things arise in consequence of the claimant’s disability?4.1 Sickness absence from February 2021 until 18 November 2021.4.2 An inability to work as a Step-Up Marshall and Delivery Driver. 5 Did the respondent treat the claimant unfavourably as follows?5.1 Dismissing the claimant on 18 November 2021 .5.2 Failing to hear the claimant's appeal. 6 Did the respondent dismiss the claimant and/or treat him unfavourably in any of those ways because of any of those things? 7 If so, has the respondent shown that the unfavourable treatment/dismissal of the claimant was a proportionate means of achieving a legitimate aim? 8 Alternatively, has the respondent shown that it did not know and could not reasonably have ben expected to know that the claimant had the disability? Reasonable adjustments: EQA, sections 20 & 21 9. Did the respondent not know and could it not reasonably have been expected to know the claimant was a disabled person? 10. Did the respondent have the following PCPs: 10.1 Applying the long-term sickness process to the claimant. 11. 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? 12. 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? 13. If so, were there steps that were not taken that could have been taken by the respondent to avoid any such disadvantage? The burden of proof does not lie on the claimant, however it is helpful to know what steps the claimant alleges should have been taken and they are identified as follows: 13.1 Offering the claimant a sedentary role such as Customer Service Assistant working form home or in E-commerce Administration. 14. If so, would it have been reasonable for the respondent to have to take those steps at any relevant time? Remedy […]